In U.S. Department of the Army and National Federation of Federal Employees, 73 FLRA No. 70 (Dec. 8, 2022), the Federal Labor Relations Authority (“the Authority”) reversed a Trump-era standard for interlocutory appeals of arbitration awards under The Federal Service Labor-Management Relations Statute. In the underlying arbitration here, the arbitrator had ruled the union’s grievance procedurally arbitrable, and the Agency filed an interlocutory appeal under the standard announced by the Authority in U.S. Department of Treasury, IRS, 70 FLRA 806 (2018). In that case, the Authority had authorized interlocutory appeals of arbitration awards whenever review would obviate the need for further arbitration proceedings.

Here, in a 2-1 ruling, the Authority restored the previous standard, and denied the Agency’s exceptions to the arbitrator’s ruling. The Authority noted it had been admonished by federal courts of appeal for departing from “private sector arbitration principles”, which discouraged intervention on arbitrability questions. While the Authority emphasized it would continue to allow interlocutory appeals, that discretion would be narrowly applied. In order for the exception to apply, the Authority held the excepting party would have to demonstrate the arbitrator lacks jurisdiction as a matter of law, and that resolving the exceptions would bring an end to the entire dispute.