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  • United States Department of Health and Human Services, Navajo Area Indian Health Service (Agency) and Laborers' International Union of North America, Local 1376 (Union)

United States Department of Health and Human Services, Navajo Area Indian Health Service (Agency) and Laborers' International Union of North America, Local 1376 (Union)

[ v58 p356 ]

58 FLRA No. 83

UNITED STATES
DEPARTMENT OF HEALTH
AND HUMAN SERVICES
NAVAJO AREA INDIAN HEALTH SERVICE
(Agency)

and

LABORERS' INTERNATIONAL UNION
OF NORTH AMERICA
LOCAL 1376
(Union)

0-AR-3581

_____

DECISION

February 13, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Thomas Angelo filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

      The Arbitrator found that the Agency violated law and the parties' collective bargaining agreement when it took actions that allegedly resulted in revocation of a transfer offer to the grievant. The Arbitrator remanded the case to the parties to develop an appropriate remedy and retained jurisdiction to resolve any remedial issues in the event the parties were unable to reach agreement.

      For the reasons that follow, we find that the Arbitrator's award is not final and, thus, the Agency's exceptions are interlocutory. We further find that the Agency's exceptions do not present extraordinary circumstances warranting interlocutory review. Accordingly we dismiss the Agency's exceptions without prejudice.

II.     Background and Arbitrator's Award

      A grievance was filed alleging that the Agency violated the parties' agreement and applicable law when it contacted management at another Agency location to which the grievant was transferring, which contact allegedly resulted in revocation of the transfer offer. The grievance was unresolved and submitted to arbitration, where the Arbitrator concluded that the Agency violated the Whistleblower Protection Act, the grievant's First and Fifth Amendment rights under the United States Constitution, and the parties' agreement.

      The Arbitrator declined to issue a remedy. Instead, the Arbitrator remanded the issue of the appropriate remedy to the parties to "discuss and attempt resolution on the remedial issues that exist in light of [his] findings . . . ." Decision at 47. The Arbitrator further directed the Union to provide additional medical information regarding the grievant's ability to work, and the parties to obtain information from the employer at the transfer location regarding the authority to revoke the grievant's transfer. Id. at 47-48. The Arbitrator retained jurisdiction to resolve the outstanding remedial issues in the event the parties were unable to reach agreement with regard to an appropriate remedy. Id. at 48.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency asserts that the portion of the award directing the parties to obtain information from the employer at the transfer location is contrary to law, and that the Arbitrator exceeded his authority in making that direction. The Agency further asserts that the Arbitrator's finding that the Agency violated the Whistleblower Protection Act is inconsistent with that Act.

B.     Union's Opposition

      The Union asserts that the Arbitrator's direction to the parties to obtain information does not constitute a remedy and that, in any event, it has already obtained the information and the exception is therefore moot. The Union further claims that the award is not inconsistent with the Whistleblower Protection Act.  [n1] 

IV.     The Agency's exceptions are precluded under 5 C.F.R. § 2429.11 because they are interlocutory

      Section 2429.11 of the Authority's Regulations provides that ordinarily the Authority will not consider [ v58 p357 ] interlocutory appeals. Applying § 2429.11 in the context of an arbitration case, the Authority has consistently held that it ordinarily will not consider exceptions to an arbitrator's award until the arbitrator has issued a final decision completely determining all issues submitted to arbitration. United States Dep't of Health & Human Servs., Ctrs. for Medicare and Medicaid Servs, 57 FLRA 924, 926 (2002) (HHS); United States Dep't of the Interior, Bur. of Indian Affairs, Wapato Irrigation Project, Wapato, Wash., 55 FLRA 1230, 1231 (2000) (BIA); AFGE Nat'l Council of EEOC Locals No. 216, 47 FLRA 525, 530 (1993) (Nat'l Council); AFGE Local 12, 38 FLRA 1240, 1246 (1990); Navy Public Works Ctr., San Diego, Cal., 27 FLRA 407, 408 (1987) (Navy). It is well settled that an award postponing the determination as to at least one of the issues submitted to arbitration does not constitute a final decision on an entire proceeding. HHS, 57 FLRA at 926; United States Dep't of Def. Dependents Sch., 42 FLRA 1166, 1168 (1991); AFGE Local 12, 38 FLRA at 1246; Philadelphia Naval Shipyard, 33 FLRA 868, 869-70 (1989). Consistent with this principle, the Authority has repeatedly held that where an arbitrator declines to issue a remedy, directing instead that the parties attempt to develop an appropriate remedy on their own, the award does not constitute a final decision to which exceptions can be filed. See HHS, 57 FLRA at 926; BIA, 55 FLRA at 1231-32; United States GPO, Wash., D.C., 53 FLRA 17, 18 (1997) (GPO); Navy, 27 FLRA at 408.

      Before the Arbitrator in this case, the parties stipulated the issues to be resolved as including the alleged violations of law and the parties' agreement, as well as the appropriate remedy. See Award at 2-3. The Arbitrator declined to issue a remedy, ordering instead that the parties discuss and attempt to resolve the issue of an appropriate remedy, and retaining jurisdiction for the purpose of determining a remedy if the parties were unable to agree. Consistent with the well settled precedent set forth above, we find that the Arbitrator's award -- which did not resolve the issue of an appropriate remedy -- is not a final decision and thus, the Agency's exceptions are interlocutory.

      In addition, we find nothing in the Agency's exceptions demonstrating an "extraordinary situation[]" warranting interlocutory review. See HHS, 57 FLRA at 926; BIA, 55 FLRA at 1232. In particular, the Agency's arguments challenging the award do not "present a plausible jurisdictional defect, the resolution of which will advance the ultimate disposition of the case." BIA, 55 FLRA at 1232. Accordingly, nothing in this case presents the circumstances under which interlocutory review is generally warranted. Cf. United States Dep't of Defense, NIMA, St. Louis, Mo., 57 FLRA 837, 837 n.2 (2002) (interlocutory review appropriate where exceptions challenged whether arbitrator lacked jurisdiction as a matter of law).

V.     Decision

      The Agency's exceptions are dismissed without prejudice to the timely filing of exceptions with the Authority after a final award is rendered by the Arbitrator.

Footnote # 1 for 58 FLRA No. 83 - Authority's Decision

   We note that the Union filed a supplemental submission further addressing the Agency's claim that the award is inconsistent with the Whistleblower Protection Act. Because we find that the Agency's exceptions are interlocutory and that interlocutory review is not warranted, we do not address whether, pursuant to § 2429.26 of the Authority's Regulations, it is appropriate to grant the Union leave to file the supplemental submission.