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22:0007(2)AR
The decision of the Authority follows:
22 FLRA No. 2
PATENT AND TRADEMARK OFFICE
Agency
and
PATENT OFFICE PROFESSIONAL
ASSOCIATION
Union
Case No. 0-AR-1054
DECISION
I. STATEMENT OF THE CASE
This matter is before the Authority on exceptions to the award of
Arbitrator Robert Bennett Lubic filed by the Agency under section
7122(a) of the Federal Service Labor-Management Relations Statute and
part 2425 of the Authority's Rules and Regulations.
II. BACKGROUND AND ARBITRATOR'S AWARD
The grievance in this case concerns the Agency's refusal to comply
with a portion of an interest arbitration award of Arbitrator Jerome
Ross (Ross award). The portion of the Ross award in dispute directed
that a provision for nonproduction time for work-related travel be
included in the parties' Memorandum of Understanding on the impact and
implementation of a relocation of professional employees. The Ross
award also directed that the provision be included in the parties'
existing collective bargaining agreement and incorporated into the
parties' next collective bargaining agreement. The Agency had contended
that such a provision was not within the duty to bargain because it
interfered with management rights and the Agency had filed exceptions to
the Ross award with the Authority. The Agency's exceptions, however,
were dismissed by the Authority as untimely filed. Patent and Trademark
Office and Patent Office Professional Association, 14 FLRA 61 (1984).
Subsequently, the Union filed the grievance that was submitted to
arbitration protesting the Agency's refusal to comply with the Ross
award. Arbitrator Lubic stated the essential issue to be whether the
disputed portion of the Ross award was final and binding. He ruled that
the disputed provision was final and binding because contrary to the
arguments of the Agency, the provision was not precluded by management's
right in accordance with section 7106(a)(2)(A) and (B) of the Statute to
establish performance standards. The Arbitrator additionally ruled that
the Ross award was final and binding under the terms of the Statute. He
noted under section 7122(b) that when exceptions were not timely filed
to an arbitrator's award, the award is final and binding and that "(a)n
agency shall take the actions required by an arbitrator's final award."
The Arbitrator explained that what this meant in this case was that the
Agency was to take the actions required by the disputed protion of the
Ross award. Accordingly, as his award, Arbitrator Lubic sustained the
grievance and directed that the Agency "honor and implement" the
disputed portion of the Ross award.
III. FIRST EXCEPTION
A. Contentions
In its first exception the Agency essentially contends that to the
extent the award of Arbitrator Lubic is based on the disputed provision
of the Ross award being negotiable, the award is contrary to section
7106(a) of the Statute. In support, the Agency primarily argues that
contrary to the determination of Arbitrator Lubic, the disputed
provision is not negotiable and is not enforceable. The Agency further
maintains that arbitrators are not authorized under the Statute to
resolve issues concerning the duty to bargain.
B. Analysis and Conclusions
The Authority has consistently ruled that negotiability disputes
which arise between an agency and an exclusive representative under
section 7117(c) of the Statute must be resolved by the Authority as
required by section 7105(a)(2)(E). Department of the Air Force, Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio and
American Federation of Government Employees, Council of Locals, No. 214,
18 FLRA No. 81 (1985); Louis A. Johnson Veterans Administration Medical
Center, Clarksburg, West Virginia and American Federation of Government
Employees, Local 2384, 15 FLRA 347 (1984). Thus, the Authority has held
on this basis that an interest arbitrator acting pursuant to a direction
of the Federal Service Impasses Panel is without authority to resolve
such duty-to-bargain issues. AFLC, Wright-Patterson Air Force Base.
The Authority has also held that such issues likewise cannot be resolved
by an arbitrator in the guise of a grievance under the negotiated
grievance procedure of the collective bargaining agreement between the
exclusive representative and the agency. Federal Correctional
Institution, Texarcana, Texas, Federal Prison System and American
Federation of Government Employees, Local 2459, Texarcana, Texas, 19
FLRA No. 26 (1985); Louis A. Johnson VA Medical Center. In this case,
by finding the disputed provision of the Ross award to be final and
binding because he determined contrary to the arguments of the Agency
that the provision was negotiable, Arbitrator Lubic necessarily resolved
an issue relating to the obligation to bargain under the Statute.
However, with the Agency having consistently objected to this provision
as not being negotiable by reason of section 7106(a) of the Statute,
Arbitrator Lubic was not authorized under the Statute to resolve such an
issue and his award is deficient to the extent that such resolution
constitutes the basis for his award that the Ross award was final and
binding. /*/ See Federal Correctional Institution, Texarcana, Texas;
Department of Housing and Urban Development and American Federation of
Government Employees, Local 476, AFL-CIO, 18 FLRA No. 95 (1985).
IV. SECOND EXCEPTION
A. Contentions
In its second exception, the Agency argues that the award is also
deficient to the extent the Ross award was enforced on the basis of
section 7122(b) of the Statute. The Agency does not dispute that
exceptions to the Ross award were not timely filed with the Authority
and that the award is final and binding under the terms of section
7122(b) of the Statute. Instead, the Agency asserts that a final award
is enforceable under the Statute only to the extent it is consistent
with law. Arguing that the disputed provision of the Ross award is
inconsistent with section 7106(a) of the Statute, the Agency maintains
that consequently it is unenforceable.
B. Analysis and Conclusions
The Authority concludes that the Agency's second exception fails to
establish that the award is deficient. Contrary to the argument of the
Agency, it is well established that where a party seeks to challenge the
propriety of an arbitration award, the appropriate mechanism for doing
so, as Congress clearly intended, is the filing of exceptions to that
award under section 7122(a) of the Statute. United States Air Force,
Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 15
FLRA 151 (1984), aff'd sub nom. Department of the Air Force v. FLRA, 775
F.2d 727 (6th Cir. 1985). As the Authority recognized in AFLC,
Wright-Patterson Air Force Base, 15 FLRA 151, when a party fails to
timely file exceptions to an arbitration award, the award becomes final
and binding and the agency must take such actions as are required by the
award. As explained by the court in Department of the Air Force,
"(s)ince the award becomes final and must be implemented if the parties
fail to file an exception within the required period, the necessary
implication is that a party can no longer challenge the award by any
means. It has become final for all purposes." 775 F.2d at 735. In this
case, under the terms of section 7122(b), the Ross award became final
and binding and the Agency for all purposes was unequivocally obligated
to take the actions required by that award. Thus, in directing on the
basis of section 7122(b) of the Statute that the Agency "honor and
implement" the disputed portion of the Ross award, the award of
Arbitrator Lubic is fully consistent with law, and no basis is provided
in this respect for finding the award deficient.
V. DECISION
Accordingly, the award is modified to provide as follows:
The grievance in this matter is sustained. As a result of
section 7122(b) of the Statute, the Agency shall honor and
implement Section II of the Ross award.
Issued, Washington, D.C., June 4, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(*) In determining that Arbitrator Lubic was without authority to
decide the negotiability issue in this matter, the Authority makes no
determination on whether the disputed provision of the Ross award
interferes with management rights under the section 7106(a) of the
Statute.