47:0525(46)AR - - AFGE, National Council of EEOC Locals No. 216 and EEOC - - 1993 FLRAdec AR - - v47 p525
[ v47 p525 ]
The decision of the Authority follows:
47 FLRA No. 46
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
NATIONAL COUNCIL OF EEOC LOCALS NO. 216
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
ORDER DISMISSING EXCEPTIONS
April 30, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Joseph Lazar 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.(*)
In an "interim award," the Arbitrator ruled that he was properly selected as a national arbitrator. Award at 1, 9. The Arbitrator stated that unless the parties disqualified him pursuant to the provisions of their collective bargaining agreement, "a hearing date for the New Orleans case, on its substantive merits, will be scheduled." Id. at 8-9.
For the following reasons, we will dismiss the Agency's exceptions to the Arbitrator's interim award as interlocutory.
II. Background and Arbitrator's Award
Section 44.02 of the parties' national collective bargaining agreement provides for the selection of three permanent national arbitrators to resolve grievances arising under the negotiated grievance procedure. Article 8 of the national agreement provides procedures for resolving negotiation disputes, including a provision for selecting three permanent mediator/arbitrators to decide negotiation disputes. In June 1991, the parties began the process of selecting national arbitrators and mediator/arbitrators and requested two lists of potential arbitrators from the Federal Mediation and Conciliation Service (FMCS). However, after the lists were received, the parties disagreed as to how to proceed. In a meeting on April 28, 1992, the Agency refused to participate with the Union in the striking of names from the list to determine the three national arbitrators who would hear and resolve grievances under section 44.02 of the agreement. The Agency contended that the Union must first participate in the selection of mediator/arbitrators under Article 8 of the agreement.
The Union then unilaterally struck names from the list of arbitrators provided by FMCS under Article 44 of the agreement and chose three arbitrators, including the Arbitrator involved in the instant case, as national arbitrators. In a letter dated May 27, 1992, to the Arbitrator, the Union stated that: (1) in late April 1992, the Agency had refused to participate with the Union in the joint selection of national arbitrators; (2) the Union had unilaterally selected the Arbitrator as one of the three national arbitrators in accordance with Article 44 of the parties' agreement; and (3) two cases were awaiting arbitration and the Union requested availability dates to hear the cases.
By letter of July 22, 1992, the Arbitrator notified the Agency and the Union that on July 30, 1992, he would hold a "preliminary hearing on threshhold [sic] question of interpretation and application of section 44.03 of collective bargaining agreement: selection of the national arbitrators." Exceptions, Exhibit 14. The Agency advised the Arbitrator that it would not attend the hearing on the ground that, among other things, the Arbitrator was not selected pursuant to the parties' agreement. The Union appeared at the hearing. On August 6, 1992, the Arbitrator issued the interim award which is now before us.
In his interim award, the Arbitrator referred to Article 44 of the parties' agreement and found that "the Agency refused to strike [a]rbitrators at all [which] was a plain, clear, unequivocal denial of the mandatory requirement that the [p]arties shall strike [arbitrators from the FMCS list]." Award at 5 (emphasis omitted). The Arbitrator ruled that the Agency was not entitled to insist that if there were no selection of mediator/arbitrators under Article 8 of the agreement, there would be no selection of national arbitrators under Article 44. The Arbitrator held that "when the Agency insisted on a condition not present in . . . Section 44.03, and gave up its right to strike [arbitrators from the FMCS list], it was estopped from objecting to the Union's unilateral striking [of arbitrators from the FMCS list]." Id.
The Arbitrator held that "he possesses the authority and jurisdiction of a [n]ational [a]rbitrator under the provisions of the [c]ollective [b]argaining [a]greement." Id. The Arbitrator also observed that the parties "have further safeguards built into their [a]greement," particularly Article 44, which provides a method by which either party may object to a national arbitrator and request that such an arbitrator be disqualified. Id. at 8. He stated that "[i]n this event, disqualification by the present arbitrators [sic] may be expected. Otherwise, a hearing date for the New Orleans case, on its substantive merits, will be scheduled." Id. at 8-9. He made the following award:
The National Arbitrator was properly selected under the Collective Bargaining Agreement and has authority and jurisdiction of National Arbitrator.
