Social Security Administration, Field Operations, New York Region and American Federation of Government Employees, Local 3369 (Authority decision, November 28, 1988)

FLRA interlocutory decision. The Authority dismisses the union's exceptions without prejudice because the arbitrator had decided only arbitrability, leaving the grievance's merits unresolved. The union may refile after a final award. This order does not begin a final judicial-review period under 5 U.S.C. § 7123(a).

Plain-English summary

An arbitrator found a grievance involving the Social Security Administration's New York region arbitrable and said a hearing on its merits would follow. AFGE Local 3369 filed exceptions to that threshold ruling. The Authority held that the arbitrator had not yet issued a final award or remedy. It dismissed the exceptions as premature, without prejudice to refiling after the arbitrator decides the grievance. The Authority did not decide the underlying dispute.

Decision snapshot

• Authority: Interlocutory arbitration appeals under 5 C.F.R. § 2429.11.
• Outcome: Union's exceptions dismissed without prejudice while the merits hearing remained pending.
• Key point: An arbitrability ruling alone was not a final arbitration award for Authority review.

Full text (FLRA public release)

[ v33 p834 ]
33:0834(100)AR

The decision of the Authority follows:

33 FLRA No. 100

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

SOCIAL SECURITY ADMINISTRATION

FIELD OPERATIONS, NEW YORK REGION

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 3369

0-AR-1641

ORDER

On October 27, 1988, the Union filed exceptions to the award of Arbitrator David M. Kaplan pursuant to 5 U.S.C. § 7122(a) and 5 C.F.R § 2425.1(a). The Union's exceptions must be dismissed as interlocutory.

On September 27, 1988, the Arbitrator issued an "Interim Award on Issue of Arbitrability" on certain threshold issues: (1) whether the grievance was nonarbitrable on the basis of res judicata, collateral estoppel or other legal preclusion principles because the matter at issue had been allegedly adjudicated by Arbitrator Justin Smith; and (2) whether Arbitrator Smith had properly exercised jurisdiction over this grievance. The Arbitrator ruled that the grievance was arbitrable and added that pursuant to a prior agreement of the parties, the grievance would now proceed to a hearing on the merits.

The Union's exceptions to the Arbitrator's award of September 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).

In this case, it is clear that the Arbitrator has not yet rendered a final award on this dispute. The record shows that the Arbitrator made a determination on the arbitrability of the grievance, while postponing a hearing on the merits until after he issued the interim award. No final disposition or remedy in the dispute has been made. Thus, the Union'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 Union's exceptions are dismissed as interlocutory. However, the dismissal is without prejudice to the Union to refile exceptions 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:
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