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U.S. Federal Labor Relations Authority

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14:0448(72)AR - Customs Service and NTEU -- 1984 FLRAdec AR

[ v14 p448 ]
The decision of the Authority follows:

 14 FLRA No. 72
                                            Case No. O-AR-642
                        ORDER DISMISSING EXCEPTIONS
    This matter is before the Authority on exceptions to a ruling on the
 Agency's Motion for Partial Summary Judgment by Arbitrator Mark L.
 Irvings.  The exceptions were filed by the Union under section 7122(a)
 of the Federal Service Labor-Management Relations Statute and part 2425
 of the Authority's Rules and Regulations.
    The dispute before the Arbitrator concerns a grievance challenging
 the Agency's Employee Performance Appraisal System for certain positions
 and the ratings of a number of employees under the performance elements
 and standards of that system.  The Union claimed that the elements and
 standards were contrary to law, implementing regulations and the
 parties' collective bargaining agreement, and requested that new
 elements and standards be issued, that the disputed ratings be rescinded
 and that the affected employees be reevaluated.  The grievance proceeded
 to arbitration and the Agency filed pre-hearing motions for partial
 summary judgment and a statement of issues.
    At the hearing before the Arbitrator, evidence which pertained to the
 pre-hearing motions, as well as to the substance of the grievance, was
 presented.  The substantive presentations, however, were not concluded.
 In ruling on the Agency's Motion for Partial Summary Judgment, the
 Arbitrator found that insofar as the grievance challenged the
 performance elements and standards it was not substantively arbitrable.
 However, the Arbitrator further found that the issue of whether
 implementation of the appraisal system with respect to the named
 employees violated law or the parties' agreement was properly before
 him, and scheduled a date for conclusion of the parties' presentations
 on that aspect of the grievance.
    In its exceptions, the Union argues that the Arbitrator's ruling on
 the Agency's motion is contrary to law and regulation and that the
 Arbitrator exceeded his authority.
    Section 2429.11 of the Authority's Rules and Regulations provides:
 "The Authority . . . ordinarily will not consider interlocutory
 appeals." That is, the Authority ordinarily will not consider an appeal
 until a final decision has been rendered on the entire proceeding.
    In this case, the Arbitrator has not yet rendered a final award in
 the proceeding before him.  Rather, as indicated above, the Arbitrator
 ruled on a motion by finding that an aspect of the grievance was not
 arbitrable and scheduling a time for completion of the parties'
 presentations on the remaining aspect of the grievance.  Thus, the
 Union's exceptions are considered interlocutory and the facts and
 circumstances are not such as to warrant review of the exceptions at
 this stage of the proceeding.
    Accordingly, since the Union's exceptions are interlocutory and
 Authority review is not warranted under the circumstances, the
 exceptions are hereby dismissed.  However, the dismissal is without
 prejudice to the renewal of any of the Union's contentions in exceptions
 duly filed with the Authority after a final award is rendered by the
 Arbitrator.  For the Authority.  Issued, Washington, D.C., May 8, 1984
                                       Harold D. Kessler, Director, Case