22:0007(2)AR - Patent and Trademark Office and Patent Office Professional Association -- 1986 FLRAdec AR



[ v22 p7 ]
22:0007(2)AR
The decision of the Authority follows:


 22 FLRA No. 2
 
 PATENT AND TRADEMARK OFFICE
 Agency
 
 and
 
 PATENT OFFICE PROFESSIONAL 
 ASSOCIATION
 Union
 
                                            Case No. 0-AR-1054
 
                                 DECISION
 
    I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Robert Bennett Lubic 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.
 
    II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievance in this case concerns the Agency's refusal to comply
 with a portion of an interest arbitration award of Arbitrator Jerome
 Ross (Ross award).  The portion of the Ross award in dispute directed
 that a provision for nonproduction time for work-related travel be
 included in the parties' Memorandum of Understanding on the impact and
 implementation of a relocation of professional employees.  The Ross
 award also directed that the provision be included in the parties'
 existing collective bargaining agreement and incorporated into the
 parties' next collective bargaining agreement.  The Agency had contended
 that such a provision was not within the duty to bargain because it
 interfered with management rights and the Agency had filed exceptions to
 the Ross award with the Authority.  The Agency's exceptions, however,
 were dismissed by the Authority as untimely filed.  Patent and Trademark
 Office and Patent Office Professional Association, 14 FLRA 61 (1984).
 Subsequently, the Union filed the grievance that was submitted to
 arbitration protesting the Agency's refusal to comply with the Ross
 award.  Arbitrator Lubic stated the essential issue to be whether the
 disputed portion of the Ross award was final and binding.  He ruled that
 the disputed provision was final and binding because contrary to the
 arguments of the Agency, the provision was not precluded by management's
 right in accordance with section 7106(a)(2)(A) and (B) of the Statute to
 establish performance standards.  The Arbitrator additionally ruled that
 the Ross award was final and binding under the terms of the Statute.  He
 noted under section 7122(b) that when exceptions were not timely filed
 to an arbitrator's award, the award is final and binding and that "(a)n
 agency shall take the actions required by an arbitrator's final award."
 The Arbitrator explained that what this meant in this case was that the
 Agency was to take the actions required by the disputed protion of the
 Ross award.  Accordingly, as his award, Arbitrator Lubic sustained the
 grievance and directed that the Agency "honor and implement" the
 disputed portion of the Ross award.
 
    III.  FIRST EXCEPTION
 
    A.  Contentions
 
    In its first exception the Agency essentially contends that to the
 extent the award of Arbitrator Lubic is based on the disputed provision
 of the Ross award being negotiable, the award is contrary to section
 7106(a) of the Statute.  In support, the Agency primarily argues that
 contrary to the determination of Arbitrator Lubic, the disputed
 provision is not negotiable and is not enforceable.  The Agency further
 maintains that arbitrators are not authorized under the Statute to
 resolve issues concerning the duty to bargain.
 
    B.  Analysis and Conclusions
 
    The Authority has consistently ruled that negotiability disputes
 which arise between an agency and an exclusive representative under
 section 7117(c) of the Statute must be resolved by the Authority as
 required by section 7105(a)(2)(E).  Department of the Air Force, Air
 Force Logistics Command, Wright-Patterson Air Force Base, Ohio and
 American Federation of Government Employees, Council of Locals, No. 214,
 18 FLRA No. 81 (1985);  Louis A. Johnson Veterans Administration Medical
 Center, Clarksburg, West Virginia and American Federation of Government
 Employees, Local 2384, 15 FLRA 347 (1984).  Thus, the Authority has held
 on this basis that an interest arbitrator acting pursuant to a direction
 of the Federal Service Impasses Panel is without authority to resolve
 such duty-to-bargain issues.  AFLC, Wright-Patterson Air Force Base.
 The Authority has also held that such issues likewise cannot be resolved
 by an arbitrator in the guise of a grievance under the negotiated
 grievance procedure of the collective bargaining agreement between the
 exclusive representative and the agency.  Federal Correctional
 Institution, Texarcana, Texas, Federal Prison System and American
 Federation of Government Employees, Local 2459, Texarcana, Texas, 19
 FLRA No. 26 (1985);  Louis A. Johnson VA Medical Center.  In this case,
 by finding the disputed provision of the Ross award to be final and
 binding because he determined contrary to the arguments of the Agency
 that the provision was negotiable, Arbitrator Lubic necessarily resolved
 an issue relating to the obligation to bargain under the Statute.
 However, with the Agency having consistently objected to this provision
 as not being negotiable by reason of section 7106(a) of the Statute,
 Arbitrator Lubic was not authorized under the Statute to resolve such an
 issue and his award is deficient to the extent that such resolution
 constitutes the basis for his award that the Ross award was final and
 binding.  /*/ See Federal Correctional Institution, T