32:0572(84)AR - - Patent and Trademark Office and Patent Office Professional Association - - 1988 FLRAdec AR - - v32 p572



[ v32 p572 ]
32:0572(84)AR
The decision of the Authority follows:


32 FLRA No. 84

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. PATENT AND TRADEMARK OFFICE

Agency

and 

PATENT OFFICE PROFESSIONAL ASSOCIATION

Union

Case No. 0-AR-1480

ORDER DISMISSING EXCEPTION

I. Statement of the Case

This matter is before the Authority on an exception to the interim decision of Arbitrator Robert Bennett Lubic filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exception.

Based on the Arbitrator's decision in this case, we conclude that the Agency's exception is interlocutory. Accordingly, we dismiss the exception.

II. Background

The Union represents a bargaining unit of approximately 1,500 professionals, of whom about 1,400 are patent examiners. On May 17, 1981, as part of negotiations for a new collective bargaining agreement, the Union submitted a proposal on the impact and implementation of a proposed reallocation of office space by the Agency. Subsequently, a Memorandum of Understanding (Memorandum) was signed by the parties on December 2, 1982, which provided that "'[e]ach professional will be provided with a private, wall enclosed * * * office of approximately 150 square feet whenever possible. (underlining added).'" Interim Decision at 2. An addendum was attached to the Memorandum as the subject for further negotiations which stated that GS-15, 14, and 13 examiners "'shall first be provided with private offices.'" Id.

During subsequent negotiations, the parties could not reach agreement as to the binding effect of the Memorandum and its addendum. The Union sought assistance from the Federal Service Impasses Panel (FSIP) to resolve their dispute. Jerome Ross was selected as the mediator-arbitrator to resolve the unsettled issues. In his decision of November 30, 1983, Arbitrator Ross ruled in part that "'all examiners and classifiers, grades 13, 14 and 15 shall be provided with private offices of approximately 150 square feet'" and that the award "'shall be incorporated into the parties next basic agreement.'" Interim Decision at 2-3.

Arbitrator Ross' award did not encompass the Memorandum. However, on June 21, 1985, the Authority found that the Memorandum became a binding agreement on January 1, 1983, by operation of section 7114(c)(3) of the Statute. U.S. Patent and Trademark Office and Patent Office Professional Association, 18 FLRA 713 (1985).

The parties continued negotiations for a collective bargaining agreement after the Ross award. When they were unable to reach agreement, they took the matter to FSIP for resolution. Mediator-Arbitrator Marvin Johnson was selected to mediate the impasse. As part of his award, Arbitrator Johnson ordered the parties to give effect to the Memorandum and the Ross award. His award constituted the parties' collective bargaining agreement, which became effective on July 1, 1986.

After informal attempts to resolve the office space issue, the Union filed a formal grievance on March 27, 1987. This grievance was denied by the Agency. The matter was arbitrated on September 3 and 4, 1987.

III. Arbitrator's Interim Decision

Arbitrator Lubic determined that the issues before him were whether the Agency had complied with: (1) the Ross arbitration award regarding office space for patent examiners, grades 13, 14, and 15, as contained in the parties' agreement; and (2) the Memorandum of December 2, 1982, concerning private office space for professionals, as contained in the parties' agreement. In reaching his decision, the Arbitrator examined the admissibility of General Service Administration (GSA) Temporary Regulations D-70, D-71, and D-73 as evidence, the Ross arbitration award, and the Memorandum.

First, the Arbitrator found that the GSA regulations were admissible evidence. In so holding, the Arbitrator rejected the Union's contention that the regulations could not be considered as management failed to cite them as "reasons and arguments" for its contested action as required by Article 11, Section 8 A and Article 35, Section 1 C of the parties' agreement. He also found that the regulations were not "new evidence," which he defined as evidence that a party does not have until completion of an investigation. Further, he found that they did not constitute "surprise evidence," which he defined as evidence held back for tactical purposes. Interim Decision at 20-21.

The Arbitrator noted that the Union had requested specifically that management provide it with all the GSA regulations that the Agency intended to rely on as a basis for its claim that it was unable to accommodate the Union's office space demands. He found that management's response that it intended to rely on all applicable regulations did not conform to the requirements of section 7114(b)(4)(B) of the Statute or the parties' agreement. However, the Arbitrator noted that the GSA regulations at issue are Government-wide regulations. He recognized that his award could not conflict with Government-wide rules or regulations. Therefore, the Arbitrator held that he would admit the GSA regulations concerning office space, if pertinent, as evidence. Interim Decision at 23-24.

Second, the Arbitrator considered the effect of the GSA regulations in interpreting the Ross arbitration award. He concluded that GSA Temporary Regulation D-73, which became effective in January 1987, was not applicable because it was not in effect at the time of Arbitrator Johnson's award which incorporated the Ross award. However, the Arbitrator stated that he would apply GSA Temporary Regulations D-70 and D-71 to the Ross award.

