34:0373(70)AR - BALTIMORE, MARYLAND and AFGE SSA GENERAL COMMITTEE -- 1990 FLRAdec AR

 34 FLRA NO. 70



                      BALTIMORE, MARYLAND

                              and

          AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
                     SSA GENERAL COMMITTEE

                           0-AR-1718

		ORDER DISMISSING EXCEPTIONS

    		       January 19, 1990

I. Statement of the Case

     This matter is before the Authority on exceptions to the
award of Arbitrator Stanley J. Siegel. The Department of Health
and Human Services, Social Security Administration, Baltimore,
Maryland (the Agency) filed exceptions to the award under section
7122(a) of the Federal Service Labor - Management Relations
Statute (the Statute) and part 2425 of the Authority's Rules and
Regulations. The American Federation of Government Employees, SSA
General Committee (the Union) filed on opposition to the Agency's
exceptions.

     For the reasons stated below, the Agency's exceptions will
be dismissed as interlocutory.

II. Background and Arbitrator's Award

     On December 17, 1987, the Agency informed the Union that it
planned to expand "folderless processing" to all eight of the
Agency's processing centers during the first and second quarters
of calendar year 1988. Award at 2. On January 6, 1988, the Union
demanded to bargain over the folderless processing. There were
several other exchanges of correspondence between the parties
concerning when the Union would submit its bargaining
proposals. The Union claimed that it had agreed to provide the
bargaining proposals on or before February 19, 1988, while the
Agency claimed that the Union's bargaining proposals had to be
submitted by February 17, 1988.

     When the Union's bargaining proposals had not reached the
Agency by February 17, 1988, the Agency ordered that the
folderless processing be implemented on February 18, 1988.
Implementation began on that date. The Union submitted its
bargaining proposals to the Agency on February 18, 1988.

     The Union protested the Agency's implementation of
folderless processing and requested the Agency to bargain "post
implementation." Award at 4. The agency refused to bargain
claiming that it had no statutory or other obligation to bargain
once implementation had begun. The Union grieved and invoked
arbitration over the Agency's refusal to bargain with the
Union.

     The Union stated that the issue before the Arbitrator was as
follows:

     Did the Administration violate the National Labor Agreement
wherein it refused to negotiate with the Union regarding the
matter of "folderless processing" and its implementation? And if
so, what shall the remedy be?

     Award at 1.

     The Agency stated the issue before the Arbitrator to be:

     Did management give the union a reasonable opportunity to
respond under the terms and conditions of Article 4 of the
National Agreement prior to implementing folderless processing?

     Id. at 2.

     The Arbitrator sustained the Union's grievance in part. The
Arbitrator directed the Agency to begin negotiating with the
Union on the Union's proposals concerning the impact and
implementation of folderless processing within 30  days of the
receipt of his decision. The Arbitrator stated that the Agency
was not required to "return to the status which existed prior to
December 17, 1987," or to "suspend or change the method of
carrying out any of its operations involving folderless
processing during the course of the negotiations." Award at 14.


     The Arbitrator also directed the parties to submit further
arguments to him as to "what, if any, damages individual
employees may have suffered from the implementation of the
folderless processing" as well as "the question of (his)
authority to issue a make-whole remedy" in the grievance. Id.

     Finally, the Arbitrator stated as follows:

     I shall retain jurisdiction of this matter for a period of
90 days from the date of this award to consider the parties'
submissions and to assist the parties in any way they deem
necessary.

     Id.

III. Analysis and Conclusion

     Section 2429.11 of the Authority's Rules and Regulations
provides: "The Authority . . . ordinarily will not consider
interlocutory appeals." In arbitration cases, this provision
means that the Authority ordinarily will not resolve exceptions
filed to an arbitration award unless the arbitration award
constitutes a complete determination of all issues submitted to
arbitration. See American Federation of Government Employees,
General Committee and Department of Health and Human Services,
Social Security Administration, 32 FLRA  173 (1988). Accord
Millmen Local 550 v. Wells Exterior Trim, 828 F.2d 1373 (9th Cir.
1987) (an arbitration award that postpones the determination of
an issue submitted does not constitute a final and binding
arbitration award reviewable under section 301 of the Labor
Management Relations Act); Anderson v. Norfolk and Western
Railway Co., 773 F.2d 880 (7th Cir. 1985) (to be considered
final, an arbitration award must constitute a complete
determination of every issue submitted).

     The Agency does not except to the Arbitrator's bargaining
order. Rather, the Agency excepts to the portion of the
Arbitrator's award which directs the parties to submit arguments
to him as to what, if any, damages individual employees may have
suffered from the implementation of the folderless processing as
well as the question of the Arbitrator's authority to issue a
make-whole remedy in the grievance. The Agency also excepts to
that portion of the Arbitrator's award whereby the Arbitrator
retained jurisdiction over the matter.

     It is clear that the Arbitrator has not rendered a final
award on the matters to which the Agency excepts. The 
Arbitrator sustained the Union's grievance in part and ordered
the Agency "to begin negotiations with the Union on the Union's
proposals concerning the impact and implementation of folderless
processing in the Agency's eight processing centers within 30 
days of the receipt of his decision." Award at 14. The
Arbitrator, however, did not rule on the issue of what damages
individual employees may have suffered from the implementation of
the folderless processing. Instead, the Arbitrator directed the
parties to submit arguments as to what, if any, damages
individual employees may have suffered from the implementation of
the folderless processing and the question of his authority to
issue a make-whole remedy in a grievance filed by the Union.
Finally, the Arbitrator retained jurisdiction for the purpose of
considering the parties' submissions and assisting the parties.

     Since the Arbitrator's award to which the exceptions were
filed is not yet final, the Agency's exceptions are
interlocutory. As previously noted, section 2429.11 of the
Authority's Rules and Regulations provides that the Authority
"ordinarily will not consider interlocutory appeals." The Agency
has not claimed or otherwise established any basis in its
exceptions for the Authority to consider the interlocutory
appeal. Therefore, the exceptions do not warrant review at this
time. See, for example, Philadelphia Naval Shipyard and
Philadelphia Metal Trades Council, 33 FLRA  868 (1989); U.S.
Small Business Administration and American Federation of
Government Employees, Council 228, Local 2532, AFL - CIO, 32 FLRA
699 (1988). It is noted that this is not a case where an
arbitrator awarded backpay, but left to the parties the
calculation of the specific amounts due under the award. See
Wells Exterior Trim, 828 F.2d at 1377. Rather, in this case, the
Arbitrator retained jurisdiction to determine the damages to
individual employees after the parties briefed the issue. See
Id.

IV. Order

     Accordingly, the Activity'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.

Clyde B. Blandford, Jr.
Acting Executive Director