U.S. Patent and Trademark Office (Respondent) and Patent Office Professional Association (Charging Party/Union) (Authority decision, May 24, 2001)

Read the official release (flra.gov)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair-labor-practice proceeding. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The Patent and Trademark Office refused union requests to bargain over performance appraisals and pay-related proposals and implemented recruitment bonuses before bargaining. It argued that no valid term collective bargaining agreement existed and that it need not address proposals unrelated to management’s changes. The Authority upheld the findings that these refusals violated the duty to bargain in good faith. It also agreed that no valid term agreement existed, while finding that the parties had established binding practices for submitting proposals and notices. The Office must bargain over the negotiable appraisal proposals and apply resulting agreements retroactively to April 20, 1998. It must also bargain over recruitment bonuses and the remaining pay-related proposals and apply resulting agreements retroactively to February 1, 1998. The order requires notice posting for 60 days and a compliance report.

Decision snapshot

• Authority: 5 U.S.C. §§ 7114 and 7116: good-faith bargaining.
• Outcome: Bargaining violations upheld; bargaining with retroactive application of resulting agreements ordered.
• Key point: Absence of a valid term agreement did not excuse refusing these union-initiated proposals.

Full text (FLRA public release)

[ v57 p185 ]

57 FLRA No. 45

U.S. PATENT AND TRADEMARK OFFICE

(Respondent)

and

PATENT OFFICE PROFESSIONAL ASSOCIATION

(Charging Party/Union)

WA-CA-80405

WA-CA-80515

_____

DECISION AND ORDER

May 24, 2001

_____

Before the Authority: Dale Cabaniss, Chairman; Donald S. Wasserman and Carol Waller Pope, Members [n1]

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decisions of the Administrative Law Judge filed by both the Respondent and the Charging Party.

Specifically, the complaints in the two cases were consolidated for hearing; however, the Judge issued separate decisions. [n2] The General Counsel (G.C.) and the Charging Party each filed an opposition to the Respondent's exceptions and the Respondent filed an opposition to the Charging Party's exceptions. [n3]

In Case No. WA-CA-80405, the complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), by: (1) not replying to an April 20, 1998, memorandum from the Charging Party (Union or POPA) which stated that the Charging Party wished to resume negotiations over the subject of performance appraisals, and (2) refusing to negotiate with the Charging Party over the matter since April 20, 1998.

In Case No. WA-CA-80515, the complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Statute by: (1) establishing a Recruitment Bonus Plan for certain unit employees on or about January 6, 1998; (2) holding a job fair at which it offered recruitment bonuses to prospective job applicants on or about January 23 and 24, 1998; (3) sending the Charging Party memoranda dated January 28 and February 20, 1998, agreeing to bargain over recruitment bonuses and relocation allowances, but not over other subjects raised in the Charging Party's January 9, 1998 memorandum and attachment; (4) refusing to bargain on March 3, 1998 and on unspecified subsequent occasions on subjects addressed by bargaining proposals offered by the Charging Party on January 9, 1998, except for recruitment bonuses and relocation allowances; and (5) paying such bonuses to certain employees hired in February 1998 and thereafter.

The Judge found that the Respondent violated the Statute as alleged and ordered the Respondent to cease and desist from its unlawful conduct and to bargain retroactively with the Charging Party on its bargaining requests as provided in the respective recommended Orders.

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order to the extent consistent herewith.

II. Preliminary Matter

In its opposition, the General Counsel requests that the Respondent's exceptions be denied because the exceptions "are not in the form required by section 2423.40(a) of the Authority's Regulations." G.C. Opposition at 2. The General Counsel contends that the Respondent "improperly combined exceptions" to Case No. WA-CA-80405 with the exceptions to Case No. WA-CA-80515. Id. The General Counsel asserts that the Judge did not consolidate the cases for any purpose other than trial as demonstrated by the separate decisions.

Section 2423.40(a)(1) of the Authority's Regulations states that exceptions shall consist of "[t]he specific findings, conclusions, determinations, rulings, or recommendations being challenged." Section 2423.40(a)(2) states, in pertinent part, that exceptions shall consist of "[s]upporting arguments, which shall set [ v57 p186 ] forth, in order: all relevant facts with specific citations to the record; the issues to be addressed; and a separate argument for each issue, which shall include a discussion of applicable law." To satisfy the regulatory requirements, "a party must both raise an exception and argue in support of that exception." See, e.g., Air Force Flight Test Center, Edwards Air Force Base, California, 55 FLRA 116, 118 (1999).

The Respondent's exceptions satisfy the Authority's Regulations. Although the Judge issued separate decisions, the cases were consolidated for hearing and, as the Judge found, involve the same parties and many of the same witnesses. The General Counsel's contention provides no basis for not considering the exceptions in the circumstances of this consolidated case. Moreover, the Respondent specifically described each decision in its exceptions and set forth those portions of the decisions to which it excepts with sufficient particularity to inform the Authority and the General Counsel of the basis of the exceptions. Accordingly, we deny the General Counsel's request.

III. Case No. WA-CA-80405

A. Background [n4]

1. History of Term Negotiations

As relevant here, in 1981, the parties began separate negotiations over a collective bargaining agreement and performance appraisals, but consolidated those negotiations in 1986. At some point in the process, an interest arbitrator made an award establishing a performance appraisal article. In 1986 the entire collective bargaining agreement (including the performance appraisal article) underwent agency head review (the ability of which to do so was challenged) and certain portions were disapproved (but not the performance appraisal article). [n5] The Union then attempted to renegotiate the performance appraisal article (Article 19), taking the agreed upon provision and appending additional proposals to it, but the Agency objected and refused to take part. The same interest arbitrator issued a subsequent interest arbitration award on Article 19, but the award was disapproved pursuant to another agency head review. Ultimately, the Unites States Court of Appeals for the District of Columbia Circuit ruled that the additional proposals (those not in the original Article 19) addressed in the second interest arbitration award were not properly before the interest arbitrator and thus could not be part of his award. Patent Office Professional Association v. FLRA, 26 F.3d 1148 (D.C. Cir. 1994) (POPA v. FLRA). The court also addressed certain negotiability rulings made by the Authority in its underlying case, Patent Office Professional Association, 47 FLRA 10 (1993) (POPA II).

After the D.C. Circuit's decision, the parties resumed negotiations but were unable to reach an agreement. The culmination of meetings between the parties in 1993 and 1994 concerning these negotiations ended with a dispute as to whether they had a contract. The Respondent asserted that they had no agreement and since that time has referred to the agreement as the "defunct' agreement, thenon-existing contract,' the `null and void contract." Judge's Decisions in Case Nos. WA-CA-80405 at 9 and WA-CA-80515 at 10.

In September 1994, the Union requested the Respondent to adopt, as Article 19, the provisions imposed by the interest arbitrator that the D.C. Circuit determined were properly before him, excluding those found nonnegotiable by the court and the Authority. The Respondent did not formally respond to this request and the Union, in March 1995, filed an unfair labor practice charge. The Regional Director determined that the Agency's actions did not violate the Statute and the Union appealed. The General Counsel denied the appeal finding it unnecessary to reach the issue of the existence of a basic agreement because there was no meeting of the minds on performance appraisal. The Union appealed the General Counsel's decision to the D.C. Circuit and the U.S. Supreme Court, but was unsuccessful. See Judge's Decision in Case Nos. WA-CA-80405 at 7 and WA-CA-80515 at 7-8.

2. Actions of the Parties On Provisions of the Disapproved Collective Bargaining Agreement

Since the Agency head disapproval in 1986, the parties have entered into several agreements and followed practices that gave effect to, and made enforceable, some of the provisions of the disapproved agreement that were not specifically disapproved. In 1986, the parties made effective, among other sections, Article 14 dealing with the procedures for mid-term bargaining.

In June 1987, they entered into a memorandum of understanding (MOU) on Article 14, Section 2, which provides, in part, that "mid-term changes in conditions [ v57 p187 ] of employment shall be proposed on a quarterly basis[]" as clarification of this article. [n6] Judge's Decisions in Case Nos. WA-CA-80405 and WA-CA-80515 at 8. In 1991, the Union proposed bargaining over pay-related matters independent of any management-proposed change in conditions of employment. The Respondent refused to bargain over the matter and the Union filed an unfair labor practice charge. In U.S. Patent and Trademark Office, 45 FLRA 1090 (1992) (PTO), the Authority held that the Respondent violated the Statute by refusing to bargain concerning pay issues as requested by the Union under the mid-term provisions of Article 14. On appeal, the United States Court of Appeals for the Fourth Circuit, in an unpublished decision, accepted the representations that the parties had a collective bargaining agreement and held that, under a prior ruling, the Statute did not require Federal agencies to bargain over union-initiated mid-term proposals. Patent and Trademark Office v. FLRA, No. 92-2347 (4th Cir. 1993).

3. Facts That Form the Basis of the Unfair Labor Practice and Judge's Decision

On January 12, 1998, the Union received written notice from the Respondent that it proposed "to change the existing practice used in exercising its right to establish performance appraisal systems and/or performance requirements, including standards for [unit] employees.'" Judge's Decision at 11 (quoting G.C. Exhibit 2). Shortly thereafter, the Union President replied by memorandum entitled "Mid-Term Bargaining'" effectively stating that it wished to bargain over the entire subject of performance appraisals and that negotiations would be conducted pursuant to Article 14.

The parties' bargaining teams met on February 25 and March 5, 1998. At the first meeting, the Union President, who was also the chief negotiator, presented the Union's proposals, which were proposals found negotiable by the Authority in POPA II and the court of appeals in POPA v. FLRA, 26 F.3d 1148. At both meetings, the Union President reiterated that the Union wanted to bargain over the entire subject of performance appraisals. Judge's Decision at 11.

The Respondent "steadfastly refused to bargain over anything other than the change it had proposed on January 12." Id. at 12. The Respondent disputed whether a contract existed and maintained that there was no duty to bargain over union-initiated mid-term bargaining proposals based on the 1993 decision of the Fourth Circuit Court of Appeals. Later, on April 6, 1998, the Respondent sent the Union President a memorandum withdrawing the January 12 notice and stating that the Respondent did not intend to make the change it had proposed and "`no . . . other aspects of bargaining will be conducted on this matter." Id. (quoting G.C. Exhibit 4).

The Union President sent the Respondent a memorandum on April 20, 1998, stating, among other things, that the Union "still wished to bargain over the subject of performance appraisals." Id. at 12. He also attached a copy of the proposals and clarified that it was seeking to bargain on only those proposals that the Authority and the court had found negotiable. The Respondent never responded to the Union's request and the parties have no agreement on performance appraisals.

The Union later filed the unfair labor practice charge in Case No. WA-CA-80405.

The Judge first found that the parties did not dispute that the proposals involve a condition of employment and are negotiable, nor did the Respondent contend that it was not obligated to bargain because the subject of performance appraisal is covered by a collective bargaining agreement or that some provision of an agreement permitted its action.

Noting that the complaint addresses the Respondent's conduct after April 20--after the Respondent had withdrawn the proposed change--the Judge found that the Union's April 20 request did not "`unequivocally request' to bargain mid-term, and unlike some of its earlier communications . . . did not even use that term or refer to Article 14." Id. at 14. Citing Authority precedent, the Judge found that the April 20 request "was a general request for negotiations on the matter and required a response and negotiations in good faith pursuant [ v57 p188 ] to section 7114(b)(1), (2) and (3) of the Statute." Id. According to the Judge, the request was not rendered moot by the Respondent's withdrawal of the proposed change. The Judge determined that "[u]nions may initiate bargaining, during the term of an agreement or before an agreement is reached, independent of proposals by management to change unit employees' conditions of employment." Id. at 15. In support, the Judge cited United States Dep't of the Interior, Washington, D.C. and United States Geological Survey, Reston, Va., 52 FLRA 475 (1996) (DOI I), remanded sub nom. NFFE, Local 1309 v. Dep't of the Interior, Washington, D.C., et al., 526 U.S. 86 (1999) (NFFE v. Interior); decision and order on remand, 56 FLRA 45 (2000) (DOI II) (Member Cabaniss concurring in part, dissenting in part); reconsideration denied, 56 FLRA 279 (2000). [n7]

Accordingly, based on the evidence, the Judge concluded that the Respondent could not refuse to bargain in good faith on the performance appraisal proposals by concluding that it had no obligation to honor the April 20 request to bargain.

To the extent that a determination of whether a term agreement exists was relevant, the Judge applied an objective standard for the formation of a contract as expressed by the Authority in Internal Revenue Service, North Florida District, Tampa Field Branch, Tampa, Florida, 55 FLRA 222 (1999) (IRS, Tampa Field Branch). Applying this standard, the Judge found that the record established that the parties did not have a collective bargaining agreement. The Judge found that despite written agreements in June 1987, concerning Article 14, and in December 1992, concerning Article 22, and the representations to the Authority and the courts in the early 90's concerning the agreement, the record showed that since the Authority upheld the 1986 Agency head disapproval in 1991, the parties have disagreed on whether they have an agreement consisting of all the undisputed provisions of the disapproved agreement. Nevertheless, the Judge found that the parties had adopted certain provisions, "either explicitly or by their actions, as past practices which are binding" on them. Judge's Decision at 16.

The Judge found that the parties adopted the procedures set forth in Article 14 and have followed those procedures as their practice. Therefore, according to the Judge, to the extent that the Union's statements prior to April 20, 1998, are relevant, the Union's President's reference to mid-term bargaining in his January 16 request was entirely appropriate.

Accordingly, the Judge concluded that the Respondent violated section 7116(a)(1) and (5) of the Statute as alleged and recommended a cease and desist order. He also found that a retroactive bargaining order was appropriate because the Respondent's unlawful conduct had deprived the Union of an opportunity to bargain in a timely manner over negotiable conditions of employment.

B. Positions of the Parties

1. Respondent's Exceptions

First, the Respondent contends that the Judge erred when he found that the parties had adopted certain provisions, in particular Article 14, as a past practice. [n8] The Respondent asserts that the record does not show that there has been an actual practice established in accordance with the written agreement of June 1987. According to the Respondent, testimony of one of its witnesses establishes that it did not follow the provisions of Article 14 with respect to notifying the Union of proposed changes. The Respondent asserts that the Judge's reliance on certain testimony of this witness to support his finding of a past practice ignores the witness's testimony that she had to "cajole the Union or to seek its cooperation by making reference to the window period[]" in Article 14, and ignores that portion of her testimony that management did not consistently acquiesce to the Union's "obdurate behavior." Exceptions at 16 and 17. The Respondent contends that the "key ingredient of acquiescence that is necessary to establish a past practice is missing." Id. at 17. In support, the Respondent references certain Authority decisions.

Second, the Respondent contends that the Judge erred when he found that it was obligated to bargain in response to "general request[s]'" to bargain. [n9] Id. at 17 (quoting Judge's Decision at 14). The Respondent asserts that the Judge concluded that a union "may initiate bargaining during the term of an agreement or before an agreement is reached, independent of proposals by management to change unit employees' conditions of employment.'" Id. at 18 (quoting Judge's Decision at 15). [n10] The Respondent argues that this conclusion, together with the Judge's conclusion that the [ v57 p189 ] parties have no term collective bargaining agreement, essentially means that the Union may nonetheless request bargaining on individual proposals chosen by the Union. The Agency asserts that these findings and conclusions are "clear errors of law." Id. The Respondent contends that these findings impose a duty to bargain on the Respondent that is not supported by law, including DOI I.

