31:0952(76)CA - Patent and Trademark Office and Patent Office Professional Association -- 1988 FLRAdec CA



[ v31 p952 ]
31:0952(76)CA
The decision of the Authority follows:


31 FLRA No. 76

U.S. PATENT AND TRADEMARK OFFICE

           Respondent

      and

PATENT OFFICE PROFESSIONAL
ASSOCIATION

           Charging Party

Case Nos. 3-CA-50396
 3-CA-60086

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge issued in the above-entitled consolidated proceeding. The exceptions have been filed by the General Counsel and the Charging Party (the Union). The Respondent filed oppositions to the exceptions. 1 The issues are whether the Respondent violated the Federal Service Labor - Management Relations Statute (the Statute) by: (1) failing to comply with an interest arbitration award; (2) implementing changes in official time practices for representational activities without affording the Union an opportunity to bargain; and (3) changing the practice for the computation of the continuation-in-service period required of employees for whom the Respondent has paid law school tuition without affording the Union an opportunity to bargain.

Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we have reviewed [PAGE] the rulings of the Judge and find that no prejudicial error was committed. We affirm the rulings. We conclude, in agreement with the Judge, that the Respondent violated the Statute by failing to comply with the arbitrator's award concerning official time for negotiations and by failing to notify the Union and bargain over the impact and implementation of its decision to change the method of computing the time period for continuation-in-service agreements. We find no further violations by the Respondent.

II. Judge's Decision

In Case No. 3-CA-50396, the Judge found that the complaint was directed at official time granted to union representatives for contract negotiations by the interest arbitrator's decision. The Judge concluded that the Respondent failed and refused to cooperate in impasse procedures by refusing to comply with the arbitrator's award in violation of section 7116(a)(1), (6), and (8) of the Statute.

In Case No. 3-CA-60086, the Judge found that the Respondent timely notified the Union of proposed changes to be implemented concerning official time for representational activities and afforded the Union an opportunity to request bargaining. He also found that the Union's request that the Respondent "defer implementation of the changes until a ruling (can) be obtained as to the(ir) legality" did not constitute a request to bargain over the changes. Judge's decision at 20. Consequently, he concluded that the Respondent's changes concerning official time for representational activities did not violate the Statute.

Also in Case No. 3-CA-60086, the Judge found that the Respondent changed its practice regarding the computation of continuation-in-service periods required of employees for whom it had paid law school expenses in order to conform the practice to the governing provisions of 5 U.S.C. 4108 and 5 C.F.R. 410.508. Accordingly, he concluded that the Respondent was not obligated to bargain over the decision to change the method of computing the time period for continuation-in-service agreements. However, he found that the Respondent had violated section 7116(a)(1) and (5) of the Statute by failing and refusing to bargain over the impact and implementation of the change in the method of computation.

III. Positions of the Parties

The Union in its exceptions claims that the Judge erred in (1) determining that the complaint in Case No. 3-CA-50396 [ v31 p2 ] was directed solely to official time for negotiations; (2) failing to find a violation by the Respondent in its changes concerning official time for representational activities; and (3) finding that the Respondent changed its practice regarding the method of computation of time periods for continuation-in-service agreements in order to conform the practice to governing law and regulation.

The General Counsel also claims that the Judge erred in failing to find a violation in the Respondent's changes concerning official time for representational activities and in finding that the changes regarding the method of computation of the time period for continuation-in-service agreements were made to conform the computation method to governing law and regulation. The General Counsel also argues that the Judge erred by failing to find an obligation to bargain over the decision to change the method of computation. The General Counsel cites 5 C.F.R. 410.508(d), which grants the head of an agency the discretion to "reduce to 1 month or to a period equal to the length of the training period covered . . ., whichever is greater, the period of time the employee is required by section 4108(a) . . . to agree to continue in the service of his or her agency." on the basis of this provision, the General Counsel maintains that the Respondent was obligated to bargain over the decision to change its method of computation to the extent of the agency head's discretion to reduce the continuation-in-service period required by 5 U.S.C. 4108(a).

The Respondent supports the findings and conclusions of the Judge.

IV. Analysis and Conclusions

On consideration of the Judge's decision, the positions of the parties, and the entire record, we adopt the Judge's findings, conclusions, and recommended order, except as noted below.

We agree with the Judge that the complaint in 3-CA-50396 was directed at the official time practice for union negotiators engaged in contract negotiations with the Respondent for a new basic agreement and did not encompass official time practices for union representatives engaged in representational activities. We also agree with the Judge's finding that the Respondent did not violate the Statute by implementing changes pertaining to official time for representational activities. We conclude that the Union's oral and written requests "to defer implementation of the [ v31 p3 ] changes until a ruling (can) be obtained as to the(ir) legality," provide no basis for disagreeing with the Judge.

We also agree with the Judge that the Respondent changed its practice regarding the computation of continuation-in-service periods required of employees for whom it has paid law school expenses in order to conform the practice to governing law and regulation. Accordingly, we adopt the Judge's finding that the Respondent was not obligated to bargain on the decision to change the method of computing the time period for continuation-in-service agreements.

We reject the General Counsel's argument that the Judge erred by not finding an obligation to bargain over the decision to change the computation method to the extent of the discretion of the agency head under 5 C.F.R. 410.508(d). Under this provision, the head of an agency has discretion to make exceptions to the continuation-in-service period required by 5 U.S.C. 4108(a). We find that this discretion does not relate to the substance of the Respondent's change in the computation of the continuation-in-service periods required of employees for whom it has paid law school expenses. Instead, we find that the discretion to make exceptions to the continuation-in-service period computed under 5 U.S.C. 4108(a) is a subject for bargaining over the impact and implementation of the change in the computation method.

Although the Judge found a violation of the Statute for failing to bargain over the impact and implementation of the change in the computation method, the Judge failed to recommend a bargaining order. In order to effectuate the purposes and policies of the Statute, we will order the Respondent to bargain on request over the impact and implementation of the change in practice regarding the computation of continuation-in-service periods required of employees for whom the Respondent has paid law school expenses.

Finally, the Judge found that employees were not required to make any payments to the Respondent as a result of the change in computing the continuation-in-service period, and he stated that he did not recommend an order directing the Respondent to reimburse employees. Judge's decision at 24 n.24. Nevertheless, in his recommended order, he orders the Respondent to reimburse employees who were [ v31 p4 ] required to make payments as a result of the change. We will modify the Order to delete that requirement.

