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32:0699(100)AR - SBA and AFGE, COUNCIL 228, LOCAL 2532,AFL-CIO 1988 FLRAdec AR

[ v32 p699 ]
The decision of the Authority follows:

  32 FLRA NO. 100






                                             Case No. 0-AR-1557

                         ORDER DISMISSING EXCEPTIONS

     On May 14, 1988, the Agency filed exceptions to the award of
Arbitrator Millard Cass pursuant to 5 U.S.C. 7122(a) and 5 C.F.R.
2425.1. For the reasons set out below, the Agency's exceptions
must be dismissed as interlocutory.

     The record indicates that the Arbitrator determined that the
issue before him to be whether the reprimand of the grievant for
falsifying a leave slip and for making related false statements,
both of which were in connection with the Agency's denial of
official time to the grievant for a April 28, 1987,
representational meeting, was for just cause. The Arbitrator
found that (1) the reprimand of the grievant for making false
statements was not for just cause; (2) 4  hours of official time
should be restored to the grievant for the April 28th meeting;
and (3) the reprimand for the grievant's alteration of the leave
slip without authorization was for just cause. However, the
arbitrator, noting that the grievant might be entitled to some of
the benefits of the Back Pay Act insofar as his attorney fees and
costs were involved, expressly did not make a complete and
definitive award as to the appropriate remedy. In that regard, he
stated that he was not certain of the application of the Back Pay
Act in split decision situations as in this case. He then
instructed the parties to either negotiate a settlement
concerning this issue or to submit briefs on that one issue to
him. Finally, the Arbitrator retained jurisdiction on the issue
of the grievant's entitlement of benefits under the Back Pay Act.

     The Agency requests permission to file an interlocutory
appeal. An interlocutory appeal concerns a ruling which is
preliminary to final disposition of a matter. The Authority
"ordinarily will not consider interlocutory appeals." 5 C.F.R.
2429.11. In an arbitration case, this means that the Authority
ordinarily will not consider an appeal of an Arbitrator's ruling
until the Arbitrator has issued a final decision. American
Federation of Government Employees, General Committee and
Department of Health and Human Services, Social Security
Administration, 32 FLRA  173 (1988); American Federation of
Government Employees, General Committee and Department of Health
and Human Services, Social Security Administration, 32 FLRA  175

     In this case, it is clear that the arbitrator has not yet
rendered a final award on the entire dispute in this case. He
expressly did not make a final disposition as to the remedy in
the dispute. Thus, the Agency's exceptions are considered
interlocutory and the facts and circumstances are not such as to
warrant review of the exceptions at this time. See Navy Public
Works Center, San Diego, California, and National Association of
Government Employees, Local R12-35, 27 FLRA  407, 408 (1987)

     Accordingly, since the Agency's exceptions are
interlocutory, the exceptions are hereby 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 by the arbitrator.

     For the Authority.

Issued, Washington, D.C. July 15, 1988.

                                   Jacqueline R. Bradley
                                   Executive Director