---

39 FLRA No. 130

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. PATENT AND TRADEMARK OFFICE

(Respondent)

and

PATENT OFFICE PROFESSIONAL ASSOCIATION

(Charging Party/Union)

3-CA-50396

3-CA-60086

(31 FLRA 952 (1988))

DECISION AND ORDER ON REMAND

March 27, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in Patent Office Professional Association v. FLRA, 872 F.2d 451 (D.C. Cir. 1989). In the proceedings before the Authority, the Union had charged that the Respondent had violated the Federal Service Labor-Management Relations Statute (the Statute) by: (1) failing to comply with an interest arbitration award allocating official time for Union representatives; (2) unilaterally changing the continuation-in-service requirement for employees in law school; and (3) modifying the practice of granting official time without affording the Union an opportunity to bargain. The Authority, in agreement with the Administrative Law Judge, found that the Respondent violated section 7116(a)(1), (5), (6) and (8) of the Statute by failing to comply with the arbitrator's award and by failing to notify the Union and bargain over the impact and implementation of its decision to change the method of computing the time period for continuation-in-service agreements. The Authority found no further violations by the Respondent. U.S. Patent and Trademark Office, 31 FLRA 952 (1988).

The Union petitioned for review of the Authority's decision. The court granted the petition for review with respect to the claim concerning bargaining over alleged changes in the granting of official time. The court denied the petition for review as to all other claims. The court concluded that the Authority had improperly found a Union waiver as to its right to bargain over proposed changes in official time for representational activities. Accordingly, the court remanded the matter of the official time claim to the Authority for further proceedings consistent with its opinion.

The issue on remand is whether the Respondent unilaterally changed established past practice regarding the granting of official time for Union representatives engaged in representational activities without affording the Union an opportunity to bargain over the substance and the impact and implementation of the change in violation of section 7116(a)(1) and (5) of the Statute, as alleged. The parties did not file any supplemental statements of position after the court's decision.^(*) We conclude that the Respondent failed and refused to bargain with the Union over changes in conditions of employment in violation of section 7116(a)(1) and (5) of the Statute.

II. History of the Case as It Relates to Official Time for Representational Activities

A. Background

In 1972 the Union and the Respondent executed a collective bargaining agreement that contained provisions relating to official time for processing grievances and pursuing other representational activities. Under the parties' 1972 collective bargaining agreement, Union officials were limited to no more than 8 hours a week to process grievances, but in practice almost all claims for official time in excess of 8 hours and for purposes other than the processing of grievances were granted by the Respondent.

On June 10, 1981, the Respondent informed the Union by memorandum that, effective July 1, 1981, the specific terms of the 1972 agreement with respect to official time would be enforced. The Union filed a grievance over this proposed change, and the grievance was settled by the execution of a Memorandum of Understanding (MOU) on December 22, 1981. The MOU provided that: the Respondent would withdraw its memorandum announcing its intention to enforce the 1972 agreement provisions concerning official time, the Union would withdraw its grievance, and the parties recognized that the issue of official time was bargainable.

When negotiations for a successor agreement to the 1972 agreement were unsuccessful, the parties were directed by the Federal Service Impasses Panel to engage in mediation-arbitration. On April 10, 1984, the arbitrator issued a decision on ground rules to govern the parties' negotiations. The decision included provisions covering bargaining over the impact and implementation of future management changes. The Union's exceptions to the award were denied in Patent and Trademark Office and Patent Office Professional Association, 15 FLRA 990 (1984). On May 20, 1985, the arbitrator issued a final decision ordering the parties to continue to bargain in accordance with the relevant terms of the April 10 ground rules award.

On June 7, 1985, the Respondent issued a memorandum informing the Union that the Respondent no longer viewed itself subject to the provisions of the ground rules award that precluded management from unilaterally implementing certain changes. The Respondent advised the Union that it would begin enforcing the provisions of the parties' 1972 agreement concerning official time for representational activities and that any past practices that modified the 1972 agreement would no longer be considered effective. The memorandum notified the Union that the changes would be implemented on July 7, 1985.

On or about June 18, 1985, Union representatives met with Agency officials and requested that the changes concerning official time be deferred until questions about their legality were resolved. The Respondent refused the Union's request and implemented the changes on July 7, 1985. These changes remained in effect until May 1, 1986, when a new basic collective bargaining agreement became effective.

