Patent and Trademark Office and Patent Office Professional Association (Authority decision, August 31, 1984)

Final FLRA decision. The Authority denies exceptions to an interest arbitration award about bargaining ground rules. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review is generally unavailable for an order concerning an arbitration award unless it involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

The Patent and Trademark Office and the Patent Office Professional Association reached an impasse over rules for negotiating a successor labor agreement. An arbitrator issued a binding ground rules agreement, and the union challenged limits on bargaining teams and official time, scheduling provisions, deferral of changes, and the arbitrator's retained jurisdiction. The Authority read the award as allowing up to six representatives on each team and up to 40 hours of official time per week for each union team member. It found the other challenges unsupported because the arbitrator had broad authority to resolve the impasse and the award contemplated deferral of agency changes alongside bargaining. The Authority denied all exceptions, leaving the award in place.

Decision snapshot

• Authority: Interest arbitration review under 5 U.S.C. § 7122(a); official time under § 7131(a).
• Outcome: Union exceptions denied; ground rules award upheld.
• Key point: The award's limits on bargaining teams and official time did not give the union fewer official time representatives than management.

Full text (FLRA public release)

[ v15 p990 ]

15:0990(184)AR

The decision of the Authority follows:

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).