ORDER

A. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we order that the U.S. Patent and Trademark Office shall:

1. Cease and desist from:

(a) Failing and refusing to cooperate in impasse procedures and decisions by failing to implement the Decision Regarding Ground Rules Agreement of April 10, 1985, and the Final Award of May 20, 1985, issued by Arbitrator Jacob Seidenberg after the Federal Service Impasses Panel directed the parties to mediation-arbitration.

(b) Unilaterally changing its practice regarding the computation of continuation-in-service periods required of employees for whom it has paid law school expenses without notifying the Patent Office Professional Association, the exclusive representative of certain of its employees, and affording it an opportunity to negotiate over the impact and implementation of such change.

(c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of rights assured by the Federal Service Labor - Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Fully comply with the Decision Regarding Ground Rules Agreement of April 10, 1985, and the Final Award of May 20, 1985, issued by Arbitrator Jacob Seidenberg after the Federal Service Impasses Panel directed the parties to mediation-arbitration.

(b) Provide Union representatives, who attended negotiations sessions with management officials between July 7, 1985, and May 1, 1986, official time for the performance of their duties at those sessions and make them whole for any leave they utilized to perform those duties.

(c) Upon request, negotiate in good faith with the Patent Office Professional Association, the exclusive representative of certain of its employees, over the impact [ v31 p5 ] and implementation of the change in practice regarding the computation of continuation-in-service periods required of employees for whom it has paid law school expenses.

(d) Post at its facilities in Washington, D.C., copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commissioner of the U.S. Patent and Trademark Office, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by any other material.

(e) Pursuant to section 2423.20 of the Authority's Rules and Regulations notify the Regional Director, Region III, Federal Labor Relations Authority, Washington, D.C., in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

B. The allegations in the complaints in these cases which have been found to be without merit are dismissed.

Issued, Washington, D.C., March 24, 1988.

Jerry L. Calhoun,        Chairman

Jean McKee,                Member

FEDERAL LABOR RELATIONS AUTHORITY

[ v31 p6 ]

                  NOTICE TO ALL EMPLOYEES
    AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
           AND TO EFFECTUATE THE POLICIES OF THE
     FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
               WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to cooperate in impasse procedures and decisions by failing to implement the Decision Regarding Ground Rules Agreement of April 10, 1985, and the Final Award of May 20, 1985, issued by Arbitrator Jacob Seidenberg after the Federal Service Impasses Panel directed the parties to mediation-arbitration.

WE WILL NOT unilaterally change our practice regarding the computation of continuation-in-service periods required of employees for whom we have paid law school expenses without first notifying the Patent Office Professional Association, the exclusive representative of certain of our employees, and affording it an opportunity to negotiate over the impact and implementation of such change.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor - Management Relations Statute.

WE WILL fully comply with the Decision Regarding Ground Rules Agreement of April 10, 1985, and the final award of May 20, 1985, issued by Arbitrator Jacob Seidenberg after the Federal Service Impasses Panel directed the parties to mediation-arbitration.

WE WILL provide representatives of the Patent Office Professional Association, who attended negotiation sessions with management officials between July 7, 1985, and May 1, 1986, official time for the performance of their duties at those sessions and make them whole for any leave they utilized to perform those duties. [PAGE]

WE WILL, upon request, negotiate in good faith with the Patent Office Professional Association, the exclusive representative of certain of our employees, over the impact and implementation of the change in practice regarding the computation of continuation-in-service periods required of employees for whom we have paid law school expenses.

                               ____________________________
                                      (Activity)

Dated: ___________________ By: ____________________________
                                 (Signature)  (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority, whose address is: 1111 18th Street, N.W., 7th Floor (P.O. Box 33758), Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8500. [ v31 p2 ]

U.S. PATENT AND TRADEMARK
  OFFICE

              Respondent

    and

PATENT OFFICE PROFESSIONAL
  ASSOCIATION

              Charging Party

Case Nos. 3-CA-50396
          3-CA-60086

James R. Lawrence, Esq.
         For the Respondent

Ira Sandron, Esq.
         For the General Counsel

Edward Wojciechowicz
         For the charging Party

Before: WILLIAM NAIMARK
         Administrative Law Judge

DECISION

Statement of the Case

Pursuant to a Complaint and Notice of Hearing in case No. 3-CA-50396 issued on March 31, 1986 and a Complaint and Notice of Hearing in Case No. 3-CA-60086 issued on February 28, 1986, both by the Regional Director for the Federal Labor Relations Authority, Region III, a hearing was held before the undersigned on April 7, 1986 at Washington, D.C.

These cases arose under the Federal service Labor - Management Relations Statute, 5 U.S.C. 7101 et. seq. (hereinafter called the Statute). Case No. 3-CA-50396 is based on a first amended charge filed on March 26, 1986 [PAGE] by Patent Office Professional Association against U.S. Patent and Trademark Office. Case No. 3-CA-60086 is based on a charge filed on December 10, 1986 by Patent Office Professional Association 2 against U.S. Patent and Trademark Office. 3

The Complaint in Case No. 3-CA-50396 alleged, in substance, (1) that Respondent, on or about June 7, 1985, refused to abide by a ground rules agreement imposed by an arbitrator upon the parties, in connection with negotiations for a collective bargaining agreement, thereby failing and refusing to cooperate in the impasse procedures of Section 7119 of the Statute, as well as failing to comply with Section 7122 thereof and the arbitrator's award; (2) that Respondent, on or about June 18, 1985 unilaterally implemented changes in established official time practices embodied in the ground rules agreement -- all in violation of section 7116(a)(1),(5), (6) and (8) of the Statute.

Respondent's Answer in case No. 3-CA-50396, dated April 24, 1986, denies that the parties were directed to continue to bargain by the ground rules agreement. It admits the implementation of changes in respect to official time, but alleges they were permissible under 7101 and 7106 of the Statute. In addition to denying that it violated the Statute as alleged, Respondent alleges that this complaint is barred by section 7116(d) of the Statute by virtue of a grievance filed by the union on November 22, 1985 in POPA Docket No. 11-6-ASN-47 (American Arbitration Association Case No. 16 39 0053 86 5).

