24:0835(78)AR - Commerce, PTO and POPA -- 1986 FLRAdec AR

 24 FLRA No. 78
 
 U.S. DEPARTMENT OF COMMERCE 
 PATENT AND TRADEMARK OFFICE (PTO)
 Agency
 
 and
 
 PATENT OFFICE PROFESSIONAL 
 ASSOCIATION (POPA)
 Union
 
                                            Case No. 0-AR-1176
 
                        ORDER DISMISSING EXCEPTIONS
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to, and a request
 for a stay of, the interest arbitration award of Arbitrator Marvin E.
 Johnson 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.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    On April 29, 1986, the Arbitrator hand-delivered to the parties his
 resolution of their impasse on Article 15, Section 5 of the collective
 bargaining agreement, including subsections (B) and (C) as to which the
 Agency has filed exceptions.  Thereafter, on May 27, 1986, in response
 to objections raised by the Agency, the Arbitrator issued a revised
 Article 15, Section 5.  However, there were no material changes to
 subsections (B) and (C).  On June 25, 1986, the Agency filed its
 exceptions contending that the award was deficient with respect to
 subsections (B) and (C).
 
                      III.  ANALYSIS AND CONCLUSIONS
 
    The exceptions are untimely.  The Agency has essentially argued that
 the final award of the Arbitrator was issued and served on May 27 and
 that its exceptions of June 25 are timely.  Contrary to the argument of
 the Agency, the Arbitrator's resolution on April 29, 1986, of the
 impasse over Article 15, Section 5 was final and not interlocutory for
 purposes of filing exceptions.  The Article 15 delivered by the
 Arbitrator on April 29 does not indicate that it was intended to be
 interlocutory, and the affidavits submitted by the Agency to that effect
 are countered by affidavits submitted by the Union.  Furthermore,
 management's submission of the April 29 award of the Arbitrator to the
 head of the Agency on May 1, 1986, for review under section 7114 does
 not support its contention before the Authority that this award was
 interlocutory.
 
    Consequently, under section 7122(b) of the Statute and the
 Authority's Rules and Regulations, any exceptions to the award of April
 29 had to be filed with the Authority by the close of business on May
 29, 1986.  Moreover, the Arbitrator's modification of the award in
 apparent response to the objections of the Agency did not operate to
 extend the time limit for filing exceptions.  As the Authority has
 repeatedly indicated, only when a modification of an award by the
 arbitrator gives rise to the deficiencies alleged in the exceptions to
 the award has the Authority held that the filing period for exceptions
 began with the arbitrator's modification of the award.  See, for
 example, U.S. Department of Health and Human Services, Social Security
 Administration and American Federation of Government Employees, AFL-CIO,
 23 FLRA No. 19 (1986).  In this case, however, it is clear that in his
 issuance of May 27, 1986, the Arbitrator did not modify his award so as
 to give rise to the deficiencies alleged by the Agency.  To the
 contrary, the Arbitrator essentially reaffirmed his award.  Thus, the
 Agency is in effect seeking Authority review of the April 29, 1986 award
 and the exceptions filed on June 25, 1986 are clearly untimely.
 
    Accordingly, the Agency's exceptions and its request for a stay are
 dismissed.
 
    For the Authority.
 
    Issued, Washington, D.C., December 24, 1986.
                                       /s/ Harold D. Kessler
                                       Director, Office of Case
                                       Management