United States, Department of the Interior, Bureau of Reclamation (Agency) and International Federation of Professional and, Technical Engineers, Local 128 (Union)

[ v59 p686 ]

59 FLRA No. 123

UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
(Agency)

and

INTERNATIONAL FEDERATION
OF PROFESSIONAL AND
TECHNICAL ENGINEERS
LOCAL 128

(Union)

0-AR-3742

_____

DECISION

February 25, 2004

_____

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 interim award of Arbitrator M. David Vaughn filed by the Agency under § 7122 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.

      In the interim award, the Arbitrator determined that the Fair Labor Standard Act's (FLSA's) statute of limitations was tolled for employees covered by the institutional grievance at the time it was filed. The Arbitrator retained jurisdiction to resolve the merits of the FLSA claims.

      For the following reasons, we find that the Agency's exceptions are interlocutory and that no extraordinary circumstances have been presented warranting review of the exceptions at this time. Accordingly, we dismiss the exceptions without prejudice.

II.     Background and Arbitrator's Award

      As relevant here, the Union filed an institutional grievance on behalf of unnamed unit employees alleging that the employees' positions were improperly classified under the FLSA. The Agency responded that, under 29 U.S.C. § 216(b), unit employees who seek backpay under the FLSA must indicate their consent to be parties to the grievance. [n1]  In response, the Union claimed that § 216(b) does not apply to Union-filed institutional grievances. In addition, the parties disputed whether the FLSA statute of limitations tolls on the date on which a union files a grievance, or the dates on which each individual employee opts into a grievance. The parties agreed that employees would be permitted to opt-in during the grievance and arbitration proceedings, and that the issue regarding the tolling of the statute of limitations would be decided by the Arbitrator prior to a hearing on the merits of the FLSA claims.

      At arbitration, when the parties were unable to agree to a statement of the issues, the Arbitrator adopted the Union's framing of the issue -- "whether the opt-in provision of Section 216(b) of the Act is applicable to the arbitration of the FLSA group grievance" -- but noted that "Section 256, not 216(b), is the applicable FLSA provision governing the grievance." [n2]  Interim Award at 2.

      The Arbitrator rejected the Agency's claim that the FLSA statute of limitations is not tolled for an individual employee until the employee opts into the Union's institutional grievance. In this connection, the Arbitrator found that § 256 of the FLSA does not apply to the institutional grievance filed by the Union and, thus, that the FLSA statute of limitations was tolled for all employee claims by the Union's filing of the grievance. For support, the Arbitrator cited United States Dep't of the Navy, Naval Explosive Ordnance Disposal Tech. Div., Indian Head, Md., 57 FLRA 280 (2001) (Dep't of Navy), where the Authority, Chairman Cabaniss [ v59 p687 ] dissenting, held that the opt-in provision in § 216(b) does not apply to grievance and arbitration procedures. [n3] 

      Finally, the Arbitrator stated that "[j]urisdiction is retained to fully hear, address and resolve the remaining issues presented in the grievance record." Interim Award at 15.

III.     Positions of the Parties

A.     Agency Exceptions

      As an initial matter, the Agency claims that the interim award is not interlocutory and that, even if it is, it should be reviewed because resolution of the Agency's exceptions "would materially advance the ultimate resolution of this litigation." Exceptions at 6. In this connection, the Agency claims that "the parties would be apprised earlier as to the potential extent of any overtime back pay and damages[,]" which "may lead the parties into considering an earlier resolution of the Agency's ultimate liability." Id.

      The Agency also claims that the Authority should reconsider its decision in Dep't of Navy, 57 FLRA 280, and find that §§ 216(b) and 256 are substantive provisions that are incorporated into negotiated grievance procedures.

B.     Union Opposition

      The Union argues that the Agency has not demonstrated a basis for reversing Department of Navy, 57 FLRA 280, and that the award is consistent with that decision.

IV.     Analysis and Conclusions

      Section 2429.11 of the Authority's Regulations provides, in pertinent part, that "the Authority  . . ordinarily will not consider interlocutory appeals." Pursuant to this regulation, the Authority ordinarily will not resolve exceptions to an arbitration award unless the award constitutes a complete resolution of all the issues submitted to arbitration. See United States Dep't of the Treasury, Bureau of Engraving & Printing, W. Currency Facility, Fort Worth, Tex., 58 FLRA 745, 746 (2003) (Dep't of Treasury). Consequently, an arbitration award that postpones the determination of an issue submitted does not constitute a final award subject to review. See id. Exceptions are considered interlocutory when the arbitrator has not made a final disposition as to a remedy. See id. Further, 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. See id.

      Review of interlocutory exceptions is warranted where the exceptions present a plausible jurisdictional defect, the resolution of which would advance the ultimate disposition of the case. See United States Dep't of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, Wapato, Wash., 55 FLRA 1230, 1232 (2000). Recently, the Authority granted review of -- and denied on the merits -- an interlocutory exception, holding that the exception raised a plausible jurisdictional defect and that, whether or not the exception was meritorious, review would advance the ultimate disposition of the case. Library of Congress, 58 FLRA 486, 487 (2003) (Member Pope dissenting). [n4] 

      Here, the interim award resolved only the issues of whether the FLSA opt-in provision applies to Union-filed grievances and when the FLSA statute of limitations began to toll. The award does not resolve the merits of the Union's claims or provide any remedies and, as such, it does not resolve all the issues submitted to the Arbitrator. The fact that the Arbitrator declined to resolve the merits pursuant to the parties' agreement to bifurcate the proceedings does not convert the interim award into a final award. See Dep't of Treasury, 58 FLRA at 746. Accordingly, the exceptions are interlocutory.

      The Agency argues that resolving the exceptions "would materially advance the ultimate resolution of this litigation" because "the parties would be appri[z]ed earlier as to the potential extent of any overtime back pay and damages." Exceptions at 6. However, the Agency does not assert that the Arbitrator lacks jurisdiction in this case. Moreover, even if we were to construe the Agency's claim as contesting the Arbitrator's jurisdiction over employees who have not submitted opt-in forms, the parties agreed to allow employees to submit opt-in forms during the course of the grievance and employees have done so. See Exceptions at 1 n.1. Thus, even if the Authority viewed the Agency's claim as jurisdictional and adopted the Agency's interpretation