According to the Respondent, DOI I, among other referenced cases, reached only the question of whether, during the term of a collective bargaining agreement, an agency is required to bargain other union-initiated proposals, and thus has no application to the instant case, where "no valid" agreement exists. Id. at 22. The Respondent argues that the instant case, in contrast to DOI I, concerns the Respondent's obligation to negotiate union-initiated proposals where there is no basic term agreement and the Union is not proposing that they enter term negotiations. [n11] The Respondent asserts that, as there is no term agreement in effect, absent a management-initiated change in conditions of employment it is only obligated to bargain union-initiated proposals in the context of a term agreement. In support, the Respondent cites United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas, 51 FLRA 768 (1996) (Del Rio I), reconsideration denied 51 FLRA 1561 (1996) (Del Rio II); affirmed AFGE National Border Patrol Council, Local 2366 v. FLRA, 114 F.3d 1214 (D.C. Cir. 1997) (AFGE v. FLRA).

Further, the Respondent asserts that DOI is not final because the Authority has not issued a ruling on remand. [n12] Moreover, the Respondent argues that given the facts in this case, even an Authority ruling would not be dispositive. Also, responding to the Judge's finding that it failed to respond to the Union when it submitted its performance appraisal proposals, the Respondent asserts that the facts show that management had previously responded to the same proposals and told the Union they were outside the scope of bargaining. The Respondent contends that the Union knew its position but nonetheless resubmitted the proposals, and thus, it should not have been necessary for it to respond again.

2. The General Counsel's Opposition

The General Counsel contends that the Union's request to bargain concerning performance appraisals "did not include a reference to a practice or agreement concerning the timing of submissions proposing changes in working conditions," but was "simply, a union-initiated request to bargain over a subject independent of a change proposed by management." Opposition at 11 in WA-CA-80405. According to the General Counsel, the Agency never responded to the Union's request and never bargained concerning performance appraisals. The General Counsel argues that such failures occurred regardless of whether a practice exists. Thus, in the General Counsel's view, the Judge's finding of a past practice for the submission of proposals is "irrelevant to the factual and legal issues raised by the complaint" and to his finding of a violation. Id. at 12.

Alternatively, citing Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals, 55 FLRA 454 (1999) (DOJ) (Member Cabaniss dissenting), the General Counsel asserts that there is "no dispute" that the Judge's finding satisfies the three conditions for establishing a practice set forth in DOJ. Id. at 12.

Further, relying on DOI II, where the Authority found that the agency therein committed an unfair labor practice when it refused to bargain over a proposal requiring midterm bargaining, the General Counsel asserts that the premises relied on by the Authority to find a violation in that case "apply equally to union-initiated bargaining independent of a management-proposed change in conditions of employment before a term agreement is reached." Opposition at 14-15.

The General Counsel also distinguishes the cases relied on by the Respondent, including Del Rio I and II. According to the General Counsel, in those cases, the Authority was not required to consider, as in this case, whether a union has a statutory right to initiate bargaining before a term agreement is reached absent a management proposal to change working conditions.

Lastly, concerning the Union's April 20 request, the General Counsel contends that the Charging Party has a statutory right to initiate bargaining absent a term agreement and independent of management proposed changes. The General Counsel asserts that the evidence shows that the Respondent did not fulfill even its minimum obligation to "respond to a bargaining request." Id. at 17. [ v57 p190 ]

3. The Charging Party's Opposition

First, the Charging Party asserts that the Respondent's denial of the effectiveness of Article 14 and the MOU of June 1987 concerning mid-term bargaining is contradicted by the evidence. According to the Charging Party, the 1987 MOU, along with the documents it references, "explicitly established a bargaining practice." Opposition at 9. The Charging Party references other evidence that it contends establishes a practice for providing notice of proposed changes, including G.C. Exhibit 3 and Respondent's Exhibit 9. The Charging Party further disputes the Respondent's assertion that the testimony of its witness establishes that it did not follow the provisions of Article 14 as it concerns Union notice. According to the Charging Party, not only was the witness' testimony "unsupported with any details as to what events she was relying upon," but the witness' memo of October 1997 (G.C. Exhibit 10), contradicts her testimony. Id. The Charging Party also asserts that the Respondent's reliance on the witness' testimony that she had to "cajole" the Union does not establish that there was no past practice.

Second, the Charging Party contends that the Respondent's contention, that there is no obligation to bargain in response to a union bargaining request, is contrary to the Statute because it "ignore[s] the fundamental requirement of" section 7114(a)(4) that an agency and a union "shall meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement." Id. at 11. The Charging Party contends that "there is no support in the language of the [S]tatute or in its legislative history" that arriving at a collective bargaining agreement is intended to apply only to comprehensive term labor agreements. Id.

The Charging Party also contends that the "Agency exception[] is incorrect [because] the parties do have an agreement in place and that agreement provides for union-initiated mid-term bargaining." Id. at 13. The Charging Party asserts that even if there is no term agreement, there is "an agreement with respect to Article 14." Id. The Charging Party states that while this section is entitled mid-term bargaining, it provides "a procedure for union-initiated negotiations[]" and "creates a binding obligation on the [Respondent] to negotiate union-initiated proposals whether or not the Authority finds a term agreement to be in effect." Id. at 13 and 14.

Citing section 2429.5 of the Authority's Regulations, the Charging Party additionally asserts that the Respondent raised the issue concerning the Respondent's general duty to bargain if there is no term agreement for the first time in its exceptions and, therefore, this issue should not be considered by the Authority.

Lastly, the Charging Party asserts that the Judge was correct in finding that the Respondent violated the Statute with respect to the performance appraisal issue. The Charging Party contends that the "performance appraisal proposals [submitted in its April 20, 1998 request] . . . are directly derived from the term negotiations that were presented to [the interest arbitrator]." Opposition at 15. In this regard, the Charging Party asserts that the performance appraisal subject was: (1) presented during term negotiations; (2) held in abeyance pending the outcome of an Authority negotiability decision; (3) negotiated to impasse after the Authority decision; (4) awarded by an impasse arbitrator; and (5) affirmed in negotiability challenges before the Authority and the D.C. Circuit Court of Appeals. The Charging Party contends that the Respondent refuses to continue negotiations.

The Charging Party asserts that the Judge's decision explicitly cites the April 20 bargaining request that refers to the General Counsel's position that the parties must return to the bargaining table if an agreement on performance appraisal is to be reached. Also, citing FLRA v. Office of Personnel Management, 778 F.2d 844 (D.C. Cir. 1985), the Charging party contends that even if no term agreement exists, there is still an obligation to bargain on the performance appraisal proposals.

C. Analysis and Conclusions

1. The Judge Did Not Err by Finding that the Parties Had Established Past Practices With Respect to Certain Provisions that had been Disapproved by the Agency Head

Although the issue of past practice is raised, the Judge found that the Union's April 20 request to resume negotiations on the performance appraisal proposals, on which the complaint is based, did not "`unequivocally request' to bargain mid-term, and unlike some of its earlier communications, it did not even use that term or refer to Article 14." Judge's Decision at 14. Rather, it was a "general request for negotiations on the matter." Id. Based on the complaint and this finding, we find that the Judge's past practice finding is not material to the resolution of the issue raised by the complaint.

Notwithstanding this finding, even if the determination of whether a past practice exists with respect to the submission of bargaining requests by the parties was material to the resolution of this case, the evidence supports the Judge's conclusion that there was a past practice with respect to the application of the procedures provided in Article 14 and the 1987 MOU for notification [ v57 p191 ] of the Union and submission of proposals by the parties.

In this regard, the Authority has held that in order to find the existence of a past practice, there must be a showing that the practice has been consistently exercised over a significant period of time and followed by both parties, or followed by one party and not challenged by the other. DOJ, 55 FLRA at 456. The Respondent claims that the record does not establish that there has been an actual practice established in accordance with Article 14 and the 1987 MOU as the Judge found.

Contrary to the Respondent's claim, there is sufficient evidence in the record to establish that the parties, as the Judge found, followed the practice of submitting bargaining requests in accordance with the 1987 MOU and Article 14. The record shows that since 1987 in his requests to bargain, the Union President "most frequently has referred to the bargaining as `mid-term' since bargaining has been conducted pursuant to Article 14." Judge's Decision at 8. The Union's e-mail of February 4, 1998 shows that the Union recognized the "submission date[s]" for proposals under the MOU of 1987 and Article 14 as a practice of the parties. Respondent's Exhibit 9. See also Tr. at 68-69 (where the Union President testified that the Union and management had followed the practice of the 1987 MOU and Article 14).

The record further confirms that management followed this practice. In the chief of labor management relations October 1997 memorandum to the Union President, which provided the Union "formal written notice" concerning a new consolidated facility, the official noted that the Union did not agree "to waive the past practice to [provide notice to the Union] of any change in working conditions by October 10, one of the windows available each year." [n13] Judge's Decision at 10, G.C. Exhibit 10. Although the Respondent refers to testimony that it claims shows that it complied with the procedure set forth in the 1987 MOU out of necessity, the evidence shows, as G.C. Exhibit 10 reveals, that the Respondent followed this practice. The preponderance of the evidence establishes, therefore, that the parties have consistently followed the practice set forth in the 1987 MOU and Article 14 over a significant period of time. In view of this practice, the Union's reference to mid-term bargaining in certain communications prior to April 20, as the Judge found, was appropriate. Accordingly, we deny this exception.

2. The Judge Did Not Err by Finding that the Respondent Violated Section 7116(a)(1) and (5) of the Statute by Failing to Bargain Over Union-Initiated Proposals

Relying on Del Rio I and II and AFGE v. FLRA, the Respondent argues that these cases stand for the proposition that there are three circumstances in which an agency is obligated to bargain over union-initiated proposals and the bargaining in this case--where there is no term agreement in effect and where there is no management-initiated change--is not one of these circumstances. The Respondent argues, therefore, that the Judge erred in finding that it was obligated to bargain on the union-initiated proposals. We disagree.

We find that the cases relied on by the Respondent do not provide a basis for concluding that the Judge erred as the Respondent claims. First, in Del Rio I and Del Rio II, the Authority found that, "[t]hroughout the hearing, as well as in their briefs to the Judge, the parties . . . based their arguments on precedent involving mid-term bargaining issues." Del Rio I, 51 FLRA at 773 (footnote omitted). Therefore, the Authority found that the case was "litigated from beginning to end solely as a mid-term bargaining case." Id. In the reconsideration decision in Del Rio II, the Authority reexamined the circumstances that could have required the agency to bargain and found again, based on the facts presented, that the only bargaining theory alleged was mid-term bargaining. Consequently, Del Rio I and II did not turn on the Authority providing a detailed discussion of when an agency's duty to bargain arises, but instead concerned a general discussion of an agency's obligation to bargain in the circumstances presented in that case. Thus, the Authority's decision in Del Rio II does not stand for the limited proposition argued by the Respondent.

The court's decision in AFGE v. FLRA also does not stand for the proposition that an agency's duty to bargain is limited to the circumstances discussed in Del Rio I and II. The court, in reviewing the Authority's decisions in Del Rio I and II, described the categories of bargaining mentioned by the Authority as "general circumstances" and not exclusive circumstances. In this regard, the court stated: "[A]n employer's duty to bargain under the Statute may arise in three general circumstances," and listed the three circumstances, the first being:

(i) in response to a request from an exclusive bargaining agent for "term negotiations" to renegotiate an expiring or expired contract or to negotiate a new agreement, or any other negotiations between management and an appropriate worker's representative [ v57 p192 ] over bargainable subjects outside the term of an existing collective bargaining agreement . . . .

AFGE v. FLRA, 114 F.3d at 1218.

This category is broad and includes negotiations following the expiration of an agreement. It does not define such negotiations as limited to a full, term agreement. Moreover, the court found that the "crucial point" in the case was that the union's request to bargain was at the wrong level of recognition. The court stated that, had the union's request been at the proper level, management officials would have been obligated to negotiate over the matter in dispute. Id. at 1219. In light of the court's findings, it is our view that the bargaining circumstances described by the court in AFGE v. FLRA and the Authority in Del Rio II were not dispositive of the circumstances under which an agency may be obligated to bargain over union-initiated proposals under the Statute. In addition, Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson AFB, Oh., 51 FLRA 1532 (1996), is also not dispositive of the circumstances under which an agency may be obligated to bargain over union-initiated proposals under the Statute because the issue in that case concerned a union's untimely request to bargain in response to a management-initiated change.

We find, therefore, that the decisions cited by the Respondent are not dispositive of the issue involved in this case. Consequently, these cases do not limit Respondent's duty to bargain over the Union-initiated performance appraisal proposals in the circumstance where there is no term agreement in effect and where there is no management-initiated change. As the court noted in AFGE v. FLRA, "a union can compel negotiations on bargainable local issues that arise after an agreement expires by demanding bargaining at the appropriate level of representation." 114 F.3d at 1219. The Respondent was obligated, therefore, to bargain on the Union's April 20 request unless it was precluded from bargaining by some other reason.

The Respondent does not dispute the Judge's finding that the proposals involve a condition of employment and are negotiable. Also, although the Respondent contends that the evidence shows that it had previously responded to the Union's proposals, as the Judge found, the Union's April 20 request was a request to bargain that required a response from the Respondent. Accordingly, we find that Respondent's refusal to bargain over the Union-initiated proposals violated section 7116(a)(1) and (5) of the Statute.

D. Charging Party's Exceptions

1. Exceptions

The Charging Party first asserts that the Judge erred in determining that a term agreement does not exist. The Charging Party excepts to the Judge's finding that "`since the Authority upheld the 1986 Agency head disapproval in 1991, the parties have disagreed on whether they have an agreement consisting of all the undisputed provisions of the disapproved agreement.'" Exceptions at 1 (quoting Judge's Decision at 16). The Charging Party contends that the Judge's findings do not support his determination because in between the Authority's 1991 decision, and the position taken by the Respondent in or since 1994, there "were at least three years worth of actions by Respondent supporting the existence of an agreement . . . ." Id. at 3.

The Charging Party refers to evidence that it claims shows that a term agreement exists, including the following: (1) the Union President's meeting with new employees and his reference to a document distributed to such employees as the collective bargaining agreement which the Respondent was aware of; (2) memoranda referring to the "`PTO/POPA contract'" that was sent to employees from their group directors in 1994; (3)memoranda from the Respondent's Chief of Labor Relations stating that the notices were in accordance with specific sections of the basic agreement; (4) a proposed bill concerning the establishment of an agency organization that referred to an agreement between the parties; and (5) the decision in PTO v. FLRA, Case Nos. 92-2347 and 92-2531 (4th Cir. Apr. 19, 1993) (Unpublished), that indicated that the parties had entered into a 1986 collective bargaining agreement. Id. at 4.

Relying on United States Dep't of the Treasury, Bureau of Engraving and Printing, 44 FLRA 926, 939-40 (1992) (Bureau of Engraving and Printing), the Charging Party asserts that the parties created an agreement constituting the undisputed sections of the interest arbitrator's award.

