Internal Revenue Service, Louisville District and National Treasury Employees Union (Authority decision, September 20, 1988)

Final FLRA decision on exceptions. The Authority dismisses the IRS's exceptions without prejudice because the arbitrator has not issued a final award. 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. The grievance remains before the arbitrator.

Plain-English summary

An IRS employee grieved a failure to select them for a Revenue Officer vacancy. Before deciding the grievance's merits, the arbitrator ruled that the grievance was arbitrable and that an agency vacancy policy applied without conflicting with the collective bargaining agreement. The IRS sought immediate Authority review of that ruling. The Authority found there was no final arbitration award or remedy to review. It dismissed the exceptions without prejudice to refiling after a final award.

Decision snapshot

• Authority: Interlocutory appeals under 5 C.F.R. § 2429.11.
• Outcome: Agency exceptions dismissed without prejudice; arbitration remains pending.
• Key point: An interim ruling on arbitrability and applicable policy was not a final arbitration award.

Full text (FLRA public release)

[ v32 p1231 ]
32:1231(164)AR

The decision of the Authority follows:

32 FLRA No. 164

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

INTERNAL REVENUE SERVICE,

LOUISVILLE DISTRICT

Agency

and

NATIONAL TREASURY EMPLOYEES UNION

Union

Case No. 0-AR-1595

ORDER DISMISSING EXCEPTIONS

On August 3, 1988, the Agency filed exceptions to the award of Arbitrator Alvin Goldman, pursuant to 5 U.S.C. º 7122(a) and 5 C.F.R. º 2425.1. For the reasons set out below, the Agency's exceptions must be dismissed as interlocutory.

The record indicates the Arbitrator determined that the issue to be resolved was the Agency's failure to select the grievant for a Revenue Officer vacancy. The parties agreed to recess the hearing pending a determination by the Arbitrator as to whether policy statement P-O-4 is applicable to the case and whether there is a specific conflict between the collective bargaining agreement and the policy established by the Internal Revenue Manual for filling vacancies prior to a ruling on the merits.

On July 3, 1988, the Arbitrator issued a "Determination of the Controlling Standard for Resolving the Merits." The Arbitrator found that the grievance was arbitrable and that the Agency's policy statement was applicable to the case and was not in conflict with the collective bargaining agreement. In his July 3, 1988 determination, the Arbitrator indicated that "based upon the outcome of this determination the parties will decide whether to seek additional information disclosure from the other side and whether to present additional evidence prior to submitting briefs on the merits."

The Agency posits that "an interlocutory appeal is appropriate due to the parties' agreement that resolution of the legal issue would control the need for further arbitral proceedings . . . ." The Authority "ordinarily will not consider interlocutory appeals." 5 C.F.R. º 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 the Arbitrator has not yet rendered a final award on the dispute. The record shows that the Arbitrator merely made a determination on the arbitrability of the grievance and the applicability of the Agency's policy for filling vacancies prior to a ruling on the merits. The merits of the case have not yet been addressed. No final disposition or +emedy in the dispute has been made. Thus, we find that the Agency's exceptions are interlocutory and the facts and circumstances do not 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, the Agency's exceptions are dismissed without prejudice to refile with the Authority after a final award is rendered by the Arbitrator.

For the Authority.

Issued, Washington, D.C. September 20, 1988

________
Harold D. Kessler

Director, Information Resources and Research Services

FOOTNOTES:
(If blank, the decision does not
have footnotes.)