U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association (Authority decision, December 24, 1986)

Final FLRA decision. The Authority dismisses the Patent and Trademark Office's exceptions to an interest arbitration award and its stay request as untimely. Section 7123(a)(1) excludes Authority orders involving arbitration awards from its ordinary 60-day judicial-review provision unless the order involves an unfair labor practice under § 7118; this decision does not decide one.

Plain-English summary

An arbitrator resolved an impasse between the Patent and Trademark Office and the Patent Office Professional Association on April 29, 1986. He issued a revision on May 27, but did not materially change the provisions the agency challenged. The Authority held that the April award was final and that the later revision did not restart the time to file exceptions. The agency's June 25 exceptions were late, so the Authority dismissed them and the stay request.

Decision snapshot

• Authority: Arbitration exceptions deadline under 5 U.S.C. § 7122(b).
• Outcome: Agency exceptions and stay request dismissed as untimely.
• Key point: An immaterial revision did not restart the filing period for challenges to the original award.

Full text (FLRA public release)

[ v24 p835 ]

24:0835(78)AR

The decision of the Authority follows:

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