U.S. Department of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, Wapato, Washington and National Federation of Federal Employees, Local 341 (Kienast, Arbitrator), Case

[ v55 p1230 ]

55 FLRA No. 197

U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
WAPATO IRRIGATION PROJECT
WAPATO, WASHINGTON
(Agency)

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 341
(Union)

0-AR-3129

_____

ORDER DISMISSING EXCEPTIONS

January 14, 2000

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Member Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Philip Kienast 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 Regulations. The Union filed an opposition to the Agency's exceptions. We dismiss the exceptions as interlocutory.

II.     Background and Arbitrator's Award

      In the Spring of 1994, the grievant was an irrigation systems operator, GS-7. On May 3, 1994, his supervisor, the irrigation systems manager, GS-9, retired. The Agency temporarily promoted the grievant to irrigation systems manager, GS-8, three times during the period of 1994-1997. On November 23, 1997, the grievant was competitively promoted permanently to irrigation systems manager. On December 3, 1997, he filed a grievance claiming that except for the temporary promotion periods, at all other times after May 3, 1994, until he was permanently promoted, he performed the duties of the manager position and should have been paid at a higher rate of pay. [ v55 p1231 ]

      Before the Arbitrator, the Agency argued that the grievance was not arbitrable because "[t]he Union affirmed that supervisors are not covered by the bargaining unit and that the grievant was performing supervisory duties." Agency's Post-hearing Brief at 6 (citation omitted). The Agency noted that "the grievant's name was entered on the position description for the Irrigation Systems Manager and the grievant's performance appraisal was accomplished for a position as a supervisor (Irrigation Systems Manager)." Id. Accordingly, the Agency claimed that the Arbitrator lacked jurisdiction because the grievant was not covered by the collective bargaining agreement.

      The Arbitrator ruled that the grievance was arbitrable. He noted that the grievant had been permanently promoted to the manager position on November 23, 1997, and filed the grievance on December 3, 1997. Consequently, he found that the grievance was filed before 21 days had elapsed following the grievant's promotion out of the unit and that it covered his work as a unit employee.

      On the merits, the Arbitrator ruled that the Agency violated the collective bargaining agreement when it failed to pay the grievant at a higher rate of pay while he was assigned the duties of the irrigation systems manager. However, the Arbitrator found insufficient guidance in the record to determine the appropriate remedy. As a result, he ordered the parties to negotiate an appropriate remedy, but retained jurisdiction for the purpose of determining a remedy if the parties were unable to agree.

III.     Positions of the Parties

A.     Agency

      The Agency contends that the award is contrary to the Statute. The Agency asserts that by ruling that the grievance pertained to the duties that the grievant performed as a unit employee, the Arbitrator made a unit determination that under the Statute is reserved exclusively to the Authority. The Agency argues that the grievant's performance of supervisory duties, regardless of whether the performance was in the position of irrigation systems manager or operator, served to exclude the grievant from the bargaining unit. The Agency maintains that under U.S. Small Business Administration and American Federation of Government Employees, Local 2532, AFL-CIO, 32 FLRA 847 (1988) (SBA), the merits of the grievance should not have been addressed until the unit-status question was resolved. The Agency notes that it has filed a petition for clarification of unit with the Authority. The Agency also argues that the Arbitrator made a classification determination in violation of section 7121(c)(5). In addition, the Agency contends that the award is based on a nonfact.

B.     Union

      The Union contends that the Agency's exceptions should be denied and that a unit clarification is unnecessary.

IV.     Order to Show Cause

      The Authority ordered the Agency to show cause why its exceptions should not be dismissed because they were interlocutory. The Authority directed the Agency to show that the award completely resolved all submitted issues or that circumstances exist warranting resolution of the interlocutory exceptions.

