United States, Department of Homeland Security, U.S. Immigration and Customs Enforcement (Agency) and American Federation of Government Employees, National Immigration and, Naturalization Service Council, (Union)

[ v60 p129 ]

60 FLRA No. 31

UNITED STATES
DEPARTMENT OF HOMELAND SECURITY,
U.S. IMMIGRATION AND
CUSTOMS ENFORCEMENT
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
NATIONAL IMMIGRATION AND
NATURALIZATION SERVICE COUNCIL
(Union)

0-AR-3822

_____

DECISION

August 13, 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 an exception to an award of Arbitrator Samuel A. Vitaro 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 exception.

      In a letter to the parties prior to an arbitration hearing, the Arbitrator determined that a proposed Union witness would be needed at the hearing to provide relevant testimony. The Arbitrator ordered that the witness be provided travel and other benefits pursuant to the parties' agreement.

      For the reasons set forth below, we find that the Agency's exception is interlocutory and that no extraordinary circumstances have been presented warranting review of the exception at this time. Accordingly, we dismiss the exception without prejudice.

II.     Background and Arbitrator's Award

      In preparation for an arbitration hearing concerning a grievance, the Arbitrator issued a letter to the parties resolving a dispute over the approval of a Union witness to attend the hearing. In the letter, the Arbitrator determined that the Union witness would "more likely than not" be needed to provide "relevant testimony" at the hearing. Award at 1. The Arbitrator further determined that his letter should be considered a "decision" resolving the issue of the Union witness' relevance and that, pursuant to Article 48(K)(2) of the parties' agreement [n1] , the witness was entitled to "travel and other benefits[.]" Id. In addition, in the letter, the Arbitrator stated that "other matters" at issue would be addressed and "updates" on "outstanding issues" would be provided at the "upcoming hearing[]." Id. at 1-2.

III.      Positions of the Parties

A.     Agency's Exception

      The Agency claims that the award fails to draw its essence from Article 48(K)(2). Specifically, the Agency contends that the award, finding that the witness was relevant and entitled to travel expenses, was not rendered in conformity with the procedures established in Article 48(K)(2). See Exception at 4.

B.     Union's Opposition

      The Union contends that the Agency's exceptions are "not ripe for adjudication" because the "underlying arbitration is ongoing." Opposition at 1 n.1. In addition, the Union disputes that the award fails to draw its essence from the parties' agreement. Specifically, the Union contends that the Arbitrator "explicitly interpreted and relied upon" Article 48(K)(2) of the parties' agreement. Id. at 4.

IV.     Order to Show Cause

      The Authority ordered the Agency to show cause why its exception should not be dismissed as interlocutory. In response, the Agency asserts that its exception is not interlocutory because the Arbitrator's letter constitutes a "final decision of the issue of witness travel expenses for the Union's proposed witness." Agency's Response to Order to Show Cause at 1. In the alternative, the Agency claims that extraordinary circumstances exist permitting interlocutory review. See id. [ v60 p130 ] at 2. In this regard, the Agency claims that the Arbitrator's decision regarding the witness' travel benefits fails to draw its essence from the parties' agreement and "must be addressed prior to the final determination of the underlying grievance." Id.

V.     Analysis

      Section 2429.11 of the Authority's Regulations states, "the Authority . . . ordinarily will not consider interlocutory appeals." 5 C.F.R. § 2429.11. In arbitration cases, 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 & Human Servs., Ctrs. for Medicare & Medicaid Servs., 57 FLRA 924, 926 (2002). Exceptions filed before an arbitrator makes a final disposition on all of the issues presented will be considered interlocutory. See id. Although the Authority ordinarily will not consider interlocutory appeals, when an interlocutory appeal raises a plausible jurisdictional defect, the resolution of which would advance the ultimate disposition of the case, extraordinary circumstances may exist warranting review of the exceptions. AFGE, Local 446, 59 FLRA 451, 453 (2003).

      The Arbitrator designated his letter a "decision" on the issue of the witness' relevance. Award at 1. However, it is clear that the Arbitrator's "decision" is not a complete determination of the issues in this matter. See id. In fact, in its response to the Order to Show Cause, the Agency admits that the Arbitrator's "decision" on the issue of the witness' relevance "does not finally resolve all of the issues at bar in the subject arbitration." Agency's Response to Order to Show Cause at 1. In addition, the Agency does not dispute the Union's claim that "the underlying arbitration is ongoing." Opposition at 1 n.1. Further, the Arbitrator's "decision" indicates that other issues remain unresolved. Specifically, the Arbitrator notes "other matters" will be addressed and "updates" on "outstanding issues" will be provided at the "upcoming hearing[]." Award at 1-2. As the award is not a complete resolution of all the issues submitted to arbitration and is not a final decision on the complete proceeding, the Agency's exception is interlocutory.

      The Agency contends that, if the Authority finds the exception to be interlocutory, then extraordinary circumstances exist permitting interlocutory review. In this regard, the Agency claims that the award fails to draw its essence from Article 48(K)(2) because it requires the Agency to pay travel costs and other expenses in a manner that is not authorized by the parties' agreement. See Agency's Response to Order to Show Cause at 2. This claim does not present a plausible jurisdictional defect, the resolution of which would advance the ultimate disposition of the case. See AFGE, Local 446, 59 FLRA at 453. Accordingly, the Agency has failed to demonstrate that extraordinary circumstances exist warranting consideration