45:0040(6)CA - - Patent and Trademark Office and Patent Office Professional Association - - 1992 FLRAdec CA - - v45 p40

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45:0040(6)CA
The decision of the Authority follows:


45 FLRA N0. 6

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. PATENT AND TRADEMARK OFFICE

(Respondent)

and

PATENT OFFICE PROFESSIONAL ASSOCIATION

(Charging Party/Union)

3-CA-10483

DECISION AND ORDER

June 10, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision finding that the Respondent did not violate the Federal Service Labor-Management Relations Statute (the Statute) by implementing a change in the productivity policy for overtime eligibility in Examining Group 350 without affording the Union notice and an opportunity to negotiate over the impact and implementation of the change. The General Counsel filed exceptions to the Judge's decision and the Respondent filed an opposition to the General Counsel's exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the Judge's rulings made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order, and will dismiss the complaint.

In so doing, we disagree with the General Counsel's contention that a prior arbitration award regarding the Agency's productivity standards for overtime eligibility in another examining group, and the Authority's decision on exceptions to that award, are res judicata on the issue of the productivity standards in effect during the relevant periods in this case.

The doctrine of res judicata, or issue preclusion, will prevent the relitigation in a subsequent case of issues of fact or law that have been resolved in a prior case when the following requirements have been satisfied: (1) the same issue must be involved in both cases; (2) the issue must have been actually litigated in the first case; (3) the resolution of the issue must have been necessary to the decision in the first case; (4) the prior decision on the issue to be precluded must be final; and (5) the party precluded must have been fully represented at the prior hearing on the precluded issue. U.S. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 35 FLRA 978, 982-83 (1990) (Scott Air Force Base). These requirements have not been satisfied in this case.

Initially, it must be noted that, because the principle of res judicata does not apply to arbitration awards, we must focus our inquiry solely on the Authority's decision reviewing the arbitration award cited by the General Counsel. See, for example, Hotel Association of Washington, D.C., Inc. v. Hotel & Restaurant Employees Union, Local 25, AFL-CIO, No. 91-5112, slip op. at 4 (D.C. Cir. Apr. 28, 1992) (court disagreed with employer's argument that a prior arbitration award "has precedential force akin to the principle of judicial res judicata.") We also note that in the decision relied on by the General Counsel, U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 37 FLRA 1204 (1990) (POPA I), the Authority remanded the award to the parties to resolve certain disputed issues either bilaterally or through resubmission to the arbitrator. There is no evidence as to what occurred subsequently.

POPA I involved an allegation that on January 29, 1987, a supervisor in an "art unit" attached to a different examining group than the one in this case raised the productivity level required for overtime assignments. Our decision recited the arbitrator's finding that for "'at least 15 years' prior to the filing of the grievance, 'no patent examiner who had attained an 80 [percent] productivity level had been denied overtime.'" 37 FLRA at 1206. It is this finding to which the General Counsel would have us give preclusive effect. Applying the criteria set forth in Scott Air Force Base, we see no reason to do so.

First, as the finding in POPA I related to a period that ended almost 4 years before the unilateral change alleged in this case, it is not at all clear that the same issue is involved in both cases. Further, although we recognize that the arbitrator made the finding with regard to the administration of the contract throughout the Agency, we find it significant that the matter in dispute before him concerned the productivity standard only insofar as it related to a different group of employees than those involved in this case. More importantly, there is no evidence in POPA I that the issue of a uniform productivity level was in fact litigated before us, and our mere recitation of the arbitrator's finding does not establish otherwise. See Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 804 n.2 (1991) (statement of fact in prior Authority decisions regarding the effective date of a bargaining agreement was not conclusive evidence where the issue of the validity of that date was neither litigated nor decided in the prior case). Moreover, in view of the fact that POPA I resulted in a remand, the results of which are unknown, it is not clear that it would be deemed a final decision on this issue. For all of these reasons, we agree with the Judge that he was not required to accept the factual findings of the arbitrator in POPA I.

II. Order

The complaint is dismissed.




FOOTNOTES:
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