Department of the Air Force, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364 (Authority decision, October 31, 1988)

FLRA interlocutory decision. The Authority dismisses the Air Force's exceptions without prejudice because the arbitrator has not issued a final award on the entire dispute. The agency may renew its arguments after a final arbitration award; this order does not present a final judicial review period under 5 U.S.C. § 7123(a).

Plain-English summary

An arbitrator ordered Carswell Air Force Base to reevaluate candidates for a promotion using a revised point system. He retained jurisdiction so the union could challenge the fairness of the reevaluation. The Air Force appealed the arbitrator's July 1988 award, but the Authority found that the arbitration was still open. It dismissed the appeal as premature, allowing the Air Force to raise its arguments again after a final award.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a) and the interlocutory appeal rule at 5 C.F.R. § 2429.11.
• Outcome: Agency exceptions dismissed without prejudice.
• Key point: The Authority ordinarily waits for a final arbitration award before reviewing exceptions.

Full text (FLRA public release)

[ v33 p757 ]
33:0757(88)AR

The decision of the Authority follows:

33 FLRA No. 88

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE AIR
FORCE

CARSWELL AIR FORCE BASE,
TEXAS

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 1364

0-AR-1603

ORDER

On August 30, 1988, the Agency filed exceptions to the award of Arbitrator John A. Bailey pursuant to 5 U.S.C. § 7122(a) and 5 C.F.R. § 2425.1. The Arbitrator has filed a letter on the merits of his award that has not been considered. The Arbitrator has no standing to argue the merits of his award before the Authority because he did not participate as a party in this proceeding. 5 C.F.R. § 2421.11(a)(4)(ii), 5 U.S.C. § 7103(a)(1), and 5 C.F.R. § 2425.1(a). The Union has filed a letter opposing the Agency's exceptions on the basis that the exceptions are interlocutory and must be dismissed. We agree.

The record indicates that the Arbitrator determined in his interim award dated February 26, 1988, the issue before him to be whether the grievant, rather, than a certain other employee, would have been promoted to a specific position but for alleged anti-union discrimination against him as the president of the union; or, alternatively, whether the Agency violated any other law, rule, or regulation or contractual provision in using unfair criteria to evaluate the promotion candidates. As part of his interim award, the Arbitrator directed management to re-study and re-do the point system for evaluating the promotion candidates, and to reevaluate the grievant and the other employee consistent with his opinion and award. The Arbitrator specifically retained jurisdiction in order for the Union, if aggrieved by the result of management's reevaluation of the promotion candidates, to challenge in the arbitration proceeding the fairness of the point system. Finally, the Arbitrator deferred deciding whether the circumstantial evidence of anti-union discrimination amounted to a preponderance of the evidence.

On July 27, 1988, the Arbitrator issued another award finding that: (1) the Union had not proven anti-union discrimination by a preponderance of the evidence; and (2) the Agency's reevaluation of the promotion candidates was faulty because it was based on a point system that was still unfair after its revision. The Arbitrator awarded another reevaluation of the promotion candidates after making specific adjustments to the point system. He stated that, "[T]he union may see fit to again challenge the agency's action
[in promoting a candidate] on the ground of unfairness. Accordingly, I will retain jurisdiction."

The Agency's exceptions to the Arbitrator's award of July 27, 1988, are interlocutory. 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. U.S. Small Business Administration and American Federation of Government Employees, Council 228, Local 2532, AFL-CIO, 32 FLRA 699 (1988).

It is clear that the Arbitrator has not yet rendered a final award on the entire dispute in this case. He expressly retained jurisdiction to afford the Union another opportunity to challenge the Agency's promotion action on the ground of unfairness. 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 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.,

_____
Clyde B. Blandford, Jr.

Acting Executive Director

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