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The decision of the Authority follows:
34 FLRA No. 174
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
LOS ANGELES DISTRICT
NATIONAL TREASURY EMPLOYEES UNION
LOS ANGELES JOINT COUNCIL
February 28, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to the award of Arbitrator Florian Bartosic filed by the Activity under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the exception.
The Union filed a grievance on behalf of the grievant challenging the denial of her within-grade increase. The parties first submitted to arbitration the arbitrability issue of whether the grievant is an employee in the bargaining unit. The Arbitrator concluded that the grievant is a bargaining-unit employee and ruled that the grievance is arbitrable.
We conclude that the Arbitrator's award is contrary to sections 7105(a)(2)(A) and 7112(a)(1) of the Statute and must be set aside.
II. Background and Arbitrator's Award
The Union filed a grievance on behalf of the grievant challenging the denial of her within-grade increase. The Activity contended that the grievance was not arbitrable because the grievant is a confidential employee and, consequently, not a member of the bargaining unit. The parties agreed to separate the arbitrability issue from the merits of the grievance and submitted that issue to arbitration. Arbitrator's Award at 1.
Hearings on the issue of arbitrability were held on May 13 and June 10, 1988. Id. The Arbitrator framed the threshold issue of arbitrability before him as whether the grievant is a member of the bargaining unit. Id. at 7. The Arbitrator noted that both parties conceded his jurisdiction over the arbitrability issue under decisions of the Authority. He cited Authority precedent, including National Archives and Records Service, General Services Administration and Local 2578, American Federation of Government Employees, AFL-CIO, 9 FLRA 381 (1982) (NARS), as permitting him to address the issue of the grievant's bargaining-unit status because it was raised as a collateral issue to the grievance over the denial of the grievant's within-grade increase. Id. at 7-8.
The Arbitrator issued his award on April 26, 1989, and determined that the grievant is not a confidential employee and is a member of the bargaining unit. Id. at 12-13. Accordingly, he ruled that the grievance was arbitrable, and he directed the Activity to arbitrate the grievance, absent settlement, at the earliest date agreeable to the parties and the Arbitrator. Id. at 13.
III. Positions of the Parties
The Activity contends that by determining the bargaining-unit status of the grievant, the award is contrary to sections 7105 and 7112 of the Statute and exceeds the scope of the Arbitrator's authority. The Activity maintains that as a result of the Authority's decision in U.S. Small Business Administration and American Federation of Government Employees, Local 2532, AFL-CIO, 32 FLRA 847 (1988) (SBA), the Arbitrator was prohibited from determining the bargaining-unit status of the grievant. The Activity notes that SBA overruled the Authority's decision in NARS on which the Arbitrator relied in concluding that he was authorized to resolve the bargaining-unit status of the grievant. The Activity states that although SBA was decided after the post-hearing briefs in this case, the decision was issued well before the date of the Arbitrator's award and the Union should have notified the Arbitrator of the SBA decision.
The Union contends that the Activity's exception is interlocutory and should be dismissed. The Union argues that the Arbitrator has not issued a final award on the dispute, but rather has only issued an interim decision on arbitrability. The Union further argues that the Activity fails to present any facts and circumstances that warrant the Authority's review of its exception at this time.
IV. Analysis and Conclusions
We find that the Activity's exception is interlocutory, but that, nonetheless, review is warranted at this stage in the proceedings. On the merits, we find that the award is contrary to sections 7105 and 7112 of the Statute.
A. The Exception is Interlocutory, but Review is Warranted
Section 2429.11 of the Authority's Rules and Regulations, 5 C.F.R. § 2429.11, provides that the Authority "ordinarily will not consider interlocutory appeals." In an arbitration case, this means that the Authority ordinarily will not consider exceptions to an arbitrator's ruling until the arbitrator has issued a final decision. For example, Internal Revenue Service, Louisville District and National Treasury Employees Union, 32 FLRA 1231 (1988). We agree with the Union that the Activity's exception is interlocutory. The Arbitrator has made a ruling on the arbitrability of the grievance. The Arbitrator has not yet addressed the merits of the grievance and has not yet rendered a final award on the dispute. The parties' agreement to conduct a separate hearing on arbitrability did not operate to convert the Arbitrator's threshold ruling on arbitrability into a final award subject to exceptions being filed under section 7122(a) of the Statute. See Department of the Army, Oakland Army Base and American Federation of Government Employees, Local 1157, 16 FLRA 829 (1984).
However, we are of the view that the circumstances of this case warrant consideration of the Activity's exception at this stage of the proceedings. Section 2429.11 reflects the judicial policy of discouraging fragmentary appeals of the same case. The policy is not without exceptions, however. For example, the judicial procedure for the U.S. courts of appeals permits a departure from this policy for certain cases that involve a controlling question of law and where an immediate appeal may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b).
In our view, when an arbitrator finds, prior to ruling on the merits, that a matter is grievable and arbitrable and a party files an exception claiming that the arbitrator lacks jurisdiction because the matter is not grievable under the Statute, it does not serve the purposes and policies of the Statute to refuse to resolve that question as an interlocutory matter. Similar to cases immediately appealable in the Federal courts, these cases raise a controlling question of jurisdiction, the immediate resolution of which may advance the case's ultimate resolution. Accordingly, we conclude that the circumstances of this case warrant resolving the Activity's exception at this time.
B. The Award is Deficient
In SBA, the Authority reexamined its decision in NARS, 9 FLRA 381, on which the Arbitrator relied in concluding that he was authorized to resolve the bargaining-unit status of the grievant. The Authority held that an arbitrator is not empowered to decide a question of a grievant's bargaining-unit status even if the question is raised as a collateral issue to a grievance otherwise properly brought under the collective bargaining agreement. SBA, 32 FLRA at 852; accord American Federation of Government Employees, Local 933 and Veterans Administration Medical Center, Allen Park, Michigan, 34 FLRA No. 110 (1990) (VA Medical Center, Allen Park). Factual disputes as to whether employees are included in a bargaining unit are resolved by filing a clarification of unit petition with the Authority under section 2422.2(c) of our Rules and Regulations. SBA, 32 FLRA at 853; VA Medical Center, Allen Park, slip op. at 4. As the Authority stated in SBA:
[A]n arbitrator does not have authority to make appropriate unit determinations. As a consequence, an arbitrator is precluded from addressing the merits of a grievance whenever a grievability question has been raised regarding the bargaining unit status of the grievant. When parties to a grievance are faced with such a grievability question, they can place the grievance in abeyance pending the filing of a clarification of unit petition.
SBA, 32 FLRA at 854.
Accordingly, we conclude that the award is contrary to sections 7105(a)(2)(A) and 7112(a)(1) of the Statute because the Arbitrator determined the bargaining-unit status of the grievant. Consequently, we will set the award aside. However, noting that the Authority's decision in SBA issued after the arbitration hearing was held and post-hearing briefs were filed, we will order the parties to place the grievance in abeyance pending the outcome of a clarification of unit petition, should the Union decide to pursue the question of the unit status of the grievant by filing such a petition. See VA Medical Center, Allen Park, slip op. at 5. Compare U.S. Army Transportation Center, Fort Eustis, Virginia and National Association of Government Employees, Local R4-6, 34 FLRA No. 143 (1990).
The Arbitrator's award is set aside. If the Union pursues the question of the unit status of the grievant by filing a clarification of unit petition, the parties are directed to place the grievance in abeyance pending the outcome of that petition.
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