Secondly, the Charging Party contends that the Judge failed to consider the "covered by" doctrine announced in United States Dep't of Health & Human Serv., Social Security Admin., Baltimore, Md., 47 FLRA 1004 (1993). According to the Charging Party, "[a]t the hearing and in the post-hearing brief, [it] took the position that the Judge need not determine if an agreement existed between the parties because such a determination was unnecessary to the resolution of the complaint." Exceptions at 6. However, "the Charging Party has reconsidered its earlier position and now believes [ v57 p193 ] the application of the . . . doctrine is necessary to resolve the issues." Id. at 6-7. The Charging Party requests, therefore, that the Authority recognize the existence of a basic agreement in determining whether the topics in issue are expressly included therein. Applying the "covered by" doctrine, the Charging Party argues that neither subject matter in dispute is covered by such agreement.

2. Analysis and Conclusions

a. The Judge Did Not Err in Finding that a Collective Bargaining Agreement Did Not Exist Between the Parties

Contrary to the Charging Party's assertion, the Judge did not err in finding that the parties do not have a collective bargaining agreement.

The Authority held in POPA I, 41 FLRA at 805, that the Agency head disapproval served on June 26, 1986, "was timely and served to disapprove the entire agreement." Where an agency head timely disapproves an agreement under section 7114(c) of the Statute, the agreement does not take effect and is not binding on the parties. Id. at 802. However, parties may agree to implement all portions of an agreement not specifically disapproved by the agency head. Id.

The Authority has also examined private sector law in determining whether a collective bargaining agreement exists. In IRS, Tampa Field Branch, the Authority found that the parties did not have a meeting of the minds with respect to the signature block paragraph of the MOU and did not reach agreement on the MOU. In reaching this conclusion, the Authority examined Authority and private sector precedent. The Authority stated:

In the private sector, the National Labor Relations Board applies similar standards for determining when parties reach agreement. "A meeting of the minds of the parties must occur before a labor contract is created." Bobbie Brooks, Inc. v. International Ladies Garment Workers Union, 835 F.2d 1164, 1168 (6th Cir. 1987). "Whether a collective bargaining agreement exists is a question of fact; [the] technical rules of contract law are not strictly binding." Id. (citation omitted). The surrounding circumstances and the parties' intentions may be considered to determine if a bargaining agreement exists; however, an objective standard applies to the formation of a contract, regardless of a meeting of the minds in a subjective sense. Warehousemen's Union Local No. 206 v. Continental Can Co., 821 F.2d 1348, 1350 (9th Cir. 1987).

55 FLRA at 222.

Applying the above rationale to this case, the record establishes, as the Judge found, that "since the Authority upheld the 1986 Agency head disapproval in 1991, the parties have disagreed on whether they have an agreement consisting of all the undisputed provisions of the disapproved agreement." Judge's Decision at 16. The Charging Party refers to evidence which it contends shows that a collective bargaining agreement exists, including the United States Court of Appeals for the Fourth Circuit's unpublished 1993 per curiam opinion, wherein the court referenced a 1986 collective bargaining agreement of the parties. However, as the Authority stated in POPA I, the "validity" of the agreement was not an issue central to the dispute in that case and was neither litigated nor decided. POPA I, 41 FLRA at 804 n.2. Similarly, in this case, the statement in the court's decision does not establish that a basic collective bargaining agreement exists.

Consequently, despite the evidence referenced by the Charging Party, such evidence does not establish, as the Judge found, that a collective bargaining agreement exists on all the undisputed provisions of the disapproved agreement. Accordingly, the Charging Party has not established by a preponderance of the evidence that a collective bargaining agreement exists on all the disputed provisions of the disapproved agreement. Therefore, we deny this exception.

b. The Judge Did 47 FLRA Not Err By Not Applying the Covered by Doctrine Set Forth in SSA, 1004

As found above, the record establishes that no valid collective bargaining agreement exists between the parties. The test expressed in SSA is applied to determine whether a matter is contained in or "covered by" a collective bargaining agreement. As there is no valid collective bargaining agreement between the parties, the Judge did not err in not applying the "covered by" test expressed in SSA. Accordingly, we deny this exception. [ v57 p194 ]

IV. Case No. WA-CA-80515

A. Facts That Form the Basis of the ULP and Judge's Decision

On December 10, 1997, the Charging Party received a memorandum from the Agency notifying it of management's proposed implementation of a recruitment bonus program. Before deciding to send the Charging Party the memorandum, the Respondent had decided to hire about 400 examiners and conduct job fairs near the end of January 1998.

On or about January 6, the Respondent approved the proposed recruitment plan and subsequently announced in the Washington Post a job fair on January 23 and 24 and recruitment bonuses.

On January 9, 1998, the President of the Charging Party requested to bargain over management's proposal, and other pay and pay-related issues. [n14] Attached to the request were bargaining proposals that addressed all of the subjects over which the Union requested to bargain, including recruitment bonuses, travel and transportation expenses, relocation bonuses, expense allowances, retention allowances, advanced pay, transit subsidies, payment for technical and legal training, special pay rates, and pay survey.

On January 16, 1998, the Charging Party, by memorandum entitled, "Mid-Term Bargaining," responded to Respondent's memorandum concerning a change in performance appraisal systems, but also addressed other issues, including the Respondent's proposal to pay recruitment bonuses. Judge's Decision at 13. The Respondent held the job fair as planned, at which prospective applicants were informed that a 10% recruitment bonus would be paid to newly-appointed employees to patent examiner positions. The Respondent did not give the Charging Party notice of the job fair and the Charging Party did not obtain this notice from another source.

On January 28, 1998, the Respondent responded to Charging Party's request to bargain and informed the Union, among other things, that it would meet concerning proposals on recruitment bonuses and relocation expenses, but could not entertain the other proposals referenced in the Union's request because the proposals were not "management-initiated proposals." Judge's Decision at 15. Subsequently, the Charging Party sent the Respondent a message reiterating its interest in bargaining on all its proposals, including those the Respondent would not entertain.

The Respondent replied to the Charging Party's message, stating that it "`intend[ed] only to negotiate, upon . . . request, over those issues we have proposed to implement.'" Id. (quoting G.C. Exhibit 12). From about February 1998 to date, the Respondent has paid 10% recruitment bonuses to certain employees. These bonuses have not been paid to employees appointed to such positions during the previous two years.

Negotiations began in March 1998 and occurred until mid-May, with additional meetings in September and October. The parties reached tentative agreements on certain proposals related to recruitment bonuses and relocation expenses. [n15] Subsequently, the Union filed the instant ULP arising out of Respondent's actions in establishing the recruitment bonus plan and refusing to bargain on certain Union-initiated proposals.

Before the Judge, the General Counsel and the Charging Party argued that the Respondent violated the Statute regardless of whether a basic agreement exists. The Charging Party also argued that the interest arbitrator's award matured into a binding agreement as a result of the parties' actions. The Respondent denied the allegations, contending the charge was untimely and that even if it were not, it had no obligation to bargain mid-term under the terms of a disapproved agreement because no basic agreement exists.

The Respondent argued that the charge was untimely because the Union had notice of the proposed change on December 10, 1997, but failed to file the charge until July 10, 1998, more than six months later. The Judge found that the Union's January 9, 1998, request was timely. According to the Judge, under the parties' practice that was consistent with the memorandum of understanding on Article 14, the Respondent's December 10 notice was considered to have an effective submission date of the 10th day of the next quarter, which was January 10, 1998. The Judge further found that there was no evidence that the Union had notice until late January 1998 of the Respondent's actual issuance of the recruitment plan, the placing of advertisements for a job fair and recruitment bonuses. Accordingly, he found that the charge was timely. [ v57 p195 ]

Relying on United States Dep't of Justice, Immigration & Naturalization Serv., 55 FLRA 892 (1999) (DOJ), among other Authority cases, the Judge found that the Respondent began making recruitment bonus payments after the Union requested to bargain, but before bargaining commenced. The Judge found that these bonuses concerned conditions of employment and were not pay under the Statute. He found because the Respondent did not pay these bonuses to employees during 1996 or 1997, the Respondent changed employees' working conditions when it paid these bonuses to new employees. As the Respondent did not dispute that payment of $1,000 was more than de minimis, the Judge found the Respondent violated the Statute as alleged by implementing the bonus plan and paying employees a recruitment bonus before bargaining with the Union.

The Judge next addressed the Respondent's refusal to bargain over pay related proposals submitted by the Union on January 9, 1998. The Judge found that the negotiability of the proposals was not disputed and, therefore, it was not necessary to address the proposals' negotiability. He also found that the Respondent did not contend that it was not obligated to bargain on the proposals because the subject of pay-related proposals was covered by an applicable collective bargaining agreement. Rather, according to the Judge, the Respondent argued that it did not have a duty to bargain because the Union's request was "predicated on the existence of a collective bargaining agreement between the parties and no such agreement exists." Judge's Decision at 20. The Judge found that the Union's request was not predicated on the existence of a term agreement.

Relying on DOI I, the Judge stated that "[u]nions may initiate bargaining, during the term of an agreement or before an agreement is reached, independent of proposals by management to change unit employees' conditions of employment." Id. at 21. Accordingly, the Judge found that the Respondent could not refuse to meet its obligation under section 7114(b) of the Statute by concluding in the absence of a basic agreement that it had no obligation to honor the Union's request.

To the extent that a determination of whether a basic agreement exists was relevant, the Judge applied an objective standard for the formation of a contract as expressed by the Authority in IRS, Tampa Field Branch. Applying that standard, the Judge found that the record established that the parties did not have a collective bargaining agreement. The Judge found that despite written agreements in June 1987, concerning Article 14, and in December 1992, concerning Article 22, and the representations to the Authority and the courts in the early 90's concerning the agreement, the record showed that since the Authority upheld the 1986 Agency head disapproval in 1991, the parties have disagreed on whether they have an agreement consisting of all the undisputed provisions of the disapproved agreement.

Nevertheless, the Judge found that the parties had adopted certain provisions, "either explicitly or by their actions, as past practices which are binding" on them. Id. at 22. The Judge found that the parties had a practice concerning bargaining applicable to this case that was described by Article 14. Therefore, according to the Judge, the Union President's reference to Article 14 and mid-term bargaining in his January 16 request was entirely appropriate. Accordingly, the Judge found that the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing the alleged changes without first bargaining with the Union as requested and by failing to bargain to the extent required by the Statute on the proposals over which the parties had not already reached agreement. Therefore, the Judge recommended, among other things, a retroactive bargaining order.

B. Positions of the Parties

1. Respondent's Exceptions

The Respondent excepts to the Judge's finding that it must bargain over the pay and pay related proposals submitted by the Union and to his recommended order requiring such bargaining. [n16] The Respondent's arguments are similar to those set out in Section III.B.1 with respect to Case No. WA-CA-80515, except that the Respondent disputes the Judge's finding that it violated the Statute by refusing to bargain on the pay related proposals submitted by the Union.

2. The General Counsel's Opposition

The General Counsel's arguments with respect to the Respondent's exceptions are similar to those set forth in Section III.B.2., in connection with Case No. WA-CA-80405, except for facts related specifically to this case and, therefore, will not be repeated here. The General Counsel further asserts that the Respondent has not excepted to the Judge's finding that: (1) the Respondent began making bonus payments after the Charging Party requested to bargain but before bargaining commenced; (2) the bonuses concerned conditions of employment, not pay within the meaning of section 7103(a)(14) of the Statute; (3) the Respondent changed unit employees' working conditions when it began paying [ v57 p196 ] the bonuses and those payments were more than de minimis; (4) that the Judge was not required to determine the negotiability of the proposals because the Respondent never addressed the proposals; and (5) the Respondent never bargained over all of the subjects presented in the proposals. Accordingly, the General Counsel contends that the Judge did not err in concluding that the Respondent violated the Statute by failing to bargain over all of the subjects presented in the Union's proposals.

3. The Charging Party's Opposition

The Charging Party's arguments with respect to the Respondent's exceptions are similar to those raised by the Charging Party and set forth in Section III.B.3., in connection with Case No. WA-CA-80405, except for specific facts that concern this case and, therefore, will not be repeated here.

C. Analysis and Conclusions

1. The Judge Did Not Err By Finding that the Parties Had Established Past Practices With Respect to Certain Provisions that Had Been Disapproved by the Agency Head

The preponderance of the evidence supports the Judge's conclusion that there was a past practice with respect to the application of the procedures provided in Article 14 and the 1987 MOU for notice to the Union and submission of proposals by the parties.

As we stated earlier, see Section III.C.1., the Authority has held that in order to find the existence of a past practice, there must be a showing that the practice has been consistently exercised over a significant period of time and followed by both parties, or followed by one party and not challenged by the other. DOJ, 55 FLRA at 456. The Respondent claims that the record does not establish that there has been an actual practice established in accordance with Article 14 and the 1987 MOU as the Judge found.

Consistent with our findings in Case No. WA-CA-80405, see Section III.C.1., and for the reasons expressed therein, we find that a preponderance of the evidence in the record establishes that the parties followed the practice of submitting bargaining requests in accordance with the 1987 MOU and Article 14. Accordingly, we deny this exception.

2. The Judge Did Not Err By Finding that the Respondent Violated Section 7116(a)(1) and (5) of the Statute by Failing to Bargain Over Union-Initiated Proposals

Relying on Del Rio I and II and AFGE v. FLRA, the Respondent argues that these cases stand for the proposition that there are three circumstances in which an agency is obligated to bargain over union-initiated proposals and the bargaining in this case--where there is no term agreement in effect and where there is no management-initiated change--is not one of these circumstances. The Respondent argues, therefore, that the Judge erred by finding that it was obligated to bargain on the union-initiated proposals. We disagree.

Consistent with our finding in Case No. WA-CA-80405, see Section III.C.2. of this decision, we find that the cases relied on by the Respondent are not dispositive of the issue involved in this case. Consequently, for the reasons discussed in Section III.C.2., we find that these cases do not limit Respondent's duty to bargain over the Union-initiated pay-related proposals in the circumstance where there is no term agreement in effect and where there is no management-initiated change. The Respondent was obligated, therefore, to bargain on the Union-initiated pay-related proposals involved herein unless it was precluded from bargaining by some other reason.

The Respondent does not take exception to the Judge's finding concerning the negotiability of the proposals. Accordingly, Respondent's refusal to bargain over the Union-initiated proposals violated section 7116(a)(1) and (5) of the Statute.

D. Charging Party's Exceptions

Inasmuch as the Charging Party's exceptions are the same as those presented in Case No. WA-CA-80405, we have not repeated the exceptions here. In Case No. WA-CA-80405, we denied the exceptions. For the reasons discussed with respect to that case, we deny the exceptions here.

V. Order

Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Patent and Trademark Office, shall:

1. Cease and desist from:

(a) Failing and refusing to respond to, and bargain with, the Patent Office Professional Association (POPA), the exclusive representative of an appropriate [ v57 p197 ] unit of employees over negotiable proposals concerning the subject of performance appraisals submitted by POPA on April 20, 1998.

(b) Implementing recruitment bonuses for newly-hired employees without first fulfilling its obligation to bargain to the extent required by the Statute with POPA.

