33:0868(119)AR - - Philadelphia Naval Shipyard and Philadelphia MTC - - 1989 FLRAdec AR - - v33 p868
[ v33 p868 ]
The decision of the Authority follows:
33 FLRA No. 119
FEDERAL LABOR RELATIONS AUTHORITY
PHILADELPHIA NAVAL SHIPYARD
PHILADELPHIA METAL TRADES COUNCIL
July 14, 1989
On August 12, 1988, the Philadelphia Naval Shipyard (the Agency) filed exceptions to the July 14, 1988, award of Arbitrator Edward A. Pereles pursuant to 5 U.S.C. § 7122(a) and 5 C.F.R. § 2425.1(a). The Philadelphia Metal Trades Council (the Union) filed an opposition. For the reasons expressed below, the Agency's exceptions must be dismissed as interlocutory.
In his July 14, 1988, decision, the Arbitrator found that the Agency violated law, implementing regulations and the parties negotiated agreement when it changed the basic workweek for Production Department employees on the third shift effective May 25, 1987.
Accordingly, the Arbitrator ordered the Agency to return all affected employees to the work schedule in effect prior to May 25, 1987. However, the Arbitrator remanded to the parties the issue of whether any of the affected employees would have been entitled to overtime for work which was "unlawfully" denied to them. Award at 18. The Arbitrator asked the parties to review the work schedules of the affected employees to determine if any employee was due overtime remuneration under the award. The Arbitrator also stated that he would retain jurisdiction during the period of the review for the sole purpose of assisting the parties in their deliberations. Finally, the Arbitrator stated that if he was not advised on or before October 1, 1988, that the deliberations had been satisfactorily concluded, he would rule on whether any employees were entitled to overtime remuneration for work which was denied to them due to the Agency's unlawful actions, thus, "disposing of any and all liability of the Agency based on the record before him." Award at 18.
Section 2429.11 of the Authority's Rules and Regulations provides: "The Authority . . . ordinarily will not consider interlocutory appeals." That is, the Authority ordinarily will not consider an appeal until a final decision has been rendered on the entire proceeding.
It is clear that the Arbitrator has not rendered a final award. The Arbitrator concluded that the Agency violated the parties' agreement and ordered that the Agency return all affected employees to the schedule in effect prior to May 24, 1987. The Arbitrator, however, did not rule on the issue of whether the affected employees were entitled to overtime remuneration under the award. Instead, the Arbitrator instructed the parties to review the work schedules of the affected employees to determine if any employee was entitled to overtime remuneration under the award. Further, the Arbitrator retained jurisdiction for the purpose of assisting the parties. He also stated in his July 14, 1988, award that if the parties had not reached a satisfactory conclusion by October 1, 1988, he would rule on the issue of the liability of the Agency based on the record before him.
Since the Arbitrator's award to which the exceptions were filed is not yet final, the Agency's exceptions are interlocutory. As previously noted, section 2429.11 of the Authority's Rules and Regulations provides that the Authority "ordinarily will not consider interlocutory appeals." The Agency has not claimed or otherwise established any basis in its exceptions for the Authority to consider the interlocutory appeal. Therefore, the exceptions do not warrant review at this time. See U.S. Small Business Administration and American Federation of Government Employees, Council 228, Local 2532, AFL-CIO, 32 FLRA 699 (1988); Navy Public Works Center, San Diego, California and National Association of Government Employees, Local R12-35, 27 FLRA 407 (1987); and Social Security Administration and Local 3239, American Federation of Government Employees, AFL-CIO, 21 FLRA 22 (1986).
Accordingly, the Agency's exceptions are dismissed. However, this 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.