U.S. Department of the Air Force, Headquarters 92nd Bomb Wing, Fairchild Air Force Base, Washington and National Federation of Federal Employees, Local 11 (Authority decision, August 30, 1993)

FLRA interlocutory decision. The Authority dismisses exceptions to an arbitrator's preliminary award because the arbitrator had not finished deciding the dispute when the exceptions were filed. This order does not decide the remaining performance-plan issue and does not present a judicial-review period under 5 U.S.C. § 7123(a) as running from the preliminary award.

Plain-English summary

An employee at Fairchild Air Force Base challenged an excellent performance rating and the legality of the performance plan used to rate him. The arbitrator upheld the rating under the existing standards but kept the case open for further briefing and possibly another hearing on the plan's legal compliance. The union filed exceptions before the arbitrator had issued a final award on that second issue. The Authority dismissed the exceptions as interlocutory without deciding their merits. A footnote says the arbitrator later issued a final award and states the deadline that had applied to an appeal from it.

Decision snapshot

• Authority: Interlocutory appeals under 5 C.F.R. § 2429.11.
• Outcome: Union exceptions dismissed as premature; their merits were not reached.
• Key point: An arbitrator's decision on one of two issues was not a final award while the arbitrator retained jurisdiction to decide the other.

Full text (FLRA public release)

[ v48 p403 ]
48:0403(37)AR

The decision of the Authority follows:

48 FLRA No. 37

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE AIR FORCE

HEADQUARTERS 92ND BOMB WING

FAIRCHILD AIR FORCE BASE, WASHINGTON

(Agency)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 11

(Union)

0-AR-2418

_____

ORDER DISMISSING EXCEPTIONS

August 30, 1993

_____

This matter is before the Authority on exceptions to an award of Arbitrator Robert L. Burke filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. On August 6, l993, the Authority directed the Union to Show Cause why its exceptions should not be dismissed as interlocutory. The Union filed a timely response. The Agency did not file an opposition to the Union's exceptions. For the reasons stated below, the Union's exceptions are interlocutory and must be dismissed.

The Arbitrator framed two issues that were before him for resolution:

ISSUE NO. 1

Did [the Agency], in the persons of the appropriate supervisor-raters, properly apply performance standards listed in AF Form 860 in rating the [g]rievant for his performance during the period ending June 30, 1992, resulting in an overall rating of "excellent"?

If not, what is the remedy?

Award at 4.

ISSUE NO. 2

Did the performance plan, [and the administration therof] established by management for the position in which the [g]rievant was employed, meet all statutory and other legal requirements of applicable laws, rules and regulations?

If not, what is the remedy?

Id.

The Arbitrator rendered a determination with regard to Issue No. 1, finding that both parties had adequate opportunities to present evidence and argument as to the treatment of the grievant under the existing standard. The Arbitrator concluded that management had applied the existing standards properly, and that the excellent rating received by the grievant was proper and justified when measured against the performance standards in effect at the time of the rating.

As to Issue No. 2, the Arbitrator found that management had not had sufficient opportunity to present evidence because the full extent of the Union's allegations were not clear at the time of the hearing. To correct this deficiency, the Arbitrator provided that:

[the Agency] will therefore respond to the Union's brief pertaining to this matter, and each party will then have an opportunity to file one answering brief, with copies to the Arbitrator. If it is then deemed necessary by all concerned, another hearing will be convened, with testimony and evidence restricted to those relevant to this issue.

The Arbitrator will retain jurisdiction in this matter until the above process for Issue No. 2 is completed, an [a]ward rendered, and the entire matter resolved.

Id. at 7.

The Union filed exceptions contending that the award is deficient because it is contrary to law, rule or regulation.

The Union's exceptions are interlocutory. An interlocutory appeal concerns a ruling that is preliminary to the 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. See, for example, U.S. Department of Defense, Dependents Schools and Overseas Education Association, 42 FLRA 1166, 1168 (1991).

In this case, the Arbitrator's award that issued on February 22, l993, was clearly not a final award on this dispute. The Arbitrator specifically retained jurisdiction over the case until he could render an award on Issue No. 2 and resolve the "entire matter." Award at 7. Although the Arbitrator found that management applied the existing standards in a reasonably fair and proper manner in rating the grievant as excellent, he did not determine whether the performance plan for the grievant's position and management's administration of that plan met all statutory and other legal requirements of applicable law, rule and regulation. Rather, he left the record open to allow the Agency the opportunity to respond to the Union's arguments in this regard and to convene another hearing if deemed necessary. Thus, the Arbitrator clearly intended to issue another award in this matter.(*) Therefore, the Union's exceptions are interlocutory and the facts and circumstances do not warrant review of the exceptions.

Accordingly, the Union's exceptions are dismissed.

For the Authority.

______
Alicia N. Columna
Director, Case
Control Office

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

*/
The Union has provided a copy of the
Arbitrator's final award issued on June 21, l993. Any appeal to the final Arbitrator's award had to be filed by July 26, l993. The time limit may not be extended or waived by the Authority. 5 C.F.R. § 2429.23.(d).