Hawaii Federal Employees Metal Trades Council (Union) and Pearl Harbor Naval Shipyard (Activity) (Authority decision, September 21, 1981)

FLRA interlocutory decision. The Authority dismissed exceptions to a partial arbitration award while the arbitrator retained jurisdiction. The underlying matter remains pending. This dismissal does not start an ordinary 60-day judicial-review period under 5 U.S.C. § 7123(a).

Plain-English summary

An arbitrator issued an amended award granting attorney fees in a shift reassignment grievance but retained jurisdiction because other issues remained unresolved. The agency filed exceptions to the fee award. The Authority held that the award was not yet final for the entire arbitration and dismissed the exceptions without prejudice to renewal after a final award. The underlying arbitration remained pending.

Decision snapshot

• Authority: 5 U.S.C. § 7122(a).
• Outcome: Exceptions dismissed as interlocutory without prejudice.
• Key point: The Authority ordinarily reviews exceptions after the arbitrator resolves the entire matter.

Full text (FLRA public release)

[ v06 p667 ]

06:0667(113)AR

The decision of the Authority follows:

6 FLRA No. 113

HAWAII FEDERAL EMPLOYEES
METAL TRADES COUNCIL, AFL-CIO
(Union)

and

PEARL HARBOR NAVAL SHIPYARD
(Activity)

Case No. O-AR-244

ORDER DISMISSING EXCEPTIONS

THIS MATTER IS BEFORE THE AUTHORITY FOR CONSIDERATION OF EXCEPTIONS
TO AN AWARD OF ARBITRATOR R. CHARLES BOCKEN FILED BY THE ACTIVITY
PURSUANT TO SECTION 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (5 U.S.C. 7122(A)) AND SECTION 2425.1 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 C.F.R. 2425.1(1981)). THE UNION
HAS FILED A MOTION TO DISMISS THE ACTIVITY'S EXCEPTIONS AS PREMATURE AND
UNTIMELY. FOR THE REASONS SET FORTH BELOW, IT HAS BEEN DETERMINED THE
SUBJECT EXCEPTIONS ARE INTERLOCUTORY AND MUST BE DISMISSED.

FROM THE DOCUMENTS SUBMITTED BY THE PARTIES, THE FOLLOWING PERTINENT
FACTS APPEAR. ON DECEMBER 10, 1980, THE ARBITRATOR ISSUED AN AWARD IN
THE MATTER WHICH INVOLVED THE GRIEVANCES OF A NUMBER OF EMPLOYEES
CONCERNING THEIR REASSIGNMENT FROM ONE SHIFT TO ANOTHER. IN HIS AWARD,
THE ARBITRATOR SUSTAINED SOME OF THE GRIEVANCES, DENIED OTHERS AND
DIRECTED CERTAIN REMEDIAL ACTION BY THE ACTIVITY AS TO THE EMPLOYEES
WHOSE GRIEVANCES WERE SUSTAINED. IN ADDITION, THE ARBITRATOR GRANTED
THE ACTIVITY TIME TO REPLY TO A REQUEST MADE BY COUNSEL FOR THE
GRIEVANTS THAT THE ARBITRATOR AWARD ATTORNEY FEES. FINALLY, THE
ARBITRATOR RETAINED JURISDICTION IN THE MATTER, STATING: "BECAUSE OF
POSSIBLE DIFFICULTIES WHICH MAY ARISE IN IMPLEMENTING THIS DECISION, AND
BECAUSE OF THE REMAINING ISSUE CONCERNING ATTORNEY'S FEES . . . THE
ARBITRATOR RETAINS JURISDICTION UNTIL THE AFORESAID MATTERS ARE
RESOLVED." ON DECEMBER 30, 1980, THE UNION REQUESTED RECONSIDERATION BY
THE ARBITRATOR OF CERTAIN ASPECTS OF THE AWARD. SUBSEQUENTLY, ON MAY 5,
1981, THE ARBITRATOR ISSUED A "FIRST AMENDED AWARD." IN THAT AMENDED
AWARD, THE ARBITRATOR, AMONG OTHER THINGS, APPROVED THE REQUEST FOR
ATTORNEY FEES IN A PARTICULAR AMOUNT AND DIRECTED THE ACTIVITY TO PAY
SUCH SUM TO COUNSEL FOR THE UNION. THE ARBITRATOR FURTHER STATED:
"INASMUCH AS THE ISSUE OF THE REMAINING GRIEVANTS HAS NOT YET BEEN
DECIDED, THE ARBITRATOR RETAINS JURISDICTION UNTIL A FINAL DECISION IS
RENDERED."

