U.S. Federal Labor Relations Authority

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United States Department of Transportation, Federal Aviation Administration (Agency) and National Air Traffic Controllers Association, AFL-CIO (Union)

[ v62 p344 ]

62 FLRA No. 61







January 29, 2008


Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope, Member

I.     Statement of the Case

      This matter is before the Authority on an exception to the award of Arbitrator Jerome H. Ross 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 exception.

      We find that the Agency's exception is interlocutory and that no extraordinary circumstances have been presented warranting review of the exception at this time. Accordingly, we dismiss the exception without prejudice.

II.      Background and Arbitrator's Award

      The Union alleged that the Agency had violated the overtime provisions in Article 38 of the parties' collective bargaining agreement (CBA) and, thereafter, sought arbitration over the alleged violations. In so doing, the parties jointly agreed to the following pertinent stipulations prior to arbitration:

3.     The parties submit to the Arbitrator the following issue for resolution: Should the Agency violate Article 38 (Overtime) of the parties' collective bargaining agreement and/or any locally negotiated procedures by bypassing bargaining unit member(s) on the overtime roster and, if the bargaining unit member has complied with the requirements of Article 38, what is the appropriate remedy?
[ v62 p345 ] 4.     The Union submits that the appropriate remedy is back pay as defined in Article 38 of the parties' collective bargaining agreement, or at the option of the employee, compensatory time.
5.     The Agency submits that the appropriate remedy is the Agency's offer to the employee [of] the next available overtime.
6.     The parties further agree that all grievances listed in the Union's national grievance and follow up request dated June 3, 2002 are to be held in abeyance pending determination of a remedy in this matter. The Arbitrator's remedy will be applied if there is no dispute that the Agency violated Article 38 and/or any locally negotiated procedures for equitable distribution of overtime.
. . . .
9. In an effort to reduce the number of grievances involving the appropriate remedy for overtime bypass, the parties have agreed to submit the sole issue of remedy to the Arbitrator.

Award at 2-3.

      After the parties entered into the above stipulations, the parties chose an arbitrator to resolve these issues. However, the arbitrator withdrew because he believed that an arbitrator should not be confined to only the choices of remedy furnished by the parties. Id. at 3. Thereafter, the Agency informed the Union that in choosing a new arbitrator, it would do so only as long as the new arbitrator had a "'free hand' to determine how the hearing will proceed and what, if any, remedies are appropriate for the alleged violations." Id. at 4.

      In 2004, Arbitrator Ross was chosen by the parties to resolve the following: [n1] 

This matter arises out of a National Grievance, dated October 30, 2001, protesting "the FAA's continuous practice of by-passing qualified bargaining unit members on a facility's overtime list." As a remedy, the grievance "requests overtime pay for each incident of overtime by-pass previously grieved as well as prospective relief for incidents in the future."

Id. at 1 (footnote omitted).

      However, prior to resolution of the issue above, the Arbitrator agreed to first consider an argument raised by the Agency that the Arbitrator did not have jurisdiction over this grievance. Specifically, the Arbitrator noted the Agency's claim that there was no arbitral jurisdiction over fashioning a remedy for future violations on three bases:

(1)      [Because] [s]uch a determination would preclude arbitrators in future overtime bypass cases from fashioning an appropriate remedy;
(2)      Because final offer arbitration is a form of interest arbitration not found in the federal sector, the stipulated issue concerning remedy cannot be heard in grievance arbitration; and
(3)      Because the stipulated issue does not involve an interpretation of the Agreement, the final offer process constitutes a bypass of the F[ederal] S[ervice] I[mpasses] P[anel].

Id. at 8-9.

      In resolving the Agency's claims, the Arbitrator determined that "a uniform Agency-wide remedy for Article 38 violations is properly submitted at the National Arbitration level," and the fact "[t]hat Regional Arbitrators would be limited to finding whether a violation occurred without remedial authority does not affect the jurisdiction of a National Arbitrator to render such an award pursuant to a joint request of the parties." Id. at 9. The Arbitrator rejected the Agency's contention that "final offer" arbitration is not allowable under the Statute. Rather, the Arbitrator found:

"Final offer selection" is a term of art that describes a dispute resolution procedure which is most often used in interest disputes. The Agency has not cited any authority to establish that the parties to a federal sector collective bargaining agreement are prohibited from using the technique on an ad hoc basis to resolve remedial issues in connection with the administration of a contract provision. Nor has the Agency shown a "bypass" of the FSIP in these circumstances, which do not arise out of impasses reached in term negotiations or midterm bargaining.

