[ v61 p355 ]
61 FLRA No. 65
OF GOVERNMENT EMPLOYEES
DEPARTMENT OF LABOR
October 26, 2005
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 Herbert Fishgold filed by the Union under § 7122 of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions. [n1]
The Arbitrator agreed to resolve, in a separate proceeding before holding a hearing on the merits of the Union's grievance, issues regarding the Union's requests for information. Resolving those issues, the Arbitrator found that the Agency did not commit an unfair labor practice by failing to provide the Union with the requested information.
For the following reasons, we dismiss the exceptions, without prejudice, as interlocutory.
II. Background and Arbitrator's Award
As relevant here, the Union filed an institutional grievance alleging that the Agency did not properly investigate claims of sexual harassment and misconduct involving various management officials. The Union requested that the Agency provide it with certain information regarding the management officials named in the grievance. Subsequently, without providing the requested information, the Agency requested that the Union clarify the allegations contained in the grievance. The Union made another information request, to which the Agency did not respond.
When the grievance was unresolved, it was submitted to arbitration, where the Arbitrator agreed to bifurcate the proceedings and first resolve whether the Agency committed an unfair labor practice by failing to provide the requested information. Accordingly, the Arbitrator "took evidence to assist in issuing a final decision on the information request issues before the parties presented any evidence pertaining to sexual harassment/sexual misconduct[.]" Award at 2. During the hearing, the following exchange between the Union representative and the Arbitrator occurred:
[Union Representative]: The Union does request that in your decision you state that [it] is a final decision on the informational issue.
[Arbitrator]: Okay. Otherwise one might argue it is an interlocutory appeal.
[Union Representative]: Exactly.
[Arbitrator]: That's what it's going to be. It's not a preliminary [sic]. It's a decision as to whether or not that information should be provided at the point in time it's being requested.
Exceptions, Attachment 6 (Hearing Transcript) at 5.
In his award, the Arbitrator noted the Agency's reliance on the Privacy Act, 5 U.S.C. § 552a, and found that the privacy interests of the individuals named in the grievance outweighed the Union's "lack of specific evidence to demonstrate" that the Agency failed to investigate any allegations concerning those individuals. Award at 8. The Arbitrator also found that the Union failed to respond to the Agency's request for additional information about the grievance. For these reasons, the Arbitrator concluded that the Agency did not commit an unfair labor practice by failing to provide the information. [ v61 p356 ]
III. Positions of the Parties
A. Union Exceptions
The Union argues that the award is contrary to § 7114(b)(4) of the Statute because the Union established a particularized need for the information. The Union also contends that the Privacy Act does not prohibit disclosure to the Union because the requested information is contained in published systems of records and disclosure to the Union is a routine use for the information contained in those systems. The Union also asserts that various statements by the Arbitrator in the award are incorrect, and that the Arbitrator erroneously relied on decisions of a Regional Director (RD) of the Authority.
B. Agency Opposition
The Agency claims that the Union failed to demonstrate particularized need for the information and that the Agency's Privacy Act interests outweighed the Union's interest in disclosure. With regard to the Union's claim that the Arbitrator made incorrect statements, the Agency asserts that the Union fails to demonstrate that the award is based on a nonfact. Finally, the Agency states that the Arbitrator did not rely on any RD decisions.
IV. Order to Show Cause
The Authority ordered the Union to show cause why its exceptions should not be dismissed as interlocutory. [n2] The Authority stated that, in order to comply with the Order, the Union must either "show that the Arbitrator's award is a complete determination of all the issues submitted to the Arbitrator" or, alternatively, "show that extraordinary circumstances exist for the Authority to consider the Union's interlocutory exceptions." Order to Show Cause at 2. The Authority also provided the Agency with an opportunity to respond to the Order.
In response to the Authority's Order, the Union claims that the Arbitrator's statements during the hearing and in the award itself demonstrate that the award is final. Accordingly, the Union contends that its exceptions are not interlocutory.
In its response to the Order, the Agency argues that the exceptions are interlocutory, noting that the Authority has dismissed exceptions as interlocutory in cases involving information requests. See United States DOD Dependents Schools, 42 FLRA 1166, 1168 (1991) (DODDS). The Agency also argues that the exceptions do not present a plausible jurisdictional defect warranting review and, thus, should be dismissed.
V. Analysis and Conclusion
Section 2429.11 of the Authority's Regulations provides, in pertinent part, that "the Authority . . . ordinarily will not consider interlocutory appeals." 5 C.F.R. § 2429.11. Pursuant to this regulation, it is long-established that the Authority ordinarily will not resolve exceptions to an arbitration award unless the award constitutes a complete resolution of all of the issues submitted to arbitration. [n3] See, e.g., United States Dep't of Transp., FAA, Wash., D.C., 60 FLRA 333, 334 (2004) (FAA); AFGE, Nat'l Council of EEOC Locals No. 216, 47 FLRA 525, 530 (1993); AFGE, Local 12, 38 FLRA 1240, 1246 (1990); Navy Pub. Works Ctr., San Diego, Cal., 27 FLRA 407, 408 (1987). Consistent with this principle, the Authority found that an award was not final where the arbitrator resolved, among other things, a dispute over an agency's obligation to provide certain information to the union, but did not resolve all of the issues before him. See DODDS, 42 FLRA at 1168. In addition, it is well-established that 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. See, e.g., FAA, 60 FLRA at 334; United States Dep't of HHS, Ctrs. for Medicare & Medicaid Servs., 57 FLRA 924, 926 (2002) (HHS); United States Dep't of the Treasury, IRS, L.A. Dist., 34 FLRA 1161, 1163 (1990) (IRS); Dep't of the Army, Oakland Army Base, 16 FLRA 829, 830 (1984) (Army).