(c) Failing and refusing to bargain with POPA to the extent required by the Statute over pay and pay-related proposal's submitted on or about January 9, 1998, to the extent the parties have not already reached agreement.

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

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

(a) Bargain with POPA to the extent consistent with the Statute over negotiable proposals concerning the subject of performance appraisals submitted by POPA on April 20, 1998, and apply agreements reached pursuant to such negotiations retroactively to April 20, 1998.

(b) Bargain with POPA to the extent consistent with the Statute over the payment of recruitment bonuses to newly-hired employees and over other pay and pay-related proposal's submitted on or about January 9, 1998, to the extent the parties have not already reached agreement, and apply agreements reached pursuant to such negotiations retroactively to February 1, 1998.

(c) Post at its facilities where bargaining unit employees represented by the Patent Office Professional Association are located copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commissioner 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 2423.41(e) of the Authority's Regulations, notify the Regional Director, Washington Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Patent and Trademark Office violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify bargaining unit employees that:

WE WILL NOT fail and refuse to respond to, and bargain with, the Patent Office Professional Association (POPA), the exclusive representative of an appropriate unit of employees, over negotiable proposals concerning the subject of performance appraisals submitted by POPA on April 20, 1998.

WE WILL NOT implement recruitment bonuses for newly-hired employees without first fulfilling our obligation to bargain to the extent required by the Statute with POPA.

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

WE WILL bargain with POPA to the extent consistent with the Statute over negotiable proposals concerning the subject of performance appraisals submitted by POPA on April 20, 1998, and apply agreements reached pursuant to such negotiations retroactively to April 20, 1998.

WE WILL bargain with POPA to the extent consistent with the Statute over the payment of recruitment bonuses to newly-hired employees and over other pay and pay-related proposals submitted by POPA on or about January 9, 1998, to the extent the parties have not already reached agreement, and apply agreements reached pursuant to such negotiations retroactively to February 1, 1998.

______

(Activity)

Date: __ 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 any of its provisions, they may communicate directly with the Regional Director, Washington Regional Office, Federal Labor Relations Authority, whose address is: Tech World Plaza, 800 "K" Street, NW., Suite 910N, Washington, D.C., 20001 and whose telephone number is: (202) 482-6700.

File 1: Authority's Decision in 57 FLRA No.
45

File 2: ALJ's Decision in WA-CA-80405

File 3: ALJ's Decision in WA-CA-80515

Footnote # 1 for
57 FLRA No. 45

• Authority's Decision

Member Pope did not participate in this decision.

Footnote # 2 for
57 FLRA No. 45

• Authority's Decision

Although the Judge issued separate decisions, the complaints involve the same parties, many of the same witnesses, the same transcript and exhibits, raise common issues, and were consolidated for hearing. Inasmuch as the parties are the same in each case and each case presents common issues and were consolidated for hearing, the cases have been consolidated for consideration.

Footnote # 3 for
57 FLRA No. 45

• Authority's Decision

By order of March 1, 2000, the Authority granted the Charging Party and the Respondent an extension of time to file their oppositions. The order stated that the "oppositions . . . must be received at the Authority by March 20, 2000." Order of March 1, 2000. Although the Respondent's opposition is dated and was postmarked on March 20, 2000, it was not received at the Authority until March 22, 2000. Accordingly, the opposition was not properly filed. Therefore, the Respondent's opposition has not been considered.

Footnote # 4 for
57 FLRA No. 45

• Authority's Decision

The background set forth in Section III.A.1. and 2. is also applicable to Case No. WA-CA-80515 and, therefore, will not be repeated in the section pertaining to that case.

Footnote # 5 for
57 FLRA No. 45

• Authority's Decision

The agency head's disapproval was ultimately upheld by the Authority in 1991. See Patent Office Professional Association, 41 FLRA 795 (1991) (POPA I).

Footnote # 6 for
57 FLRA No. 45

• Authority's Decision

The MOU provided as follows:

Article 14, Section 2 of the currently effective PTO-POPA Basic Agreement provides, in part, that mid-term changes in conditions of employment shall be proposed on a quarterly basis.

In order to promote more effective bargaining and take into account the need of all participants to schedule time, the parties agree that Article 14, Section 2, shall mean that the time for proposing mid-term changes referenced in Article 14, Section 3A, shall coincide with the 10th day in each of the months of January, April, July, and October, and shall continue in this fashion until superceded by a new Agreement.

Initial proposals submitted in accordance with Article 14, Section 3A, after the 10th day of January, April, July, and October shall be considered to have an effective submission date which is the 10th day of the next quarter.

Union Exhibit 2.

Also, Section 3A concerns proposals for changes in working conditions submitted by either party.

Footnote # 7 for
57 FLRA No. 45

• Authority's Decision

The exceptions were submitted prior to the Authority's decision in DOI II.

Footnote # 8 for
57 FLRA No. 45

• Authority's Decision

The Respondent makes the same exception with respect to the Judge's similar finding in Case No. WA-CA-80515.

Footnote # 9 for
57 FLRA No. 45

• Authority's Decision

The Respondent raises the same exception with respect to Case No. WA-CA-80515.

Footnote # 10 for
57 FLRA No. 45

• Authority's Decision

The Respondent cites the Judge's Decision in WA-CA-80515 at 21.

Footnote # 11 for
57 FLRA No. 45

• Authority's Decision

The Respondent notes that even though the Union President's testimony suggests the Union's request was a request for term negotiations, the evidence shows that the Union was "simply" taking one set of proposals out of the previously failed term negotiations and attempting to force the Respondent to agree to it. Exceptions at 28 n.19.

Footnote # 12 for
57 FLRA No. 45

• Authority's Decision

As noted above, the decision on remand was subsequently issued.

Footnote # 13 for
57 FLRA No. 45

• Authority's Decision

The reference to windows refers to the quarterly windows provided by the June 1987 MOU.

Footnote # 14 for
57 FLRA No. 45

• Authority's Decision

The Judge found that the Union waited until January 9 because January 10 was the effective date of the notice from the Respondent under the parties' practice adopting Article 14.

Footnote # 15 for
57 FLRA No. 45

• Authority's Decision

Apart from these negotiations, through partnership efforts or other forums, the parties reached separate agreements on transit subsidies, technical and legal training tuition reimbursement.

Footnote # 16 for
57 FLRA No. 45

• Authority's Decision

The Respondent does not except to the Judge's findings "to the extent" that the findings concern the allegation that the Respondent failed to bargain prior to implementing the recruitment bonuses. Exceptions at 3.

[ v57 p198 ]

Office of Administrative Law Judges

U.S. PATENT AND TRADEMARK OFFICE

Respondent

and

PATENT OFFICE PROFESSIONAL ASSOCIATION

Charging Party

Case No. WA-CA-80405

Mary E. Leary

Counsel for the Respondent

Pamela R. Schwartz

Counsel for the Charging Party

Thomas F. Bianco

Counsel for the General Counsel, FLRA

Before: GARVIN LEE OLIVER

Administrative Law Judge

DECISION

Statement of the Case

The unfair labor practice complaint alleges that Respondent (Agency or PTO) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1) and (5), by not replying to an April 20, 1998, memorandum from the Charging Party (Union or POPA) stating that the Union wished to resume negotiations over the subject of performance appraisals and by refusing to negotiate with the Union over the subject of performance appraisals since that time.

Respondent denied any violation of the Statute. It contended that, although the Union sought to bargain over performance appraisals, as part of its so-called mid-term proposals, the Agency's obligation regarding performance appraisal bargaining was limited to the Agency's announced changes. Respondent claims that once it withdrew the proposed changes to the existing practice, its bargaining obligation regarding performance appraisals ceased, and the Agency had no obligation to bargain over any matters which flowed from the Union's requests to bargain pursuant to Article 14 of the disapproved collective bargaining agreement.

For the reasons explained below, I conclude that the Respondent violated the Statute as alleged.

A hearing was held in Washington, D.C. [n1] The parties were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. They filed helpful briefs. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

A. Background

POPA was granted exclusive recognition of professional employees of PTO by the Commissioner of PTO in 1965. U.S. Patent and Trademark Office, 7 A/SLMR 512, 514 (1977). See also Un. Exh. 1 at 3, Article 1, Section 1. Such recognitions continued under Executive Order 11491. See U.S. Department of the Air Force, 434th S.O.W., Air Force Reserve, Grissom Air Force Base, Peru, Indiana, 2 A/SLMR 215 (1972). The Commissioner's grant of exclusive recognition of POPA continued under the Statute, pursuant to section 7135(a)(1). U.S. Army, Natick Research and Development Laboratories, 9 FLRA 25 (1982).

The parties began bargaining over the subject of performance appraisals and over a collective bargaining agreement in 1981. Those negotiations were merged in 1986. When an impasse was reached later that year, the parties requested the assistance of the Federal Service Impasses Panel (Panel). Pursuant to the Panel's direction, the parties selected Arbitrator Marvin Johnson to resolve their dispute.

Arbitrator Johnson issued a series of awards during the second quarter of 1986 directing the parties to adopt nearly three dozen articles as their collective bargaining agreement. However, Arbitrator Johnson declined to include substantive performance appraisal issues in the award, noting that these issues were the subject of several negotiability appeals pending before the Federal Labor Relations Authority (the Authority). He directed, in Article 19, the parties to continue further negotiations on the performance appraisal issues pursuant to Article 14, Mid-Term Bargaining, [n2] and retained jurisdiction to resolve any resulting impasse on the performance appraisal issues. He also directed the parties to bargain further over the subject of signatory authority, which [ v57 p199 ] was designated Article 22, pursuant to Article 14. (Un. Exh. 1 at 51, 57).

The first award issued by Arbitrator Johnson, in April 1986, concerned Article 14, entitled Mid-term Bargaining, and Article 15, Section 5, which concerned aspects of official time for POPA representatives. The PTO submitted this award for agency head review pursuant to 5 U.S.C. § 7114(c). By memorandum dated May 30, 1986, the agency head disapproved Article 14, Section 1 [n3] and Article 15, Sections 5(B) & (C) as contrary to law.

POPA filed a negotiability appeal. The Authority denied POPA's appeal on the ground that section 7114(c) did not apply to interest arbitration awards. Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 28 FLRA 3 (1987) (POPA).

PTO filed exceptions to the Arbitrator's award, as modified on May 27, 1986, with respect to Article 15, Section 5 on June 25, 1986. The Authority denied PTO's exceptions on the ground that they were untimely because they were filed more than 30 days after the award was issued. U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 24 FLRA 835 (1986).

The remaining awards made by the Arbitrator between May 1 and June 9, 1986, were subsequently submitted for agency head review. By memorandum dated June 26, 1986, the agency head disapproved fifteen provisions in these awards. The Union again filed an appeal. The Authority again initially dismissed the appeal, holding that the interest arbitrator's awards were not subject to agency head review. POPA, 28 FLRA at 8-9.

In January 1988, the Union submitted a revised package of performance appraisal proposals to PTO. The revised package contained new proposals that the parties had not discussed and had not been before Arbitrator Johnson in 1986. The Agency advised the Union in writing during July 1988 that it would not negotiate over most of the revised package of proposals, asserting that the proposals were either nonnegotiable or beyond the scope of the performance appraisal negotiations. The Agency reiterated this position in August 1988 and identified the proposals over which it refused to bargain. In particular, the Agency refused to bargain over those proposals not contained in the original submission to Arbitrator Johnson, those proposals found nonnegotiable by the Authority, and certain other proposals PTO considered nonnegotiable.

The parties continued to be unable to resolve their dispute over the revised package of performance appraisal proposals; therefore, proceedings before Arbitrator Johnson resumed in September 1989. As a threshold issue, the Agency asserted that the Arbitrator did not have jurisdiction to review the proposals submitted by the Union in January 1988, as the parties had not negotiated to impasse. The Arbitrator overruled the Agency's objection and conducted a hearing on all of the proposals in September 1989. The Agency did not participate in this proceeding, maintaining its objection to the arbitrator's jurisdiction. Arbitrator Johnson rendered his award on November 30, 1989. The award directed the parties to adopt certain proposals as Article 19 -- the performance appraisal article. Article 19 encompassed several of the proposals submitted by the Union in January 1988. Article 19 was disapproved in its entirety pursuant to agency head review, and the Union filed a negotiability appeal with the Authority.

In Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, Washington, DC, 47 FLRA 10, 17-18 (1993)(DOC), the Authority rejected the Agency's jurisdictional arguments and proceeded to rule on the negotiability of the provisions imposed by Arbitrator Johnson. With respect to negotiability, the Authority found certain provisions to be within the Agency's obligation to bargain, but upheld the Agency's disapproval with respect to the others. Both the Agency and the Union appealed this decision to the D.C. Circuit. Patent Office Professional Association v. FLRA, 26 F.3d 1148 (D.C. Cir. 1994) (PTO).

Meanwhile, in a case involving another Federal agency, the Fourth Circuit overruled Authority precedent and held that an agency head may disapprove an interest arbitration award where the award results from involuntary binding arbitration ordered by the Panel. Department of Defense, Office of Dependents Schools v. FLRA, 879 F.2d 1220 (4th Cir. 1989)(DODDS). Based on the DODDS decision, on January 17, 1990, the Fourth Circuit granted the Agency's motion for summary reversal and remanded the two negotiability cases (28 FLRA 3 & 28 FLRA 7) to the Authority for further processing.

On remand, the Authority determined that the agency head disapproval of the provisions imposed by Arbitrator Johnson's award was timely and, therefore, properly before it. Specifically, the Authority found that the Agency's May 30, 1986 memo, disapproving the [ v57 p200 ] initial award of the Arbitrator, was premature for purposes of serving as a disapproval under section 7114(c), as the agreement was not ripe for agency head review. The Authority held that only after the arbitrator's entire award had been issued was agency head review proper. It went on to find that the June 26, 1986, memorandum constituted timely review of the agreement "and served to disapprove the entire agreement." Nevertheless, the Authority chose to treat the Agency's May 30, 1986, memo as tantamount to an unsolicited allegation of nonnegotiability and held that the Union's petition challenging the Agency's nonnegotiability allegations in the May 30 memo was properly before it. In its decision, the Authority concluded that certain provisions declared nonnegotiable were negotiable and others nonnegotiable. Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 801-06 (1991) (POPA-DOC).

In PTO, 26 F.3d at 1148, the D.C. Circuit held that Arbitrator Johnson did not have jurisdiction over the new proposals submitted by the Union in January 1988, but affirmed the Authority's determination of their negotiability. With respect to the remaining provisions on appeal, the Court found that all were outside the Agency's obligation to bargain. Id. at 1154-57.

In an attempt to resolve the outstanding issues between them, the parties resumed negotiations after the D.C. Circuit's decision. Once again, the parties were unable to reach an agreement. The culmination of meetings between the parties in 1993 and 1994 was a dispute by the parties as to whether they had a contract and an assertion by POPA that it would litigate the issue.

In September 1994, the Union requested the Agency to adopt, as Article 19, the provisions imposed by Arbitrator Johnson that the D.C. Circuit determined were properly before him. The Union excluded the provisions found nonnegotiable by both the Court and the Authority. The Agency did not respond formally to this request. As a result, the Union filed an unfair labor practice charge, in March 1995, alleging that the Agency's refusal to implement the agreement on Article 19, which only contained undisputed provisions violated section 7116(a)(1), (5) and (8) of the Statute.

