33:0340(42)AR - - HHS and AFGE - - 1988 FLRAdec AR - - v33 p340



[ v33 p340 ]
33:0340(42)AR
The decision of the Authority follows:


33 FLRA No. 42

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

0-AR-1610

ORDER DISMISSING EXCEPTIONS

On September 9, 1988, the Agency filed exceptions to the award of Arbitrator Edward Levin, pursuant to 5 U.S.C. § 7122(a) and 5 C.F.R. § 2425.1. For the reasons set out below, the Agency's exceptions must be dismissed as interlocutory.

The record indicates the Arbitrator determined the issues to be resolved were: (1) whether the suspension of the grievant was for just cause and, if not, what shall the remedy be; (2) whether the grievant's suspension was arbitrable under the terms of the parties' collective bargaining agreement; and (3) whether issues decided in an unfair labor practice proceeding involving these same parties might also be raised in an arbitration proceeding pursuant to a negotiated grievance procedure set out in the parties' collective bargaining agreement.

The Agency moved for a summary judgement to dismiss the arbitration on the grounds of res judicata. A final decision on the same grievant's suspension was issued by the Authority's New York Regional Director. In that decision, the New York Regional Director dismissed an unfair labor practice charge filed by the Union on the Agency's refusal to participate in the arbitral process concerning the grievant's suspension. The Regional Director ruled that the Union made an election of remedy under 5 U.S.C. § 7121, i.e., to proceed under a statutory appeals procedure, by filing an EEO complaint. Therefore, the Union was precluded from pursuing arbitration on that same matter. The Agency also argued that the Union failed to file a proper grievance in accordance with the parties' agreement.

On July 30, 1988, the Arbitrator ruled that the Agency could not unilaterally bifurcate the procedural and substantive issues at the proceeding without an agreement by the parties. Since there was no such agreement, he declared that a "hearing be scheduled for the purpose of hearing all of the issues . . . ."

The Authority's review of the record in this case raises the question of whether the Agency's exceptions are interlocutory. The Authority "ordinarily will not consider interlocutory appeals." 5 C.F.R. § 2429.11. In an arbitration case, this means that the Authority ordinarily will not consider an appeal of an Arbitrator's ruling until the Arbitrator has issued a final decision. American Federation of Government Employees, General Committee and Department of Health and Human Services, Social Security Administration, 32 FLRA 173 (1988); American Federation of Government Employees, General Committee and Department of Health and Human Services, Social Security Administration, 32 FLRA 175 (1988).

In this case, it is clear the Arbitrator has not yet rendered a final award on the dispute. The record shows that the Arbitrator merely made a determination regarding the issues to be addressed at the arbitration proceeding. No final disposition or remedy in the dispute has been made. Thus, the Agency's exceptions are interlocutory and the facts and circumstances do not warrant review of the exceptions at this time. See Navy Public Works Center, San Diego, California, and National Association of Government Employees, Local R12-35, 27 FLRA 407, 408 (1987).

In addition, even if the exceptions could arguably be considered, they are untimely filed. The time limit for filing exceptions to an Arbitrator's award is 30 days from the date the award is served on the filing party. 5 U.S.C. §7122(b) and 5 C.F.R. § 2425.1(b). The date of service is the day the document is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). The Arbitrator's award is dated July 30, 1988, and was served on the parties on that date. Five days are added to the period for filing exceptions if the award is served by mail. 5 C.F.R. §2429.22. Therefore, in order to be timely filed, the Agency's exceptions had to be either postmarked or hand delivered no later than September 6, 1988. 5 C.F.R. §2429.21(b). The Agency's exceptions were delivered by hand on September 9, 1988.

Accordingly, the Agency's exceptions are dismissed without prejudice to refile with the