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32 FLRA No. 23

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

DEPARTMENT OF TRANSPORTATION
and FEDERAL AVIATION ADMINISTRATION
Respondents

and 

PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS, MEBA, AFL-CIO
Charging Party

Case Nos. 3-CA-70647-1,2
3-CA-70648-1,2; 3-CA-70649-1,2 
3-CA-70650-1,2; 3-CA-70651-1,2

ORDER

The Respondents filed a "Request For Special Permission To Appeal Administrative Law Judge's Denial of Respondents' Motion to Dismiss, To Strike, and For Other Appropriate Relief." The General Counsel filed an opposition to the Respondents' request.

The Respondents' request was filed after the Supreme Court issued its decision in FLRA v. Aberdeen Proving Ground, Department of the Army, 108 S. Ct. 1261 (1988). In that case, the Court held that the exclusive procedure for determining whether there is a compelling need for an agency regulation is the procedure set forth in section 7117(b) of the Federal Service Labor-Management Relations Statute, and that a compelling need determination may not be made in connection with an unfair labor practice proceeding. The Respondents assert that under Aberdeen Proving Ground the Administrative Law Judge (ALJ) does not have subject matter jurisdiction over compelling need issues and that if the ALJ is permitted to rule on any aspect of the complaints, they will suffer harm in that they will be required to file briefs and exceptions.

The Respondents' request is an interlocutory appeal of the ALJ's order denying the Respondents' motion. Section 2429.11 of the Authority's Rules and Regulations states that the Authority ordinarily will not consider interlocutory appeals. The Respondents have failed to demonstrate the existence of extraordinary circumstances which would warrant the granting of their request. The issuance of the Court's decision in Aberdeen Proving Ground does not lead to a contrary conclusion. We conclude that the posture of this case makes it particularly unsuitable for granting an interlocutory appeal. A hearing has been held and all that remains before the ALJ issues a decision is the filing of post-hearing briefs. Furthermore, we note that the parties apparently disagree as to the impact of Aberdeen Proving Ground on this case. The Respondents may address the effect of Aberdeen Proving Ground, and any other matters, in their post-hearing brief and in exceptions filed with the Authority after the ALJ issues his decision.

Accordingly, the request is denied.

Issued, Washington, D.C.,

________________________
Jerry L. Calhoun, Chairman
Jean McKee, Member

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

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