The Regional Director determined that the Agency's actions did not violate the Statute. In reaching this determination, the Regional Director stated that the Agency had no obligation to implement the negotiable provisions in Article 19, separate and apart from an overall collective bargaining agreement, because the parties did not have a collective bargaining agreement. (Res. Exh. 5 at 3-4). The Union appealed this determination to the General Counsel. The General Counsel found it unnecessary to reach the issue of the existence of a basic agreement, determining instead that there was no meeting of the minds on performance appraisal:

[S]ince the parties did not agree to another arrangement after the Authority's and Circuit Court's decisions, consummation of their agreement on Article 19 was dependent on their return to the bargaining table. (Res. Exh.6).

Subsequent attempts to have that denial reversed by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court were rebuffed by those bodies in November 1997 and March 1998, respectively. Patent Office Professional Association v. FLRA, 128 F.3d 751 (D.C. Cir. 1997) cert denied, 118 S.Ct. 1189 (1998).

B. Other Actions of the Parties Regarding Provisions of the Collective Bargaining Agreement

Since the Agency head disapproval in 1986 of the collective bargaining agreement, the parties have entered into several agreements and followed practices that gave effect to, and made enforceable, some of the provisions of the disapproved agreement that were not specifically disapproved.

Following the disapproval, PTO was advised by the Department of Commerce that PTO, by mutual agreement with POPA, could make approved articles of the contract effective retroactively. Therefore, the parties made certain sections of Article 15, dealing with official time, Article 14, dealing with the procedures for mid-term bargaining, and Article 11, dealing with grievance procedures, effective in 1986. (Un. Exh. 5).

In October 1986, PTO advised bargaining unit employees that POPA had distributed the award of Arbitrator Johnson as the "Agreement Between" the parties. PTO stated, in part, that the "provisions of the Arbitrator's award which were disapproved because of their illegality are not part of the new Agreement." (Un. Exh. 6). In December 1987, PTO agreed to pay POPA one-half the costs incurred by POPA "in printing the basic agreement." PTO and POPA agreed that such payment did not affect their respective positions concerning the disputed sections of the agreement. (Un. Exh. 7).

In June 1987, PTO and POPA entered into a memorandum of understanding in relation to what they described as "Article 14, Section 2, of the currently effective PTO-POPA Basic Agreement [which] provides, in part, that mid-term changes in conditions of [ v57 p201 ] employment shall be proposed on a quarterly basis." The agreement clarified that mid-term changes submitted in accordance with Article 14, Section 3A "shall coincide with the 10th day in each of the months of January, April, July, and October, and shall continue in this fashion until superceded by a new Agreement. Initial proposals submitted . . . after the 10th day of January, April, July, and October shall be considered to have an effective submission date which is the 10th day of the next quarter." This was done, according to the agreement, "to promote more effective bargaining and take into account the need of all participants to schedule time[.]" (Un. Exh. 2).

In his requests to bargain since 1987, Union president Stern most frequently has referred to the bargaining as "mid-term" since bargaining has been conducted pursuant to Article 14. Prior to the subject matter at issue in this case, Respondent has refused to bargain in response to a union proposal on the ground that POPA sought mid-term bargaining in only one instance. This was asserted in 1991 when POPA proposed bargaining over pay-related matters independent of any management-proposed change in conditions of employment.

In approximately the early 90s, the Union filed a grievance against PTO alleging that about 38 separate sections of the agreement had been violated. Since 1986 grievances and arbitrations have been conducted under the procedures in the agreement. Just prior to the grievance going to hearing, POPA received a letter from PTO admitting to the violation of about 15 to 20 sections of the agreement and stating that the Agency would comply with those sections in the future. With respect to other alleged violations, the letter stated that there were questions of contract interpretation with regard to some sections and the Agency would not comply with others. No further action has been taken regarding the grievance.

In December 1992, PTO and POPA reached agreement on the topic of signatory authority. They agreed that new sections "shall replace the interim language of original Article 22 as contained in the parties' Collective Bargaining Agreement." Shortly after that, the parties identified several errors in the agreement and, in January 1993, signed a memorandum of understanding correcting those errors. (Un. Exh. 8-9).

In U.S. Patent and Trademark Office, 45 FLRA 1090 (1992), rev'd on other grounds sub nom. U.S. Patent and Trademark Office v. FLRA, No. 92-2347, the Authority held that PTO violated the Statute in April 1991 by refusing to bargain concerning pay issues as requested by the Union under the mid-term provisions of Article 14 of the agreement. On a petition for review and cross application for enforcement, the United States Court of Appeals for the Fourth Circuit accepted the representations that the parties had a collective bargaining agreement and held that, under the court's previous ruling, the Statute did not require Federal agencies to bargain over union-initiated mid-term proposals. (G.C. Exh. 13).

The parties met in 1993 and 1994 in an effort to resolve outstanding issues. At the culmination of those meetings, PTO asserted that the parties had no agreement and since that time has referred to the agreement on numerous occasions as the "defunct" agreement, the "non-existing contract," the "null and void contract."

From about 1989 to 1994, Union president Stern spoke to newly hired employees on behalf of POPA and distributed copies of the agreement pursuant to Article 6, Section 3. PTO was aware of his presentations.

In 1994, several group directors advised Mr. Stern of meetings they were having with employees "[i]n accordance with Article 3, Section 6 of the PTO/POPA contract[.]" (Un. Exh. 10-13). Deanna L. Shepherd, Chief of PTO's Labor Relations Division since 1991, and the Agency's spokesperson on labor relations, also sent notices to Ron Stern, as President of POPA, dated from late 1994 through July 1995 stating that the notices were "in accordance with" Article 3, Section 2, 4, or 6, or Article 6, Section 2, or Article 7, Section 6, "of the labor agreement." (Un. Exh. 14-17). The managers in charge of monitoring the official time usage of the union officials and representatives also sent reports to Mr. Stern in April 1992 and May 1995 referring to Article 15 "of the basic agreement." (Un. Exh. 18-19).

In 1995, PTO's Associate Commissioner for Finance and Planning sought POPA's support for H.R. 2533, a bill to establish the United States Intellectual Property Organization and for other purposes. Among other things, the bill asserted in its transition provisions that the "collective bargaining agreements between [PTO and other unions] . . . and the [PTO] and [POPA], dated October 6, 1986, as well as the recognition . . . shall remain in effect until modified, superseded, or set aside by the parties." (Un. Exh. 20).

Shepherd acknowledges that the parties have cited and followed various provisions of the "defunct" contract as past practices. On October 10, 1997, Shepherd furnished POPA formal written notice concerning PTO's proposal to develop a new consolidated facility. Shepherd noted that POPA had not agreed "to waive the past practice to notice POPA of any change in working [ v57 p202 ] conditions by October 10, one of the windows available each year." (G.C. Exh. 10). This was a reference to the quarterly "windows" provided by the parties' June 1987 memorandum of understanding concerning Article 14, Section 2.

C. Current Issues

1. Facts

On January 12, 1998, POPA was notified in writing by PTO, through Shepherd, that it proposed "to change the existing practice used in exercising its right to establish performance appraisal systems and/or performance requirements, including standards, for POPA bargaining unit employees." (G.C. Exh. 2).

Stern, President of POPA, replied by memorandum dated January 16, 1998, entitled "Mid-Term Bargaining" effectively stating that POPA wished to bargain over the entire subject of performance appraisals and that negotiations would be conducted pursuant to Article 14 of the collective bargaining agreement. He stated, in part:

The subject of performance appraisal is particularly ripe for continued negotiations in light of the D.C. Circuit's decision to affirm the conclusion of the General Counsel of the FLRA that we need to return to the bargaining table. (G.C. Exh. 3).

The parties' bargaining teams met twice, on February 25 and March 5. Stern, POPA's chief negotiator, presented POPA's bargaining proposals at the first meeting. They were the proposals the Authority and the court of appeals, respectively, had held to be negotiable in DOC, 47 FLRA at 10; PTO, 26 F.3d at 1148.

At both sessions, Stern reiterated that POPA wished to bargain over the entire subject of performance appraisals. Although Stern also stated that the parties had a collective bargaining agreement, he never stated that POPA conditioned its bargaining request on the existence of a collective bargaining agreement. Mr. Stern explained that they may or may not have a contract; that POPA's proposals were both mid-term and term negotiations as they arose out of the term negotiations and proceedings before Arbitrator Johnson in 1986 and were really a continuation of those negotiations concerning performance appraisals. He was not requesting term negotiations for a completely new agreement.

PTO negotiators steadfastly refused to bargain over anything other than the change it had proposed on January 12. They disputed whether a contract existed, but also maintained that there was no duty to bargain over union-initiated mid-term bargaining proposals based on the 1993 decision of the Court of Appeals for the Fourth Circuit.

Shepherd sent Stern a memorandum on April 6, 1998, withdrawing the January 12 notice and stating that PTO did not intend to make the change it had proposed and "no . . . other aspects of bargaining will be conducted on this matter." (G.C. Exh. 4).

Stern sent Shepherd a memorandum on April 20, 1998, stating that POPA still wished to bargain over the subject of performance appraisals. Stern attached a copy of POPA's proposals and indicated that the bargaining proposals held to be nonnegotiable by the Authority and the court of appeals had been lined out. Stern also stated:

[T]he General Counsel of the FLRA strongly believes that when an agency head disapproval of an interest arbitrator's award is upheld on appeal, the parties have to return to the bargaining table so as to achieve a meeting of the minds with respect to all matters to be included in their agreement. We continue to maintain that we are at the stage where we must return to the bargaining table. We wish to resume negotiations regarding performance appraisals immediately. Please contact me this week to schedule our next session. (G.C. Exh. 5).

PTO never responded to Stern's memorandum. The parties have no agreement addressing the subject of performance appraisals.

2. Positions of the Parties

The General Counsel and POPA claim that PTO violated the Statute regardless of whether the parties have a collective bargaining agreement. POPA additionally insists that the parties have demonstrated an intent to be bound by a term agreement which provides for mid-term bargaining in Article 14, Sections 2 and 3. POPA contends that while it is true that the interest arbitrator's award was not reduced to a document that contains the signatures of both parties, the award of Arbitrator Johnson matured into a binding agreement between the parties as a result of their actions. Those actions encompass memos and oral statements holding out to the employees, managers, arbitrators, and the courts that the parties considered themselves bound by the agreement. POPA also claims that the negotiations were in fact a continuation of the bargaining process the parties were directed to follow by Arbitrator Johnson who directed in Article 19 that the continued negotiations on performance [ v57 p203 ] appraisal were to be conducted pursuant to Article 14, the article on mid-term negotiations. Consequently, according to POPA, the references to the performance appraisal negotiations as mid-term prior to April 20, 1998, was mid-term in a "procedural" sense.

PTO defends its conduct on the basis that there was no further obligation to bargain regarding the proposed change after the Agency withdrew the change and POPA "unequivocally requested to bargain mid-term pursuant to Article 14 of the [disapproved] contract; [therefore], the Agency did not violate the Statute by refusing to negotiate in response to the mid-term bargaining request."

PTO relies upon the Authority's decision in United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas, 51 FLRA 768 (1996)(INS) reconsideration denied, 51 FLRA 1561, 1565 (1996) affirmed sub nom. AFGE, National Border Patrol Council, Local 2366, AFL-CIO v. FLRA, 114 F.3d 1214 (D.C. Cir. 1997), and contends that there is no obligation to bargain mid-term under the terms of a disapproved agreement because there is no agreement in that situation. The Authority held in INS that, in the absence of a term agreement, proposals labeled as "mid-term" do not have to be bargained by an agency where no other theory was litigated or apparent.

Discussion and Conclusions

As noted, the unfair labor practice complaint alleges that PTO violated section 7116(a)(1) and (5) of the Statute by not replying to an April 20, 1998, memorandum from POPA, requesting to resume negotiations over the subject of performance appraisals, and by refusing to negotiate with the Union over the subject of performance appraisals since that time.

Section 7116(a)(5) of the Statute makes it an unfair labor practice for an agency to fail or refuse to bargain in good faith with an exclusive representative of its employees. The parties do not dispute that the proposals involved a condition of employment and were negotiable, and PTO does not contend that it was not obligated to bargain because the subject of performance appraisals is covered by an applicable collective bargaining agreement or that some provision of an agreement permitted its action.

In determining whether a party has fulfilled its bargaining obligation, the Authority considers the totality of the circumstances in a given case. U.S. Department of the Air Force Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 36 FLRA 524, 531 (1990).

The complaint addresses Respondent's conduct after April 20, 1998, which was after PTO had withdrawn the proposed change and POPA requested to resume negotiations on its proposals. POPA's April 20, 1998, request to resume negotiations over the enclosed proposals did not "unequivocally request" to bargain mid-term, and unlike some of its earlier communications, it did not even use that term or refer to Article 14. POPA's April 20, 1998, request to continue negotiations on the matter of performance appraisal was a general request for negotiations on the matter and required a response and negotiations in good faith pursuant to section 7114(b)(1), (2) and (3) of the Statute. U.S. Department of Justice, Immigration and Naturalization Service, 55 FLRA 892, 900 (1999); Army and Air Force Exchange Service, McClellan Base Exchange, McClellan Air Force Base, California, 35 FLRA 764, 769 (1990). The request was not rendered moot by PTO's withdrawal of the proposed change. Unions may initiate bargaining, during the term of an agreement or before an agreement is reached, independent of proposals by management to change unit employees' conditions of employment. U.S. Department of the Interior, Washington, DC and U.S. Geological Survey, Reston, Virginia, 52 FLRA 475, 479-80 (1996) remanded sub nom. National Federation of Federal Employees, Local 1309 v. Department of the Interior, Washington, DC et al., 119 S Ct. 1003 (1999).

The record reflects that POPA never stated or implied that it would bargain only if the parties had a collective bargaining agreement. The background of the bargaining between the parties demonstrates that PTO could have no doubt about POPA's interest in bargaining over the subject of performance appraisals regardless of whether a collective bargaining agreement existed. The parties have been involved since 1981 in all phases of the collective bargaining process as well as an unfair labor practice proceeding with respect to the subject of performance appraisals. POPA's April 20, 1998, bargaining request expressly referred to the General Counsel's statement in the unfair labor practice case, that consummation of an agreement on that subject was dependent upon a return to the bargaining table, and POPA expressed its agreement with that observation. Thus, PTO could not refuse to meet its obligation, required by section 7114(b) of the Statute, to bargain in good faith on POPA's proposals by concluding that in the absence of a collective bargaining agreement it had no obligation to honor POPA's April 20, 1998, request to bargain.

