[ v42 p1166 ]
42:1166(80)AR
The decision of the Authority follows:
40 FLRA No. 80
The Agency has filed exceptions to the September 13, 1990, award of Arbitrator Paul J. Fasser, Jr. pursuant to section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions. For the reasons stated below, the Agency's exceptions are interlocutory and must be dismissed.
The Arbitrator found that the issue in this grievance involved two complaints raised by the Union: (1) employees who transfer from one geographical area to another were not being paid appropriate transportation benefits; and (2) local hires who transfer outside a commuting area, but within a geographical locality, were not being paid appropriate transportation benefits.
The Arbitrator found that eligible employees, including local hires, who request and are granted a transfer to another country or geographical locality are entitled to full transportation benefits. The Arbitrator made no findings as to whether local hires who transfer outside a commuting area, but within a geographical locality, are entitled to such benefits. The Arbitrator found that if the Agency is denying otherwise eligible employees benefits, they should be compensated in accordance with the Agency's Joint Transportation Regulations. The Arbitrator further found that all teachers who are otherwise eligible and engaged in the transfer program for the last three years should have the opportunity to have their situation reviewed.(*)
The Arbitrator noted that the Agency had refused to give the Union certain necessary information the Union had requested prior to the arbitration hearing. The Arbitrator found that this information might have indicated whether certain entitlements had been "inconsistently and variously applied[.]" Award at 14. He concluded that had the Agency provided the information, which he determined the Agency was obligated to provide, the information could have shown whether certain employees were entitled to the claimed benefits and the proceedings "would most likely have resulted in a resolution of the outstanding problems." Id.
Based on his finding that the record was insufficient to resolve the employees' claims of improper denial of benefits, the Arbitrator directed the Agency to supply the Union with certain information. The Arbitrator then ordered the parties to meet "in an attempt to explore any complaints and to correct any deficiencies." Id. at 15. The Arbitrator specifically retained jurisdiction over the case for 60 days, at which time the parties were directed to advise the Arbitrator whether they had resolved all the outstanding issues and if not, to bring the remaining issues to hearing. Accordingly, the Arbitrator continued the hearing to decide "the merits of any outstanding complaints." Id.
The Agency filed exceptions contending, among other things, that the award be set aside on the grounds that the Arbitrator "exceeded his authority and the award does not draw its essence from the agreement." Exceptions at 1.
The Agency's exceptions are interlocutory. An interlocutory appeal concerns a ruling which is preliminary to final disposition of a matter. The Authority "ordinarily will not consider interlocutory appeals." 5 C.F.R. §2429.11. In an arbitration case, this means that the Authority ordinarily will not consider an appeal of an arbitrator's ruling until the arbitrator has issued a final decision. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, SSA General Committee, 34 FLRA 373, 375 (1990) and the cases cited therein.
In this case, it is clear that the Arbitrator has not rendered a final award on this dispute. The Arbitrator specifically retained jurisdiction over the case. Although the Arbitrator made some dispositive findings, he did not determine whether local hires who transferred within a geographical locality are entitled to transportation benefits. He also did not determine the entitlements of individual claimants. Rather, he directed the Agency to provide the Union with certain necessary information and ordered the parties to meet in an attempt to explore any complaints and to correct any deficiencies based on that information and the findings he made in his interim award. At the end of 60 days the hearing would be continued to decide the merits of any outstanding complaints. At that point a final award could be rendered. Thus, the Agency's exceptions are interlocutory and the facts and circumstances do not warrant review of the exceptions at this time. In addition, the Agency has not shown that there are extraordinary circumstances to warrant a departure from our normal practice. See U.S. Department of the Defense, Army and Air Force Exchange Service and National Federation of Federal Employees, Local 977, 38 FLRA 587 (1990); Navy Public Works Center, San Diego, California and National Association of Government Employees, Local R12-35, 27 FLRA 407 (1987).
Accordingly, the Agency's exceptions are dismissed. This dismissal is without prejudice to the timely filing of any exceptions with the Authority after a final award is rendered by the Arbitrator.
For the Authority.
Alicia N. Columna
Director, Case Control Office
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
*/ The Arbitrator also made the following findings related to the dispute: (1) the grievance was timely under the parties' agreement; (2) a transfer under the Agency's transfer program is management-generated; (3) the transferring teachers must be advised of their status before they accept the transfer; and (4) the Union is not entitled to attorney's fees under the Back Pay Act.