Id. at 9-10 (emphasis in the original) (footnote omitted).

      Additionally, the Arbitrator noted but rejected that the Agency's claims the parties had stipulated to issues that were unenforceable. The Arbitrator determined that there is no precedent that would mandate finding the stipulations unenforceable. The Arbitrator also found [ v62 p346 ] and that the parties did not have a past practice that would require this result. Id. at 11. Accordingly, the Arbitrator determined that he had jurisdiction to resolve the stipulated issues and scheduled a hearing on the merits.

III.      Positions of the Parties

A.     Agency's Exception

      The Agency argues that the Arbitrator lacks jurisdiction to resolve this grievance because the issue to be resolved is not one stemming from "grievance arbitration," but rather would create new contractual terms prior to the parties determining that they are at impasse. Exception at 2. The Agency states that the "outcome of this proceeding would be a new binding contractual provision (remedy) for the duration of the contract." Id. at 2. The Agency further states that such a contractual provision would bind future arbitration disputes to the remedy found by the Arbitrator. See id. at 3. The Agency contends that pursuant to 5 U.S.C. § 7119(b)(2), the parties must first receive approval of the Federal Service Impasses Panel (FSIP) prior to engaging in binding interest arbitration to resolve a bargaining impasse.  [n2]  See id. at 2.

      In support of its assertion that this matter relates to binding interest arbitration and not grievance arbitration, the Agency states that "the parties will not present any grievances to the [A]rbitrator for ruling on their merits or have him interpret and apply existing contractual provisions." Id. at 3. Rather, the Agency argues that as "[o]nly each party's respective proposed binding contractual remedy will be presented for selection," the matter concerns "interest" arbitration. Id. at 3, 4. The Agency contends that because the parties' contract does not specifically set forth which remedy must be applied for violating Article 38, the grievance here would impermissibly set terms of the CBA without first obtaining FSIP approval under 5 U.S.C. § 7119(b)(2). Id. at 4, 5 (citing AFGE, Nat'l Council of EEOC Locals, Local 216, 36 FLRA 9 (1990)).

B.      Union's Opposition

      The Union argues that the Agency's exception is premature and untimely. Opposition at 3. The Union states that "[a]n appeal to the FLRA can be taken only as to `final awards which have been issued on an entire proceeding.'" Id. (citing United States Patent and Trademark Office, 32 FLRA 572 (1988)). It contends that because the Arbitrator did not resolve all the issues submitted to arbitration, in the absence of "extraordinary circumstances," the Authority should dismiss the exception as interlocutory. Opposition at 4.

      Moreover, the Union contends that the Agency mischaracterizes the grievance as not arbitrable under the Statute. In this regard, the Union argues that "[i]nterest arbitration does not involve a stipulated issue in a grievance arbitration in which the parties ask the arbitrator to resolve the remedial issues arising out of a violation of the collective bargaining agreement." Id. at 5-6 (emphasis in the original) (citing Elkouri & Elkouri, How Arbitration Works, 1350 (BNA 6th Ed.); Broida, A Guide to Federal Labor Relations Authority Law and Practice 1849-1850 (Dewey 12th Ed.)). The Union states that the parties' agreement to submit this issue of remedy to an arbitrator "is consistent with the established principle of arbitral law that the Arbitrator's interpretation of the terms of the contract will be applied to all similarly situated employees in the bargaining unit." Opposition at 6. It concludes that "[t]he parties' original agreement that the Arbitrator's award be adhered to prospectively as remedial precedent . . . does not convert the arbitration proceeding into an interest arbitration." Id.

IV.      Analysis and Conclusions

      Section 2429.11 of the Authority's Regulations pertinently provides that "the Authority . . . ordinarily will not consider interlocutory appeals." 5 C.F.R. § 2429.11. As to arbitration cases, 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. See, e.g., United States Dep't of Transp., Fed. Aviation Admin., Wash, D.C., 60 FLRA 333, 334 (2004) (FAA). An arbitration award that postpones the determination of an issue submitted to arbitration or a remedy does not constitute a final award subject to review. See id. 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 id.