To the extent that a determination of whether a collective bargaining agreement exists is relevant, a [ v57 p204 ] objective standard applies to the formation of a contract. As the Authority recently stated in Internal Revenue Service, North Florida District, Tampa Field Branch, Tampa, Florida, 55 FLRA 222 (1999):

In the private sector, the National Labor Relations Board applies similar standards for determining when parties reach agreement. "A meeting of the minds of the parties must occur before a labor contract is created." Bobbie Brooks, Inc. v. International Ladies Garment Workers Union, 835 F.2d 1164, 1168 (6th Cir. 1987). "Whether a collective bargaining agreement exists is a question of fact; [the] technical rules of contract law are not strictly binding." Id. (citation omitted). The surrounding circumstances and the parties' intentions may be considered to determine if a bargaining agreement exists; however, an objective standard applies to the formation of a contract, regardless of a meeting of the minds in a subjective sense. Warehousemen's Union Local No. 206 v. Continental Can Co., 821 F.2d 1348, 1350 (9th Cir. 1987).

Examining the record by an objective standard, the parties do not have a collective bargaining agreement. The Authority held in 1991 that the Agency head disapproval served on June 26, 1986, "was timely and served to disapprove the entire agreement." POPA-DOC, 41 FLRA at 805. Where an agency head timely disapproves an agreement under 7114(c) of the Statute, the agreement does not take effect and is not binding on the parties; however, the parties may agree to implement all portions of an agreement not specifically disapproved by the agency head. Id. at 802.

Despite written agreements in June 1987, concerning Article 14, and in December 1992, concerning Article 22, which expressly refer to the "currently effective PTO-POPA Basic Agreement" and "the parties' Collective Bargaining Agreement," and the representations to the Authority and the courts in the early 90's concerning an agreement, the record reflects that since the Authority upheld the 1986 Agency head disapproval in 1991, the parties have disagreed on whether they have an agreement consisting of all the undisputed provisions of the disapproved agreement. Nevertheless, the parties have adopted certain provisions, either explicitly or by their actions, as past practices which are binding on the parties. U.S. Department of the Treasury, Bureau of Engraving and Printing and International Plate Printers, Die Stampers and Engravers Union, and Washington Plate Printers Union Local 2, 44 FLRA 926, 939-40 (1992). The parties had a practice applicable to this case concerning bargaining that was described by Article 14, Sections 2 and 3, and was made effective by the written agreement of the parties in July 1986 following Agency head disapproval of Article 14, Section 1. The procedures in Article 14 became the subject of a separate agreement which the parties executed in 1987 concerning that subject. Since that time the parties have followed that procedure as their practice. Therefore, to the extent that POPA's statements prior to April 20, 1998, are relevant, Stern's reference to Article 14 and mid-term bargaining in his January 16 request was entirely appropriate.

It is concluded that the Respondent violated section 7116(a)(1) and (5) of the Statute, as alleged, by not replying to an April 20, 1998, memorandum from the Union stating that the Union wished to resume negotiations over the subject of performance appraisals and by refusing to negotiate with the Union over the subject of performance appraisals since that time.

POPA requests a retroactive bargaining order as a remedy for PTO's refusal to bargain. The proposals submitted by POPA have previously been determined to be negotiable, and the Authority has ordered a retroactive bargaining order in such a case. See U.S. Department of Defense Dependents Schools, Dependents Schools Mediterranean Region, Madrid, Spain, 38 FLRA 755 (1990). A retroactive bargaining order is appropriate where a respondent's unlawful conduct has deprived the exclusive representative of an opportunity to bargain in a timely manner over negotiable conditions of employment affecting bargaining unit employees. Federal Aviation Administration, Northwest Mountain Region, Renton, Washington, 51 FLRA 35, 37 (1995).

Based on the above findings and conclusions, it is recommended that the Authority issue the following Order:

ORDER

Pursuant to section 2423.41(c) of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), it is hereby ordered that the U.S. Patent and Trademark Office, shall:

1. Cease and desist from:

(a) Failing and refusing to respond to, and bargain with, the Patent Office Professional Association (POPA), the exclusive representative of an appropriate unit of employees, over negotiable proposals concerning the subject of performance appraisals submitted by POPA on April 20, 1998. [ v57 p205 ]

(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 policies of the Statute:

(a) Bargain with POPA to the extent consistent with the Statute over negotiable proposals concerning the subject of performance appraisals submitted by POPA on April 20, 1998, and apply agreements reached pursuant to such negotiations retroactively to April 20, 1998.

(b) Post at its facilities where bargaining unit employees represented by the Patent Office Professional Association are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commissioner and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other placed 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.

(c) Pursuant to section 2423.41(e) of the Authority's Rules and Regulations, notify the Regional Director, Washington Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, DC, December 16, 1999.

______

GARVIN LEE OLIVER

Administrative Law Judge

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Patent and Trademark Office has violated the Federal Service Labor-Management Relations Statute (the Statute), and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to respond to, and bargain with, the Patent Office Professional Association (POPA), the exclusive representative of an appropriate unit of our employees, over negotiable proposals concerning the subject of performance appraisals submitted by POPA on April 20, 1998.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Statute.

WE WILL bargain with the Patent Office Professional Association to the extent consistent with the Statute over negotiable proposals concerning the subject of performance appraisals submitted by POPA on April 20, 1998, and apply agreements reached pursuant to such negotiations retroactively to April 20, 1998.

______

(Activity)

Date:__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 any of its provisions, they may communicate directly with the Regional Director, Washington Regional Office, Federal Labor Relations Authority, whose address is: 800 "K" Street, NW., Suite 910, Washington DC, 20001, and whose telephone number is: (202)482-6700.

File 1: Authority's Decision in 57 FLRA No. 45

File 2: ALJ's Decision in WA-CA-80405

File 3: ALJ's Decision in WA-CA-80515

Footnote # 1 for
57 FLRA No. 45

• ALJ's Decision in WA-CA-80405

Case No. WA-CA-80515, involving the same parties and many of the same witnesses, was consolidated with this case for hearing. A separate decision was issued in that case on this date.

Footnote # 2 for
57 FLRA No. 45

• ALJ's Decision in WA-CA-80405

Article 14, Sections 2-7 set forth the procedures for bargaining. Section 1, which was disapproved on May 30, 1986, provided that nothing in the article "shall affect the authority of the Office to take actions that are absolutely necessary for the functioning of the agency."

Footnote # 3 for
57 FLRA No. 45

• ALJ's Decision in WA-CA-80405

See n.2 above.

[ v57 p206 ]

Office of Administrative Law Judges

U.S. PATENT AND TRADEMARK OFFICE

Respondent

and

PATENT OFFICE PROFESSIONAL ASSOCIATION

Charging Party

Case No. WA-CA-80515

Mary E. Leary

Counsel for the Respondent

Pamela R. Schwartz

Counsel for the Charging Party

Thomas F. Bianco

Counsel for the General Counsel, FLRA

Before: GARVIN LEE OLIVER

Administrative Law Judge

DECISION

Statement of the Case

The unfair labor practice complaint alleges that Respondent (Agency or PTO) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1) and (5), by: (1) establishing a Recruitment Bonus Plan for certain classifications of bargaining unit employees, electrical engineers, computer engineers, and computer sciences, on or about January 6, 1998; (2) holding a job fair at which it offered recruitment bonuses to these prospective job applicants on or about January 23 and 24, 1998; (3) sending the Charging Party (Union or POPA) memoranda dated January 28 and February 20, 1998, agreeing to bargain over recruitment bonuses and relocation allowances, but not over the other subjects raised in a January 9, 1998, memorandum from the Union or an attachment thereto; (4) refusing to bargain on March 3, 1998 and on unspecified subsequent occasions on subjects addressed by bargaining proposals offered by POPA on January 9, 1998, except for recruitment bonuses and relocation allowances; and (5) paying recruitment bonuses to certain unit employees hired in February 1998 and thereafter.

Respondent denied any violation of the Statute. It contended that the allegations must be dismissed as outside the statute of limitations provided by section 7118(a)(4)(A) of the Statute; that the Agency had no obligation to bargain over any matters which flowed from the Union's requests to bargain pursuant to Article 14 of the disapproved collective bargaining agreement; and the Agency met its bargaining obligation by negotiating in good faith on numerous occasions, reaching tentative agreements on various proposals, and by submitting the matter to the Federal Mediation and Conciliation Service (FMCS) when the parties reached impasse.

For the reasons explained below, I conclude that the Respondent violated the Statute as alleged.

A hearing was held in Washington, D.C. [n1] The parties were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. They filed helpful briefs. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

A. Background

POPA was granted exclusive recognition of professional employees of PTO by the Commissioner of PTO in 1965. U.S. Patent and Trademark Office, 7 A/SLMR 512, 514 (1977). See also Un. Exh. 1 at 3, Article 1, Section 1. Such recognitions continued under Executive Order 11491. See U.S. Department of the Air Force, 434th S.O.W., Air Force Reserve, Grissom Air Force Base, Peru, Indiana, 2 A/SLMR 215 (1972). The Commissioner's grant of exclusive recognition of POPA continued under the Statute, pursuant to section 7135(a)(1). U.S. Army, Natick Research and Development Laboratories, 9 FLRA 25 (1982).

The parties began bargaining over the subject of performance appraisals and over a collective bargaining agreement in 1981. Those negotiations were merged in 1986. When an impasse was reached later that year, the parties requested the assistance of the Federal Service Impasses Panel (Panel). Pursuant to the Panel's direction, the parties selected Arbitrator Marvin Johnson to resolve their dispute.

Arbitrator Johnson issued a series of awards during the second quarter of 1986 directing the parties to adopt nearly three dozen articles as their collective bargaining agreement. However, Arbitrator Johnson declined to include substantive performance appraisal issues in the award, noting that these issues were the subject of several [ v57 p207 ] negotiability appeals pending before the Federal Labor Relations Authority (the Authority). He directed, in Article 19, the parties to continue further negotiations on the performance appraisal issues pursuant to Article 14, Mid-Term Bargaining, [n2] and retained jurisdiction to resolve any resulting impasse on the performance appraisal issues. He also directed the parties to bargain further over the subject of signatory authority, which was designated Article 22, pursuant to Article 14. (Un. Exh. 1 at 51, 57).

The first award issued by Arbitrator Johnson, in April 1986, concerned Article 14, entitled Mid-term Bargaining, and Article 15, Section 5, which concerned aspects of official time for POPA representatives. The PTO submitted this award for agency head review pursuant to 5 U.S.C. § 7114(c). By memorandum dated May 30, 1986, the agency head disapproved Article 14, Section 1 [n3] and Article 15, Sections 5(B) & (C) as contrary to law.

POPA filed a negotiability appeal. The Authority denied POPA's appeal on the ground that section 7114(c) did not apply to interest arbitration awards. Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 28 FLRA 3 (1987)(POPA).

PTO filed exceptions to the Arbitrator's award, as modified on May 27, 1986, with respect to Article 15, section 5 on June 25, 1986. The Authority denied PTO's exceptions on the ground that they were untimely because they were filed more than 30 days after the award was issued. U.S. Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 24 FLRA 835 (1986).

The remaining awards made by the Arbitrator between May 1 and June 9, 1986, were subsequently submitted for agency head review. By memorandum dated June 26, 1986, the agency head disapproved fifteen provisions in these awards. The Union again filed an appeal. The Authority again initially dismissed the appeal, holding that the interest arbitrator's awards were not subject to agency head review. POPA, 28 FLRA at 8-9.

In January 1988, the Union submitted a revised package of performance appraisal proposals to PTO. The revised package contained new proposals that the parties had not discussed and had not been before Arbitrator Johnson in 1986. The Agency advised the Union in writing during July 1988 that it would not negotiate over most of the revised package of proposals, asserting that the proposals were either nonnegotiable or beyond the scope of the performance appraisal negotiations. The Agency reiterated this position in August 1988 and identified the proposals over which it refused to bargain. In particular, the Agency refused to bargain over those proposals not contained in the original submission to Arbitrator Johnson, those proposals found nonnegotiable by the Authority, and certain other proposals PTO considered nonnegotiable.

The parties continued to be unable to resolve their dispute over the revised package of performance appraisal proposals; therefore, proceedings before Arbitrator Johnson resumed in September 1989. As a threshold issue, the Agency asserted that the Arbitrator did not have jurisdiction to review the proposals submitted by the Union in January 1988, as the parties had not negotiated to impasse. The Arbitrator overruled the Agency's objection and conducted a hearing on all of the proposals in September 1989. The Agency did not participate in this proceeding, maintaining its objection to the arbitrator's jurisdiction. Arbitrator Johnson rendered his award on November 30, 1989. The award directed the parties to adopt certain proposals as Article 19 -- the performance appraisal article. Article 19 encompassed several of the proposals submitted by the Union in January 1988. Article 19 was disapproved in its entirety pursuant to agency head review, and the Union filed a negotiability appeal with the Authority.

In Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, Washington, DC, 47 FLRA 10, 17-18 (1993)(DOC), the Authority rejected the Agency's jurisdictional arguments and proceeded to rule on the negotiability of the provisions imposed by Arbitrator Johnson. With respect to negotiability, the Authority found certain provisions to be within the Agency's obligation to bargain, but upheld the Agency's disapproval with respect to the others. Both the Agency and the Union appealed this decision to the D.C. Circuit. Patent Office Professional Association v. FLRA, 26 F.3d 1148 (D.C. Cir. 1994)(PTO).

Meanwhile, in a case involving another Federal agency, the Fourth Circuit overruled Authority precedent and held that an agency head may disapprove an interest arbitration award where the award results from involuntary binding arbitration ordered by the Panel. Department of Defense, Office of Dependents Schools v. [ v57 p208 ] FLRA, 879 F.2d 1220 (4th Cir. 1989)(DODDS). Based on the DODDS decision, on January 17, 1990, the Fourth Circuit granted the Agency's motion for summary reversal and remanded the two negotiability cases (28 FLRA 3 & 28 FLRA 7) to the Authority for further processing.

On remand, the Authority determined that the agency head disapproval of the provisions imposed by Arbitrator Johnson's award was timely and, therefore, properly before it. Specifically, the Authority found that the Agency's May 30, 1986 memo, disapproving the initial award of the Arbitrator, was premature for purposes of serving as a disapproval under section 7114(c), as the agreement was not ripe for agency head review. The Authority held that only after the arbitrator's entire award had been issued was agency head review proper. It went on to find that the June 26, 1986, memorandum constituted timely review of the agreement "and served to disapprove the entire agreement." Nevertheless, the Authority chose to treat the Agency's May 30, 1986, memo as tantamount to an unsolicited allegation of nonnegotiability and held that the Union's petition challenging the Agency's nonnegotiability allegations in the May 30 memo was properly before it. In its decision, the Authority concluded that certain provisions declared nonnegotiable were negotiable and others nonnegotiable. Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 801-06 (1991)(POPA-DOC).

In PTO, 26 F.3d at 1148, the D.C. Circuit held that Arbitrator Johnson did not have jurisdiction over the new proposals submitted by the Union in January 1988, but affirmed the Authority's determination of their negotiability. With respect to the remaining provisions on appeal, the Court found that all were outside the Agency's obligation to bargain. Id. at 1154-57.

In an attempt to resolve the outstanding issues between them, the parties resumed negotiations after the D.C. Circuit's decision. Once again, the parties were unable to reach an agreement. The culmination of meetings between the parties in 1993 and 1994 was a dispute by the parties as to whether they had a contract and an assertion by POPA that it would litigate the issue.

