26:0295(38)AR - Patent and Trademark Office and Patent Office Professional Association -- 1987 FLRAdec AR
[ v26 p295 ]
The decision of the Authority follows:
26 FLRA No. 38 PATENT AND TRADEMARK OFFICE Agency and PATENT OFFICE PROFESSIONAL ASSOCIATION Union Case No. 0-AR-1204 DECISION I. Statement of the Case This matter is before the Authority on exceptions to the arbitration award of Arbitrator Jerome H. Ross 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 In August 1985 the Agency notified the Union that it was changing the level of performance necessary to obtain signatory authority from satisfactory performance to outstanding performance. The Union submitted bargaining proposals on the impact and implementation of the Agency's changes in the signatory authority program. The Union also requested that bargaining on the proposals be combined with negotiations for the collective bargaining agreement and that the Agency defer implementation of any changes until the conclusion of negotiations. The Agency refused and the Union filed a grievance charging, among other violations, a violation of section 2(f) of the interest arbitration award of Arbitrator Seidenberg (Seidenberg award). The portion of the Seidenberg award (which resolved the parties' impasse over ground rules to cover negotiations on the modification of their collective bargaining agreement) which was involved provided that management changes and bargaining over those changes would generally be deferred until final agreement on the collective bargaining agreement. The Union had filed an exception to this provision of the Seidenberg award which was denied by the Authority. Patent and Trademark Office and Patent Office Professional Association, 15 FLRA 990 (1984). In denying the exception, the Authority noted that Arbitrator Seidenberg had clearly confirmed that the provision deferred Agency changes as well as bargaining over those changes. The grievance in this case claiming a violation of the Seidenberg award was not resolved and was submitted to arbitration. In his discussion accompanying his award, Arbitrator Ross first resolved several issues concerning the grievability and arbitrability of the grievance. Specifically, he held, contrary to the contention of the Agency, that the grievance was not barred under section 7116(d) of the Statute by an earlier-filed unfair labor practice charge. He found that the ulp charge did not relate to the issue of the changes in the signatory authority program and that therefore the grievance over this issue was not precluded. He also ruled, contrary to the contentions of the Agency, that the grievance involved a negotiable matter and was arbitrable. In reaching this conclusion, he considered current and former provisions of the Federal Personnel Manual relating to noncompetitive promotions. On the merits, the Arbitrator determined that section 2(f) of the Seidenberg award remained binding and that the Agency was obligated to defer any changes, including changes concerning the signatory authority program, until the parties' basic collective bargaining agreement had been negotiated. Accordingly, the Arbitrator found that the Agency had violated section 2(f) of the Seidenberg award and sustained the grievance. He directed that the signatory authority program as it existed before the change be reinstituted and that the Agency and the Union jointly determine whether any patent examiners had been affected adversely by the Agency's change and fashion an appropriate make-whole remedy. III. First Exception A. Contentions The Agency contends that the award is contrary to section 7116(d) of the Statute because the grievance is precluded by an earlier-filed ulp charge over the same issue. B. Analysis and Conclusions The Authority has held that in order for a grievance to be precluded by an earlier-filed unfair labor practice charge, the issue which is the subject matter of the grievance must be the same as the issue which was the subject matter of the ulp charge. See, for example, Immigration and Naturalization Service, U.S. Department of Justice and American Federation of Government Employees, Local 40, 18 FLRA No. 56 (1985). In this case, the Arbitrator expressly found that the issue which was the subject matter of the grievance was not the same as the issue which was the subject matter of the ulp charge. The Agency in its exception fails to establish otherwise, and this exception provides no basis for finding the award deficient. See INS and Department of Justice. IV. Remaining Exceptions A. Contentions The Agency contends that by finding the grievance arbitrable, the award is contrary to its rights to direct and select employees and to assign work under section 7106(a) of the Statute. Specifically, the Agency argues that the grievance in this case should have been found nonarbitrable because it directly challenged and interfered with the right of management to set the standard of achievement necessary to obtain signatory authority. The Agency also contends that the award is deficient because in finding the grievance to be arbitrable, the Arbitrator misapplied FPM Supplement 296-33 and FPM chapter 335 and he relied on a superseded version of FPM chapter 335 although he recognized that it was no longer current. B. Analysis and Conclusions We find that the Agency has misconstrued the Arbitrator's award. As decided by the Arbitrator, the Union's grievance alleged a violation of and sought to enforce section 2(f) of the Seidenberg award. The Arbitrator sustained the grievance finding that section 2(f) of the Seidenberg award remained binding and that the Agency had failed to comply. Thus, the Arbitrator's award merely implemented and enforced an interest arbitration award that was final and binding under the Statute, and the Agency fails to establish in what manner this award is contrary to section 7106 or the Federal Personnel Manual. This case is virtually identical to Patent and Trademark Office and Patent Office Professional Association, 22 FLRA No. 2 (1986), reconsideration denied (Oct. 9, 1986), where the grievance arbitrator sustained the Union's grievance and directed that the Agency comply with a portion of an interest arbitration award as to which the Agency had not filed timely exceptions with the Authority. We denied the Agency's exception which contended that under section 7106 the disputed portion of the interest arbitration award could not be enforced by the grievance arbitrator. We recognized that when a party fails to file timely exceptions to an arbitration award, the award becomes final and binding and the agency for all purposes is unequivocally obligated to take the actions required by that award. Slip op. at 4. We found that by directing on the basis of section 7122(b) of the Statute that the agency implement the disputed portion of the interest arbitration award, the grievance arbitration award was fully consistent with the Statute and no basis was provided for finding the award deficient in this respect. In this case we likewise find that by enforcing the Seidenberg award on the basis that the award was binding on the parties, the award of Arbitrator Ross has not been shown to be deficient. As in PTO, 22 FLRA No. 2, this award is fully consistent with the Statute. Similarly, we find that no basis is provided for finding the Arbitrator's award deficient by reason of the Arbitrator's discussion of the FPM provisions relating to a promotion as the result of gaining signatory authority. The Agency's contentions constitute nothing more than disagreement with the Arbitrator's reasoning and conclusions in reaching his award, and these contentions provide no basis for finding the award deficient. See U.S. Department of Labor and Local 12, American Federation of Government Employees, 24 FLRA No. 46 (1986).