      [ v62 p347 ] Accordingly, here the Authority must first consider whether the Arbitrator's award was an interim or a final award. In making this determination we note that prior to resolving the issue submitted to Arbitration, the Arbitrator agreed to consider a threshold issue raised by the Agency regarding the Arbitrator's jurisdiction over this grievance. See Award at 4. The Arbitrator concluded that he had jurisdiction over the merits of the grievance and directed the parties to schedule a hearing on the merits. See Arbitrator's Award at 11. Accordingly, the Arbitrator's award does not constitute a final resolution of all the issues submitted to arbitration. As such, the award is an interim award and the Agency's exception is interlocutory. See AFGE, Local 446, 59 FLRA 451, 454 (2003).

      Having determined that the Agency's exception is interlocutory, the Authority must consider whether the Agency's exception raises a plausible jurisdictional defect the resolution of which would advance the ultimate disposition of the case. In resolving this issue, we note that where the parties seek a determination for breach of an existing contract, the matter involves grievance arbitration. See Dep't of Def. Dependents Sch. v. FLRA, 852 F.2d 779, 783 (4th Cir. 1988) (finding that an arbitrator's discretion in grievance arbitration is limited to interpreting the express terms of the contract, whereas in interest arbitration the arbitrator may "formulate the actual employment terms to govern . . . the parties who have bargained to impasse" and has discretion to "impose an appropriate resolution to the impasse"); e.g., Internal Revenue Serv., Fresno Reg'l Ctr., 9 FLRA 1029, 1030 (1982) (reviewing exceptions to an award where those exceptions are limited to the remedy imposed by an arbitrator). In contrast, interest arbitration involves settlement of terms of a contract between the parties. See, e.g., Black's Law Dictionary, 6th Edition, page 105 (1990) (stating that "[i]nterest arbitration involves settlement of terms of a contract between the parties as contrasted with grievance arbitration which concerns the violation or interpretation of an existing contract").

      This award concerns a national grievance over the remedies that are proper under Article 38 of the parties' agreement. In this circumstance, the parties have already negotiated the terms of their agreement, including Article 38. As such, what the Arbitrator was contracted to resolve was not the terms of the parties' agreement, as argued by the Agency, but rather what would be an appropriate remedy for current and prospective breaches of Article 38. There is no indication that a request for bargaining was made or that bargaining proposals were exchanged. Likewise, there is no indication that resolution of the matter would result in the imposition of contract terms. As parties are free to agree that previous arbitration awards are precedential -- thereby reaching into the future -- the mere fact that a grievance touches upon future contract remedies is not sufficient to establish that interest arbitration is involved. See Hotel Ass'n of Wash., D.C. v. Hotel & Rest. Employees Union, Local 25, 963 F.2d. 388, 390 (D.C. Cir.1992) (parties may make an arbitral decision binding in a future dispute by so providing in their collective bargaining agreement).

      Consistent with the foregoing, the parties in this case were not engaged in collective bargaining, but rather were dealing with a number of consolidated current and prospective grievances addressing a common remedial issue. Accordingly, contrary to the Agency's argument, as the parties were not at impasse, but rather were involved in grievance arbitration, there was no need to first seek approval of the FSIP under 5 U.S.C. § 7119(b)(2) prior to submitting this issue to arbitration.

      In these circumstances, as the Agency has not shown that the Arbitrator lacks jurisdiction to resolve this matter, we find no plausible jurisdictional defect warranting interlocutory review. See United States Dep't of Veterans Affairs, Western N.Y. Healthcare System, Buffalo, N.Y., 61 FLRA 173, 175 (2005 ) (finding no extraordinary circumstances except where exceptions that are interlocutory in nature raise a plausible jurisdictional defect which would advance the ultimate disposition of the case).

V.     Order

      The Agency's exception is dismissed without prejudice.

Footnote # 1 for 62 FLRA No. 61 - Authority's Decision

   The Arbitrator did not indicate whether this issue was jointly submitted and stipulated to by the parties or whether he framed this issue.

Footnote # 2 for 62 FLRA No. 61 - Authority's Decision

   5 U.S.C. 7119 Negotiation impasses; Federal Service Impasses Panel

(b)     If voluntary arrangements, including the services of the Federal Mediation and Conciliation Service or any other third- party mediation, fail to resolve a negotiation impasse--
. . . .
(2)     the parties may agree to adopt a procedure for binding arbitration of the negotiation impasses, but only if the procedure is approved by the Panel.