The Complaint in case No. 3-CA-60086 alleged, in substance, that (1) on or about December 22, 1981 the parties executed a memorandum of understanding providing, inter alia, that Respondent would withdraw proposed changes in official time for Union representatives and merge the topic into negotiations for a new bargaining agreement; that on or about December 7, 1985 Respondent informed the union it would not abide by the said memorandum; (2) that since on or about July 8, 1985 Respondent unilaterally implemented changes in the practice of granting official time for Union representatives engaged in representational activities in contravention of the memorandum - all without affording the union an opportunity to bargain over the substance, impact and implementation thereof. By those acts Respondent allegedly violated section 7116(a)(1) and (5) of the Statute. [ v31 p3 ]

Respondent's Answer in case No. 3-CA-60086, dated march 24, 1986, denies the commission of any unfair labor practices. It denies a failure to afford the Union an opportunity to bargain over official time as alleged. Various defenses were alleged including (a) that the Respondent enforced the contractual provisions regarding official time for Union representatives; (2) the memorandum of December 28, 1981 is null and void because of Union misrepresentation, or the breach of condition by the Union, or the excessive use of official time by the Union official; (3) the excessive use of said time caused the existence for overriding exigency; (4) the matters in the complaint involve an interpretation of the basic agreement of December, 1972 which should be resolved via the grievance procedure.

An Order Amending Complaint in Case No. 3-CA-60086 was issued on December 4, 1986. The amendment added a new paragraph alleging, in substance, that since June 24, 1985 Respondent unilaterally changed the past practice re computation of the continuation-in-service periods required of employees for whom Respondent has paid law school tuition, and other expenses, without affording the union an opportunity to bargain over substance, impact and implementation of such changes.

Respondent's First Amended Answer to the Amendment, noted December 29, 1986, admitted the change in computing continuation-in-service periods, but it denied that the union was not afforded an opportunity to bargain over the change as alleged. 4

All parties were represented at the hearing. 5 Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed which have been duly considered. [ v31 p3 ]

Upon the entire record herein, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following findings and conclusions:

Findings of Fact

1. At all times material herein the Union has been, and still is, the exclusive representative of all professional employees located at headquarters of Respondent in Crystal City, Virginia. Approximately 1400 employees comprise the represented unit.

2. Both the union and Respondent were parties to a collective bargaining agreement which was executed in 1972. Article VI, entitled "Grievance Procedure," contained a provision as follows:

Section II -- Time for Preparation and Presentation of Grievance

The time required for the presentation of a grievance shall be classified as official time.

For the preparation for a grievance, the Personnel officer shall grant, on request, the grievant and/or his representative up to eight (8) hours of official time upon presentation of a statement of the need therefor.

Article X, entitled "Use of Official Time," contained the following provisions:

Association officials shall be allowed official time to conduct certain activities during duty hours. These activities will normally be defined as consultations or discussions with employees of the unit and/or members of management concerning matters affecting working conditions of these employees, employee-management consultation and meetings, employee grievances, and other matters concerning the interpretation and application of the Agreement and/or E.O. 11491, as amended by E.O. 11616. [ v31 p4 ]

. . the amount of time used for these activities shall be noted on all appropriate records, including the Association official's time and attendance record and shall not, except for a reasonable amount of time used on employee grievances, exceed an average of four hours per week during any calendar year.

Time spent conducting the Associations internal affairs shall not be official time.

3. Record facts show that prior to 1981 practically all claims for official time by Union representatives had been granted. Under date of June 10, 1981, Respondent sent the Union a memorandum stating that large amounts of official time were being charged off by POPA representatives for grievance preparation; that commencing on July 1, 1981, Respondent would enforce Article VI, section 11 and Article X of the bargaining agreement concerning the use of official time. On June 25, 1981 the union requested negotiation on the impact and implementation of the June 10 memorandum re the use of official time.

4. The Union submitted a request for review, 6 dated June 30, 1981, in response to the proposed change in practice re official time use for grievance preparation.

5. Under data of August 5, 1981 the union submitted a formal grievance without a hearing (No. 06-1-ASN-71) on the aforesaid proposal of Respondent concerning "Official Time for Association Officials."

6. Both the union and Respondent executed a "memorandum of Understanding" on December 22, 1981 wherein (a) Respondent withdrew its June 10, 1981 memorandum of its intention to enforce contractual provisions re official time use by Association officials; (b) POPA withdrew its grievance filed in response to Respondent's intended enforcement of the aforesaid contractual provisions, and the union also withdrew its request to negotiate the impact and implementation of the June 10 memorandum. It was also [ v31 p5 ] agreed that the issue of official time for POPA officials and representatives was bargainable.

7. On or about September 23, 1982 the union and Respondent commenced negotiations for a new collective bargaining agreement to replace the 1972 agreement.

8. On or about January 21, 1983, after unsuccessful negotiations and mediation sessions, Respondent requested the assistance of the Federal service Impasses Panel which directed them to resort to mediation-arbitration to resolve their dispute. On or about July 13, 1983 the parties selected Arbitrator Jacob Seidenberg who met with the parties on August 1 to discuss the ground rules. it conducted four more meetings with the parties which were held in October 11 and November 17, 1983 and January 11 and 12, 1984. Respondent proposed that a cap be placed on the time spent on negotiations, such as three or four months.

9. On April 10, 1984 Seidenberg issued a DECISION OF ARBITRATOR -- REGARDING GROUND RULES AGREEMENT with his attached GROUND RULES AGREEMENT. 7 The arbitrator set forth various provisions in the ground rules to govern the negotiations between parties. He provided, inter alia, for the following:

1(a) Except as stated in paragraphs 2(e) each Negotiating Team shall be composed of not more than six members. The Association Team, while engaged either in research or preparation for, or actual negotiations for the basic Agreement, shall be authorized a reasonable amount of official time, not to exceed forty (40) hours per calendar week. (underscoring supplied).

2(f) Except for changes in working conditions mandated by statute or government-wide regulation, negotiations regarding impact and implementation on future management changes will be combined with the negotiations for the on-going basic agreement. Except where the implementation is required by an overriding exigency, the implementation [ v31 p6 ] of the impact and implementation bargaining, shall be deferred until there is final agreement on, and the execution and approval of, the negotiated basic Agreement.

The Decision of the Arbitrator also set forth, in the Ground Rules, provisions regarding (a) the bargaining schedule, (b) service of substantive bargaining proposals, (c) facilities and services, (d) conduct of negotiations, including procedures to be followed, (e) signing and approval (f) ratification of Agreement.