B. Administrative Law Judge's Decision

The Judge stated the issue to be whether the changes made in July 1985 concerning official time for representational activities violated section 7116(a)(1) and (5) because they were unilaterally implemented. The Judge rejected the Respondent's argument that there had been no changes concerning official time for representational activities by Union representatives. The Judge found that, for many years, and since the parties' 1972 collective bargaining agreement, the Respondent had granted official time for both grievance and non-grievance matters and that such policy included allowing official time for the preparation of grievances, meeting with management, and litigation involving employment conditions. The Judge refused to credit the Respondent's contention that its conduct merely constituted lax enforcement of the 1972 collective bargaining agreement as to official time. To the contrary, the Judge concluded that the Respondent's conduct had become an established past practice and that the Respondent in July 1985 had changed this established past practice.

Noting that section 7131 of the Statute provides for the granting of official time to employees engaged in representational activities, the Judge held that "unless otherwise excused, Respondent was obliged to bargain with the Union herein when it changed the established practice concerning the granting of official time to employees who represented the Union while engaged in representational activities." 31 FLRA at 978. However, the Judge found that the Respondent's obligation to bargain was "excused." Id. The Judge determined that the Union's request to defer implementation of the changes did not constitute a request to bargain over the changes. Accordingly, the Judge recommended dismissal of the allegation that the Respondent violated section 7116(a)(1) and (5) by unilaterally implementing the changes concerning official time for representational activities.

C. Authority's Decision

The Union and the General Counsel filed exceptions to the Judge's failure to find that the Respondent violated the Statute by its changes concerning official time for representational activities. On review of the record and the Judge's decision, the Authority agreed with the Judge's finding that the Respondent did not violate the Statute by implementing changes pertaining to official time for representational activities. 31 FLRA at 954.

D. Court's Decision

The Union filed a petition for review of the Authority's decision in the U.S. Court of Appeals for the District of Columbia Circuit. The court granted the petition for review as it pertained to official time for representational activities. The court agreed with the Union's claim that the Authority improperly found that the Union waived any right to bargain over proposed changes in official time for representational activities. In the court's view, the Union's "protest against the change and its inquiry into legal remedies did not waive its right to bargain, as much as initiate it." 872 F.2d at 455. Accordingly, the court reversed and remanded the Authority's determination that the Union had waived any right to bargain over the changes concerning official time.

The court advised that, on remand, the Authority should consider the following questions when determining whether the Respondent violated the Statute by implementing changes pertaining to official time for representational activities:

Was there any collective bargaining agreement in effect at the time when the alleged change was implemented? If the agreement was in effect, and the agency's proposed action was consistent with its terms (but arguably inconsistent with the parties' practices), did this constitute a "change" in a condition of employment over which the union had a right to bargain? Finally, did the dispute over official time raise an arbitral issue under the parties' agreement and, if so, was the union required to pursue arbitration in seeking a resolution of its grievance?

Id. at 456.

III. Analysis and Conclusions

Applying the court's decision that the Union's actions "did not waive its right to bargain, as much as initiate it[,]" 872 F.2d at 455, and based on the findings and conclusions of the Judge, we conclude that the Respondent unilaterally changed established past practices regarding the granting of official time for Union representatives engaged in representational activities without affording the Union an opportunity to bargain over the substance and the impact and implementation of the changes. We find that, by this action, the Respondent violated section 7116(a)(1) and (5) of the Statute, as alleged in the complaint. Accordingly, we will issue an order appropriately remedying the violation for the period during which the changes were in existence: July 7, 1985, to May 1, 1986, the date on which a new collective bargaining agreement between the parties became effective.

We agree with the Judge's finding that since the parties' 1972 collective bargaining agreement became effective until the Respondent took the actions at issue here, the Respondent had granted official time for both grievance and non-grievance matters and that such policy included allowing official time for the preparation of grievances, meeting with management, and litigation involving employment conditions. We also agree with the Judge's conclusion that the provision of official time for Union representatives engaged in representational activities constitutes a condition of employment and that the Respondent's manner of providing official time had become a condition of employment by established past practice. We further agree with the Judge that "unless otherwise excused, Respondent was obliged to bargain with the Union herein when it changed the established practice concerning the granting of official time to employees who represented the Union while engaged in representational activities." 31 FLRA at 978. Applying the court's decision that the Union by its actions "initiate[d]" bargaining, 872 F.2d at 455, we conclude that the Respondent's obligation to bargain was not "otherwise excused," 31 FLRA at 978, and we find that the Respondent changed conditions of employment without the necessary bargaining with the Union. We hold that, by this action, the Respondent violated section 7116(a)(1) and (5) of the Statute, and we will issue an appropriate remedial order.

In reaching this conclusion, we have considered the questions raised by the court. Our review of the record indicates that the parties' 1972 basic collective bargaining agreement was in effect at the time when the changes were implemented. For example, in the June 7, 1985, memorandum announcing the changes, the Respondent's Acting Commissioner of Patents and Trademarks stated as follows: "At the May 10 hearing, the Arbitrator recounted the history of PTO's attempt since 1981 to obtain a successor agreement to the 1972 agreement still in effect."