According to the Arbitrator, the Ross award included "a specific order to the [Agency] to provide all patent examiners of grade GS 13 or above, with a private office 'no later than May 1, 1984.'" Interim Decision at 26. He stated that unless GSA Temporary Regulations D-70 and D-71 specifically preclude the Ross award from being implemented, the Agency must meet its contractual obligation to the approximately 25 GS-13 patent examiners who do not have private office space. Id. The Arbitrator directed the Agency to present floor plans disclosing its inability to comply with the Ross award under the applicable regulations.

Finally, the Arbitrator found that the application of the Memorandum must also be considered in light of GSA Temporary Regulations D-70 and D-71. Although the Memorandum was agreed upon prior to the effective date of either of these regulations, the Arbitrator noted that the Memorandum was incorporated into the parties' contract after their effective dates. The Arbitrator found that the words "whenever possible" in the Memorandum must be considered within the context of the Agency's present floor space and the GSA office space regulations. Additionally, the Arbitrator noted that a determination of what is possible must be made under the parties' agreement that no space may be taken from the Agency's managers and must consider the rights of other Agency employees under their collective bargaining agreements.

The Arbitrator stated that he was issuing an interim decision because of "the uncertainty as to whether the Agency can fulfill the requirements of the pertinent language of the Ross award and MOU [the Memorandum] in the light of the two GSA directives." Interim Decision at 29. The Arbitrator noted that the parties failed to provide him with necessary evidence, such as office floor plans, space requirements contained in other collective bargaining agreements, relevant building codes, and lease and safety requirements.

In an interim ruling, the Arbitrator directed the Agency to submit, within 30 days after receipt of his interim decision, floor plans of its present space together with a written showing of how, in light of pertinent GSA regulations, building codes, lease and safety regulations, and agreements with other unions, it would be unable to comply with the Ross award and the Memorandum. He also directed the Union to submit, within a period of 30 days after the receipt of the foregoing information, a written showing of how the Agency could comply with the Ross Award and the Memorandum.

Further, the Arbitrator suggested that the parties meet within 10 days after receipt of the Union's submission to determine whether they could resolve the issue between them. Interim Decision at 30-31. If the parties chose not to meet or were unable to resolve the matter, the Arbitrator stated that he would render a final award within a period of 30 days after the 10-day period. If either or both parties failed to pursue this matter as directed, the Arbitrator stated that he would render a final and binding decision "based in part on his determination as to the burdens of proof and failure to meet the same." Interim Decision at 31. Further, he stated that any decision favorable to the Union regarding office space would be binding for 3 years, a period equal to the duration of the present bargaining agreement, measured from the time that management effectuated the decision.

IV. The Agency's Exception

The Agency excepts to the Arbitrator's refusal to consider the applicability of GSA Temporary Regulation D-73 to the grievance. The Agency asserts that the Arbitrator's holding misinterprets sections 7116(a)(7) and 7117(a)(1) of the Statute.

Specifically, the Agency argues that the Arbitrator may preclude the consideration of a regulation issued subsequent to a collective bargaining agreement only if he finds that the regulation contradicts the terms of the agreement. According to the Agency, the Arbitrator did not make such a finding of fact. GSA Regulation D-73, the Agency asserts, restricts agencies in making office space determinations by requiring that supplemental space be included in the goal of 135 square feet per employee by 1990. Thus, the Agency asserts, the regulation does not contradict any contractual provisions. In these circumstances, the Agency asserts that the Arbitrator improperly refused to consider the applicability of the regulation.

V. Union's Opposition to the Agency's Exception

The Union argues that the Agency's exception is interlocutory and must be dismissed under prior Authority precedent. In its opposition, the Union points out that the Arbitrator expressly stated that he was issuing an interim decision. Furthermore, the Union states that the Arbitrator did not determine whether the Agency violated the parties' collective bargaining agreement. According to the Union, the Arbitrator determined only the admissibility of evidence concerning GSA office space regulations and the burdens of proof each party is required to meet.

VI. Analysis and Conclusion

Section 2429.11 of the Authority's Rules and Regulations provides: "The Authority . . . ordinarily will not consider interlocutory appeals." An interlocutory appeal concerns a ruling which is preliminary to final disposition of a matter. Absent extraordinary circumstances, we will only consider appeals to final awards which have been issued on an entire proceeding. In an arbitration case, this means that the Authority ordinarily will not consider an appeal of an arbitrator's interim decision or ruling until the arbitrator has issued a final decision. See, for example, Navy Public Works Center, San Diego, California and National Association of Government Employees, Local R12-35, 27 FLRA 407 (1987); Social Security Administration and Local 3239, American Federation of Government Employees, AFL-CIO, 21 FLRA 22 (1986).

At the time the Agency's exception was filed, the Arbitrator had not rendered a final award on the dispute before him. Thus, the Agency's exception concerns only the Arbitrator's interim decision. In his interim decision, the Arbitrat