The Arbitrator also provided that the parties, for the following five months "shall continue to bargain bi-laterally in good faith on all appropriate issues or proposals." Moreover, he stipulated that if the parties do not reach agreement on all appropriate and outstanding issues at the conclusion of the fifth month, they should submit a written report to him setting forth the issues agreed upon, those in dispute and impasse, and issues that are still the subject of bargaining. The Arbitrator, as stated in the April 10 Decision, refused to place a cap on the time to be spent in negotiations by the parties.

10. Exceptions to this award were filed by the Union and they were denied by the Authority in a Decision 8 dated August 31, 1984.

11. The parties began negotiations for a new basic agreement in November, 1984. In accordance with the award, the parties submitted status reports to Seidenberg in April, 1985 after negotiating for five months. They also met with the Arbitrator on may 10 following. At that time Respondent proposed that either a final offer selective package be imposed after a limited bargaining period, or that the agency be permitted to impose unilaterally certain contract provisions until changed via bargaining.

12. A Final Decision and Answer (Ground Rules Dispute) was issued by the Arbitrator on May 20, 1985. He refused to adopt Respondent's proposal as aforesaid. The award provided that the parties continue to bargain in accordance with the relevant terms of the April 10, 1984 Ground Rules Agreement, and that under appropriate circumstances the [ v31 p7 ] parties may invoke provisions of 5 U.S.C. 7119. Seidenberg also recommended that the parties continue to bargain incaccordance with the framework established by the April 10, 1984 Ground Rules Agreement. 9

13. The parties continued bargaining thereafter. They met three days per week, and the Union sent six individuals as representatives to the bargaining table. No changes were made.

14. Record facts show that Respondent was confused by the May 20 award although it did not seek clarification from the Arbitrator. In interpreting the award Respondent wanted to put some pressure on the Union to return to the negotiating table and reach agreement on a new contract. Management concluded the Arbitrator did not want Respondent to continue allowing the Union to have six full time people doing contract work, or that the union should have an indefinite time for its officials to negotiate a new agreement. Respondent was concerned about the amount of official time 10 being used by union representatives for negotiations.

15. By memorandum dated June 7, 1985 Acting Commissioner Donald Quigg wrote Ronald J. Stern, President of POPA, regarding its position based on a determination that the May 20 award was ambiguous as to the procedure for negotiating a new basic agreement. He notified POPA that Respondent deemed itself no longer subject to Section 2(f) of the Ground Rules which precluded management from unilaterally implementing certain changes during the five month period. Further, it was stated that to continue the bar for an indefinite period would be inconsistent with the purpose of the Arbitrator, as well as contrary to the Federal Service Labor-management Relations Act. Quigg also advised the Union it would not continue to grant each of six full time POPA representatives 40 hours of official time per week for negotiations. While it could not reduce the Union's bargaining team of six members, management declared it would just grant a 144 hour block of time for negotiation during the continuation of the three-day-a-week negotiations. [ v31 p8 ]

Further declarations in the memorandum recited that the official time provisions of the agreement shall be enforced; that Respondent rescinds any agreements to refrain from enforcement which were made in reliance upon a new agreement. Also included were the following:

a) No official time shall be allowed with respect to preparation time except the total of eight hours per grievance allowable by the Personnel officer upon request, in accordance with Article VI, Section II of the Agreement.

b) Reasonable time shall be allowed for other grievance activity in accordance with Article X of the Agreement.

c) On "other matters" (except time granted by statute or specific agreement) POPA has a cap of an "average of four hours per week during any calendar quarter" for aggregate POPA activity, as distinguished from four hours per representative, in accordance with Article X of the Agreement.

d) When a POPA representative desires to leave his work area, he shall inform his supervisor "indicating the nature of the activity to be transacted and the location of the area" intended to be visited in accordance with Article X of the Agreement.

e) When a POPA representative enters another area of the office to conduct union activity, "he shall first advise the supervisor of the nature of the activity to be conducted," in accordance with Article X of the Agreement.

Quigg also notified the union therein that since POPA contended many past practices either modified the Agreement, or are incorporated therein, and since management has been unable to deal with such contentions via negotiations, Respondent views that past practice will no longer be considered to be effective. [ v31 p9 ]

The June 7 notification advised the union that the proposed changes would be implemented on July 7, 1985. It stated that enforcement is deferred until the latter date "so that POPA may make appropriate accommodations to and arrangements for the enforcement of managements rights, as spelled out in Section 2 . . ."

16. The union met with Respondent on June 18 or 19 and requested deferring implementation of those changes until a ruling could be obtained re their legality. Management refused this request.

17. A subsequent memorandum dated June 21, 1985 was sent to POPA from Respondent. It was declared therein, inter alia, that (a) POPA officials would be granted official time to engage in discussions with management or unit employees not to exceed an aggregate of 52 hours during any calendar quarter for all POPA officials; (b) discussions could include working conditions, employee/management discussions, the current POPA agreement, the Federal service Labor-management Relations Statute; investigation of whether there is a grievance. The discussions were not to include internal union business or matters relating to EEO complaints or MSPB appeals.

The June 21 memorandum further recited as follows:

Pursuant to Article VI, section 11 of the Agreement, the Personnel Officer may grant up to 8 hours of official time to the grievant and/or to a POPA official acting in lieu of the grievant for preparation of the grievance, upon presentation of a statement sufficiently explaining the need for such time. . .

It was also stated therein that POPA officials would not be granted official time for preparation of grievance, except when acting in lieu of the grievant. The memo set forth types of activities to be included within the terms "preparation." (G.C. Exhibit 7, page 6).

18. No request to bargain over the intended changes, as expressed in the June 7 and June 21 memos, was made by the union.

