United States, Department of the Treasury, Customs Service, Tucson, Arizona (Agency) and National Treasury Employees Union, Chapter 116 (Union)

[ v58 p358 ]

58 FLRA No. 84

UNITED STATES
DEPARTMENT OF THE TREASURY
CUSTOMS SERVICE
TUCSON, ARIZONA
(Agency)

and

NATIONAL TREASURY EMPLOYEES UNION
CHAPTER 116
(Union)

0-AR-3553

_____

ORDER DISMISSING EXCEPTIONS

February 13, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Howard V. Finston filed by the Agency under § 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.

      The Arbitrator revoked the Agency's temporary suspensions of the grievant's authorization to carry his service weapon for certain specified periods and asked the parties to consider a monetary remedy. We find that the Agency's exceptions are interlocutory and that no extraordinary circumstances have been presented for addressing those exceptions. Accordingly, we dismiss the exceptions without prejudice.

II.      Background and Arbitrator's Award

      On February 21, 1997, the grievant was involved in a domestic disturbance and was arrested. The grievant notified his supervisor of his arrest, and on February 26, 1997, the Agency placed him on administrative leave and removed his authorization to carry his service weapon. On March 4, 1997, the grievant was returned to duty in an administrative capacity that did not require him to carry his weapon. On June 30, 1997, his authorization to carry his service weapon was restored and he was returned to regular duty.

      On March 10, 1998, the Agency again suspended the grievant's authorization to carry his service weapon after receiving documentation of the grievant's guilty plea to misdemeanor assault for the incident of February 21, 1997. During an investigation by the Agency, the grievant was again assigned administrative duties that did not require him to carry his weapon. On May 4, 1998, his authorization to carry his service weapon was restored.

      The grievant filed a grievance disputing the Agency's actions. When the grievance was not resolved under the parties' dispute resolution procedures, the Union invoked arbitration in 1999 and a hearing was held by the Arbitrator in 2002. The Arbitrator stated that the parties did not agree on the issues before the Arbitrator. Accordingly, the Arbitrator stated the issues as follows:

(1) whether or not the grievance is arbitrable, and (2) if so, did the [Agency] administer the Firearms policy in an arbitrary or capricious manner when it removed [the grievant's] weapon in February of 1997 and in March of 1998.

Award at 2.

      The Arbitrator first determined that the grievance was arbitrable. On the merits, the Arbitrator ruled that the initial temporary suspensions of the grievant's authorization to carry his service weapon on February 26, 1997, and March 10, 1998, were reasonable exercises of managerial discretion in administering firearm policy. However, he ruled that the length of the suspensions was "excessive and arbitrary." Id. at 14. Accordingly, he ordered as follows:

[T]he 1997 weapon suspension during the months of May and June, 1997, is revoked, as is the 1998 suspension for the period from April 4, 1998, to May 4, 1998. The parties are asked to consider whether [the grievant] was denied overtime or other earnings opportunities during the revoked suspension periods, and if so, what monetary compensation would be appropriate. The arbitrator will retain jurisdiction in order to assist in resolving any disagreements with respect to a monetary remedy.

Id. at 15. [ v58 p359 ]

III.       Positions of the Parties

      The Agency does not view the award to be final and considers its exceptions to be interlocutory. However, the Agency states that it filed the exceptions to protect its appeal rights in case the Authority rules that its exceptions are not interlocutory.

      The Agency contends that its exceptions are interlocutory because the Arbitrator failed to determine completely all of the issues submitted to arbitration. The Agency maintains that the grievance involved both the issue of whether the Agency wrongfully suspended the grievant's authorization to carry his service weapon and the issue of whether the Agency's actions deprived the grievant of overtime earnings he would otherwise have received. The Agency notes that the parties agreed to hold the remedy issue in abeyance until the Arbitrator ruled on whether the Agency wrongfully suspended the grievant's weapon authorization. The Agency states that this is why the Arbitrator asked the parties to consider appropriate monetary relief. The Agency asserts that as the Arbitrator has retained jurisdiction over the remedy issue, under Authority precedent the award is not final.

      The Union disagrees. The Union contends that the Arbitrator answered all of the issues presented to him and that the award should be considered final. The Union claims that it did not present the issue of a remedy to the Arbitrator and that as noted by the Agency, the parties agreed to defer the remedy issue. The Union states that it envisioned a separate hearing on remedy. Accordingly, the Union asserts that the Arbitrator exceeded his authority when he retained jurisdiction over the remedy issue.

IV.      Analysis and Conclusions

      Section 2429.11 of the Authority's Regulations provides: "[T]he Authority . . . ordinarily will not consider interlocutory appeals." In arbitration cases, this means that ordinarily, the Authority will not resolve exceptions filed to an arbitration award unless the award constitutes a complete resolution of all of the issues submitted to arbitration. See, e.g., United States Dep't of Health and Human Services, Ctrs. for Medicare and Medicaid Services, 57 FLRA 924 (2002) (HHS); AFGE National Council of EEOC Locals No. 216, 47 FLRA 525, 530 (1993). In other words, the Authority ordinarily will not resolve exceptions to an arbitration award until the arbitrator has issued a final decision on the entire proceeding. See HHS, 57 FLRA at 926; Navy Public Works Ctr., San Diego, Cal., 27 FLRA 407, 408 (1987).

      Consequently, an arbitration award that postpones the determination of an issue submitted does not constitute a final award subject to review. See HHS, 57 FLRA at 926; AFGE Local 12, 38 FLRA 1240, 1246 (1990). Exceptions are considered interlocutory when the arbitrator has declined to make a final disposition as to a remedy. See HHS, 57 FLRA at 926. Similarly, the parties' agreement to conduct a separate hearing on a threshold issue does not operate to convert the arbitrator's threshold ruling into a final award subject to exceptions being filed under § 7122 of the Statute. See HHS, 57 FLRA at 926; United States Dep't of the Treasury, Internal Revenue Serv., Los Angeles Dist., 34 FLRA 1161, 1163 (1990); Dep't of the Army, Oakland Army Base, 16 FLRA 829, 830 (1984).

      Applying this approach in this case, we find that the Agency's exceptions are interlocutory. The Arbitrator did not make a final disposition as to a monetary remedy. Instead, he asked the parties to consider whether monetary compensation was appropriate, and he specifically retained jurisdiction to assist in resolving any disagreements with respect to a monetary remedy. As the issue of a monetary remedy has been postponed, the award does not constitute a final award subject to review. Although the Union argues that the remedy issue was not submitted to this arbitration, the Arbitrator specifically stated that the parties did not agree on the issues submitted to arbitration, and the Arbitrator did not frame the issues to preclude consideration of a monetary remedy. Any dispute that the Union has with the Arbitrator's addressing the issue of remedy must await a final award and does not operate to convert this award into an award subject to review. Accordingly, we dismiss the Agency's exceptions. [n1]