41:0070(8)AR - - AFGE, National Council of EEOC Locals, Local 216 and EEOC - - 1991 FLRAdec AR - - v41 p70
[ v41 p70 ]
The decision of the Authority follows:
41 FLRA No. 8
Before Chairman McKee and Member Armendariz.(*)
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Jerome H. Ross filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
For the following reasons, the Agency's exceptions will be dismissed as interlocutory.
II. Background and Arbitrator's Award
A grievance filed over the grievant's 14-day suspension was submitted to arbitration. Before the Arbitrator, the Agency asserted that the grievance was barred by section 7116(d) of the Statute because an unfair labor practice (ULP) charge previously had been filed over the matter. The Arbitrator concluded that although certain issues raised in the grievance were barred by section 7116(d), the grievance was "arbitrable to the extent that it raises issues concerning the merits of the suspension and the nature of the disciplinary action." Award at 1-2.
III. Agency's Exceptions
The Agency contends that the Arbitrator's finding that a portion of the Union's grievance is arbitrable is contrary to section 7116(d) of the Statute. According to the Agency, prior to the filing of the grievance over the 14-day suspension, the grievant filed: (1) a ULP charge alleging that the grievant had been denied union representation at a job performance review; (2) a second ULP charge alleging the grievant's suspension constituted retaliation for her union activities; and (3) a third ULP charge alleging that the Agency had refused to provide requested information relating to the suspension. The Agency notes that although the first two charges were withdrawn and the third charge settled, the second charge raised the issue of whether the grievant's suspension was warranted. The Agency concludes that as the issue of the merits of the grievant's suspension was raised in a ULP charge, within the meaning of section 7116(d) of the Statute, the grievant is barred from raising the same issue in a subsequently filed grievance.
IV. Union's Opposition
The Union argues that: (1) the Agency's exceptions should be dismissed as interlocutory; and (2) the Arbitrator properly determined that the grievance is arbitrable. As to its first argument, the Union notes that Article 47.03 of the parties' collective bargaining agreement provides that if a grievance is found to be arbitrable, the arbitrator will hear the merits of the grievance. The Union asserts that the Arbitrator's decision on the arbitrability of the grievance concerns the procedural requirements of the grievance procedure and is not subject to review because the matter is still before the Arbitrator.
As to its second argument, the Union claims that the Agency has not established that the issues in the grievance and the ULP charges are the same. According to the Union, consistent with Authority precedent, the Arbitrator properly considered arbitrable only those matters which had not been raised in the ULP charges.
V. Analysis and Conclusions
Section 2429.11 of the Authority's Rules and Regulations provides: "The Authority . . . ordinarily will not consider interlocutory appeals." In arbitration cases, this provision means that the Authority ordinarily will not resolve exceptions filed to an arbitration award unless the arbitration award constitutes a complete determination of all issues submitted to arbitration. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, SSA General Committee, 34 FLRA 373 (1990). Accord Millmen Local 550 United Brotherhood of Carpenters and Joiners of America v. Wells Exterior Trim, 828 F.2d 1373 (9th Cir. 1987) (an arbitration award that postpones the determination of an issue submitted does not constitute a final and binding arbitration award reviewable under section 301 of the Labor Management Relations Act).
In this case, it is clear that the Agency's exceptions are interlocutory. The record establishes that the Arbitrator determined only the arbitrability of the grievance and set forth the issues to be addressed on the merits. Under section 47.03 of the parties' agreement, once an arbitrator determines that a grievance is arbitrable, the arbitrator retains jurisdiction to hear the merits of the issue. The merits of the dispute in this case have not been addressed and no final disposition or remedy has been made.
As stated previously, the Authority ordinarily does not resolve interlocutory appeals. The Agency has not established facts and circumstances war