19. The changes which resulted from the June 7 and 21, 1985 memos to the Union from Respondent were implemented on July 7, 1985. [ v31 p10 ]

20. Record facts show that prior to July, 1985 the term "grievance" was intended to include virtually all kinds of litigation engaged in by POPA. It included litigation, in addition to grievance under the collective bargaining agreement, proceedings before FLRA, MSPB and EEOC. Union representatives were granted official time to investigate a case, consult with an employee, participate in face-to-face discussions with management, prepare and write documents, and attend hearings. While the contract provided for "reasonable" time to be granted for these activities, it was construed to mean actual time spent on such activity. POPA's Vice - President, Lawrence J. Oresby, testified that in July, 1985 an initial change by management result in narrowly interpreting the word "grievance" to mean litigation under the negotiated grievance procedure. A second change occurred in that, while official time was still granted for time spent in discussions with management or in front of third parties or litigation under the negotiated grievance procedure, preparation time for filing a grievance and preparing for activities, or ensuring litigation, was limited to 8 hours per grievance between the union representative and the grievant. Further, while time sheets were still required to be submitted to a supervisor, the latter had to receive approval from the Personnel Office if a grievance matter was involved.

21. Prior to July, 1985 official time was granted to POPA representatives for non-grievance consultation under the bargaining agreement. These involved discussions re working conditions as well as personnel policies and practices. The union representatives were each granted four hours per week for such consultation. Actual time was granted for face-to-face discussions with management. In July, 1985, this was changed so that all 20-25 Union representatives were granted four hours per week, or 52 hours per quarter for non-grievance consultations. Moreover, in respect to consultation with management after July, 1985 union representatives were allowed official time if the manager calling a meeting had prior approval from a commissioner with Respondent. If the Union initiated a discussion with management. The official time was taken from the 52 hours 11 per quarter aggregated for all union representatives. [ v31 p11 ]

22. In respect to time spent by Union agents writing all documents for any litigation before July 1, 1985 they were granted official time therefor. After said date preparation time for writing those documents came out of the eight hours maximum for each grievance. Preparation time for non-grievance matters came out of the 52 hours per quarter for all Union representatives.

In the 1972 basic agreement it was provided that a Union representative must notify his supervisor when he leaves an area, as well as the supervisor of the area visited, when performing union activities. This was not enforced prior to July 5, although is made applicable by the June 7 memorandum.

Prior to July, 1985 a Union representative received official time for the time spent in a discussion initiated by a supervisor. Thereafter, such time was denied as official time.

23. Union official Oresby testified that after the changes made in July, 1985 he was denied official time to prepare grievances on many occasions because the eight hour limit imposed by the June memorandum had been reached beforehand. He further testified that between July, 1985 and May, 1986 he was denied approximately 75 hours of official time to conduct representational activities.

24. The changes made in July, 1985 involving official time for representational activities remained in effect until May 1, 1986 at which date the new basic agreement granted official time. Thereafter, the changes imposed by Respondent were terminated on that date.

25. With respect to the use of official time for grievances by POPA representatives to July, 1985, the record 12 reflects that (a) in fiscal year 1983 official time so used was 9773 hours; (b) in fiscal year 1984 official time so used was 9593 hours; (c) from October 1, 1982 thru July 7, 1985 the official time used was 8539 hours. In regard to such use of official time after July, 1985 the record indicates that from July 8, 1985 thru September, 30, 1985 the amount of official time used was 195 hours. 13 [ v31 p12 ]

With respect to the use of official time by POPA representatives for non-grievance meetings prior to July, 1985, the record reflects that (a) in fiscal year 1984, 3228 hours of official time was granted; 14 (b) in fiscal year 1985 official time of 2360 hours was granted. 15 In regard to such use of official time after July, 1985, the record indicates that from July 8, 1985 thru the end of the fiscal year, 52 hours of official time were granted. 16

26. Subsequent to July, 1985 POPA representatives were given a choice to take denied official time in one of three ways: annual leave, leave without pay, or examining time. The latter term refers to the time spent examining patent applications. Examiners are charged with a certain rate for getting out cases which is measured by the time spent examining patent applications. If official time is denied and an individual nevertheless spent examining time on union activities, that time is counted as if he worked on patent applications. Since he would be charged with more time in performing examinations than he spent, his quantity would be lower and his productivity (which is a critical element in appraisals) would be adversely affected.

27. POPA made a renewed request on November 29, 1985 to the Arbitrator for clarification of the may 20, 1985 award. Under date of January 2, 1986 Arbitrator Seidenberg issued another award as which he found that there was a change in the parties' bargaining relationship since they involved the services of the FMCS and FSIP, and the dispute is before the Panel. He commented that the official time provisions of the Ground Rules Agreement were formed to provide a mechanism for the parties while bargaining for a new agreement. He concluded that it is appropriate to hold that the issue of official time be placed before the Panel, along with the unresolved issues.

28. Respondent has maintained for many years a Professional Training Program involving law school tuition assistance. This was intended to provide funds for patent examiners to take courses after-hours. With this system an employee is obligated, under a continued service agreement, to serve one month for each credit hour paid for by the Respondent. [ v31 p13 ]

In respect to reimbursement by the employee, prior to June 24, 1985 the individual could pay back in service the time that was due for each course concurrently with the course taken at an earlier semester. Thus, patent examiner mark Ungerman took two courses which ended on may 11, 1984. Since they amounted to six credits, he was obligated for six months continued service, or to November,12, 1984. Ungerman took another course, which was four credits, that ended on July 2, 1984. His service obligation date under that system would have been November 3, 1984. Ungerman would then have fulfilled his continued service obligation under both sets of courses simultaneously.

Under a new system, adopted on June 24, 1985, the service obligation date for Ungerman's four credit course ending on July 2, 1984 would be March 12 1985. The four credits, which are translated into four months, are added to the November 12, 1984 date which was the end of the prior continued service obligation period. Thus the obligation date of continued service was changed so that the payback period for the courses would be tacked on sequentially to each other instead of permitting concurrent repayment for the law school.

29. Record testimony reflects that on July 8, 1985 Ronald J. Stern, President of POPA, had a conversation with Joan Eayres, Training manager of Respondent. Stern inquired regarding a complaint by Examiner Ungerman that he was obliged to pay more than others in reimbursement for tuition paid for by the Respondent. Eayres explained that the difference in the dollar amount between the calculation of the continued service under the old and new systems amounted to $1,082. 17 After some discussion Eayres agreed to let ungerman pay back under the old system by continuing in service under the original plan and the employee was not required to pay any dollar amount.

