26:0295(38)AR - Patent and Trademark Office and Patent Office Professional Association -- 1987 FLRAdec AR



[ v26 p295 ]
26:0295(38)AR
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).