U.S. Federal Labor Relations Authority

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16:0829(116)AR - Army, Oakland Army Base and AFGE Local 1157 -- 1984 FLRAdec AR

[ v16 p829 ]
The decision of the Authority follows:

 16 FLRA No. 116
                                            Case No. O-AR-785
                        ORDER DISMISSING EXCEPTION
    This case is before the Authority on an exception to the award of
 Arbitrator Robert C. Schubert filed by the Agency under section 7122(a)
 of the Federal Service Labor-Management Relations Statute and part 2425
 of the Authority's Rules and Regulations.  The Agency has also filed a
 request for a stay of the award under part 2429 of the Authority's Rules
 and Regulations.  For the reasons that follow, it is determined that the
 exception and the request for a stay must be dismissed as interlocutory.
    The Union filed a grievance alleging that the Activity violated the
 parties' collective bargaining agreement and rules and regulations when
 it contracted out certain work to a private-sector bidder.  The
 grievance was not resolved and was submitted to arbitration for
 resolution.  Because the Activity objected to the grievance as not being
 arbitrable, the parties agreed that the Arbitrator would rule on
 arbitrability prior to a hearing on the merits.  At the time of the
 hearing on arbitrability, a hearing date on the merits was arranged.
 After the submission of briefs following the hearing on arbitrability,
 the Activity informed the Arbitrator that in the event the grievance was
 found to be arbitrable, the Activity stated its intention to file
 exceptions to and a request for a stay of such a decision with the
 Authority, and the Activity requested that the hearing date on the
 merits be set aside.  On the issue of arbitrability, the Arbitrator
 ruled that the grievance was arbitrable.  In addition, the Arbitrator
 denied the Activity's request to set aside the hearing on the merits of
 the grievance.  The Arbitrator was of the opinion that his determination
 that the grievance was arbitrable was not a final award, but was merely
 a threshold ruling as to arbitrability.  In the judgment of the
 Arbitrator, "(t)he parties' agreement to bifurcate the matter into
 separate hearings on arbitrability and on the merits would not create
 multiple arbitration awards or change the basic unitary nature of the
 arbitration proceeding." As was the stated intention, the Activity has
 filed an exception to the ruling of the Arbitrator that the grievance is
    Section 2429.11 of the Authority's Rules and Regulations provides
 that the Authority ordinarily will not consider interlocutory appeals.
 That is, in terms of exceptions to an arbitration award, the Authority
 ordinarily will not entertain exceptions until a final award has been
 rendered by the arbitrator on the entire matter.  E.g., National
 Treasury Employees Union, Chapter 165 and U.S. Customs Service, San
 Francisco Region, 9 FLRA 1031 (1982).
    In this case, contrary to the Agency's contention, the Arbitrator has
 not rendered a final award disposing of the entire matter involved in
 the proceeding before him.  In agreement with the Arbitrator, the
 Authority finds that the Arbitrator's determination on arbitrability is
 merely a threshold ruling and is not a final award.  In further
 agreement with the Arbitrator, the Authority likewise finds that the
 parties' agreement to conduct a separate hearing on arbitrability did
 not operate to change the basic unitary nature of the matter before him
 and did not operate to convert the Arbitrator's threshold ruling on
 arbitrability into a final award subject to exceptions being filed under
 section 7122 of the Statute.  Consequently, the Agency's exception is
 interlocutory, and the Authority finds that the circumstances presented
 are not extraordinary so as to warrant review of the exception at this
 stage of the proceedings.  Accordingly, the exception and the request
 for a stay are dismissed.  However, the dismissal is without prejudice
 to the renewal of any of the Agency's contentions in exceptions duly
 filed with the Authority after a final award is rendered on the entire
 matter by the Arbitrator.
    For the Authority.
    Issued, Washington, D.C., December 14, 1984
                                       /s/ Harold D. Kessler
                                       Harold D. Kessler
                                       Acting Executive