Conclusions

Case No. 3-CA-50396

There are two essential issues posed by the Complaint in this case: (1) whether Respondent violated Section 7116(a)(1), (6) and (8) of the Statute by rejecting rules 1(a) and 2(f) of the April 10, 1984 Ground Rules Agreement imposed by the Arbitrator's award; (2) whether the unilateral [ v31 p14 ] changes made by Respondent on June 18, 1985, with respect to official time practices for Union negotiators engaged in contract negotiations, were violative of Section 7116(a)(1) and (5) of the Statute.

Respondent contends that its actions concerning the use of official time by union representatives for bargaining and representation were reasonable and justifiable under the circumstances. It is asserted that the agency substantially complied with the Arbitrator's award, having only rejected sections 1(a) and 2(f) thereof; that the award was ambiguous and there existed an arguable interpretation of its terms, especially the mandate to continue bargaining in accordance with relevant terms of the April 10, 1984 Ground Rules Agreement. In its Answer Respondent also raised two especial defenses: (1) that the changes re official time use are permitted under Section 7106 of the statute; (2) the Complaint is barred under section 7116(d) of the Statute since the Union filed a grievance on November 22, 1985 regarding the same issues. 18

Under the Statute certain obligations are imposed upon parties who are at an impasse after negotiations and thereafter invoke services of the Federal service Impasses Panel or resort to arbitration. Thus, under 7116(a)(6) it is an unfair labor practice for an agency to fail or refuse to cooperate in impasse procedures and impasse decisions required under the chapter. 19 section 7122(b) provides, moreover, that if no exceptions to an arbitrator's award are filed within 30 days, it shall become final and binding, and an agency shall take the actions required by the final award. When an agency fails to comply with such an award under those circumstances, the failure to do so constitutes an unfair labor practice. United States Air Force, Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 15 FLRA 151. [ v31 p 15 ]

In respect to Respondent's assertion that the award was ambiguous and susceptible of differing interpretations, it is recognized that, where awards are so construed, an agency may not be faulted for failing to comply therewith. The test in such instances, in the event that such a contention is made, in whether the agency's construction of the award is reasonable. This, in turn, depends on whether that construction is consistent with the entire award and consistent with applicable rules and regulations. United States Department of the Treasury, Internal Revenue Service Internal Revenue service and United States Department of t he Treasury, Internal Revenue Service, Austin Service Center, Austin, Texas, 25 FLRA.

The Agency herein insists that the May 20, 1985 award of Arbitrator Seidenberg was imprecise. It argues that, in lieu of just directing the parties to follow his earlier April 10 award, the Arbitrator utilized language which, the Agency maintains, was vague in nature. Respondent stresses the fact that the award is equivocal in light of the May 20 directions to the parties to continue bargaining on the "relevant terms" of the April 10 Ground Rules. Since the parties had commenced negotiations over a year before June, 1985, it is contended that the Agency was confused as to which terms were still relevant. Hence, Respondent asserts, its action in disregarding provisions re official time was a reasonable interpretation -- namely, that the Arbitrator could not have intended that the agency continue to grant the same amount of official time after May, 1985.

The undersigned concludes that such reasoning is illogical in view of the declarations set forth by the Arbitrator. At the outset it is noted that the Arbitrator, in his may 20 award, rejected Respondent's earlier proposal to make unilateral changes pending an agreement reached after negotiations. Inasmuch as he also declared that the parties should continue to bargain in accordance with the framework established by the April 10 Ground Rules, it seems clear that bargaining must embrace the essential dispute: the allotment of official time to union representatives for negotiations. The two most significant clauses in the award which pertains to this dispute are 1(a) and 2(f). The former directs the parties to maintain the composition of each negotiating team to a limited six members; and it authorizes 40 hours per week for the Union team, or a total of 240 hours. The other clause, 2(f), requires that the agency defer any changes in working conditions giving rise to impact and implementation bargaining until final agreement. [ v31 p16 ]

While it is reasonable to determine that the procedural steps outlined in the April 10 award would no longer be applicable, the same conclusion is not warranted in respect to substantive provisions. Moreover, it is difficult to conceive of any provisions in the award more relevant than those set forth in 1(a) and 2(f) -- the very ones which Respondent decided to reject and discontinue observance. Of particular note is the failure by the Agency to seek clarification of the may 10 award. Such action might have lent some support to the contention that Respondent was unable to fathom which terms were "relevant" and required continued negotiations. In sum, I conclude that the Agency's construction of the award to be ambiguous, so as to allow it to discontinue adherence to its provisions, is not reasonable. Contrariwise, Respondent announced that it would not comply with the ground rules laid down by the Arbitrator that would go to the care of their negotiations, i.e. an amount of official time to be granted to POPA representatives for negotiations, and the deferral of impact and implementation bargaining on management changes which execution and approval of the final basic agreement.

While Respondent argues that it has substantially complied with the Arbitrator's awards, I disagree. The foregoing provisions are not minor matters outside the realism of negotiations, or of so little consequence as not to be material. They are obviously vital ground rules forming an essential part of the award. Accordingly, I conclude Respondent failed and refused to cooperate in impasse procedures and reasons by refusing to comply with the Decision Regarding Rules Agreement of April 10, 1985 and the Final Award of may 20, 1985, issued by Arbitrator Jacob Seidenberg after the Panel directed the parties to mediation-arbitration. 20 Such conduct by Respondent was contrary [ v31 p17 ] to the mandate in Section 7122 of the statute and was violative of section 7116(a)(1), (6) and (8) thereof. 21

Case No. 3-CA-60086

Two issues are presented in this case for determination: (1) whether the changes made by Respondent in July, 1985, regarding official time to be granted to POPA representatives for their representational activities were unilaterally implemented, and in contravention of the December, 1981 memorandum of Understanding between the parties, in violation of section 7116(a) (1) and (5) of the statute; (2) whether Respondent also violated said sections of the Statute by unilaterally implementing on June 24 1985 a new method of computing continuation-in-service periods required of employees for whom the agency paid law school expenses.

(1) while Respondent argues that no change in past practice existed as to official time for representational activities by the Union representatives, this argument is belied by the record facts herein. For many years, and since the 1972 bargaining agreement, the Agency has granted official time for both grievance and non-grievance matters, and the record reflects that such policy included allowing official time for the preparation of grievances meeting with management, and litigation involving employment conditions. Respondent has insisted that its conduct in this respect constituted just lax enforcement of the bargaining contract terms as to official time for union officials. However, this conduct existed for a sufficient length of time, was well known by management, and has become an established past practice. See Department of Health and Human Services, social Security Administration, 17 FLRA 126.

