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60 FLRA No. 54
DEPARTMENT OF THE ARMY
ARMY CORPS OF ENGINEERS
OF FEDERAL EMPLOYEES
September 15, 2004
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 Robert T. Moore 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 the grievance, finding that the grievant's 14-day suspension was not for just cause. The Arbitrator remanded the case to the parties for resolution of the Union's request for back pay and attorney fees and retained jurisdiction to resolve any claims which the parties were unable to resolve.
For the reasons that follow, 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 Agency's exceptions without prejudice.
II. Background and Arbitrator's Award
The grievant, the local Union president, received 5- and 14-day suspensions for various alleged infractions and was ultimately removed from her position. [n1] Only the 14-day suspension is before the Authority in this case. After the Notice of Decision to Suspend was issued, the Agency and the grievant agreed to hold in abeyance the grievant's actual serving of the 14-day suspension until the parties resolved the dispute over that penalty. See Award at 48. The grievant was terminated later following another disciplinary action. See id.
The grievant filed a grievance over the 14-day suspension and the matter proceeded to arbitration. Based on the parties' arguments, the Arbitrator set forth the issues as follows:
Was there just cause for the 14-day suspension imposed on the grievant and, if not, what should be the remedy?
Id. at 1. [n2]
The Arbitrator concluded that the 14-day suspension was not for just cause based on the separate grounds of "the denial of procedural due process" under the parties' agreement and the Agency's regulations, and of a "failure of proof". Id. at 16, 49. Therefore, the Arbitrator sustained the grievance.
To remedy the violation of the parties' agreement and the Agency's regulations, the Arbitrator directed the Agency to rescind the 14-day suspension in its entirety.
Furthermore, the Arbitrator noted the Union's request for "an award to the grievant for back pay, with interest, and the recovery of her attorney fees." Id. at 47. Relying on the Back Pay Act, the Arbitrator concluded that the grievant had been affected by an unjustified or unwarranted personnel action. Next, the Arbitrator considered the question of whether the unjustified or unwarranted personnel action "resulted in the withdrawal or reduction of all or part of the pay . . . [to which the grievant] is entitled, on correction of the personnel action, to receive for the period the personnel action was in effect?" Id. at 48. In this regard, the Arbitrator stated:
The record to date does not answer that question. It indicates that after the 14-day suspension was imposed, there was an agreement between the Agency and the grievant to hold in abeyance her serving the suspension until her challenge to the penalty was resolved. However, the grievant testified that she later was terminated as a result [ v60 p248 ] of another disciplinary action and since then has been unemployed.
Id. at 48.
Consequently, the Arbitrator remanded the grievance to the parties to address the issue of whether the Arbitrator should or should not find that:
The apparent agreed-to abeyance in the serving of both suspensions ended with the grievant's subsequent removal from federal service, and that the first five work days following that removal constituted the serving of the 5-day suspension imposed by [the Agency] on June 25, 2002, and the next 14 calender days following her removal constituted the serving by her of the 14-suspension imposed by [the Agency] on July 29, 2002.
Should the Union wish to advance a different basis for why its prayer can be considered, it should do so at the time it responds to the proposition advanced by the arbitrator.
Id. In this connection, the Arbitrator stated that after "receipt of the parties' arguments and copies of all authorities which they rely, a determination will be made as to whether the grievant can proceed under the Back Pay Act or on any other basis." Id. at 48-49.
Accordingly, the Arbitrator retained jurisdiction for purposes of:
1. Providing any clarification of this Decision and Award as may be appropriate, needed, and consistent with the arbitrator's authority and responsibilities.
2. Considering to a point of proper exhaustion, the grievant's prayer for an award of back pay, with interest, and recovery of her attorney fees.
Id. at 49.
III. Positions of the Parties
The Agency contends that the award does not draw its essence from the parties' agreement, is contrary to law and evidence and is based on nonfacts. In addition, the Agency claims that the Arbitrator was biased and that the award is contrary to law. The Union opposes 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 Arbitrator postponed a final determination as to the remedy. See, e.g., United States Dep't of the Treasury, Bureau of Engraving and Printing, Western Currency Facility, Fort Worth, Tex., 58 FLRA 745 (2003).
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).
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, 58 FLRA 486 (2003) (Member Pope dissenting as to application of standard).
Based on the parties' arguments, the Arbitrator set forth the issues as follows: "Was there just cause for the 14-day suspension imposed on the grievant and, if not, what should be the remedy?" Award at 1. The Arbitrator has not rendered a final award on the entire dispute submitted for arbitration because the award made no final resolution regarding the issue of the remedy. Although the Arbitrator sustained the grievance, finding that the grievant's 14-day suspension was not for just cause, he retained jurisdiction over the matter. In the award dated February 18, 2004, the Arbitrator stated that he was unable to determine from the record whether the grievant was entitled to back pay, and requested additional submissions from the parties on the matter of back pay within 21 days of their receipt of the award. See Award at 48. In this regard, the Arbitrator stated [ v60 p249 ] that after his "receipt of the parties' arguments and copies of all authorities on which they rely, a determination will be made as to whether the grievant can proceed under the Back Pay Act or on any other basis." Id. at 48-49. Accordingly, the Arbitrator retained jurisdiction to consider "to a point of proper exhaustion, the grievant's prayer for an award of back pay, with interest, and recovery of her attorney fees." Id. at 49.
The record reflects that, on April 16, 2004, the Agency submitted a brief to the Arbitrator on the matter of back pay, and it appears that the Union responded to the Agency's submission. In a submission dated May 3, 2004, the Agency replied to the Union's response. Consequently, the issue of the remedy is still pending before the Arbitrator. Applying our precedent to this case, we find that the award is not a final decision because it does not contain a complete resolution of the remedy issue. Thus, the Agency's exceptions are interlocutory.
Moreover, the Agency's exceptions neither allege nor establish a plausible jurisdictional defect, the resolution of which would advance the ultimate disposition of the case. 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). There is no such issue in this case.
In sum, because the award is not final, the Agency's exceptions are interlocutory. Further, the exceptions do not raise a plausible jurisdictional defect warranting review at this time. The exceptions likewise allege no other extraordinary circumstances warranting review of the exceptions. 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.
Footnote # 1 for 60 FLRA No. 54 - Authority's Decision
The grievant previously grieved her 5-day suspension. Another arbitrator sustained that grievance and ordered the suspension to be rescinded in its entirety. In United States Dep't of the Army, Norfolk District, Army Corps of Engineers, Norfolk, Va, 59 FLRA 906 (2004), the Authority denied the Agency's exceptions to that award.
Footnote # 2 for 60 FLRA No. 54 - Authority's Decision