San Antonio Air Logistics Center and AFGE Local 1617 (Authority decision, August 31, 1982)

FLRA interlocutory decision. The Authority dismissed exceptions while the arbitrator's proceeding remains pending. This order does not resolve the final award. Judicial review under 5 U.S.C. § 7123(a)(1) generally excludes arbitration orders unless they involve an unfair labor practice under § 7116.

Plain-English summary

An arbitrator deferred the merits of a pay-retention grievance while a related case was before the Authority. The Air Force challenged the arbitrator’s threshold ruling that the pending case did not bar arbitration. Because the arbitrator had reserved the merits, the Authority dismissed the exceptions as interlocutory and left the underlying case open.

Decision snapshot

• Authority: 5 C.F.R. § 2429.11.
• Outcome: Agency exceptions dismissed as interlocutory; merits remain with arbitrator.
• Key point: A preliminary arbitrability ruling did not complete the arbitration.

Full text (FLRA public release)

[ v09 p1083 ]

09:1083(155)AR

The decision of the Authority follows:

9 FLRA No. 155

SAN ANTONIO AIR LOGISTICS CENTER,
KELLY AIR FORCE BASE, TEXAS
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1617, AFL-CIO
Union

Case No. O-AR-407

ORDER DISMISSING EXCEPTIONS

THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
ARBITRATOR BERNARD MARCUS FILED BY THE AGENCY UNDER SECTION 712,(-) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) AND
PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS. THE UNION DID NOT
FILE AN OPPOSITION.

THE DISPUTE IN THIS MATTER CONCERNS THE PAY OF A GROUP OF EMPLOYEES
WHO WERE SELECTED FOR AN UPWARD MOBILITY TRAINING PROGRAM. THE
EMPLOYEES VOLUNTARILY ACCEPTED A REDUCTION IN GRADE FROM HIGHER LEVEL
WAGE GRADE POSITIONS AND WERE GRANTED PAY RETENTION BENEFITS PURSUANT TO
5 U.S.C. 5363. IN ACCORDANCE WITH THAT SECTION THE ACTIVITY ONLY
GRANTED THE EMPLOYEES A PARTIAL AMOUNT OF THE 1981 COMPARABILITY
INCREASE IN SCHEDULED PAY RATES. A GRIEVANCE WAS FILED PROTESTING THIS
ACTION AND WAS ULTIMATELY SUBMITTED TO ARBITRATION.

THE ACTIVITY CONTENDED BEFORE THE ARBITRATOR THAT THE MATTER WAS NOT
ARBITRABLE BECAUSE THE IDENTICAL ISSUE HAD BEEN RAISED IN ANOTHER
ARBITRATION AND THAT THE AWARD IN THAT CASE WAS CURRENTLY PENDING ON
APPEAL BEFORE THE AUTHORITY. THE ACTIVITY ALSO CONTENDED, AS IT HAD IN
THE PREVIOUS CASE, THAT THE MATTER WAS EXCLUDED FROM GRIEVANCE AND
ARBITRATION PROCEDURES BY 5 U.S.C. 5366(B)(1). /1/

THE ARBITRATOR ACKNOWLEDGED THAT THE PARTIES HAD A VIRTUALLY
IDENTICAL CASE PENDING BEFORE THE AUTHORITY (CASE NO. O-AR-186) IN WHICH
THE AGENCY SIMILARLY CLAIMED THAT THE ARBITRATOR'S AWARD WAS DEFICIENT
BECAUSE THE GRIEVANCE PERTAINED TO AN ACTION BARRED FROM GRIEVANCE
ARBITRATION BY 5366(B)(1). NOTING THAT THE AUTHORITY'S RESOLUTION OF
THIS ISSUE WOULD BE BINDING AND DISPOSITIVE, THE ARBITRATOR DETERMINED
THAT RETENTION OF JURISDICTION AND RESERVATION OF DECISION WAS THE MOST
PRUDENT COURSE OF ACTION. ACCORDINGLY, AS HIS AWARD THE ARBITRATOR
RULED THAT THE FACT THAT AN IDENTICAL CASE WAS PENDING BEFORE THE
AUTHORITY DID NOT PRECLUDE ARBITRATION OF THE ONE BEFORE HIM, BUT HE
RESERVED RULING ON THE MERITS PENDING THE DECISION OF THE AUTHORITY IN
CASE NO. O-AR-186.

IN ITS EXCEPTION, THE AGENCY CONTENDS, AS IT HAS ESSENTIALLY
CONTENDED IN ITS EXCEPTIONS IN CASE NO. O-AR-186 CURRENTLY PENDING
BEFORE THE AUTHORITY, THAT THE AWARD FINDING THE GRIEVANCE ARBITRABLE IS
CONTRARY TO SECTION 5366(B)(1).

SECTION 2429.11 OF THE AUTHORITY'S RULES AND REGULATIONS PROVIDES:
"THE AUTHORITY AND THE GENERAL COUNSEL ORDINARILY WILL NOT CONSIDER
INTERLOCUTORY APPEALS." IN THIS CASE THE AGENCY'S APPEAL CONTENDING THE
AWARD IS CONTRARY TO 5 U.S.C. 5366(B)(1) IS CLEARLY INTERLOCUTORY. THE
ARBITRATOR SPECIFICALLY REFUSED TO ADDRESS THE QUESTION OF THE
APPLICABILITY OF SECTION 5366(B)(1) AND RESERVED RULING ON THE MERITS OF
THE CASE UNTIL AFTER THE AUTHORITY REVIEW.

ACCORDINGLY, THE AGENCY'S EXCEPTIONS ARE HEREBY DISMISSED AS
INTERLOCUTORY. HOWEVER, THE DISMISSAL IS WITHOUT PREJUDICE TO THE
RENEWAL OF THE AGENCY'S CONTENTIONS IN EXCEPTIONS DULY FILED WITH THE
ARBITRATOR.

FOR THE AUTHORITY.

ISSUED, WASHINGTON, D.C., AUGUST 31, 1982

JAMES J. SHEPARD, EXECUTIVE DIRECTOR

--------------- FOOTNOTES$ ---------------

/1/ 5 U.S.C. 5366(B)(1) PROVIDES THAT "ANY ACTION WHICH IS THE BASIS
OF AN INDIVIDUAL'S ENTITLEMENT TO BENEFITS UNDER (5 U.S.C. 5362-5363)"
IS NOT GRIEVABLE UNDER A GRIEVANCE PROCEDURE NEGOTIATED UNDER THE
STATUTE.