The Union does not dispute that the Arbitrator resolved only preliminary issues involving the Union's request for information, not the merits of the grievance. Thus, there is no dispute that the award does not constitute a complete resolution of all of the issues submitted to arbitration. Further, consistent with Authority precedent, [ v61 p357 ] the parties' agreement to conduct a separate, preliminary hearing concerning the information request issues did not operate to convert the Arbitrator's threshold ruling regarding the information requests into a final award. See, e.g., FAA, 60 FLRA at 334; HHS, 57 FLRA at 926; IRS, 34 FLRA at 1163; Army, 16 FLRA at 830.
The Union argues that statements by the Arbitrator in the award and during the hearing support a conclusion that the award is final. In the award, the Arbitrator stated that he "took evidence to assist in issuing a final decision on the information request issues before the parties presented any evidence pertaining to sexual harassment/sexual misconduct by management officials[.]" Award at 2. Also, as set forth above, the Arbitrator agreed during the hearing to the Union's request that the award "state that it is a final decision on the informational issue[,]" and stated that his decision would not be "preliminary" but would be "a decision as to whether or not that information should be provided at the point in time it's being requested." Exceptions, Attachment 6 (Hearing Transcript) at 5.
The Arbitrator's statements indicate his intention to issue a "final" award regarding only the information request issues. However, his statements do not indicate that he intended the award to be a complete resolution of all of the issues presented to him. In any event, there is no basis for allowing an arbitrator's intent alone to govern whether an award is final for purposes of Authority review. In this connection, Authority precedent indicates that how an arbitrator labels his or her award does not, by itself, demonstrate whether or not the award is final. See, e.g., FAA, 60 FLRA at 333-34 (Authority found exceptions interlocutory despite agency's undisputed claim that arbitrator had characterized his award as "final"); AFGE, Local 1760, 37 FLRA 1193, 1200 (1990) (Authority found award final despite arbitrator's statement that it was an "Interim Award").
Further, not allowing an arbitrator to dictate whether an award is final for Authority review purposes is consistent with the policy reflected in § 2429.11 of the Authority's regulations, which is "the judicial policy of discouraging fragmentary appeals of the same case." IRS, 34 FLRA at 1163. In this regard, if an arbitrator's or the parties' intent governed whether an award is "final" within the meaning of Authority precedent, then the arbitrator or the parties could effectively compel the Authority to resolve fragmentary appeals of a single case merely by agreeing to label an interim award as "final." Such an approach would undercut the policy behind § 2429.11 of the Authority's Regulations and would be inconsistent with the Authority's longstanding precedent holding that an award is not final merely because the parties agree to resolve the issues presented in separate proceedings. See, e.g., FAA, 60 FLRA FLRA at 334; HHS, 57 FLRA at 926; IRS, 34 FLRA at 1163; Army, 16 FLRA at 830.
For these reasons, we find that the Arbitrator's statements in his award and during the hearing do not demonstrate that the award is final. In addition, the Union does not dispute that the award is not a complete resolution of all of the issues presented. In these circumstances, we find that the award is not final and, thus, that the Union's exceptions are interlocutory. As the Union does not claim that this matter raises a plausible jurisdictional defect, the resolution of which will advance the ultimate disposition of this case, we dismiss the exceptions without prejudice. See, e.g., United States Dep't of the Treasury, Customs Serv., Tucson, Ariz., 58 FLRA 358, 359 (2002).
The exceptions are dismissed without prejudice.
Footnote # 1 for 61 FLRA No. 65 - Authority's Decision
Although the Union filed a motion requesting the Authority to disregard the Agency's opposition as untimely, and the Agency filed a response to that motion, neither party requested permission to file these supplemental submissions. Accordingly, we do not consider them. See, e.g., United States Dep't of HHS, FDA, 60 FLRA 250, 250 n.1 (2004). In addition, as discussed further below, the Authority issued an order to show cause why the Union's exceptions should not be dismissed without prejudice, and both parties responded. The Union filed a motion to disallow the Agency's response, the Agency filed a reply to the Union's motion, and the Union filed a motion to disallow the Agency's reply. As neither party requested to file these supplemental submissions, we also do not consider them. See id.
Footnote # 2 for 61 FLRA No. 65 - Authority's Decision
We note that, during the hearing, the Arbitrator stated that he would issue a decision on the information request issues, "[a]nd subsequent to that decision, if the decision is to provide material, some material, all material, no material, whatever, if the parties feel they need to do something from that, so be it, but absent that, we would then be in a position to establish a hearing date for the merits of the grievance." Exceptions, Attachment 6 (Hearing Transcript) at 4-5. The record does not disclose the status of proceedings regarding the merits of the grievance.
Footnote # 3 for 61 FLRA No. 65 - Authority's Decision
When an interlocutory appeal raises 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. AFGE, Local 446, 59 FLRA 451, 453 (2003).