ON JUNE 3, 1981, THE ACTIVITY FILED THE INSTANT EXCEPTIONS TO THE
ARBITRATOR'S AWARD OF ATTORNEY FEES IN THE "FIRST AMENDED DECISION" OF
MAY 5, 1981; AND THE UNION SUBSEQUENTLY FILED A MOTION TO DISMISS THE
EXCEPTIONS.

SECTION 2429.11 OF THE AUTHORITY'S RULES AND REGULATIONS PROVIDES:
"THE AUTHORITY AND THE GENERAL COUNSEL ORDINARILY WILL NOT CONSIDER
INTERLOCUTORY APPEALS." THAT IS, THE AUTHORITY ORDINARILY WILL NOT
CONSIDER AN APPEAL UNTIL A FINAL DECISION HAS BEEN RENDERED ON THE
ENTIRE PROCEEDING. MORE PARTICULARLY, IN AN ARBITRATION CASE, THE
AUTHORITY ORDINARILY WILL ENTERTAIN EXCEPTIONS FILED BY A PARTY TO THE
CASE ONLY AFTER A FINAL AWARD HAS BEEN RENDERED BY THE ARBITRATOR ON THE
ENTIRE MATTER.

IN THIS CASE, AND AS RECOGNIZED BY THE ACTIVITY IN ITS EXCEPTIONS AND
THE UNION IN ITS MOTION, THE ARBITRATOR HAS NOT YET RENDERED A FINAL
AWARD DISPOSING OF THE ENTIRE MATTER INVOLVED IN THE PROCEEDING BEFORE
HIM, INCLUDING THE QUESTION OF ATTORNEY FEES. IN THIS REGARD, THE
ACTIVITY STATES THAT "THE ARBITRATOR HAS NOT INDICATED WHETHER OR NOT HE
WILL GRANT ADDITIONAL ATTORNEY FEES" AND THE UNION ASSERTS THAT "IT IS
POSSIBLE THE AMOUNT WILL BE INCREASED IN THE FINAL AWARD." THE
ACTIVITY'S EXCEPTIONS ARE THEREFORE CLEARLY INTERLOCUTORY AS TO THE
AWARD OF ATTORNEY FEES, AND THE FACTS AND CIRCUMSTANCES PRESENTED ARE
NOT SO EXTRAORDINARY AS TO WARRANT AUTHORITY REVIEW OF THE EXCEPTIONS AT
THIS STAGE OF THE PROCEEDING.

ACCORDINGLY, SINCE THE ACTIVITY'S EXCEPTIONS ARE INTERLOCUTORY AND
AUTHORITY REVIEW IS NOT WARRANTED UNDER THE CIRCUMSTANCES, THE
EXCEPTIONS ARE HEREBY DISMISSED. HOWEVER, THE DISMISSAL IS WITHOUT
PREJUDICE TO THE RENEWAL OF ANY OF THE ACTIVITY'S CONTENTIONS IN
EXCEPTIONS DULY FILED WITH THE AUTHORITY AFTER A FINAL AWARD IS RENDERED
ON THE ENTIRE MATTER BY THE ARBITRATOR.

FOR THE AUTHORITY.

ISSUED, WASHINGTON, D.C., SEPTEMBER 21, 1981

JAMES J. SHEPARD, EXECUTIVE DIRECTOR