NTEU Chapter 165 and Customs Service San Francisco Region (Authority decision, August 20, 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 resolved two disciplinary grievances but left attorney fees open for further proceedings. Customs filed exceptions while seeking an additional hearing on fees. The Authority held that the arbitration was not complete and dismissed the exceptions as interlocutory.

Decision snapshot

• Authority: 5 C.F.R. § 2429.11.
• Outcome: Agency exceptions dismissed as interlocutory; attorney-fee issue remains pending.
• Key point: Exceptions to the award had to await a final ruling on the entire arbitration.

Full text (FLRA public release)

[ v09 p1031 ]

09:1031(144)AR

The decision of the Authority follows:

9 FLRA No. 144

NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 165
(Union)

and

U.S. CUSTOMS SERVICE,
SAN FRANCISCO REGION
(Activity)

Case No. O-AR-413

ORDER DISMISSING EXCEPTIONS

THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARD OF
ARBITRATOR BARBARA CHVANY FILED BY THE ACTIVITY PURSUANT TO SECTION
7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE AND
SECTION 2425.1 OF THE AUTHORITY'S RULES AND REGULATIONS. FOR THE
REASONS STATED BELOW, IT HAS BEEN DETERMINED THAT THE SUBJECT EXCEPTIONS
ARE INTERLOCUTORY AND MUST BE DISMISSED.

FROM THE DOCUMENTS SUBMITTED BY THE ACTIVITY, THE FOLLOWING PERTINENT
FACTS ARE DISCLOSED. ON JUNE 23, 1982, THE ARBITRATOR ISSUED AN AWARD
IN THE MATTER WHICH INVOLVED THE GRIEVANCES OF AN EMPLOYEE OVER TWO
SEPARATE DISCIPLINARY SUSPENSIONS. IN HER AWARD, THE ARBITRATOR
SUSTAINED ONE GRIEVANCE DENIED THE OTHER, AND DIRECTED CERTAIN REMEDIAL
ACTION BY THE ACTIVITY AS TO THE GRIEVANCE THAT WAS SUSTAINED. IN
ADDITION, THE ARBITRATOR AWARDED ATTORNEY FEES "INCURRED BY THE UNION IN
PREPARING, PRESENTING AND ARGUING THE MATTER OF THE" SUSTAINED
GRIEVANCE. HOWEVER, AS THE MATTER OF ATTORNEY FEES HAD NOT BEEN ARGUED
DURING THE HEARING BY THE ACTIVITY, THE ARBITRATOR OFFERED THE ACTIVITY
AN OPPORTUNITY TO REQUEST A FURTHER HEARING ON THE MATTER. THE
ARBITRATOR STATED:

ABSENT NOTIFICATION FROM THE AGENCY OF ITS DESIRE TO HAVE FURTHER
PROCEEDINGS FOR THIS

PURPOSE AND ABSENT NOTIFICATION OF A SETTLEMENT ON THIS ASPECT OF THE
REMEDY BY THE PARTIES,

THE ARBITRATOR WILL ISSUE AN ADDENDUM DECISION ON THE SUBJECT OF
REASONABLE ATTORNEYS' FEES

. . . NO LATER THAN THIRTY CALENDAR DAYS FROM THE DATE OF THIS
DECISION . . . .

IF THE AGENCY NOTIFIES THE UNION AND THE ARBITRATOR WITHIN FIFTEEN
(15) CALENDAR DAYS OF

THIS DECISION THAT IT WISHES A FURTHER HEARING . . . ON THE SUBJECT
OF ATTORNEYS' FEES, AN

ADDENDUM DECISION WILL BE ISSUED WITHIN 30 CALENDAR DAYS FOLLOWING
THOSE FURTHER PROCEEDINGS.

ON JULY 7, 1982, THE ACTIVITY REQUESTED A FURTHER HEARING BY THE
ARBITRATOR CONCERNING THE PAYMENT OF ATTORNEY FEES. THEREAFTER, ON JULY
21, 1982, THE ACTIVITY FILED ITS EXCEPTIONS TO THE ARBITRATOR'S AWARD
INDICATING, HOWEVER, THAT IT DID NOT VIEW THE AWARD AS A FINAL DECISION
AND THAT THE EXCEPTIONS SHOULD BE FOUND TO BE PREMATURE. ITS EXCEPTIONS
WERE FILED IN THE EVENT THE AUTHORITY WOULD VIEW THE ARBITRATOR'S AWARD
AS "FINAL" FOR PURPOSES OF APPEAL.

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 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,
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 LIGHT OF THE ABOVE, THE ACTIVITY'S
EXCEPTIONS ARE CLEARLY INTERLOCUTORY AND THE FACTS AND CIRCUMSTANCES ARE
NOT SO EXTRAORDINARY AS TO WARRANT 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., AUGUST 20, 1982

JAMES J. SHEPARD, EXECUTIVE DIRECTOR