U.S. Customs Service and National Treasury Employees Union (Authority decision, May 8, 1984)

Final FLRA decision. The Authority dismissed exceptions to an interim arbitration ruling without prejudice because the arbitrator had not issued a final award. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to an order involving an arbitral award unless the order involves an unfair labor practice under 5 U.S.C. § 7116.

Plain-English summary

NTEU challenged the Customs Service's employee appraisal system and several employees' ratings in arbitration. The arbitrator ruled that the challenge to the performance elements and standards was not arbitrable, but kept the claim about implementation of the system open for further hearing. The union filed exceptions to that interim ruling. The Authority dismissed them because the arbitrator had not yet issued a final award. The dismissal allowed the union to raise its arguments again after a final award.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a).
• Outcome: Interim exceptions dismissed without prejudice.
• Key point: The Authority ordinarily waits for a final arbitration award before considering exceptions.

Full text (FLRA public release)

[ v14 p448 ]

14:0448(72)AR

The decision of the Authority follows:

14 FLRA No. 72

U.S. CUSTOMS SERVICE
Agency

and

NATIONAL TREASURY EMPLOYEES UNION
Union

Case No. O-AR-642

ORDER DISMISSING EXCEPTIONS

This matter is before the Authority on exceptions to a ruling on the Agency's Motion for Partial Summary Judgment by Arbitrator Mark L. Irvings. The exceptions were filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

The dispute before the Arbitrator concerns a grievance challenging the Agency's Employee Performance Appraisal System for certain positions and the ratings of a number of employees under the performance elements and standards of that system. The Union claimed that the elements and standards were contrary to law, implementing regulations and the parties' collective bargaining agreement, and requested that new elements and standards be issued, that the disputed ratings be rescinded and that the affected employees be reevaluated. The grievance proceeded to arbitration and the Agency filed pre-hearing motions for partial summary judgment and a statement of issues.

At the hearing before the Arbitrator, evidence which pertained to the pre-hearing motions, as well as to the substance of the grievance, was presented. The substantive presentations, however, were not concluded. In ruling on the Agency's Motion for Partial Summary Judgment, the Arbitrator found that insofar as the grievance challenged the performance elements and standards it was not substantively arbitrable. However, the Arbitrator further found that the issue of whether implementation of the appraisal system with respect to the named employees violated law or the parties' agreement was properly before him, and scheduled a date for conclusion of the parties' presentations on that aspect of the grievance.

In its exceptions, the Union argues that the Arbitrator's ruling on the Agency's motion is contrary to law and regulation and that the Arbitrator exceeded his authority.

Section 2429.11 of the Authority's Rules and Regulations provides: "The Authority . . . 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.

In this case, the Arbitrator has not yet rendered a final award in the proceeding before him. Rather, as indicated above, the Arbitrator ruled on a motion by finding that an aspect of the grievance was not arbitrable and scheduling a time for completion of the parties' presentations on the remaining aspect of the grievance. Thus, the Union's exceptions are considered interlocutory and the facts and circumstances are not such as to warrant review of the exceptions at this stage of the proceeding.

Accordingly, since the Union'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 Union's contentions in exceptions duly filed with the Authority after a final award is rendered by the Arbitrator. For the Authority. Issued, Washington, D.C., May 8, 1984 Harold D. Kessler, Director, Case Management