United States, Department of Veterans Affairs, Western New York Healthcare System, Buffalo, New York (Agency) and Service Employees International Union, Local 200, Professional Unit (Union)

[ v61 p173 ]

61 FLRA No. 34

UNITED STATES
DEPARTMENT OF VETERANS AFFAIRS
WESTERN NEW YORK HEALTHCARE SYSTEM
BUFFALO, NEW YORK
(Agency)

and

SERVICE EMPLOYEES
INTERNATIONAL UNION
LOCAL 200
PROFESSIONAL UNIT
(Union)

0-AR-3938

_____

DECISION

August 23, 2005

_____

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 Randi H. Abramsky 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 the grievance, finding that the Agency violated the parties' collective bargaining agreement by the manner in which it solicited employees to submit requests for the dates they desired for vacation. The Arbitrator directed the Agency to comply with the parties' agreement with the manner for doing so to be determined by the Agency, initially. The Arbitrator retained jurisdiction for the purpose of assisting the parties with the interpretation and implementation of the award.

      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

      The Agency is a consolidated medical organization with medical centers in Buffalo, New York and Batavia, New York. The Agency has laboratory services at both the Buffalo and Batavia medical centers. There is functional integration between the two laboratory services. See Award at 4. In this regard, the collection of patient samples performed at the Batavia laboratory is shipped to the Buffalo laboratory for testing. Further, when a Batavia laboratory employee is absent, coverage is provided by one of the Buffalo laboratory employees. See id.

      The Union is the exclusive representative of the employees who work at the Buffalo laboratory, but not at the Batavia laboratory. See id. at 3. The American Federation of Government Employees, Local 2657 is the exclusive representative of the employees who work at the Batavia laboratory.

      The Buffalo laboratory consists of six employees, "all with between fifteen and thirty years of seniority." See id. at 4. The Batavia laboratory consists of two employees, including one of whom had "less than one year of seniority[]" at the time of the events that led to the grievance. Id.

      The Agency solicited requests first from employees in the Batavia laboratory to submit requests for the dates they desired for vacation. Thereafter, it solicited such requests from employees in the Buffalo laboratory. See id. The weeks for vacation selected by the employees in Batavia were not available to be used for vacation by employees in Buffalo who had more seniority. See id. at 5.

      The Union filed a grievance challenging the Agency's solicitation for vacation requests from employees. The grievance was unresolved and was submitted to arbitration, where the parties stipulated the pertinent issues as follows: "Whether the Agency violated the SEIU Professional contract in Auto Lab II when it did the 2004 vacation solicitation? And if so, what shall the remedy be?" Id. at 2.

      The Arbitrator determined that "[t]he resolution of this grievance turns on the language of Article 26.1" of the collective bargaining agreement. [*]  The Arbitrator stated that the "issue turns on whether the Batavia and Buffalo lab employees . . . compete with each other for the use of leave[.]" Id. at 8.

      The Arbitrator found that, although these separate groups of employees are in different bargaining units, the facts establish "that the two groups do compete for vacation time." Id. at 9. The Arbitrator noted that the Batavia employees' vacation selection has a "direct impact" on Buffalo employees. Id. The Arbitrator [ v61 p174 ] added that each group "strive[s], in rivalry, for the prize of vacation selection." Id.

      Furthermore, the Arbitrator found that the evidence established that "for vacation purposes, the Buffalo and Batavia employees are a de facto work unit." Id. at 11. In this regard the Arbitrator stated:

Management determined that only one laboratory employee from among the Buffalo and Batavia groups would be allowed off at a time. It treated them, for vacation purposes, as a single group. Yet, at the same time, in regard to vacation solicitation in 2004, the Employer treated them separately, thereby negating the seniority rights of the Buffalo . . . employees. Id. Consequently, the Arbitrator concluded that the Agency violated Article 26 of the parties' agreement. See id.

      However, the Arbitrator found that the remedies requested by the Union were inappropriate. See id. at 12. Instead, the Arbitrator directed the Agency to fashion a remedy. In this regard, the Arbitrator stated that, "I do not find it appropriate to determine, at this juncture, how the Agency is to comply with Article 26-only that it must do so." Id.

