[ v58 p745 ]
58 FLRA No. 176
DEPARTMENT OF THE TREASURY
BUREAU OF ENGRAVING AND PRINTING
WESTERN CURRENCY FACILITY
FORT WORTH, TEXAS
July 31, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Ira F. Jaffe filed by the Agency under § 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.
The Arbitrator sustained a grievance regarding the FY 2002 Performance Plan. The Arbitrator directed the Agency to take certain actions and the Arbitrator remanded to the parties for resolution the Union's claims regarding backpay, interest, and reasonable attorney fees in accordance with the parties' stipulation. The Arbitrator retained jurisdiction to resolve any claims which the parties were unable to resolve.
We find that the Agency's exceptions are interlocutory and that no extraordinary circumstances have been presented warranting review of the exceptions at this time. Accordingly, we dismiss the exceptions without prejudice.
II. Background and Arbitrator's Award
This case concerns bookbinders employed by the Agency to inspect currency and to perform various finishing activities with respect to the currency. After the Agency purchased new equipment to electronically examine the sheets of currency, the Agency implemented different productivity standards for bookbinders operating the new electronic equipment and those employees who continued to run older manually-operated equipment. Specifically, the FY 2002 performance plan established a production standard of 39,500 sheets on manually operated equipment and 45,000 sheets for electronic equipment. The Agency also ceased providing bookbinders credit for all production of relief bookbinders during lunch and break periods. The net effect of the FY 2002 performance plan was to require a net increase in productivity. The Union then filed this grievance.
The parties stipulated that:
The Arbitrator is requested to make an award that addresses the merits of the underlying dispute and to grant such relief as will provide needed guidance and/or prevent the same issues from occurring begin [sic] during the next or any future fiscal year. In the event that additional relief is or may be appropriate, the parties have agreed to bifurcate the proceeding to allow for further hearings or post-award submissions relating to backpay, interest on backpay, and/or reasonable attorney's fees, all of which have been requested by the Union in this proceeding.
Award at 2.
The Arbitrator stated that the initial question was to determine whether the FY 2002 performance plan violated the parties' 1998 and 1999 memoranda of agreement (MOAs) by: 1) increasing the effective per hour sheet production requirement; 2) failing to provide relief operators; 3) changing the method for crediting production; and 4) increasing the real production standards and eliminating credit for the production of relief operators.
The Arbitrator determined that he was
persuaded that the [Agency's] decision to significantly increase pro-rata production by lowering the nominal amount of sheets, but by changing the method of calculating production and failing to provide adequate relief, thereby resulting in a significant increase in expected production, was a violation of the 1998 MOA, the June 15, 1998 clarifying side letter, and the discussions surrounding the 1999 MOA on pay.
Award at 27. The Arbitrator also determined that the decision to cease provision of adequate relief, and to stop providing bookbinders with credit for the production of relief operators, also violated the negotiated agreements.
The Arbitrator ordered the following remedies: the maximum per shift productivity requirements are [ v58 p746 ] 46,500 sheets on the electronic equipment; employees are allowed to take their morning and afternoon breaks, lunch periods, and clean-up time; the historically used method for determining the 46,500 sheet daily productivity requirement shall continue; bookbinders shall be credited with the performance of their relief operators; any adverse actions based on performance taken in FY 2002 in reliance on improper productivity standards must be rescinded and any such documentation must be expunged from the employees records.
As to individual remedies, the Arbitrator agreed to retain jurisdiction if the parties were unable to resolve such issues. Further, as noted above, the parties had agreed to bifurcate the proceeding to allow for further hearings or post-award submissions relating to backpay, interest on backpay, and/or reasonable attorney's fees, all of which had been requested by the Union in this proceeding. Nothing in the record indicates that the Arbitrator has resolved these matters.
III. Positions of the Parties
The Agency contends that the award is deficient because it is contrary to law, including management's rights to direct employees and to assign work under § 7106(a)(2)(A) and (B) of the Statute; because it is contrary to 5 U.S.C. § 5349; and because the award fails to draw its essence from the parties' agreement. The Union opposed the Agency's exceptions.
