33:0757(88)AR - - Air Force, Carswell AFB, TX and AFGE Local 1364 - - 1988 FLRAdec AR - - v33 p757
[ v33 p757 ]
The decision of the Authority follows:
33 FLRA No. 88
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE AIR FORCE
CARSWELL AIR FORCE BASE, TEXAS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
On August 30, 1988, the Agency filed exceptions to the award of Arbitrator John A. Bailey pursuant to 5 U.S.C. § 7122(a) and 5 C.F.R. § 2425.1. The Arbitrator has filed a letter on the merits of his award that has not been considered. The Arbitrator has no standing to argue the merits of his award before the Authority because he did not participate as a party in this proceeding. 5 C.F.R. § 2421.11(a)(4)(ii), 5 U.S.C. § 7103(a)(1), and 5 C.F.R. § 2425.1(a). The Union has filed a letter opposing the Agency's exceptions on the basis that the exceptions are interlocutory and must be dismissed. We agree.
The record indicates that the Arbitrator determined in his interim award dated February 26, 1988, the issue before him to be whether the grievant, rather, than a certain other employee, would have been promoted to a specific position but for alleged anti-union discrimination against him as the president of the union; or, alternatively, whether the Agency violated any other law, rule, or regulation or contractual provision in using unfair criteria to evaluate the promotion candidates. As part of his interim award, the Arbitrator directed management to re-study and re-do the point system for evaluating the promotion candidates, and to reevaluate the grievant and the other employee consistent with his opinion and award. The Arbitrator specifically retained jurisdiction in order for the Union, if aggrieved by the result of management's reevaluation of the promotion candidates, to challenge in the arbitration proceeding the fairness of the point system. Finally, the Arbitrator deferred deciding whether the circumstantial evidence of anti-union discrimination amounted to a preponderance of the evidence.
On July 27, 1988, the Arbitrator issued another award finding that: (1) the Union had not proven anti-union discrimination by a preponderance of the evidence; and (2) the Agency's reevaluation of the promotion candidates was faulty because it was based on a point system that was still unfair after its revision. The Arbitrator awarded another reevaluation of the promotion candidates after making specific adjustments to the point system. He stated that, "[T]he union may see fit to again challenge the agency's action [in promoting a candidate] on the ground of unfairness. Accordingly, I will retain jurisdiction."
The Agency's exceptions to the Arbitrator's award of July 27, 1988, are interlocutory. An interlocutory appeal concerns a ruling which is preliminary to final disposition of a matter. 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. U.S. Small Business Administration and American Federation of Government Employees, Council 228, Local 2532, AFL-CIO, 32 FLRA 699 (1988).
It is clear that the Arbitrator has not yet rendered a final award on the entire dispute in this case. He expressly retained jurisdiction to afford the Union another opportunity to challenge the Agency's promotion action on the ground of unfairness. Thus, the Agency's exceptions are considered interlocutory and the facts and circumstances are not such as to 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).
Accordingly, since the Agency's exceptions are interlocutory, the exceptions are dismissed. However, the dismissal is without prejudice to the renewal of any of the Agency's contentions in exceptions duly filed with the Authority after a final award is rendered by the Arbitrator.
For the Authority.
Issued, Washington, D.C.,
Clyde B. Blandford, Jr.
Acting Executive Director