The Opinion section of this Interim Award is incorporated herein.
Id. at 9.
III. The Agency's Exceptions Are Timely
As an initial matter, we note that in its opposition to the Agency's exceptions, the Union asserts that the exceptions are untimely. Under section 2425.1(b) of the Authority's Rules and Regulations, the time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. &§ 2425.1(b). Absent evidence to the contrary, the date of an arbitration award is presumed to be the date of service. See U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local 39, 42 FLRA 322, 326 (1991). If the award is served by mail, 5 days are added to the period for filing exceptions to the award. 5 C.F.R. &§ 2429.22.
In this case, the Arbitrator's award was dated August 6, 1992, and was served on the parties by mail. Therefore, any exception to the award had to be filed with the Authority no later than September 9, 1992, to be considered timely. 5 C.F.R. &§&§ 2425.1(b), 2429.21 and 2429.22. As the Agency's exceptions were filed (postmarked) on September 9, 1992, they are timely. See American Federation of Government Employees, Local 2142 and U.S. Department of the Army, Corpus Christi Army Depot, Corpus Christi, Texas, 46 FLRA 61, 63-64 (1992).
IV. The Agency's Exceptions Are Interlocutory
Following receipt of the Agency's exceptions, we issued an order directing the Agency to show cause why its exceptions should not be dismissed as interlocutory. The order stated, among other things:
In this case, it appears that the Arbitrator has not yet rendered a final award on the entire dispute submitted for arbitration. The record shows that the Arbitrator made a determination only on the propriety of his selection, authority, and jurisdiction as a National Arbitrator under the parties' negotiated agreement. The Arbitrator's award specifically states that "a hearing date for the New Orleans case, on its substantive merits, will be scheduled."
Order to Show Cause at 1 (quoting Award at 8-9). The order further stated that, to comply with the order, the Agency "must show that the parties did not submit the entire matter of 'the New Orleans case, on its substantive merits[,]' to the [A]rbitrator for resolution. In the alternative, the Agency must show that extraordinary circumstances exist for the Authority to consider the Agency's interlocutory exceptions." Id. at 2.
A. Positions of the Parties
1. The Agency
The Agency asserts that its exceptions are not interlocutory and that the New Orleans case was not submitted to the Arbitrator. The Agency contends that the parties did not submit the substantive merits of the case in the New Orleans District Office or any other case to the Arbitrator and asserts that the Agency was not a party to any matter before the Arbitrator. The Agency maintains that the Arbitrator's award "was not interim to any specific grievance." Agency's Response to Order to Show Cause at 3. The Agency contends that the issue decided by the Arbitrator concerned only his authority as a national arbitrator and asserts that this issue has been "fully litigated." Id.
In its supplemental submission, the Agency asserts that the Arbitrator's letter of January 27, 1993, demonstrates that the Arbitrator's award "was not limited to the 'New Orleans grievance,' and therefore interlocutory, as contended by the Union and as suggested by the Authority's Order to Show Cause." Supplemental Submission at 4. According to the Agency, the letter shows that the Arbitrator "has stated a willingness to hear a number of grievances [and] [t]hus, it has become even more compelling that his 'award' was not interlocutory, but rather final as to his conclusion that he had proclaimed himself to be the National Arbitrator for all purposes." Id.
The Agency also notes that the New Orleans case referred to by the Arbitrator concerns a removal for unsatisfactory performance under 5 U.S.C. &§ 4303 and maintains that the award would not be subject to the filing of exceptions with the Authority if the award were treated as interlocutory and the Agency's exceptions were not considered at this time.
The Agency further contends that, if the Authority finds that the exceptions are interlocutory, extraordinary circumstances within the meaning of the Authority's Rules and Regulations exist warranting consideration of the exceptions. The Agency asserts that if the Arbitrator is allowed to continue to adjudicate issues brought before him by the Union, "the result will be an extraordinary increase in expense to the Government and a serious disruption of the functioning of the Agency." Id. at 5. The Agency maintains that it will not participate in further arbitrations before the Arbitrator and that any ex parte awards rendered by the Arbitrator will be excepted to by the Agency and will create additional litigation burdens on the parties.