It is also clear, and not controverted, that under the statute provision is made for granting official time to employees who engage in representational activities. This authorization, as set forth in Section 7131 of the Statute, [ v31 p18 ] provides that such official time shall be granted in any amount which the agency and union agree is reasonable, necessary, and in the public interest. Thus, unless otherwise excused, Respondent was obliged to bargain with the union herein when it changed the established practice concerning the granting of official time to employees who represented the Union while engaged in representational activities.

Case law reflects that, in the event of a proposed change by management of working conditions, it is required to notify the bargaining agent and afford it a reasonable opportunity to bargain thereon. Record facts reflect that Respondent, in its memos of June 7 and 21, 1985 to the Union, notified the Union of its intention to eliminate the practices re official time for representational activities. Further, the June 7 memo stated that the changes would not be put into effect until July 7, 1985 so that POPA could make appropriate accommodations and arrangements. This particular memo also advised Union President Stern that Personnel Officer Acree would have discretion to modify the time table with respect to those past practices where a delay in a final determination is clearly warranted. At the conclusion of the June 21, 1985 memo Commissioner Quigg stated that if any questions arose, the Union should notify management; that "we need good tolerance as we learn what information we may not have made sufficiently clear to you." Based on the statements made by Respondent in these two memos, I am satisfied that the Agency gave due and timely notice to the Union on June 7 and 21, 1985 of the proposed changes to be implemented on July 7, 1985 re official time for representation, and that it afforded POPA an opportunity to request bargaining thereon. See Social Security Administration Baltimore, Maryland, 20 FLRA, U.S. Department of Treasury, Internal Revenue Service, Philadelphia Service Center, 16 FLRA 749; General Services Administration, 15 FLRA 2.

Upon receiving notification from Respondent with respect to the intended reversion to the contract provisions re official time, which resulted in changing the past practices in regard thereto, it was incumbent upon the Union to request bargaining if it so desired. 22 The record does [ v31 p19 ] reflect that the union met with management on June 18 or 19; that it requested the Agency to defer implementation of the changes until a ruling be obtained as to the legality thereof, and that Respondent refused to do so. However, I do not view that proposal by POPA as fulfilling the obligation imposed upon the Union herein. Neither does it appear that the Union made any independent request of Respondent to bargain as to the official time changes. In view of the fact that the union was afforded several weeks in which to make such request and failed to do so, I conclude that Respondent had no obligation to bargain re these changes an its failure to do so is not violative of the Statute. 23 Internal Revenue service (District Region, National Office unit), 14 FLRA 698.

(2) Although conceding that it changed the practice re computation of continued service periods required of employees for whom Respondent paid law school expenses, several contentions are made which challenge that such conduct is violative of the Statute. In the main, Respondent maintains (a) the practice violated 5 U.S.C. 4108 which sets forth the required service continuation period for an employee, and hence the Agency has no duty to bargain over a change which conforms to the law; (b) the union never requested bargaining re the change and therefore waived its right to bargain; (c) no harm resulted as a result of the change.

5 U.S.C. 4108 deals with "Employee agreements; service after training." subdivision (a) thereof provide as follows: [ v31 p20 ]

(a) An employee selected for training by, in, or through a non - Government facility under this chapter shall agree in writing with the Government before assignment to training that he will --

(1) continue in the service of his agency after the end of the training period for a period at least equal to three times the length of the training period unless he is involuntarily separated from the service of his agency; and (underscoring supplied)

(2) pay to the Government the amount of the additional expenses incurred by the Government in connection with his training if he is voluntarily separated from the service of his agency before the end of the period for which he has agreed to continue in the service of his agency.

Under the law school assistance program conducted by Respondent an employee is, and has been, required to continue in service, after a training period expires, one month for each semester credit hour. Prior to June 24, 1985 Respondent allowed an employee to pay his continued service periods, based on credit hours, on a concurrent basis. In the event he took six credits in the Fall session and also in the Spring session, an employees's continued service after the Spring session ended could apply to both sessions. He could pay back the Spring semester as soon as it ended although he was paying back credit hours from the Fall session.

Respondent changed this practice on June 24, 1985 since it believed that, under the concurrent pay back practice, an employee would serve less than three times the training period required by law. Its new directive, as set forth in a memorandum of that date to managerial and supervisory personnel (G.C. Exhibit 11(a)), required an employee, to pay back credit hours consecutively. Thus, instead of having overlapping periods of payback hours, an employee, for instance, would not pay back the spring semester hours of training until he paid back by service hours the amount of hours due for the Fall semester. [ v31 p21 ]

The Authority has made it clear that if an agency makes a change in working conditions to conform to law or regulation, it is relieved from the obligation to bargain as to the decision to take such actions. Thus, if it be determine a the existing practice is unlawful, or contrary to government-wide regulations, an agency may take steps to conform to lawful requirements U.S. Department of Interior, Bureau of Reclamation, 20 FLRA 587; Department of the Navy, Philadelphia Naval Shipyard, 18 FLRA 902. In the case at bar I am satisfied that both under 5 U.S.C. 4108(a) and FPM 410, 5-7 24 a continuation by Respondent of its practice whereby credit hours for training were paid back on a concurrent basis when an employee is assigned to training in more than one semester, would be improper. It would amount to a violation of law and regulation since, as indicated, an individual could continue service (and pay back) for a period of less than three times his training period. Accordingly, Respondent was not obliged to bargain with POPA concerning the decision to discontinue the practice of paying back credit hours on a concurrent basis, and it did not violate the statute in that respect.

Nevertheless, decisioned law by the Authority also makes it clear that, although exculpated from responsibility to bargain re its decision to conform to law and regulation, an agency must bargain as to its impact and implementation. See Department of the Navy, Philadelphia Naval Shipyard, supra.

Respondent herein resists any contention that it violated the Statute by the aforesaid change since it asserts that the union never requested to bargain in any respect, and it also insists there is no "harm" or effect resulting from the new practice.

