United States, Department of Transportation, Federal Aviation Administration, Washington, D.C. (Agency) and National Air Traffic Controllers Association, AFL-CIO (Union)

[ v60 p333 ]

60 FLRA No. 70

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
WASHINGTON, D.C.
(Agency)

and

NATIONAL AIR
TRAFFIC CONTROLLERS ASSOCIATION
AFL-CIO
(Union)

0-AR-3832

_____

DECISION

October 18, 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 award of Arbitrator Joseph M. Sharnoff 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 sustained a grievance regarding entitlements for employees on excused absence because of geological/weather conditions. The Arbitrator directed the Agency to take certain actions and remanded the matter to the parties for resolution of the Union's claims regarding backpay. The Arbitrator retained jurisdiction to resolve any claims which the parties were unable to resolve.

      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

      This case involves a national grievance filed by the Union regarding guidance sent by an FAA official stating that employees on excused absence because of geological/weather conditions shall not receive their full entitlements (pay and differentials). The Union requested expedited arbitration of the grievance and the parties agreed to a joint stipulation involving a bifurcated arbitration. [n1]  The parties did not stipulate an issue and the Arbitrator framed the issue:

Whether the Agency's refusal to pay premium pay rates and/or its charge of leave to employees who are scheduled to work on a holiday or day in-lieu-of holiday, but who request to be on excused absence and do not work on the holiday or in-lieu of day due to adverse hazardous geological/weather conditions, violates the Parties' Agreement, at Article 19 or Article 29, law, rule or regulation? If so, what is the appropriate remedy?

Award at 5.

      The Arbitrator considered several provisions of the parties' collective bargaining agreement, memorandum of understanding, and the Agency's appropriation bill, and determined that Article 19, Section 1 (Hazardous Geological/Weather Conditions) and Article 29, Section 1 (Excused Absences) were applicable. The Arbitrator determined that Article 19 was controlling and that, contrary to the Agency's claim, Article 29 "contain[ed]" no "unstated exception" which would permit the Agency to reduce an employee's entitlement to holiday pay during hazardous geological/weather conditions. Award at 12. The Arbitrator sustained the grievance. [n2]  In view of the agreed upon bifurcated nature of the proceeding, the Arbitrator remanded the issue of appropriate remedy to the parties. The Arbitrator retained jurisdiction to resolve any disputes concerning the remedial issues.

III.     Positions of the Parties

A.     Agency's Position

      The Agency argues that the award is not interlocutory. The Agency asserts that the Arbitrator characterized his award as "`final'" and issued a make whole remedy for each claim presented by the Union. Exceptions at 2 n.1. The Agency argues that often in arbitrations, arbitrators retain jurisdiction for a period of time to resolve questions or problems that might arise concerning the award. The Agency contends that retention of authority for such purposes does not render an award interlocutory. The Agency asserts that the Arbitrator's [ v60 p334 ] determination constituted a complete determination of the issues submitted and included a make whole remedy.

      In the alternative, the Agency asserts that it filed its exceptions to the award in order to preserve its right to timely file exceptions.

B.     Union's Opposition

      The Union asserts that the parties stipulated to a bifurcated hearing and that the Arbitrator has yet to award a specific remedy. The Union states that, pursuant to the parties' stipulation, the Arbitrator remanded the remedial action to the parties to attempt to reach agreement. The Union asserts that, contrary to the parties' stipulation, the Agency refused to meet to discuss the remedial aspects of this case. The Union contends that the Agency's exceptions should be denied because they are interlocutory.

      In the alternative, the Union argues that the award is consistent with law and Authority precedent and should be upheld.

IV.     Analysis and Conclusions

      Section 2429.11 of the Authority's Regulations, 5 C.F.R. § 2429.11, 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 the 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).

      Here, the Arbitrator's initial award after the first part of a bifurcated process, resolved only the issue of whether the grievants were entitled to receive premium pay and other entitlements when they were excused from work on a holiday due to hazardous geological/weather conditions. The award does not resolve all the issues submitted to the Arbitrator. The fact that the Arbitrator declined to resolve the remedial aspects of the award, pursuant to the parties' agreement to bifurcate the proceedings, does not convert the initial part of the award into a final award. See Dep't of the Treasury, 58 FLRA at 746. As such, the award is not final and complete because it does not resolve all the issues submitted to the Arbitrator, i.e., determine the specific monetary remedies owed to individual employees.

      Because the award is not final, we find that the Agency's exceptions are interlocutory. Further, we find that the exceptions do not raise a plausible jurisdictional defect warranting review at this time. Accordingly, we find no basis for interlocutory review and dismiss the exceptions without prejudice pursuant to § 2429.11 of our Regulations. [n3] 

V.     Order

      The Agency's exceptions are dismissed without prejudice.


STIPULATION

The [p]arties agreed, at the instant [a]rbitration hearing to the following joint stipulation:

The parties agree that in the interest of efficiency and economy this arbitration hearing will be bifurcated. The first part of the hearing will consist of contract interpretation issues. There are no procedural issues and the Arbitrator is empowered to hear the contract dispute.
The evidence and testimony presented on December 9 and 10 [sic, and 18] will be for the purpose of determining the merits of the Union's national grievance. The Parties will present evidence representative of the issues. When the Arbitrator makes a decision and award in the first phase of the arbitration, he will retain jurisdiction to hear the relevant liability and remedy issues.
The parties further agree that should any portion of the grievance be sustained, the parties shall meet within sixty (60) days after the issuance of [ v60 p335 ] the award to resolve, to the extent possible, remaining issues of bargaining unit employees affected by the award. The parties further agree that the Arbitrator will retain jurisdiction to resolve any issues the Parties fail to resolve. If appropriate, the Arbitrator may hear additional facts and evidence to resolve any disputes.

Award at 4.

Article 19. HAZARDOUS GEOLOGICAL/WEATHER CONDITIONS

Section 1. Given the essential nature of FAA responsibilities, employees are expected to make a reasonable effort to report for work during hazardous geological/weather conditions; however, they are not expected to disregard their personal safety or that of their family. All employees who are unable to report for duty shall notify their facility as soon as possible.

Employees who are unable to report for duty shall be granted excused absence at the time of their request, subject to the review process in Section 2. If requested, employees shall provide information that supports their request for excused absence as soon as feasible after returning to duty. Examples of information are:

a.     oral or written statements
b.     conditions that the employee encountered
c.     a synopsis of efforts made
d.     other information which provides an explanation or which shows hazardous geological/weather conditions
        prevented the employee from reporting to the facility or compelled the employee to safeguard his or her
        family against such phenomena.

Award at 5-6.

Article 28. HOLIDAYS

. . . .

Section 2.

.&nb