73 FLRA No. 81                                                                                                                                                                

 

UNITED STATES

DEPARTMENT OF JUSTICE

FEDERAL BUREAU OF PRISONS

FEDERAL CORRECTIONAL COMPLEX

BASTROP, TEXAS

(Agency)

 

and

 

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 3828

COUNCIL OF PRISON LOCALS #33

(Union)

 

0‑AR‑5785

 

_____

 

ORDER DISMISSING EXCEPTION

 

January 26, 2023

 

_____

 

Before the Authority:  Susan Tsui Grundmann, Chairman, and Colleen Duffy Kiko, Member

 

1. Statement of the Case

 

In this case, the Agency filed an interlocutory exception to Arbitrator Bruce Ponder’s interim award.  We dismiss the Agency’s exception because it does not demonstrate extraordinary circumstances warranting interlocutory review.

 

II.            Background and Arbitrator’s Award

 

In 2011, the Union filed a grievance alleging that the Agency was not compensating bargaining-unit employees for work performed at the start and end of each shift.  The grievance went to arbitration.  An arbitrator issued an award finding that the Agency had violated the Fair Labor Standards Act (FLSA),[1] and, as a remedy, that arbitrator directed the Agency to compensate affected employees.  The Agency filed an exception.

 

In U.S. DOJ, Federal BOP, Federal Correctional Institution, Bastrop, Texas (Bastrop I), the Authority noted that the U.S. Supreme Court had recently issued a decision altering the relevant standard for determining whether certain activity is compensable under the FLSA.[2]  As a result, the Authority remanded the award for further findings consistent with the new standard.[3]  On remand, the arbitrator failed to address the relevant FLSA standard, as directed by the Authority in Bastrop I.  Thus, in U.S. DOJ, Federal BOP, Federal Correctional Institution, Bastrop, Texas (Bastrop II), the Authority set aside the award as contrary to law.[4]

 

In 2015, before the Authority issued Bastrop I, the Union filed the grievance at issue in this case                 (the second grievance).  The second grievance alleged the same violations over a different period of time.  When the Agency denied the second grievance, the parties selected a different arbitrator – Arbitrator Ponder (the Arbitrator) – to resolve their dispute.  Due to the similarity of the issues in the two grievances, the parties discussed whether to delay a hearing in the second grievance until the resolution of Bastrop II.  In a 2016 email exchange between the parties, the Union asked whether such a delay was acceptable.  The Agency did not respond.

 

Five years later, in April 2021, the Union contacted the Agency and the Arbitrator to schedule a hearing for the second grievance.  The Agency moved for a pre‑hearing determination on arbitrability, claiming that the doctrine of laches barred the second grievance.  The Arbitrator noted that the equitable defense of laches applies when:  (1) a claimant unreasonably delays filing a claim, and (2) that delay prejudices the other party’s ability to mount a defense.  Finding that the parties’ agreement contained no deadline for scheduling a hearing, and the Agency had not proven that the delay was unreasonable, the Arbitrator concluded that the second grievance was arbitrable.[5]  Because the Agency failed to establish a necessary element of laches, the Arbitrator did not address whether the Agency was prejudiced.

 

The Agency filed an exception on December 17, 2021, and the Union filed an opposition on January 14, 2022.

 

III.          Analysis and Conclusion:  We dismiss the Agency’s interlocutory exception, without prejudice, because it does not demonstrate extraordinary circumstances warranting review.

 

The Agency argues that the award is contrary to law because the Arbitrator erred in finding that the Union’s delay in requesting a hearing was reasonable.[6]  The Authority ordinarily will not consider an exception to an arbitration award unless the award completely resolves all the issues submitted to arbitration.[7]  Although the Authority will grant interlocutory review under certain “extraordinary circumstances,” the Authority has long held that it will not do so if it would not obviate the need for further arbitration.[8]

 

The Agency concedes that its exception is interlocutory.[9]  But the Agency argues that the Authority granting its exception—and holding that the Arbitrator’s laches determination was contrary to law—would result in the dismissal of the second grievance, thereby bringing an end to the entire dispute.[10] 

 

The equitable defense of laches bars an action when unreasonable delay in bringing the action has prejudiced the party against whom the action is taken.[11]  As the Agency acknowledges,[12] the party asserting laches must prove both unreasonable delay and prejudice.[13]  These two elements of laches are questions of fact.[14]

 

 

 

Here, the Arbitrator found that the Agency failed to prove that the Union’s delay in scheduling a hearing was unreasonable.[15]  Based on the Agency’s failure to establish unreasonable delay, the Arbitrator did not make any findings concerning whether the Agency was prejudiced.  Because granting the Agency’s exception would require the Authority to remand the case to the Arbitrator for a factual finding on the issue of prejudice,[16] the Agency has not shown that interlocutory review will obviate the need for further litigation.[17]  Thus, we find that interlocutory review is not warranted, and we dismiss the Agency’s exception without prejudice.   

 

IV.          Decision

 

We dismiss the Agency’s exception without prejudice.