2. The Union
The Union contends that the Agency's exceptions are interlocutory and maintains that the Arbitrator's award resolved only the threshold issue of arbitrability. The Union asserts that the Arbitrator "clearly referred to his award as an 'Interim Award' and further indicated that the Agency should reconsider its refusal to arbitrate" or he would schedule a hearing on the merits of the New Orleans case. Opposition to Agency's Response to Order to Show Cause at 2. The Union maintains that "by its very terms the [A]rbitrator's award was not a complete determination of every issue but an interlocutory award which contemplated further hearings on the substantive issues in New Orleans." Id.
B. 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, 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 American Federation of Government Employees, National Council of EEOC Locals, Local 216 and Equal Employment Opportunity Commission, 41 FLRA 70, 72 (1991).
We conclude that the Agency's exceptions to the Arbitrator's award in this case are interlocutory and must be dismissed. The record establishes that the Arbitrator determined his authority as a national arbitrator under Article 44 of the parties' collective bargaining agreement only as a threshold matter preliminary to resolution of the grievance pending in the Agency's New Orleans District Office. Based on the record before us, there is no indication that there has been a complete determination of the issues in the grievance pending in the Agency's New Orleans District Office. In this regard, after concluding that he possessed "the authority and jurisdiction of a [n]ational [a]rbitrator under the provisions of the [c]ollective [b]argaining [a]greement[,]" the Arbitrator stated that "a hearing date for the New Orleans case, on its substantive merits, will be scheduled." Id. at 8-9. We note also that the Arbitrator designated his award as an "interim award." Id. at 1, 9.
We reject the Agency's contention that the Arbitrator's letter of January 27, 1993, demonstrates that the Arbitrator's award "was not limited to the 'New Orleans grievance,' and therefore interlocutory, as contended by the Union and as suggested by the Authority's Order to Show Cause." Supplemental Submission at 4. In the letter, the Arbitrator states, in pertinent part, that "the Union's request for consolidation of grievances, and hearing dates, time and location are acceptable." Id., Attachment. In our view, the letter supports the conclusion that the award is interlocutory because it did not completely resolve all issues that were submitted to arbitration.
We also reject the Agency's contention that the award is not interlocutory because the New Orleans grievance concerns a performance-based removal of an employee under 5 U.S.C. &§ 4303 and, therefore, is not subject to the filing of exceptions with the Authority. A determination as to whether an award is final or interlocutory depends on whether there has been a complete determination of all issues submitted to arbitration, not on whether exceptions to that award may properly be filed with the Authority. Questions as to whether an award is subject to the filing of exceptions with the Authority may be resolved after an award is final and a party takes exceptions to the final award.
Consequently, we find that the award in this case was not final and the Agency's exceptions are interlocutory. Moreover, we conclude that the Agency has not shown that any circumstances exist which warrant a departure from our practice of generally not resolving interlocutory appeals.
Accordingly, we conclude that the award constitutes an interim award pending a final determination by the Arbitrator on the grievance in the New Orleans District Office and that the Agency's exceptions are interlocutory. As the Agency has not demonstrated that extraordinary circumstances exist warranting consideration of its exceptions at this time, the exceptions are not properly before us under section 7122(a) of the Statute. The Agency's exceptions will be dismissed.
The Agency's exceptions are dismissed without prejudice to the timely filing of any exceptions with the Authority after a final award is rendered by the Arbitrator.
(If blank, the decision does not have footnotes.)
*/ On February 18, 1993, the Agency requested permission to file a supplemental submission in which the Agency requested that the Authority take action to prevent the Arbitrator from holding a hearing on February 22 and 23, 1993. Pursuant to section 2429.26 of our Rules and Regulations, we considered the Agency's submission and found that it provided no basis on which the Authority should order the requested action. Accordingly, no action was taken on the Agency's request.
In its request of February 18, 1993, the Agency also requested leave to file a letter from the Arbitrator, dated January 27, 1993, after the Agency filed exceptions in this case, as supplemental evidence in support of its exceptions.
The letter concerned the scheduling of hearings on pending grievances. Pursuant to section 2429.26 of our Rules and Regulations, the Agency's request is granted. See U.S. Customs Service, 46 FLRA 1080 (1992) (union permitted to file a supplemental submission addressing applicability of