22:0007(2)AR - Patent and Trademark Office and Patent Office Professional Association -- 1986 FLRAdec AR
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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, Texarcana, Texas; Department of Housing and Urban Development and American Federation of Government Employees, Local 476, AFL-CIO, 18 FLRA No. 95 (1985). IV. SECOND EXCEPTION A. Contentions In its second exception, the Agency argues that the award is also deficient to the extent the Ross award was enforced on the basis of section 7122(b) of the Statute. The Agency does not dispute that exceptions to the Ross award were not timely filed with the Authority and that the award is final and binding under the terms of section 7122(b) of the Statute. Instead, the Agency asserts that a final award is enforceable under the Statute only to the extent it is consistent with law. Arguing that the disputed provision of the Ross award is inconsistent with section 7106(a) of the Statute, the Agency maintains that consequently it is unenforceable. B. Analysis and Conclusions The Authority concludes that the Agency's second exception fails to establish that the award is deficient. Contrary to the argument of the Agency, it is well established that where a party seeks to challenge the propriety of an arbitration award, the appropriate mechanism for doing so, as Congress clearly intended, is the filing of exceptions to that award under section 7122(a) of the Statute. United States Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 15 FLRA 151 (1984), aff'd sub nom. Department of the Air Force v. FLRA, 775 F.2d 727 (6th Cir. 1985). As the Authority recognized in AFLC, Wright-Patterson Air Force Base, 15 FLRA 151, when a party fails to timely file exceptions to an arbitration award, the award becomes final and binding and the agency must take such actions as are required by the award. As explained by the court in Department of the Air Force, "(s)ince the award becomes final and must be implemented if the parties fail to file an exception within the required period, the necessary implication is that a party can no longer challenge the award by any means. It has become final for all purposes." 775 F.2d at 735. In this case, under the terms of section 7122(b), the Ross award became final and binding and the Agency for all purposes was unequivocally obligated to take the actions required by that award. Thus, in directing on the basis of section 7122(b) of the Statute that the Agency "honor and implement" the disputed portion of the Ross award, the award of Arbitrator Lubic is fully consistent with law, and no basis is provided in this respect for finding the award deficient. V. DECISION Accordingly, the award is modified to provide as follows: The grievance in this matter is sustained. As a result of section 7122(b) of the Statute, the Agency shall honor and implement Section II of the Ross award. Issued, Washington, D.C., June 4, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (*) In determining that Arbitrator Lubic was without authority to decide the negotiability issue in this matter, the Authority makes no determination on whether the disputed provision of the Ross award interferes with management rights under the section 7106(a) of the Statute.