Department of the Army, Oakland Army Base and American Federation of Government Employees, Local 1157 (Authority decision, December 14, 1984)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority dismissing an interlocutory exception to an arbitrator's ruling. The order concerns an arbitration award under 5 U.S.C. § 7122. Section 7123(a)(1) generally excludes such orders from judicial review unless they involve an unfair labor practice under § 7118.

Plain-English summary

The union grieved the Army base's decision to contract out work. The parties agreed that the arbitrator would decide whether the grievance was arbitrable before hearing its merits. After the arbitrator found it arbitrable, the base filed an exception and asked the Authority to stay the proceeding. The Authority found that the arbitrator's ruling was only a threshold decision, not a final award resolving the whole grievance. It dismissed the exception and stay request without prejudice to raising the arguments after a final award.

Decision snapshot

• Authority: Arbitration exceptions under 5 U.S.C. § 7122(a) and interlocutory review under 5 C.F.R. § 2429.11.
• Outcome: Exception and stay request dismissed as interlocutory; the grievance remained before the arbitrator.
• Key point: Separate hearings on arbitrability and merits do not turn an arbitrability ruling into a final award.

Full text (FLRA public release)

[ v16 p829 ]

16:0829(116)AR

The decision of the Authority follows:

16 FLRA No. 116

DEPARTMENT OF THE ARMY,
OAKLAND ARMY BASE
Activity

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1157
Union

Case No. O-AR-785

ORDER DISMISSING EXCEPTION

This case is before the Authority on an exception to the award of Arbitrator Robert C. Schubert filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The Agency has also filed a request for a stay of the award under part 2429 of the Authority's Rules and Regulations. For the reasons that follow, it is determined that the exception and the request for a stay must be dismissed as interlocutory.

The Union filed a grievance alleging that the Activity violated the parties' collective bargaining agreement and rules and regulations when it contracted out certain work to a private-sector bidder. The grievance was not resolved and was submitted to arbitration for resolution. Because the Activity objected to the grievance as not being arbitrable, the parties agreed that the Arbitrator would rule on arbitrability prior to a hearing on the merits. At the time of the hearing on arbitrability, a hearing date on the merits was arranged. After the submission of briefs following the hearing on arbitrability, the Activity informed the Arbitrator that in the event the grievance was found to be arbitrable, the Activity stated its intention to file exceptions to and a request for a stay of such a decision with the Authority, and the Activity requested that the hearing date on the merits be set aside. On the issue of arbitrability, the Arbitrator ruled that the grievance was arbitrable. In addition, the Arbitrator denied the Activity's request to set aside the hearing on the merits of the grievance. The Arbitrator was of the opinion that his determination that the grievance was arbitrable was not a final award, but was merely a threshold ruling as to arbitrability. In the judgment of the Arbitrator, "(t)he parties' agreement to bifurcate the matter into separate hearings on arbitrability and on the merits would not create multiple arbitration awards or change the basic unitary nature of the arbitration proceeding." As was the stated intention, the Activity has filed an exception to the ruling of the Arbitrator that the grievance is arbitrable.

Section 2429.11 of the Authority's Rules and Regulations provides that the Authority ordinarily will not consider interlocutory appeals. That is, in terms of exceptions to an arbitration award, the Authority ordinarily will not entertain exceptions until a final award has been rendered by the arbitrator on the entire matter. E.g., National Treasury Employees Union, Chapter 165 and U.S. Customs Service, San Francisco Region, 9 FLRA 1031 (1982).

In this case, contrary to the Agency's contention, the Arbitrator has not rendered a final award disposing of the entire matter involved in the proceeding before him. In agreement with the Arbitrator, the Authority finds that the Arbitrator's determination on arbitrability is merely a threshold ruling and is not a final award. In further agreement with the Arbitrator, the Authority likewise finds that the parties' agreement to conduct a separate hearing on arbitrability did not operate to change the basic unitary nature of the matter before him and did not operate to convert the Arbitrator's threshold ruling on arbitrability into a final award subject to exceptions being filed under section 7122 of the Statute. Consequently, the Agency's exception is interlocutory, and the Authority finds that the circumstances presented are not extraordinary so as to warrant review of the exception at this stage of the proceedings. Accordingly, the exception and the request for a stay are dismissed. However, the dismissal is without prejudice to the renewal of any of the Agency'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., December 14, 1984
/s/ Harold D. Kessler
Harold D. Kessler
Acting Executive
Director/Administrator