In finding a violation, we conclude that the Respondent changed conditions of employment over which the Union had a right to bargain, notwithstanding the Respondent's claim that its actions constituted strict enforcement of the official time provisions of the 1972 basic agreement. We have specifically held that an agency may not change unilaterally a condition of employment established through past practice even if the condition established by practice differs from the express terms of the parties' collective bargaining agreement. U.S. Department of the Navy, Naval Avionics Center, Indianapolis, Indiana, 36 FLRA 567, 570 (1990).

Finally, even if the dispute over official time raised an arbitral issue under the parties' agreement, we note that, under section 7116(d) of the Statute, the Union had an option of raising the issue as an unfair labor practice under the Statute or as a grievance under the negotiated grievance procedure, but not under both procedures. The Union elected to raise the issue as an unfair labor practice under the Statute. The Union was not required to raise the issue as a grievance under the negotiated grievance procedure and, in view of its election, cannot be required to pursue arbitration to resolve the dispute over official time.

Consistent with decisions of the Authority, our order will include the remedy we have found the Statute requires for wrongful denials of official time under section 7131(d) of the Statute. We have specifically acknowledged that when official time authorized consistent with section 7131(d) is wrongfully denied and the covered activities are thereafter performed on nonduty time, section 7131(d) of the Statute entitles the employee to be paid at the appropriate straight-time rate for the amount of time that should have been official time. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service and National Weather Service Employees Organization, 36 FLRA 352, 358 (1990) (citing Wright-Patterson Air Force Base, Ohio, 2750th Air Base Wing and American Federation of Government Employees, Local No. 1138, 23 FLRA 390 (1986) and U.S. Department of Justice, Bureau of Federal Prisons, Federal Correctional Institution, Seagoville, Texas and American Federation of Government Employees, Council of Prison Locals, Local No. 1637, 22 FLRA 56 (1986)) Similarly, if the employee used leave to perform duties that would otherwise have been performed on official time, such leave should be restored.

IV. Order

Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we order that the U.S. Patent and Trademark Office shall:

1. Cease and desist from:

(a) Unilaterally changing conditions of employment of bargaining unit employees by changing its practices regarding the granting of official time for Union representatives engaged in representational activities without first notifying the Patent Office Professional Association, the exclusive representative of certain of its employees, and affording it an opportunity to bargain about the decision to change such conditions of employment.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured them by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and polices of the Statute:

(a) Make whole any bargaining unit employees who were adversely affected by its change in practices regarding the granting of official time for Union representatives engaged in representational activities between July 7, 1985, and May 1, 1986, including the restoration of any leave used to perform representational activities if those activities would otherwise have been performed on official time but for its change in practices regarding the granting of official time for Union representatives engaged in representational activities.

(b) Compensate at the appropriate straight-time rates any bargaining unit employees who performed representational activities on nonduty time between July 7, 1985, and May 1, 1986, if those activities would otherwise have been performed on official time but for its change in practices regarding the granting of official time for Union representatives engaged in representational activities.

(c) Post at its facilities in Washington, D.C., copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Commissioner of the U.S. Patent and Trademark Office and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the RegionalDirector, Washington, D.C. Regional Office, Federal Labor Relations Authority, Washington, D.C., in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally change conditions of employment of bargaining unit employees by changing our practices regarding the granting of official time for Union representatives engaged in representational activities without first notifying the Patent Office Professional Association, the exclusive representative of certain of our employees, and affording it an opportunity to bargain about the decision to change such conditions of employment.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL make whole any bargaining unit employees who were adversely affected by our change in practices regarding the granting of official time for Union representatives engaged in representational activities between July 7, 1985, and May 1, 1986, including the restoration of any leave used to perform representational activities if those activities would otherwise have been performed on official time but for our change in practices regarding the granting of official time for Union representatives engaged in representational activities.

WE WILL compensate at the appropriate straight-time rates any bargaining unit employees who performed representational activities on nonduty time between July 7, 1985, and May 1, 1986, if the activities would otherwise have been performed on official time but for our change in practices regarding the granting of official time for Union representatives engaged in representational activities.

_______________________
(Agency)

Dated:_________ By:_____________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Washington, D.C. Regional Office, Federal Labor Relations Authority, whose address is: 1111 18th Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8500.

---

---

---

FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ The Union filed a motion to remand the case to an administrative law judge for receipt of additional evidence and issuance of a supplemental decision. We deny the motion. We find the record sufficient to resolve this case consistent with the court's remand.

---