09:1083(155)AR - San Antonio Air Logistics Center, Kelly AFB, TX and AFGE Local 1617 -- 1982 FLRAdec AR

 9 FLRA No. 155
 
 SAN ANTONIO AIR LOGISTICS CENTER,
 KELLY AIR FORCE BASE, TEXAS
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 1617, AFL-CIO
 Union
 
                                            Case No. O-AR-407
 
                        ORDER DISMISSING EXCEPTIONS
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR BERNARD MARCUS FILED BY THE AGENCY UNDER SECTION 712,(-) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
 PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS.  THE UNION DID NOT
 FILE AN OPPOSITION.
 
    THE DISPUTE IN THIS MATTER CONCERNS THE PAY OF A GROUP OF EMPLOYEES
 WHO WERE SELECTED FOR AN UPWARD MOBILITY TRAINING PROGRAM.  THE
 EMPLOYEES VOLUNTARILY ACCEPTED A REDUCTION IN GRADE FROM HIGHER LEVEL
 WAGE GRADE POSITIONS AND WERE GRANTED PAY RETENTION BENEFITS PURSUANT TO
 5 U.S.C. 5363.  IN ACCORDANCE WITH THAT SECTION THE ACTIVITY ONLY
 GRANTED THE EMPLOYEES A PARTIAL AMOUNT OF THE 1981 COMPARABILITY
 INCREASE IN SCHEDULED PAY RATES.  A GRIEVANCE WAS FILED PROTESTING THIS
 ACTION AND WAS ULTIMATELY SUBMITTED TO ARBITRATION.
 
    THE ACTIVITY CONTENDED BEFORE THE ARBITRATOR THAT THE MATTER WAS NOT
 ARBITRABLE BECAUSE THE IDENTICAL ISSUE HAD BEEN RAISED IN ANOTHER
 ARBITRATION AND THAT THE AWARD IN THAT CASE WAS CURRENTLY PENDING ON
 APPEAL BEFORE THE AUTHORITY.  THE ACTIVITY ALSO CONTENDED, AS IT HAD IN
 THE PREVIOUS CASE, THAT THE MATTER WAS EXCLUDED FROM GRIEVANCE AND
 ARBITRATION PROCEDURES BY 5 U.S.C. 5366(B)(1).  /1/
 
    THE ARBITRATOR ACKNOWLEDGED THAT THE PARTIES HAD A VIRTUALLY
 IDENTICAL CASE PENDING BEFORE THE AUTHORITY (CASE NO. O-AR-186) IN WHICH
 THE AGENCY SIMILARLY CLAIMED THAT THE ARBITRATOR'S AWARD WAS DEFICIENT
 BECAUSE THE GRIEVANCE PERTAINED TO AN ACTION BARRED FROM GRIEVANCE
 ARBITRATION BY 5366(B)(1).  NOTING THAT THE AUTHORITY'S RESOLUTION OF
 THIS ISSUE WOULD BE BINDING AND DISPOSITIVE, THE ARBITRATOR DETERMINED
 THAT RETENTION OF JURISDICTION AND RESERVATION OF DECISION WAS THE MOST
 PRUDENT COURSE OF ACTION.  ACCORDINGLY, AS HIS AWARD THE ARBITRATOR
 RULED THAT THE FACT THAT AN IDENTICAL CASE WAS PENDING BEFORE THE
 AUTHORITY DID NOT PRECLUDE ARBITRATION OF THE ONE BEFORE HIM, BUT HE
 RESERVED RULING ON THE MERITS PENDING THE DECISION OF THE AUTHORITY IN
 CASE NO. O-AR-186.
 
    IN ITS EXCEPTION, THE AGENCY CONTENDS, AS IT HAS ESSENTIALLY
 CONTENDED IN ITS EXCEPTIONS IN CASE NO. O-AR-186 CURRENTLY PENDING
 BEFORE THE AUTHORITY, THAT THE AWARD FINDING THE GRIEVANCE ARBITRABLE IS
 CONTRARY TO SECTION 5366(B)(1).
 
    SECTION 2429.11 OF THE AUTHORITY'S RULES AND REGULATIONS PROVIDES:
 "THE AUTHORITY AND THE GENERAL COUNSEL ORDINARILY WILL NOT CONSIDER
 INTERLOCUTORY APPEALS." IN THIS CASE THE AGENCY'S APPEAL CONTENDING THE
 AWARD IS CONTRARY TO 5 U.S.C. 5366(B)(1) IS CLEARLY INTERLOCUTORY.  THE
 ARBITRATOR SPECIFICALLY REFUSED TO ADDRESS THE QUESTION OF THE
 APPLICABILITY OF SECTION 5366(B)(1) AND RESERVED RULING ON THE MERITS OF
 THE CASE UNTIL AFTER THE AUTHORITY REVIEW.
 
    ACCORDINGLY, THE AGENCY'S EXCEPTIONS ARE HEREBY DISMISSED AS
 INTERLOCUTORY. HOWEVER, THE DISMISSAL IS WITHOUT PREJUDICE TO THE
 RENEWAL OF THE AGENCY'S CONTENTIONS IN EXCEPTIONS DULY FILED WITH THE
 ARBITRATOR.
 
    FOR THE AUTHORITY.
 
    ISSUED, WASHINGTON, D.C., AUGUST 31, 1982
 
                   JAMES J. SHEPARD, EXECUTIVE DIRECTOR
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 U.S.C. 5366(B)(1) PROVIDES THAT "ANY ACTION WHICH IS THE BASIS
 OF AN INDIVIDUAL'S ENTITLEMENT TO BENEFITS UNDER (5 U.S.C. 5362-5363)"
 IS NOT GRIEVABLE UNDER A GRIEVANCE PROCEDURE NEGOTIATED UNDER THE
 STATUTE.