28:0003(1)NG - PATENT OFFICE PROFESSIONAL ASSOCIATION VS COMMERCE


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28:0003(1)NG
The decision of the Authority follows:


28 FLRA NO. 1

PATENT OFFICE PROFESSIONAL
ASSOCIATION

                     Union

             and

PATENT AND TRADEMARK OFFICE,
DEPARTMENT OF COMMERCE

                     Agency

Case No. O-NG-1287

DECISION AND ORDER ON NEGOTIABILITY ISSUES 1

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute). The case concerns the negotiability of three provisions, namely Article 14, Section 1 and Article 15, Sections 5(B) and 5(C), which were disapproved by the Agency head under section 7114 (c) of the Statute.

For the reasons which follow, we find that the Agency head was not authorized to review the provisions under section 7114 (c) of the Statute. Consequently, the Union's appeal of that declaration is not properly before us and we will dismiss the petition.

II. Background

The record in this case indicates that the parties reached an impasse in bargaining on a new basic agreement and were directed by the Federal Service Impasses Panel to submit their dispute to mediation/arbitration. The Arbitrator was given authority by the Panel to issue a final decision on the  outstanding issues. The Arbitrator in an award with modifications directed the parties to adopt the provisions now in dispute. 2 The Agency filed exceptions to the portion of the award pertaining to Article 15, sections 5(B) and 5(C). We issued a decision finding the exceptions untimely in U.S. Department of Commerce, Patent and Trademark Office (PTO) and Patent Office Professional Association (POPA), 24 FLRA No. 78 (1986). In addition to filing exceptions with the Authority concerning the Article 15 provisions, the Agency head essentially declared those provisions and the Article 14 provision to be outside the duty to bargain while performing what was characterized as a review of the agreement under section 7114(c) of the Statute.

III. Analysis and Conclusion

In American Federation of Government Employees, AFL - CIO, National Council of SSA Field Operations Locals and Department of Health and Human Services, Social Security Administration Field Operations, 27 FLRA No. 104 (1987) and International Organization of Masters, Mates & Pilots and Panama Canal Commission, 27 FLRA No. 105 (1987), we dismissed the petitions for review in which the union sought an appeal of the agency head's declaration of nonnegotiability during the section 7114 (c) review. We stated that the declaration of nonnegotiability of provisions that were directed to be included in an agreement as a result of Panel-directed interest arbitration did not serve as an allegation of nonnegotiability for purposes of triggering the filing of a petition for review under section 7117(c) of the Statute. In reaching this conclusion, we relied on our decision in Department of Defense Dependents Schools (Alexandria, Virginia), 27 FLRA No. 72 (1987), in which we found that section 7114(c) of the Statute does not empower agency heads to review provisions that are directed to be included in an agreement as a result of an interest arbitration award. Rather, we found that the appropriate mechanism for challenging the propriety of interest arbitration awards is through the procedures set forth in section 7122 of the Statute. As noted, the Agency in this case did file exceptions as to the Article 15 provisions, but those exceptions were dismissed as untimely filed. 

We conclude that the petition for review in this case must likewise be dismissed. The Agency head was not empowered to review the provisions in dispute that were directed to be included in the parties' agreement as a result of interest arbitration. Therefore, the declaration that the provisions were outside the duty to bargain did not serve as an allegation of nonnegotiability from which the Union could file a petition for review. Accordingly, the Union's petition is not properly before us and will be dismissed.

IV. Order

The petition for review is dismissed.

Issued, Washington, D.C., July 16, 1987.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

Member Frazier, concurring in the result:

I concur with my colleagues that in the circumstances of this case the Union's petition for review of the Agency head's disapproval should be dismissed. However, I reach this conclusion by a different route than that followed by my colleagues. As set forth in my concurring and dissenting opinion in Department of Defense Dependents Schools (Alexandria, Virginia), 27 FLRA No. 72, an agency head's section 7114(c) disapproval of a contract provision resulting from Panel-directed interest arbitration is effective where, but only where, the agency has filed timely exceptions to the interest arbitrator's award pursuant to sect