Therefore, the Arbitrator summarized her award as follows:
1.     The Agency did violate the SEIU Professional contract . . . when it did the 2004 vacation solicitation.
2.     The Agency is ordered to comply with Article 26 of the parties' collective [bargaining] agreement, but how it does so is to be determined by the Agency, initially.
3.     I will remain seized regarding the interpretation and implementation of this Award.

Id. at 12-13.

III.     Positions of the Parties

      The Agency contends that the award does not draw its essence from the parties' agreement, is contrary to law and is based on a nonfact. In addition, the Agency claims that the Arbitrator exceeded her authority, as relevant here, by not resolving the issue of remedy that was submitted for resolution. The Union opposes the Agency's exceptions.

IV.     Order to Show Cause

      The Authority ordered the Agency to show cause why its exceptions should not be dismissed as interlocutory. In response, the Agency argues extraordinary circumstances exist permitting interlocutory review. See Agency's Response to Order to Show Cause at 3-4. In this regard, the Agency claims that the Arbitrator made a bargaining unit determination when she used the term "de facto [work] unit" to refer to the bargaining unit employees in Buffalo and non-bargaining employees in Batavia. See id. at 3.

V.     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 & Human Services, Ctrs. for Medicare & Medicaid Services, 57 FLRA 924, 926 (2002) (HHS); AFGE National Council of EEOC Locals No. 216, 47 FLRA 525, 530 (1993); 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. Consistent with this principle, the Authority has repeatedly held that where an arbitrator declines to issue a remedy, directing instead that the parties attempt to develop an appropriate remedy on their own, the award does not constitute a final decision to which exceptions can be filed. See United States Dep't of Health & Human Services, Navajo Area Indian Health Service, 58 FLRA 356, 357 (2003); United States Dep't of the Interior, Bur. of Indian Affairs, Wapato Irrigation Project, Wapato, Wash., 55 FLRA 1230, 1231-32 (2000) (BIA); United [ v61 p175 ] States GPO, Wash., D.C., 53 FLRA 17, 18 (1997) (GPO); Navy, 27 FLRA at 407-08.

      In cases where exceptions are interlocutory in nature, but raise 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. See United States Dep't of Transportation, Federal Aviation Administration, Washington, D.C., 60 FLRA 333 (2004).

      Before the Arbitrator in this case, the parties stipulated the issues to be resolved as including the alleged violation of the parties' agreement as well as the appropriate remedy. See Award at 2. The Arbitrator declined to issue a remedy, ordering instead that the Agency determine the appropriate remedy to comply with the parties' agreement, and retained jurisdiction for the purpose of assisting the parties with the interpretation and implementation of the award. Applying our precedent set forth above, we find that the Arbitrator's award -- which did not resolve the issue of an appropriate remedy -- is not a final decision and thus, the Agency's exceptions are interlocutory.

      Moreover, the Agency's contention does not establish a plausible jurisdictional defect, the resolution of which would advance the ultimate disposition of the case. In this regard, we note that the few cases in which the Authority has granted interlocutory review have involved jurisdictional issues that arise pursuant to a statute. See, e.g., United States Dep't of Defense, National Imagery & Mapping Agency, St. Louis, Mo., 57 FLRA 837, 837 n.2 (2002) (grievance validity, arbitrability determined by pay statute); BIA, 55 FLRA FLRA at 1232 (grievance validity, arbitrability determined by statutes covering bargaining unit status and classification exclusion).

      The Agency contends that the Arbitrator made a bargaining unit determination when she used the term "de facto [work] unit" to refer to the bargaining unit employees in Buffalo and non-bargaining employees in Batavia. See Agency's Response to Order to Show Cause at 3. In the award at issue, the Arbitrator was not asked to, and did not, determine that the employees in the Buffalo laboratory and the employees in the Batavia laboratory constituted a single appropriate unit for labor organization representation--a matter that would have been outside her jurisdiction. See United States Small Business Admin., 32 FLRA 847, 853 (1988) (the Authority has "exclusive jurisdiction to make appropriate unit determinations[]"), reconsideration granted as to other matters, 36 FLRA 155 (1990). The Arbitrator merely observed that the evidence established that "for vacation purposes, the Buffalo and Batavia employees are a de facto work unit." Award at 11. Rather than making a bargaining unit determination, the Arbitrator interpreted t