In September 1994, the Union requested the Agency to adopt, as Article 19, the provisions imposed by Arbitrator Johnson that the D.C. Circuit determined were properly before him. The Union excluded the provisions found nonnegotiable by both the Court and the Authority. The Agency did not respond formally to this request. As a result, the Union filed an unfair labor practice charge, in March 1995, alleging that the Agency's refusal to implement the agreement on Article 19, which only contained undisputed provisions violated section 7116(a)(1), (5) and (8) of the Statute.

The Regional Director determined that the Agency's actions did not violate the Statute. In reaching this determination, the Regional Director stated that the Agency had no obligation to implement the negotiable provisions in Article 19, separate and apart from an overall collective bargaining agreement, because the parties did not have a collective bargaining agreement. (Res. Exh. 5 at 3-4). The Union appealed this determination to the General Counsel. The General Counsel found it unnecessary to reach the issue of the existence of a basic agreement, determining instead that there was no meeting of the minds on performance appraisal:

[S]ince the parties did not agree to another arrangement after the Authority's and Circuit Court's decisions, consummation of their agreement on Article 19 was dependent on their return to the bargaining table. (Res. Exh.6).

Subsequent attempts to have that denial reversed by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court were rebuffed by those bodies in November 1997 and March 1998, respectively. Patent Office Professional Association v. FLRA, 128 F.3d 751 (D.C. Cir. 1997) cert denied, 118 S.Ct. 1189 (1998).

B. Other Actions of the Parties Regarding Provisions of the Collective Bargaining Agreement

Since the Agency head disapproval in 1986 of the collective bargaining agreement, the parties have entered into several agreements and followed practices that gave effect to, and made enforceable, some of the provisions of the disapproved agreement that were not specifically disapproved.

Following the disapproval, PTO was advised by the Department of Commerce that PTO, by mutual agreement with POPA, could make approved articles of the contract effective retroactively. Therefore, the parties made certain sections of Article 15, dealing with official time, Article 14, dealing with the procedures for mid-term bargaining, and Article 11, dealing with grievance procedures, effective in 1986. (Un. Exh. 5).

In October 1986, PTO advised bargaining unit employees that POPA had distributed the award of Arbitrator Johnson as the "Agreement Between" the parties. PTO stated, in part, that the "provisions of the Arbitrator's award which were disapproved because of their illegality are not part of the new Agreement." (Un. [ v57 p209 ] Exh. 6). In December 1987, PTO agreed to pay POPA one-half the costs incurred by POPA "in printing the basic agreement." PTO and POPA agreed that such payment did not affect their respective positions concerning the disputed sections of the agreement. (Un. Exh. 7).

In June 1987, PTO and POPA entered into a memorandum of understanding in relation to what they described as "Article 14, Section 2, of the currently effective PTO-POPA Basic Agreement [which] provides, in part, that mid-term changes in conditions of employment shall be proposed on a quarterly basis." The agreement clarified that mid-term changes submitted in accordance with Article 14, Section 3A "shall coincide with the 10th day in each of the months of January, April, July, and October, and shall continue in this fashion until superceded by a new Agreement. Initial proposals submitted . . . after the 10th day of January, April, July, and October shall be considered to have an effective submission date which is the 10th day of the next quarter." This was done, according to the agreement, "to promote more effective bargaining and take into account the need of all participants to schedule time[.]" (Un. Exh. 2).

In his requests to bargain since 1987, Union president Stern most frequently has referred to the bargaining as "mid-term" since bargaining has been conducted pursuant to Article 14. Prior to the subject matter at issue in this case, Respondent has refused to bargain in response to a union proposal on the ground that POPA sought mid-term bargaining in only one instance. This was asserted in 1991 when POPA proposed bargaining over pay-related matters independent of any management-proposed change in conditions of employment.

Stern testified that, since execution of that agreement, the parties consistently have treated management notices of proposed changes in conditions of employment dated after the 10th day of the first month in a quarter as having an effective date of the 10th day of the first month of the following quarter. In October 1997, Deanna Shepherd, PTO's Director of Labor Relations since 1991, clearly acknowledged that POPA has insisted on compliance with such a practice when she asked for a waiver of it so that PTO could implement a change without waiting for the following quarter. (G.C. Exh. 7).

In approximately the early 90s, the Union filed a grievance against PTO alleging that about 38 separate sections of the agreement had been violated. Since 1986 grievances and arbitrations have been conducted under the procedures in the agreement. Just prior to the grievance going to hearing, POPA received a letter from PTO admitting to the violation of about 15 to 20 sections of the agreement and stating that the Agency would comply with those sections in the future. With respect to other alleged violations, the letter stated that there were questions of contract interpretation with regard to some sections and the Agency would not comply with others. No further action has been taken regarding the grievance.

In December 1992, PTO and POPA reached agreement on the topic of signatory authority. They agreed that new sections "shall replace the interim language of original Article 22 as contained in the parties' Collective Bargaining Agreement." Shortly after that, the parties identified several errors in the agreement and, in January 1993, signed a memorandum of understanding correcting those errors. (Un. Exh. 8-9).

In U.S. Patent and Trademark Office, 45 FLRA 1090 (1992) (U.S. Patent) rev.'d. on other grounds sub nom. Patent and Trademark Office v. FLRA, No. 92-2347, the Authority held that PTO violated the Statute in April 1991 by refusing to bargain concerning pay issues as requested by the Union under the mid-term provisions of Article 14 of the agreement. On a petition for review and cross application for enforcement, the United States Court of Appeals for the Fourth Circuit accepted the representations that the parties had a collective bargaining agreement and held that, under the court's previous ruling, the Statute did not require Federal agencies to bargain over union-initiated mid-term proposals. (G.C. Exh. 13).

The parties met in 1993 and 1994 in an effort to resolve outstanding issues. At the culmination of those meetings, PTO asserted that the parties had no agreement and since that time has referred to the agreement on numerous occasions as the "defunct" agreement, the "non-existing contract," the "null and void contract."

From about 1989 to 1994, Union president Stern spoke to newly hired employees on behalf of POPA and distributed copies of the agreement pursuant to Article 6, Section 3. PTO was aware of his presentations.

In 1994, several group directors advised Mr. Stern of meetings they were having with employees "[i]n accordance with Article 3, Section 6 of the PTO/POPA contract[.]" (Un. Exh. 10-13). Ms. Shepherd, the Agency's spokesperson on labor relations, also sent notices to Stern, as President of POPA, dated from late 1994 through July 1995 stating that the notices were "in accordance with" Article 3, Section 2, 4, or 6, or Article 6, Section 2, or Article 7, Section 6, "of the labor agreement." [ v57 p210 ] (Un. Exh. 14-17). The managers in charge of monitoring the official time usage of the union officials and representatives also sent reports to Mr. Stern in April 1992 and May 1995 referring to Article 15 "of the basic agreement." (Un. Exh. 18-19).

In 1995, PTO's Associate Commissioner for Finance and Planning sought POPA's support for H.R. 2533, a bill to establish the United States Intellectual Property Organization and for other purposes. Among other things, the bill asserted in its transition provisions that the "collective bargaining agreements between [PTO and other unions] . . . and the [PTO] and [POPA], dated October 6, 1986, as well as the recognition . . . shall remain in effect until modified, superseded, or set aside by the parties." (Un. Exh. 20).

Shepherd acknowledges that the parties have cited and followed various provisions of the "defunct" contract as past practices. As noted, on October 10, 1997, Shepherd furnished POPA formal written notice concerning PTO's proposal to develop a new consolidated facility. Shepherd noted that POPA had not agreed "to waive the past practice to notice POPA of any change in working conditions by October 10, one of the windows available each year." (G.C. Exh. 10). This was a reference to the quarterly "windows" provided by the parties' June 1987 memorandum of understanding concerning Article 14, Section 2.

C. Current Issues

1. Facts

On December 10, 1997, the Union received a memorandum from Shepherd notifying the Union of management's proposed implementation of a recruitment bonus program. The memorandum provided, in pertinent part, as follows:

In accordance with 5 CFR Chapter 1, Part 575, Subpart A, . . . the U.S. Patent and Trademark Office (PTO) proposes to pay a recruitment bonus of ten percent (10%) of the annual rate of basic pay to newly appointed employees in the positions of Patent Examiner (Electrical & Computer Engineers) or Patent Examiners (Computer Science) at the entry-level grades of GS-5/7/9/11.

Before the recruitment bonus is paid, the PTO will require that an employee sign a written service agreement to complete a period of employment of a minimum of 24 months with the PTO in return for payment of a recruitment bonus. Should an employee fail to complete the one-year period of employment established under a service agreement, the employee will be indebted to the Federal Government and must repay the recruitment bonus on a pro rata basis. (G.C. Exh. 7.)

The memorandum did not specify when PTO intended to begin paying the bonus. PTO had advised POPA in early 1997 that a hiring freeze was in effect, apparently because of budget problems, but POPA had not been advised when hiring would begin again. Prior to sending POPA the above memorandum PTO had decided to hire about 400 examiners and conduct job fairs toward the end of January 1998.

On or about January 6, 1998, officials of PTO approved the proposed recruitment plan (Res. Exh. 14), and, on January 8, 1998, placed advertisements in the Washington Post announcing a job fair for January 23 and 24 and recruitment bonuses. (Res. Exh. 16).

On January 9, 1998, POPA, by Stern, sent PTO's Commissioner a request to bargain over management's proposal, and other pay and pay-related issues. [n4] POPA explained that through supervisors, POPA had also become aware of proposed changes in payment of relocation expenses. Attached to the request was a set of bargaining proposals that addressed all of the subjects over which Stern requested to bargain, including recruitment bonuses, travel and transportation expenses, relocation bonuses, expense allowances, retention allowances, advanced pay, transit subsidies, payment for technical and legal training, special pay rates, and pay survey. POPA stated that the proposals were directed to a number of matters considered to be "inextricably intertwined pay matters affecting the attractiveness of employment at the PTO for new recruits" and were drawn from proposals initially submitted in 1991 when PTO's refusal to bargain had been upheld by the Fourth Circuit on the basis that the Statute prohibited union-initiated mid-term bargaining. (G.C. Exh. 8, 9).

On January 16, 1998, POPA, by memorandum entitled, "Mid-Term Bargaining," responded to an Agency memorandum regarding a change in performance appraisal systems, but also addressed other issues, including PTO's December 10, 1997, proposal to pay recruitment bonuses. The Union stated, in part:

Pursuant to Article 14 of our basic Agreement, mid-term changes are to be negotiated only on a quarterly basis. The reason for this was a recognition by the interest arbitrator that otherwise the [ v57 p211 ] number of separate negotiations would proliferate excessively. Consequently, all of these topics will be assigned to one POPA bargaining team, of which I will be the chief negotiator.

Since these negotiations will involve performance appraisal (plus other complicated topics), they are considered "comprehensive" under Article 14, Sections 3-5.

To get negotiations started, I propose we meet for clarification next Wednesday, January 21, 1998[.] . . . (G.C. Exh. 3)

PTO held the job fair on January 23 and 24, 1998, as advertised, at which prospective applicants were informed that a ten percent recruitment bonus would be paid to employees newly-appointed to the Patent Examiner positions identified above. PTO did not give POPA advance notice of the job fair, and POPA did not obtain such notice from another source.

On January 28, 1998, PTO responded to POPA's January 9, 1998, request to bargain. PTO stated that the second sentence of the December 10 memorandum should have referenced a two-year period of employment rather than a one-year period. PTO also stated, in part:

Our notice was provided in anticipation of preparing for and announcing the 10% bonus at the Job Fair scheduled for January 23 and 24, 1998. For this reason, the Office did not consider it practicable to delay a prospective benefit to new hires which would have resulted from waiting until the "window" of January 10 to notice you of this change.

Thirty calendar days passed from your receipt of our notice to delivery of your request to bargain. In the interim, to promote attendance at the Job Fair, the Office placed advertisements in major newspapers throughout the county [sic] announcing the bonus for Electrical and Computer Science Engineers. . . In addition, the Recruitment Bonus Plan for Electrical Engineers, Computer Engineers, and Computer Scientists, GS-1224- 5,7,9, and 11. . . was completed which addresses and supports the need for the bonus in order to meet the mission requirements of the Office.

Although the Office did not expect to receive a request to bargain over this matter since it was not filed until 30 days from our notice, we would be amenable to bargaining over the 10% bonus incentive retroactively. We believe that bargaining retroactively over the impact and implementation of this initiative will ensure that prospective hires will not be disadvantaged and that POPA's bargaining rights will be protected.

With regard to POPA-initiated proposals filed on January 9, 1998, those proposals, entitled TRAVEL AND TRANSPORTATION EXPENSES, RELOCATION BONUSES, RETENTION ALLOWANCES, ADVANCED PAY, TRANSIT SUBSIDIES, SPECIAL RATES, PAY SURVEY, and the REOPENER PROVISION on these topics, cannot be entertained inasmuch as they are not management-initiated proposals.

Your proposals headed, TECHNICAL TRAINING TUITION REIMBURSEMENT and LEGAL TRAINING TUITION REIMBURSEMENT, should be dealt with, as you determine appropriate, in connection with your agreement, dated January 16, 1998, to enter into a joint partnership effort to establish non-duty time training programs for patent professionals.

With regard to your proposals under the headings RECRUITMENT BONUSES and RELOCATION EXPENSES, we will be able to meet with you within on week from the date of this notice. . . . (G.C. Exh. 11).

POPA, by Stern, sent PTO a message by electronic e-mail, on February 4 reiterating POPA's interest in bargaining, including bargaining over the subjects PTO would not entertain. He stated that POPA's request was timely under the June 30, 1987, memorandum of understanding. He also stated that POPA had not received prior notice of the hiring plans, the newspaper advertisements, or the job fair. He suggested that negotiations commence on February 10. (Res. Exh. 9).

From about February 1998 to date, the Respondent has paid recruitment bonuses of ten percent to electrical engineers, computer engineers and computer scientists. PTO had not paid recruitment bonuses to employees who had been appointed to those positions during the previous two years.

PTO, by Shepherd replied in writing on February 20 to POPA's message of February 4. PTO stated, in part, that PTO "intends only to negotiate, upon your request, over those issues we have proposed to implement." PTO also stated that a room had been reserved for February 26 to meet with POPA to clarify the proposals regarding the subjects of recruitment bonuses and relocation allowances. (G.C. Exh. 12). [ v57 p212 ]

The actual negotiations started in March 1998. There were seven or eight of these sessions from the beginning of March until mid-May. Additional sessions were held on September 2, September 15, September 24, October 8, October 13, and October 15, 1998.

Ted Morris, the chief negotiator for the Agency, and Shepherd attended the March 3, 1998, meeting regarding recruitment bonuses and the union proposals submitted in response to the proposed change. The parties had discussions as to whether or not they had a contract. POPA maintained that it had a contract with the Agency or had in effect a contract by the parties' past practices. POPA also stated that even if the parties did not have a contract, the Union's proposals were appropriate as they were opened up by management's proposals under the Federal Employees Pay Comparability Act of 1990 and were the Union's opportunity to bargain over pay topics. PTO's position was consistent throughout that the parties did not have a contract and would not bargain Union-initiated mid-term proposals pursuant to Article 14 of the contract. PTO maintained that it was there to bargain recruitment bonuses and relocation expenses and on the service agreements for recruitment bonuses and would not bargain over the Union proposals that were unrelated to the proposed change.

