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U.S. Federal Labor Relations Authority

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35:1086(117)AR - - Air Force, Warner Robins Air Logistics Center, Robins AFB, GA and AFGE Local 987 - - 1990 FLRAdec AR - - v35 p1086

[ v35 p1086 ]
The decision of the Authority follows:

35 FLRA No. 117












May 11, 1990

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator J. Reese Johnston, Jr., filed by the Union 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 Agency did not file an opposition to the Union's exception.

The Arbitrator concluded that the portion of the parties' collective bargaining agreement on which the Union relied in asserting that the Agency was precluded from suspending the grievant was unenforceable. The Arbitrator retained jurisdiction in the dispute and directed the parties to contact him to arrange for a hearing on the merits of the grievance.

For the following reasons, we conclude that the Union's exceptions are interlocutory. Accordingly, we will dismiss the exceptions.

II. Background and Arbitrator's Award

A grievance was filed, and submitted to arbitration, over the Agency's decision to suspend the grievant for 10 days for falsification of official documents. The issue before the Arbitrator was:

Can Section 5.02 of the Master Labor Agreement between the parties be specifically applied to the present facts which would substantially interfere with the exercise of [m]anagement's retained right to take disciplinary action under the provisions of 5 U.S.C. 7106(a)(2)(A)?

Award at 6.(*)

The Arbitrator concluded, based on two Authority decisions, that "the forty five (45) day 'Statute of Limitations' set out in Section 5.02 of the Master Labor Agreement . . . is unenforceable and not binding" on the Agency. Id. at 11. The Arbitrator further concluded that the Agency's notice to suspend the grievant was "timely given and the matter must proceed for a hearing on its merits unless resolved between the parties upon receipt of this opinion." Id. Accordingly, the Arbitrator denied the Union's contention that the notice to suspend the grievant was untimely. The Arbitrator stated that he would retain jurisdiction over the dispute and directed the parties to contact him "as to a mutually agreeable time and place for the hearing of [the] grievance on its merits." Id.

III. The Union's Exceptions

The Union asserts that the Arbitrator's award is deficient because section 5.02 of the parties' agreement is negotiable, and enforceable, under Authority precedent. The Union asserts further that if section 5.02 is not negotiable under existing Authority precedent, the Authority should reconsider that precedent. The Union argues that, if the Authority finds that section 5.02 is not negotiable, the Authority should allow the Union, at its request, to reopen either section 5.02 or the entire master agreement.

IV. Analysis and Conclusions

Section 2429.11 of the Authority's Rules and Regulations provides that the Authority "ordinarily will not consider interlocutory appeals." In arbitration cases, this provision means that the Authority ordinarily will not resolve exceptions filed to an arbitration award unless the award constitutes a complete determination of all issues submitted to arbitration. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, SSA General Committee, 34 FLRA 373 (1990), and cases cited therein.

It is clear that the Arbitrator has not rendered a final award. By its terms, the award requires the parties only to contact him to arrange for an arbitration hearing. As the Union acknowledges, the effect of the Arbitrator's ruling in this case is that the grievant "would have to proceed to defend against the ten day suspension on its merits in order to prevail." Exceptions at 2.

As the Arbitrator's award to which the Union's exceptions were filed is not final, the exceptions are interlocutory. As noted previously, the Authority "ordinarily" will not consider interlocutory appeals. The Union has not asserted or established any basis in its exceptions for the Authority to consider the interlocutory appeal. Accordingly, the Union's exceptions do not warrant review at this time. See id.

IV. Order

The Union's exceptions are dismissed without prejudice to the timely filing of any exceptions with the Authority after a final award is rendered by the Arbitrator.

For the Authority.

Alicia N. Columna
Director, Case Control Office

(If blank, the decision does not have footnotes.)

*/ Section 5.02 of the parties' agreement provides, in relevant part:

Where an employee is subject to discipline, it is agreed that within forty five (45) calendar days of the offense, the employer's awareness of the offense, or the completion of the investigation of the matter by other than the supervisor, whichever occurs later, the employer will impose or serve upon the employee one of the following:

* * * * * * *

(b) In the case of a written reprimand, suspension, or removal, a notice of proposed reprimand, suspension or removal[.]