United States, Department of Housing and Urban Development (Agency) and American Federation of Government Employees, Local 3258 (Union)
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62 FLRA No. 14
DEPARTMENT OF HOUSING AND
OF GOVERNMENT EMPLOYEES
March 23, 2007
Before the Authority: Dale Cabaniss, Chairman and
Wayne C. Beyer, Member
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Robert Whitman 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 Authority ordered the Agency to show cause why the exceptions should not be dismissed as interlocutory, to which the Agency filed a reply. The Union filed an opposition to the Agency's exceptions.
The Arbitrator requested that the parties address the issue of arbitrability prior to reaching the merits of the case, and found that the grievance was arbitrable.
For the reasons that follow, we find that the exceptions are interlocutory and dismiss them without prejudice.
II. Background and Arbitrator's Award
The Agency confiscated an employee's identification (ID) card because she allegedly made statements about using a gun against some of the employees in her office. The employee filed a grievance contesting the confiscation of her ID card and the Union invoked arbitration when the grievance was not resolved.
Prior to the arbitration hearing, the Arbitrator directed the parties to submit briefs addressing only the question of jurisdiction. The Arbitrator also stated that, "if  [I] decide [I] do have jurisdiction, then we will have a hearing, at which both sides can present evidence and argument. [I]f [I] decide [I] do not have jurisdiction, there is nothing more that [I] can do." Agency's Motion to Dismiss, Ex. 2. The Agency moved to dismiss the grievance, claiming that the ID card issue was not arbitrable under the parties' collective bargaining agreement (the agreement) and § 7106(a)(1) of the Statute. The Union filed a response to the Agency's Motion to Dismiss, asserting that the issue was arbitrable pursuant to the agreement and Authority precedent.
The Arbitrator found that the ID card issue was arbitrable. According to the Arbitrator, the confiscation of the ID card did not fall within the "suspension or removal" exemption of Section 22.05 of the parties' agreement, which provides that suspensions or removals relating to national security matters under 5 U.S.C. § 7532 are excepted from negotiated grievance procedures. Award at 3.
III. Positions of the Parties
The Agency argues that the award is not interlocutory. The Agency contends that the Arbitrator's award is final because the issue of whether the grievance is arbitrable was the sole issue before the Arbitrator. Citing United States Information Agency, 32 FLRA 739 (1988) (USIA), the Agency argues that the Authority has found that arbitrability decisions prior to a hearing on the merits are final and that this case should be treated in the same manner.
The Agency also argues, in the alternative, that if the Agency's exceptions are interlocutory, then the Authority should consider the exceptions because they present a plausible jurisdictional defect in the award, the resolution of which will advance the ultimate disposition of the case. In this respect, the Agency contends that the plausible jurisdictional defect is that management's right to determine internal security practices precludes arbitration under § 7106(a)(1) of the Statute.
The Union claims that the Agency's exceptions are interlocutory because the Arbitrator ruled only on the threshold issue of arbitrability, and has not made a final decision on the merits of the case.
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 [ v62 p53 ] 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. AFGE, Local 12, 61 FLRA 355, 356 (2005) (Local 12); United States Dep't of Transp., FAA, Wash., D.C., 60 FLRA 333, 334 (2004) (FAA); 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 defers the determination of all issues submitted does not constitute a final award subject to review. See id. In particular, exceptions are considered interlocutory when the arbitrator has not made a final disposition as to a remedy. See id.
However, the Authority may review arbitration awards that are not final where the interlocutory appeal raises a plausible jurisdictional defect, the resolution of which would advance the ultimate disposition of the case. United States Dep't of Transp., FAA, 61 FLRA 634, 635 (2006) (Dep't of Transp.,). The Authority has explained that a "plausible jurisdictional defect is one that, on its face, is a credible claim . . . ." Library of Congress, 58 FLRA 486, 487 (2003) (Member Pope dissenting).
To begin, we reject the Agency's contention that this case is similar to USIA, which held that the agency's exceptions were not interlocutory because arbitrability was the sole issue submitted to and decided at arbitration. In USIA, the only issue submitted to arbitration was whether the dispute was arbitrable, and there was no indication that the parties had agreed to bifurcate the arbitration process. In contrast, here, the parties agreed to bifurcate the proceedings and, consistent with the parties' agreement, the Arbitrator resolved the arbitrability issue as a threshold issue. In this regard, the Arbitrator stated that if he found the case arbitrable, then "we will have a hearing, at which both sides can present evidence and argument." Agency's Motion to Dismiss, Ex. 2. Thus, the Agency's exceptions are interlocutory because the award to which the exceptions are filed is preliminary and was not intended to be a complete resolution of all of the issues submitted to arbitration. See Dep't of Treasury, 58 FLRA at 746 (parties' agreement to bifurcate the proceedings does not convert the interim award into a final award).
As noted above, the Authority may resolve interlocutory exceptions when the exceptions raise a plausible jurisdictional defect and the resolution of the defect would advance the ultimate disposition of the case. Dep't of Transp., 61 FLRA at 635. The Agency contends that the exceptions raise a plausible jurisdictional defect because under § 7106(a)(1) of the Statute, management's right to determine internal security practices is not subject to arbitration. The Authority has consistently held, however, that the management rights provisions of § 7106 of the Statute do not provide a basis for finding grievances nonarbitrable. See, e.g., United States Dep't of Homeland Sec., United States Customs & Border Prot., 61 FLRA 113, 115 n.5 (2005); United States Dep't of the Navy, Pac. Missile Test Ctr., Point Mugu, Cal., 43 FLRA 157, 159 (1991); USIA, 32 FLRA at 748-49; Newark Air Force Station, 30 FLRA 616, 631-35 (1987) (Newark AFS); Marine Corps Logistics Support Base, Pac., Barstow, Cal., 3 FLRA 397, 398-99 (1980). In particular, Newark AFS held that the proper phase of the arbitration proceeding in which to determine the impact or application of § 7106 is not at the outset, effectively precluding an arbitrator from having jurisdiction over the matter, but, rather, when the arbitrator considers the substantive issues presented by the grievance and any possible remedy. Newark AFS, 30 FLRA at 634. Because under Authority precedent the management rights provisions of § 7106 do not preclude arbitration, there is not a plausible jurisdictional def