U.S. Small Business Administration and American Federation of Government Employees, Council 228, Local 2532 (Authority decision, July 15, 1988)

Final FLRA decision. The Authority dismisses the agency's exceptions as interlocutory; the arbitrator has not finished deciding the remedy. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

An arbitrator partly overturned a Small Business Administration employee's reprimand and restored four hours of official time, while upholding another part of the reprimand. He reserved a possible Back Pay Act remedy for later decision. SBA appealed before the arbitrator resolved that remaining issue. The Authority held that the award was not final and dismissed the exceptions as premature. SBA may renew its arguments after the arbitrator issues a final award.

Decision snapshot

• Authority: Interlocutory-appeal rule at 5 C.F.R. § 2429.11.
• Outcome: Agency's exceptions dismissed without prejudice; arbitration remedy remains unresolved.
• Key point: The Authority ordinarily waits for an arbitrator's complete award before reviewing exceptions.

Full text (FLRA public release)

[ v32 p699 ]
32:0699(100)AR

The decision of the Authority follows:

32 FLRA NO. 100

U.S. SMALL BUSINESS ADMINISTRATION

Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 228, LOCAL 2532,
AFL-CIO

Union

Case No. 0-AR-1557

ORDER DISMISSING EXCEPTIONS

On May 14, 1988, the Agency filed exceptions to the award of Arbitrator Millard Cass pursuant to 5 U.S.C. 7122(a) and 5 C.F.R. 2425.1. For the reasons set out below, the Agency's exceptions must be dismissed as interlocutory.

The record indicates that the Arbitrator determined that the issue before him to be whether the reprimand of the grievant for falsifying a leave slip and for making related false statements, both of which were in connection with the Agency's denial of official time to the grievant for a April 28, 1987, representational meeting, was for just cause. The Arbitrator found that (1) the reprimand of the grievant for making false statements was not for just cause; (2) 4 hours of official time should be restored to the grievant for the April 28th meeting; and (3) the reprimand for the grievant's alteration of the leave slip without authorization was for just cause. However, the arbitrator, noting that the grievant might be entitled to some of the benefits of the Back Pay Act insofar as his attorney fees and costs were involved, expressly did not make a complete and definitive award as to the appropriate remedy. In that regard, he stated that he was not certain of the application of the Back Pay Act in split decision situations as in this case. He then instructed the parties to either negotiate a settlement concerning this issue or to submit briefs on that one issue to him. Finally, the Arbitrator retained jurisdiction on the issue of the grievant's entitlement of benefits under the Back Pay Act.

The Agency requests permission to file an interlocutory appeal. An interlocutory appeal concerns a ruling which is preliminary to final disposition of a matter. The Authority "ordinarily will not consider interlocutory appeals." 5 C.F.R. 2429.11. In an arbitration case, this means that the Authority ordinarily will not consider an appeal of an Arbitrator's ruling until the Arbitrator has issued a final decision. American Federation of Government Employees, General Committee and Department of Health and Human Services, Social Security Administration, 32 FLRA 173 (1988); American Federation of Government Employees, General Committee and Department of Health and Human Services, Social Security Administration, 32 FLRA 175 (1988).

In this case, it is clear that the arbitrator has not yet rendered a final award on the entire dispute in this case. He expressly did not make a final disposition as to the remedy in the dispute. Thus, the Agency's exceptions are considered interlocutory and the facts and circumstances are not such as to warrant review of the exceptions at this time. See Navy Public Works Center, San Diego, California, and National Association of Government Employees, Local R12-35, 27 FLRA 407, 408 (1987)

Accordingly, since the Agency's exceptions are interlocutory, the exceptions are hereby dismissed. However, the dismissal is without prejudice to the renewal of any of the Agency's contentions in exceptions duly filed with the Authority after a final award is rendered by the arbitrator.

For the Authority.

Issued, Washington, D.C. July 15, 1988.

Jacqueline R. Bradley
Executive Director