      In response, the Agency concedes that all of its exceptions are interlocutory. However, the Agency argues that circumstances exist under U.S. Department of the Treasury, Internal Revenue Service, Los Angeles District and National Treasury Employees Union, Los Angeles Joint Council, 34 FLRA 1161 (1990) (IRS), warranting resolution of its contrary-to-law exceptions at this stage of the proceeding. The Agency asserts that as in IRS, the Arbitrator resolved a question of bargaining-unit status, which warrants resolving its interlocutory exception. The Agency admits that the Arbitrator's award is vague, but asserts that the Arbitrator stated that the grievance covered the grievant's work as a unit employee from which it must be inferred that the Arbitrator determined that the grievant was a unit employee. The Agency further claims that its exception, which contends that the Arbitrator made a classification determination, also warrants resolution at this stage of the proceedings.

V.     Analysis and Conclusions

A.      The Authority's Regulations Generally Preclude Interlocutory Appeals and the Agency's Exceptions are Interlocutory

      Section 2429.11 of the Authority's Regulations provides that ordinarily the Authority will not consider interlocutory appeals. In an arbitration case, this means that the Authority ordinarily will not consider exceptions to an arbitrator's award until the arbitrator has issued a final decision completely determining all issues submitted to arbitration. See, e.g., IRS, 34 FLRA at 1163. In this case, the Arbitrator ordered the parties to negotiate an appropriate remedy and retained jurisdiction for the purpose of determining a remedy if the parties were unable to agree. Consequently, the award is [ v55 p1232 ] not a final decision, and the Agency properly concedes that all of its exceptions are interlocutory.

B.      The Agency Fails to Establish Extraordinary Circumstances Warranting Review

      In IRS, the Authority held that extraordinary circumstances would exist to immediately resolve an interlocutory exception claiming that an arbitrator lacked jurisdiction because the matter was not grievable under the Statute. The Authority based this holding on a conclusion that it would not serve the purposes and policies of the Statute to refuse to resolve that controlling question of jurisdiction as an interlocutory matter when its immediate resolution could advance the ultimate resolution of the case. See id. at 1164.

      The exceptions presented in this case convince us that the broad holding of IRS, under which any jurisdictional issue that would control the outcome of the case warrants interlocutory review, should be modified. This standard, as described in IRS, permits the interlocutory review of a case to be triggered by the mere assertion of a controlling jurisdictional issue by a party. In our view, however, interlocutory review should be reserved for those extraordinary situations where it is necessary. In particular, such review should only be undertaken where the arguments challenging an award in fact present a plausible jurisdictional defect, the resolution of which will advance the ultimate disposition of the case.

      In the award at issue, the Arbitrator was not asked to, and did not, determine the bargaining-unit status of a position--a matter that would have been outside his jurisdiction. [n1]  See SBA, 32 FLRA at 852. The Arbitrator simply observed that the case concerned the grievant's "work as a bargaining unit member." Award at 4 (emphasis in original). Rather than making a bargaining-unit determination, this statement of fact simply reflected the uncontested record presented to the Arbitrator--that the grievant's former position, from which he had been promoted several days prior to filing the grievance, was in the bargaining unit. Any "determination" that this position was in the bargaining unit was made before the grievance was filed, and not by the Arbitrator.

      Similarly, the award does not provide any support for the Agency's claim that the Arbitrator made a classification determination in violation of section 7121(c)(5). The Authority has uniformly and repeatedly held that grievances and arbitration awards over whether a grievant is entitled to a temporary promotion for performing the duties of a higher-graded position do not concern the classification of any position within the meaning of section 7121(c)(5) of the Statute. See, e.g., Social Security Administration, Office of Hearings and Appeals, Mobile, Alabama and American Federation of Government Employees, Local 3627, 55 FLRA 778, 779-80 (1999); U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia and American Federation of Government Employees, Local 987, 37 FLRA 155 158-60 (1990).

      Because the record does not support a determination that the claims, which establish the basis for interlocutory review, are sufficiently supported, we decline to take the extraordinary action of resolving the Agency's contrary-to-law exceptions at this stage of the proceedings. As noted, the Agency has already conceded that its other exception is interlocutory and does not warrant immediate review. Accordingly, we dismiss the Agency's exceptions.

VI.     Order

      The Agency's exceptions are dismissed.



Footnote # 1 for 55 FLRA No. 197