Record facts show that the new policy was implemented by Respondent on June 24, 1985. Further, that the union was never notified beforehand, and it wasn't until July 8, 1985 that the Agency appraised it of the change in the method of computing continuation-in-service periods. This occurred when manager Joan Eayres spoke to Union President Stern and explained the new procedure which had already gone into effect. Since notification to the Union of the new policy was given after its implementation. Respondent did not [ v31 p22 ] afford the bargaining representative proper notice and an opportunity to bargain thereon in any respect. Cases cited by Respondent to support its position that the Union waived its rights by not making a request to bargain are inapposite. They involve instances where the agency notified the union before the change and the latter failed to make such request although afforded sufficient time to do so. Accordingly, I reject the defense that the union waived its right to bargain on the impact and implementation of the changed policy re the law school tuition assistance program.

A further argument by Respondent concerned the effect of the changed policy. It is maintained that no particular harm ensures from the change. In essence, this raises the question as to whether the change is de minimis in nature. The standard as to whether a change fails in o that category was modified in Department of Health and Human Services, Social Security Administration, 24 FLRA No. 42. The Authority declared it would carefully examine the pertinent facts and circumstances in each case. It also stated that principal emphasis would be placed on the nature and extent of the effect or reasonably foreseeable effect of the change of conditions of employment of unit employees. The number of employees, it concluded, would not be a controlling consideration.

In evaluating the impact of the new method of computing continued-in-service periods to pay back credits to Respondent, I am persuaded that the effect upon the bargaining unit employees is more than de minimis. While it is true that the change only affect employees who leave the service before completing their payback period, the impact of the new computation could be extensive. Thus, employees who do leave before the training period is completed will, as Respondent admits, be obligated to pay the difference in back pay tuition under the old and new systems. While only one instance appears in the record wherein this occurred, which involved $1,082, the resultant change must necessarily affect all those individuals who are enrolled in the training program. Under the new arrangement an employee, who might otherwise have left the service beforehand, will necessarily be required to remain longer to pay back (in service) the credits for his hours in law school. If he does not so remain, he will be obliged to pay the amount due Respondent for the tuition. Since these are 1400 employees in the bargaining unit, it is reasonably foreseeable that a sizable number of individuals who are enrolled in this training program, would be so affected. Moreover, it cannot be assumed that Respondent will forgive the amount due each [ v31 p23 ] time an employee leaves before serving the required time even though it did so in respect to Ungerman. 25

Accordingly, I find that Respondent violated Section 7116(a)(1) and (5) by failing and refusing to bargain with the Union herein re the impact and implementation of the change in its method of computing in-service periods required of employees to pay back credits for tuition training.

In sum, I conclude that Respondent, in Case No. 3-CA-50396, failed and refused to comply wit t e Arbitrator's Award between April 10, 1985 and May 1, 1986, issued in the direction of the Federal service impasses Panel in violation of 7116(a)(1), (6) and (8) of the Statute; and that Respondent, in Case No. 3-CA-60086, failed and refused to bargain re the impact and implementation of the change in the method of computing in-service periods required of employees to pay back credits for tuition training.

Accordingly, and in view of the foregoing, it is recommended that the Authority issue the following:

ORDER 26

Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and Section 7118 of the Federal Service Labor - Management Relations Statute, the U.S. Patent and Trademark Office, Washington, D.C. shall:

1. Cease and desist from: [ v31 p24 ]

(a) Failing and refusing to cooperate in impasse procedures and decisions by failing to implement the Decision Regarding Ground Rules Agreement of April 10, 1985 and the Final Award of May 20, 1985, issued by Arbitrator Jacob Seidenberg after the Panel directed the parties to mediation-arbitration.

(b) Unilaterally changing its practice regarding the computation of continuation-in-service periods required of employees for whom it has paid law school expenses without notifying the Patent office Professional Association and affording it an opportunity to negotiate over the impact and implementation of such change.

(c) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of rights assured by the Federal service Labor-management Relations statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Fully comply with the Decision Regarding Ground Rules Agreement of April 10, 1985 and the Final Award of May 20, 1985 issued by Arbitrator Jacob Seidenberg after the Panel directed the parties to mediation-arbitration.

(b) Provide union representatives, who attended negotiations sessions with management officials between July 7, 1985 and May 1, 1986 official time for the performance of their duties thereat, and make them whole for any leave they utilized to perform their duties at those sessions. [ v31 p25 ]

(c) Reimburse any employees who were required to make payments as a result of the changes in practice regarding the computation of the continuation-in-service periods requested of employees for whom it has paid law school expenses.

(d) Post at its facilities in Washington, D.C., copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commissioner of the U.S. Patent and Trademark office, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by any other material.

(e) Pursuant to section 2423.20 of the Rules and Regulations notify the Regional Director, Region III, Federal Labor Relations Authority, Washington, D.C., in writing within 30 days from the date of this order, as to what steps have been taken to comply herewith.

WILLIAM NAIMARK
Administrative Law Judge

Dated: September 11, 1987
       Washington, D.C.

[ v31 p26 ]

                  NOTICE TO ALL EMPLOYEES
                        PURSUANT TO
                A DECISION AND ORDER OF THE
             FEDERAL LABOR RELATIONS AUTHORITY
         AND IN ORDER TO EFFECTUATE THE POLICIES OF
                CHAPTER 71 OF TITLE 5 OF THE
                     UNITED STATES CODE
     FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
            WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to cooperate in impasse procedures and decisions by failing to implement the Decision Regarding Ground Rules Agreement, of April 10, 1985 and the Final Award of may 20, 1985, issued by Arbitrator Jacob Seidenberg after the Panel directed the parties to mediation-arbitration.

WE WILL NOT unilaterally change our practice regarding the computation of continuation-in-service periods required of employees for whom we have paid law school expenses without first notifying the Patent Office Professional Association and affording it an opportunity to negotiate over the impact and implementation of such change.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal service Labor-management Relations Statute.

WE WILL fully comply with the Decision Regarding Ground Rules Agreement of April 10, 1985 and the final award of May 20, 1985, issued by Arbitrator Jacob Seidenberg after the Panel directed the parties to mediation-arbitration.

WE WILL provide representatives of the Patent Office Professional Association, who attended negotiation sessions with management officials between July 7, 1985 and may 1, 1986, official time for the performance of their duties thereat, and make them whole for any leave they utilized to perform their duties at those sessions. [PAGE]

WE WILL reimburse any employees who were required to make payments as a result of the change in practice regarding the computation of the continuation-in-service periods required of employees for whom it has paid law school expenses.

                               ____________________________
                                   (Agency or Activity)

Dated: ___________________ By: ____________________________
                                        (Signature)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directl