15:0990(184)AR - Patent and Trademark Office and POPA -- 1984 FLRAdec AR

 15 FLRA No. 184
 
 PATENT AND TRADEMARK OFFICE
 Agency
 
 and
 
 PATENT OFFICE PROFESSIONAL
 ASSOCIATION
 Union
 
                                            Case No. O-AR-764
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the interest
 arbitration award of Arbitrator Jacob Seidenberg filed by the Union
 under section 7122(a) of the Federal Service Labor-Management Relations
 Statute and part 2425 of the Authority's Rules and Regulations.  /1/
 
    The dispute before the Arbitrator concerned the negotiation impasse
 of the parties over a ground rules agreement to govern the negotiations
 for a successor collective bargaining agreement.  The Federal Service
 Impasses Panel had directed that the impasse be referred to an
 arbitrator who shall have the authority to issue a binding decision
 resolving the impasse.  The Arbitrator as his award resolving the
 impasse promulgated with an accompanying decision a ground rules
 agreement, and the Union has filed exceptions with the Authority
 contending that the following provisions of the ground rules agreement
 are deficient.
 
          (1) Size of Bargaining Teams
 
          (a) Except as stated in Paragraph 2(e) (which provision is not
       in dispute) each Negotiating Team shall be composed of not more
       than six members.  The Association Team, while engaged 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.
 
    In its exception to this provision the Union contends that the
 provision is deficient in several respects.  The Union first contends
 that the provision respecting the size of the bargaining team violates
 the official time provisions of section 7131(a) of the Statute by
 granting the Union fewer representatives than the Agency.  However, the
 award clearly specifies that both bargaining teams shall be composed of
 not more than six members, and the Authority has expressly held that
 "(t)he operative effect of section 7131(a) is to automatically entitle
 union negotiators to official time in any number which does not exceed
 the number designated by management." American Federation of Government
 Employees, AFL-CIO and U.S. Environmental Protection Agency, 15 FLRA No.
 96 (1984) (proposal 2).  Thus, the award in no manner grants the Union
 fewer representatives on official time than management representatives,
 and this contention therefore fails to establish that the award is
 contrary to section 7131(a).
 
    The Union further contends in this exception that the provision
 respecting the amount of official time is also contrary to section
 7131(a) because it "apparently" limits the entire team to 40 hours per
 week while the bargaining schedule requires an aggregate amount of time
 in excess of 40 hours per week.  To the contrary, however, the award and
 the Arbitrator's accompanying decision taken as a whole clearly indicate
 that the 40 hours limitation applies to each team member and not to the
 entire team.  Thus, this contention fails to establish that the award is
 contrary to section 7131(a).
 
    The Union finally contends in this exception that the Arbitrator
 exceeded his authority because this provision pertains to matters that
 were not at impasse.  To the contrary, however, the record before the
 Authority indicates that these matters were at impasse.  Moreover, with
 no apparent submission agreement or stipulation of issues the Arbitrator
 had wide latitude and considerable discretion under the direction of the
 Panel issued pursuant to section 7119 of the Statute to resolve the
 "matter" of the parties' negotiation impasse over a ground rules
 agreement.  See section 7119(b)(1);  National Aeronautics and Space
 Administration, Headquarters, Washington, D.C., 12 FLRA No. 94 (1983).
 Thus, the Union's contention fails to establish that the Arbitrator
 exceeded his authority.  Consequently, the Authority finds that the
 Union's exception to this provision provides no basis for finding the
 award deficient.
 
               (2) Attendance-Priorities-Other Negotiations
 
          (a) If on a schedule Negotiation day it is not possible by
       reason of other labor relations activities where attendance is
       required by the Federal Labor Relations Authority or a similar
       entity, for a Negotiating team to be represented by at least three
       (3) members or alternates, the scheduled bargaining session may be
       continued until the subsequent scheduled bargaining session, or
       any other time mutually agreed upon.
 
                                .  .  .  .
 
          (c) Except for labor relations activities described in
       Paragraph 2(a) Negotiating team members shall not be assigned any
       duties with a higher priority than these negotiations.
 
    In its exception to these provisions the Union contends that the
 Arbitrator exceeded his authority by addressing and modifying ground
 rule provisions that the parties had agreed on and were not at issue.
 As previously stated, however, with no submission agreement or
 stipulation limiting the provisions in dispute and at impasse, it has
 not been shown that the Arbitrator's award, promulgating a ground rules
 agreement to resolve entirely the matter of the parties' impasse, is in
 excess of his authority.  Consequently, the Authority finds that the
 Union's exception to these provisions provides no basis for finding the
 award deficient.
 
               (2) Attendance-Priorities-Other Negotiations
 
                                .  .  .  .
 
          (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 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.
 
    In its exception to this provision the Union contends that the
 provision is contrary to the Statute because it generally defers
 implementation of agreements reached as a result of impact and
 implementation bargaining while not explicitly deferring the Agency
 changes which gave rise to such bargaining.  However, the Authority
 finds that this exception provides no basis for finding the award
 deficient as contrary to the Statute.  The Union in its exception
 concedes that a corresponding deferral of the Agency change is inferred
 from the provision, and the Arbitrator in his accompanying decision
 clearly confirms such deferral of Agency changes.
 
    In its final exception the Union contends that the Arbitrator's
 "ret(entio)n (of) jurisdiction to prescribe the ultimate bargaining
 machinery, if any, if the situation warrants it" in the decision
 accompanying his award is deficient as in excess of his authority.  The
 Union argues that the Arbitrator was functus officio on issuing his
 award and therefore exceeded his authority by attempting to retain
 jurisdiction.  The Authority concludes that with the Arbitrator
 expressly retaining jurisdiction, the doctrine of functus officio has
 not been shown to apply.  See Audie L. Murphy Veterans Administration
 Hospital, San Antonio, Texas and American Federation of Government
 Employees, AFL-CIO, Local No. 3511, 15 FLRA No. 60 (1984).  Similarly,
 with the latitude granted the Arbitrator to resolve this matter and in
 view of the Agency's demand of the Arbitrator to place a time cap on
 negotiations, it has not been substantiated that the Arbitrator's
 retention of jurisdiction to evaluate the progress of bargaining and
 take appropriate measures, if necessary, is in excess of his authority.
 Consequently, this exception provides no basis for finding the award
 deficient.
 
    Accordingly, the Union's exceptions are denied.
 
    Issued, Washington, D.C., August 31, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The arbitration award in this case resulted from an impasse
 proceeding under section 7119 of the Statute rather than a grievance
 proceeding under section 7121 of the Statute.  Although the issue has
 not been raised by the parties, the Authority confirms its jurisdiction
 to resolve the Union's exceptions.  The Authority has expressly held
 that provisions of section 7122(a) of the Statute apply to interest
 arbitration awards as well as grievance arbitration awards.  United
 States Air Force, Air Force Logistics Center, Wright-Patterson Air Force
 Base, Ohio, 15 FLRA No. 27 (1984).