IV. Analysis and Conclusions
Although neither party raised the interlocutory nature of the award, we raise the issue sua sponte since the parties agreed to a bifurcated proceeding and the second part of that proceeding regarding backpay, interest and attorney fees has not been completed.
Section 2429.11 of the Authority's Regulations provides: "[T]he Authority . . . ordinarily will not consider interlocutory appeals." In arbitration cases, this means that ordinarily, the Authority will not resolve exceptions filed to an arbitration award unless the award constitutes a complete resolution of all of the issues submitted to arbitration. See, e.g., United States Dep't of Health and Human Services, Ctrs. for Medicare and Medicaid Services, 57 FLRA 924, 926 (2002) (HHS); AFGE National Council of EEOC Locals No. 216, 47 FLRA 525, 530 (1993); Navy Public Works Ctr., San Diego, Cal., 27 FLRA 407, 408 (1987).
Consequently, an arbitration award that postpones the determination of an issue submitted does not constitute a final award subject to review. See HHS, 57 FLRA at 926; AFGE Local 12, 38 FLRA 1240, 1246 (1990). Exceptions are considered interlocutory when the arbitrator has declined to make a final disposition as to a remedy. See HHS, 57 FLRA at 926. Similarly, the parties' agreement to conduct a separate hearing on a threshold issue does not operate to convert the arbitrator's threshold ruling into a final award subject to exceptions being filed under § 7122 of the Statute. See HHS, 57 FLRA at 926; United States Dep't of the Treasury, Internal Revenue Serv., Los Angeles Dist., 34 FLRA 1161, 1163 (1990); Dep't of the Army, Oakland Army Base, 16 FLRA 829, 830 (1984).
However, in cases where exceptions are interlocutory in nature, but raise a plausible jurisdictional defect, the resolution of which would advance the ultimate disposition of the case, extraordinary circumstances may exist warranting review of the exceptions. See Library of Congress and Fraternal Order of Police, Library of Congress Labor Committee, 58 FLRA 486 (2003) (Member Pope dissenting as to application of standard).
Applying our precedent to this case, we find that the Agency's exceptions are interlocutory. The Arbitrator did not make a final disposition as to monetary remedies. Instead, observing the bifurcated process outlined in the parties' stipulation, the issues of backpay, interest, and attorney fees were to be addressed in either a subsequent hearing or submission. As such, the award is not final and complete because it does not address these issues.
Moreover, the Agency's exceptions do not raise a plausible jurisdictional defect, the resolution of which would advance the ultimate disposition of the case. The Agency alleges only that the matter was excluded from the grievance/arbitration process under the parties' collective bargaining agreement. Exceptions at 6. While the parties have agreed that certain matters not excluded by statute are not subject to their grievance/arbitration process, we do not view a purely contractual limit upon the substantive arbitrability of a particular matter as a plausible jurisdictional defect for which we will provide interlocutory review. In this regard, we note that the few cases in which the Authority has granted interlocutory review have involved jurisdictional issues that arise pursuant to a statute. See, e.g., United States Dep't of Defense, National Imagery and Mapping Agency, St. Louis, Mo., 57 FLRA 837, 837 n.2 (2002) (grievance validity, arbitrability determined by pay statute); United States Dep't of the Interior, Bur. of Indian Affairs, Wapato Irrigation Project, Wapato, Wash., 55 FLRA 1230, 1232 (2000)) (grievance validity, arbitrability determined by statutes covering bargaining unit status and classification exclusion).
Because the award is not final, we find that the Agency's exceptions are interlocutory. Further, we find that the exceptions do not raise a plausible jurisdictional defect warranting review at this time. Accordingly, we find no basis for interlocutory review and the exceptions are dismissed without prejudice pursuant to § 2429.11 of our Regulations.
The Agency's exceptions are dismissed without prejudice.