The parties reached tentative agreements on proposals 2, 5 and 6 related to the recruitment bonuses and relocation expenses. [n5] On December 16, 1998, PTO requested the assistance of the FMCS due to an impasse resulting from bargaining over the payment of recruitment bonuses and relocation expenses. (Res. Exh. 17).

2. Positions of the Parties

The General Counsel and POPA claim that PTO violated the Statute regardless of whether the parties have a collective bargaining agreement. POPA additionally insists that the parties have demonstrated an intent to be bound by a term agreement which provides for midterm bargaining in Article 14, sections 2 and 3. POPA contends that while it is true that the interest arbitrator's award was not reduced to a document that contains the signatures of both parties, the award of Arbitrator Johnson matured into a binding agreement between the parties as a result of their actions. Those actions encompass memos and oral statements holding out to the employees, managers, arbitrators, and the courts that the parties considered themselves bound by the agreement.

PTO denies any violation of the Statute. It contends that the allegations must be dismissed as outside the statute of limitations provided by section 7118(a)(4)(A) of the Statute; that the Agency had no obligation to bargain over any matters outside the scope of the negotiations which flowed from the Union's requests to bargain pursuant to Article 14 of the disapproved collective bargaining agreement. PTO relies, in part, upon the Authority's decision in United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas, 51 FLRA 768 (1996) (INS) reconsideration denied, 51 FLRA 1561, 1565 (1996) affirmed sub nom. AFGE, National Border Patrol Council, Local 2366, AFL-CIO v. FLRA, 114 F.3d 1214 (D.C. Cir. 1997), and contends that there is no obligation to bargain mid-term under the terms of a disapproved agreement because there is no agreement in that situation. The Authority held in INS that, in the absence of a term agreement, proposals labeled as "mid-term" do not have to be bargained by an agency where no other theory was litigated or apparent. PTO also claims that the Agency met its bargaining obligation by negotiating in good faith on numerous occasions, reaching tentative agreements on various proposals, and by submitting the matter to the FMCS when the parties reached impasse.

Discussion and Conclusions

A. Statute of Limitations

Section 7118(a)(4)(A) of the Statute provides, in pertinent part, that: "[N]o complaint shall be issued based on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority." The intent of this provision is to foster stable collective bargaining relationships and prevent the litigation of stale charges. See Equal Employment Opportunity Commission, Washington, DC, 53 FLRA 487, 495 (1997).

PTO contends that the complaint must be dismissed as outside the statute of limitations because the Union had notice of the proposed change on December 10, 1997, but failed to file the charge until July 10, 1998, more than six months later.

The six months time limit commences when the alleged unfair labor practice occurs, not when notice of a proposed change is given to the union. U.S. Department of the Interior, Lower Colorado Dams Project, Water and Power Resources Service, 14 FLRA 539, 543 (1984). The unfair labor practices alleged in this case [ v57 p213 ] were PTO's changes in conditions of employment without bargaining with POPA upon request and later refusing to bargain over Union-initiated proposals.

POPA's January 9, 1998, request to bargain was timely. Under the parties' practice, which was consistent with their June 1987 memorandum of understanding concerning Article 14, Section 2, PTO's December 10, 1997, notice was considered to have an effective submission date of the 10th day of the next quarter, which was January 10, 1998.

PTO's December 10, 1997, notice was not adequate as it did not state or otherwise indicate when hiring and/or implementation of the plan or payments of the recruitment bonuses would be offered or commenced. Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 41 FLRA 690, 698 (1991); U.S. Army Corps of Engineers, Memphis District, Memphis, Tennessee, 53 FLRA 79, 82 (1997). There is no evidence that POPA had notice until late January 1998, or upon receipt of PTO's letter of January 28, 1998, of PTO's actual issuance of the recruitment plan on or about January 6, 1998, the placing of advertisements for a job fair and recruitment bonuses on January 8, 1998, or the holding of the job fair and offering recruitment bonuses on January 23 and 24, 1998. Therefore, these alleged unfair labor practices are not outside the statute of limitations, the charge having been filed July 10, 1998. The alleged unfair labor practice of a refusal to bargain in February 1998 and thereafter, concerning paying recruitment bonuses, and the alleged refusal to bargain on January 28 and March 3, 1998, on Union-initiated proposals, were well within the six months statute of limitations based on the July 10, 1998 charge.

B. Alleged Refusal to Bargain Before Implementing Recruitment Bonus

It is long established that an agency "must meet its obligation to negotiate prior to making changes in established conditions of employment[.]" U.S. Department of Justice, Immigration and Naturalization Service, 55 FLRA 892, 900 (1999)(DOJ); Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9, 11 (1981); U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Memphis, Tennessee, 42 FLRA 712 (1991). An agency generally must bargain, on request, before implementing changes in unit employees' conditions of employment that are substantively negotiable, and before exercising a retained management right in a manner that will change the employees' conditions of employment and have more than a de minimis impact on the employees. Department of Health and Human Services, Social Security Administration, 24 FLRA 403 (1986). An agency violates section 7116(a)(1) and (5) of the Statute by failing to fulfill those bargaining obligations. Id.

PTO began making bonus payments after POPA requested to bargain but before bargaining commenced. The recruitment bonuses concerned conditions of employment, not pay within the meaning of section 7103(a)(14)(C) of the Statute, because they were paid pursuant to 5 U.S.C. § 5753, and regulations issued by the Office of Personnel Management under authority conferred by that statutory provision. See National Treasury Employees Union and Internal Revenue Service, 27 FLRA 132, 135-37 (1987). The fact that the decision to make the payments was made before the individuals were employed is irrelevant. U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 858, 867-69 (1997). Since no such bonuses were paid to employees during 1996 or 1997, PTO changed unit employees's working conditions when it made such payments. PTO does not dispute that payment of $1,000.00 are more than de minimis. Thus, PTO violated the Statute as alleged by implementing its bonus plan and paying employees a recruitment bonus before bargaining with POPA.

C. Alleged Refusal to Bargain Over All of the Subjects Addressed in the Bargaining Proposals POPA Submitted on January 9, 1998

POPA requested PTO to bargain over the pay-related subjects and submitted a set of bargaining proposals addressing them. PTO does not contend that it was not obligated to bargain over the proposals because they were not negotiable. Because PTO refused to address the proposals or declare them nonnegotiable, there is no need to determine the negotiability of the proposals in this proceeding in order to determine whether PTO violated the Statute. DOJ, 55 FLRA at 900; U.S. Patent, 45 FLRA at 1107-11.

Nor does PTO contend that it was not obligated to bargain because the subject of pay-related proposals is covered by an applicable collective bargaining agreement or that the failure to bargain was permitted by an applicable collective bargaining agreement. Rather, PTO's defense is that it did not have a duty to bargain because POPA's request was predicated on the existence of a collective bargaining agreement between the parties and no such agreement exists.

POPA clearly took the position that the parties have a collective bargaining agreement that was established through their conduct over a course of years. POPA therefore believed that the bargaining it requested would take place while that contract was in effect, that is, the parties would engage in "mid-term" bargaining if PTO granted POPA's request. However, POPA never stated or implied that it would bargain only if the parties had a collective bargaining agreement and maintained that the Union's proposals were appropriate [ v57 p214 ] as they were opened up by management's proposals under the Federal Employees Pay Comparability Act of 1990 and were the Union's opportunity to bargain over pay topics. Thus, POPA's request was not predicated on the existence of a collective bargaining agreement.

Unions may initiate bargaining, during the term of an agreement or before an agreement is reached, independent of proposals by management to change unit employees' conditions of employment. U.S. Department of the Interior, Washington, DC and U.S. Geological Survey, Reston, Virginia, 52 FLRA 475, 479-80 (1996) remanded sub nom. National Federation of Federal Employees, Local 1309 v. Department of the Interior, Washington, DC et al., 119 S.Ct. 1003 (1999). Thus, PTO could not refuse to meet its obligation, required by section 7114(b) of the Statute, to bargain in good faith on POPA's proposals by concluding that in the absence of a collective bargaining agreement it had no obligation to honor POPA's request to bargain.

To the extent that a determination of whether a collective bargaining agreement exists is relevant, a objective standard applies to the formation of a contract. As the Authority recently stated in Internal Revenue Service, North Florida District, Tampa Field Branch, Tampa, Florida, 55 FLRA 222 (1999):

In the private sector, the National Labor Relations Board applies similar standards for determining when parties reach agreement. "A meeting of the minds of the parties must occur before a labor contract is created." Bobbie Brooks, Inc. v. International Ladies Garment Workers Union, 835 F.2d 1164, 1168 (6th Cir. 1987). "Whether a collective bargaining agreement exists is a question of fact; [the] technical rules of contract law are not strictly binding." Id. (citation omitted). The surrounding circumstances and the parties' intentions may be considered to determine if a bargaining agreement exists; however, an objective standard applies to the formation of a contract, regardless of a meeting of the minds in a subjective sense. Warehousemen's Union Local No. 206 v. Continental Can Co., 821 F.2d 1348, 1350 (9th Cir. 1987).

Examining the record by an objective standard, the parties do not have a collective bargaining agreement. The Authority held in 1991 that the Agency head disapproval served on June 26, 1986, "was timely and served to disapprove the entire agreement." POPA-DOC, 41 FLRA at 805. Where an agency head timely disapproves an agreement under 7114(c) of the Statute, the agreement does not take effect and is not binding on the parties; however, the parties may agree to implement all portions of an agreement not specifically disapproved by the agency head. Id. at 802.

Despite written agreements in June 1987, concerning Article 14, and in December 1992, concerning Article 22, which expressly refer to the "currently effective PTO-POPA Basic Agreement" and "the parties' Collective Bargaining Agreement," and the representations to the Authority and the courts in the early 90's concerning an agreement, the record reflects that since the Authority upheld the 1986 Agency head disapproval in 1991, the parties have disagreed on whether they have an agreement consisting of all the undisputed provisions of the disapproved agreement. Nevertheless, the parties have adopted certain provisions, either explicitly or by their actions, as past practices which are binding on the parties. U.S. Department of the Treasury, Bureau of Engraving and Printing and International Plate Printers, Die Stampers and Engravers Union, and Washington Plate Printers Union Local 2, 44 FLRA 926, 939-40 (1992). The parties had a practice applicable to this case concerning bargaining that was described by Article 14, Sections 2 and 3, and was made effective by the written agreement of the parties in July 1986 following Agency head disapproval of Article 14, Section 1. The procedures in Article 14 became the subject of a separate agreement which the parties executed in 1987 concerning that subject. Since that time the parties have followed that procedure as their practice. Therefore, Stern's reference to Article 14 and mid-term bargaining in his January 16 request was entirely appropriate.

Although PTO agreed to bargain retroactively on recruitment bonuses and relocation expenses, and tentative agreements were reached before the matter was submitted to the FMCS when the parties reached impasse, it is concluded that the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing the alleged changes without first bargaining with POPA as requested and by failing to bargain to the extent required by the Statute on PTO's proposals over which the parties have not already reached agreement.

POPA requests a retroactive bargaining order as a remedy for PTO's refusal to bargain. A retroactive bargaining order is appropriate where a respondent's unlawful conduct has deprived the exclusive representative of an opportunity to bargain in a timely manner over negotiable conditions of employment affecting bargaining unit employees. Federal Aviation Administration, Northwest Mountain Region, Renton, Washington, 51 FLRA 35, 37 (1995); U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 22 FLRA 758 (1986) rev'd on other grounds sub nom. U.S. Department of Energy, Western Area Power Administration, Golden, Colorado v. FLRA, 880 F.2d 1163 (10th Cir. 1989).

Based on the above findings and conclusions, it is recommended that the Authority issue the following Order: [ v57 p215 ]

ORDER

Pursuant to section 2423.41(c) of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), it is hereby ordered that the U.S. Patent and Trademark Office, shall:

1. Cease and desist from:

(a) Implementing recruitment bonuses for newly-hired employees without first fulfilling its obligation to bargain to the extent required by the Statute with the Patent Office Professional Association (POPA), the exclusive representative of an appropriate unit of employees.

(b) Failing and refusing to bargain with POPA to the extent required by the Statute over pay and pay-related proposals submitted on January 9, 1998, to the extent the parties have not already reached agreement.

(c) 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 policies of the Statute:

(a) Bargain with POPA to the extent consistent with the Statute over the payment of recruitment bonuses to newly-hired employees and over other pay and pay-related proposals submitted by POPA on or about January 9, 1998, to the extent the parties have not already reached agreement, and apply agreements reached pursuant to such negotiations retroactively to February 1, 1998.

(b) Post at its facilities where bargaining unit employees represented by the Patent Office Professional Association are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commissioner and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other placed 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.

(c) Pursuant to section 2423.41(e) of the Authority's Rules and Regulations, notify the Regional Director, Washington Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, DC, December 16, 1999.

______

GARVIN LEE OLIVER

Administrative Law Judge

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Patent and Trademark Office has violated the Federal Service Labor-Management Relations Statute (the Statute), and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT implement recruitment bonuses for newly-hired employees without first fulfilling our obligation to bargain to the extent required by the Statute with the Patent Office Professional Association, the exclusive representative of an appropriate unit of our employees.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Statute.

WE WILL bargain with the Patent Office Professional Association to the extent consistent with the Statute over the payment of recruitment bonuses and over the other pay and pay-related proposals submitted by the Patent Office Professional Association on or about January 9, 1998, to the extent the parties have not already reached an agreement, and apply agreements reached pursuant to such negotiations retroactively to February 1, 1998.

______

(Activity)

Date:__ 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 any of its provisions, they may communicate directly with the Regional Director, Washington Regional Office, Federal Labor Relations Authority, whose address is: 800 "K" Street, NW., Suite 910, Washington DC, 20001, and whose telephone number is: (202)482-6700.

File 1: Authority's Decision in 57 FLRA No. 45

File 2: ALJ's Decision in WA-CA-80405

File 3: ALJ's Decision in WA-CA-80515

Footnote # 1 for
57 FLRA No. 45

• ALJ's Decision in WA-CA-80515

Case No. WA-CA-80405, involving the same parties and many of the same witnesses, was consolidated with this case for hearing. A separate decision was issued in that case on this date.

Footnote # 2 for
57 FLRA No. 45

• ALJ's Decision in WA-CA-80515

Article 14, Sections 2-7 set forth the procedures for bargaining. Section 1, which was disapproved on May 30, 1986, provided that nothing in the article "shall affect the authority of the Office to take actions that are absolutely necessary for the functioning of the agency."

Footnote # 3 for
57 FLRA No. 45

• ALJ's Decision in WA-CA-80515

See n.2 above.

Footnote # 4 for
57 FLRA No. 45

• ALJ's Decision in WA-CA-80515

He waited until January 9 because January 10 was the effective date of the notice from PTO, under the parties' practice adopting Article 14 as explained above.

Footnote # 5 for
57 FLRA No. 45

• ALJ's Decision in WA-CA-80515

Apart from these negotiations, the parties, through partnership efforts or other forums, reached separate agreements concerning transit subsidies, technical training and legal training tuition reimbursement. POPA's proposals covered by these agreements are no longer extant. (Res.Exh. 1, 2, 3).