U.S. Department of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, Wapato, Washington and National Federation of Federal Employees, Local 341 (Kienast, Arbitrator), Case

[ v55 p1230 ]

55 FLRA No. 197







January 14, 2000


Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Member Wasserman for the Authority.

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Philip Kienast filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions. We dismiss the exceptions as interlocutory.

II.     Background and Arbitrator's Award

      In the Spring of 1994, the grievant was an irrigation systems operator, GS-7. On May 3, 1994, his supervisor, the irrigation systems manager, GS-9, retired. The Agency temporarily promoted the grievant to irrigation systems manager, GS-8, three times during the period of 1994-1997. On November 23, 1997, the grievant was competitively promoted permanently to irrigation systems manager. On December 3, 1997, he filed a grievance claiming that except for the temporary promotion periods, at all other times after May 3, 1994, until he was permanently promoted, he performed the duties of the manager position and should have been paid at a higher rate of pay. [ v55 p1231 ]

      Before the Arbitrator, the Agency argued that the grievance was not arbitrable because "[t]he Union affirmed that supervisors are not covered by the bargaining unit and that the grievant was performing supervisory duties." Agency's Post-hearing Brief at 6 (citation omitted). The Agency noted that "the grievant's name was entered on the position description for the Irrigation Systems Manager and the grievant's performance appraisal was accomplished for a position as a supervisor (Irrigation Systems Manager)." Id. Accordingly, the Agency claimed that the Arbitrator lacked jurisdiction because the grievant was not covered by the collective bargaining agreement.

      The Arbitrator ruled that the grievance was arbitrable. He noted that the grievant had been permanently promoted to the manager position on November 23, 1997, and filed the grievance on December 3, 1997. Consequently, he found that the grievance was filed before 21 days had elapsed following the grievant's promotion out of the unit and that it covered his work as a unit employee.

      On the merits, the Arbitrator ruled that the Agency violated the collective bargaining agreement when it failed to pay the grievant at a higher rate of pay while he was assigned the duties of the irrigation systems manager. However, the Arbitrator found insufficient guidance in the record to determine the appropriate remedy. As a result, he ordered the parties to negotiate an appropriate remedy, but retained jurisdiction for the purpose of determining a remedy if the parties were unable to agree.

III.     Positions of the Parties

A.     Agency

      The Agency contends that the award is contrary to the Statute. The Agency asserts that by ruling that the grievance pertained to the duties that the grievant performed as a unit employee, the Arbitrator made a unit determination that under the Statute is reserved exclusively to the Authority. The Agency argues that the grievant's performance of supervisory duties, regardless of whether the performance was in the position of irrigation systems manager or operator, served to exclude the grievant from the bargaining unit. The Agency maintains that under U.S. Small Business Administration and American Federation of Government Employees, Local 2532, AFL-CIO, 32 FLRA 847 (1988) (SBA), the merits of the grievance should not have been addressed until the unit-status question was resolved. The Agency notes that it has filed a petition for clarification of unit with the Authority. The Agency also argues that the Arbitrator made a classification determination in violation of section 7121(c)(5). In addition, the Agency contends that the award is based on a nonfact.

B.     Union

      The Union contends that the Agency's exceptions should be denied and that a unit clarification is unnecessary.

IV.     Order to Show Cause

      The Authority ordered the Agency to show cause why its exceptions should not be dismissed because they were interlocutory. The Authority directed the Agency to show that the award completely resolved all submitted issues or that circumstances exist warranting resolution of the interlocutory exceptions.

      In response, the Agency concedes that all of its exceptions are interlocutory. However, the Agency argues that circumstances exist under U.S. Department of the Treasury, Internal Revenue Service, Los Angeles District and National Treasury Employees Union, Los Angeles Joint Council, 34 FLRA 1161 (1990) (IRS), warranting resolution of its contrary-to-law exceptions at this stage of the proceeding. The Agency asserts that as in IRS, the Arbitrator resolved a question of bargaining-unit status, which warrants resolving its interlocutory exception. The Agency admits that the Arbitrator's award is vague, but asserts that the Arbitrator stated that the grievance covered the grievant's work as a unit employee from which it must be inferred that the Arbitrator determined that the grievant was a unit employee. The Agency further claims that its exception, which contends that the Arbitrator made a classification determination, also warrants resolution at this stage of the proceedings.

V.     Analysis and Conclusions

A.      The Authority's Regulations Generally Preclude Interlocutory Appeals