18:0713(82)CA - Patent and Trademark Office and Patent Office Professional Association -- 1985 FLRAdec CA



[ v18 p713 ]
18:0713(82)CA
The decision of the Authority follows:


 18 FLRA No. 82
 
 U.S. PATENT AND TRADEMARK OFFICE 
 Respondent
 
 and 
 
 PATENT OFFICE PROFESSIONAL ASSOCIATION 
 Charging Party
 
                                            Case No. 3-CA-30778
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had engaged in
 certain unfair labor practices alleged in the complaint, and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  Thereafter, the Respondent filed exceptions
 to the Judge's Decision, and the Charging Party filed an opposition
 thereto.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommended Order, as modified.
 
    The Authority agrees with the Judge that the parties had reached
 final agreement on the Memorandum of Understanding (MOU) in question on
 December 2, 1982.  /1/ In the absence of any written disapproval of the
 MOU being served upon the Charging Party by January 1, 1983, the MOU
 became a binding agreement on such date, by operation of law (i.e.,
 section 7114(c)(3) of the Statute).  We further agree that the action of
 the Respondent's Commissioner, on or about March 31, 1983, constituted a
 complete repudiation of the MOU, in violation of section 7116(a)(1) and
 (5) of the Statute.  /2/ See Great Lakes Program Service Center, Social
 Security Administration, Department of Health and Human Services,
 Chicago, Illinois, 9 FLRA 499 (1982).
 
    The Judge found that the Respondent's Commissioner further violated
 section 7116(a)(1) and (5) of the Statute when he failed to timely
 perform the ministerial act of affixing his signature to the MOU.  We
 disagree.  As we have found, the MOU became binding by operation of
 section 7114(c)(3) of the Statute, and was not dependent upon any
 ministerial act by the Respondent's Commissioner.  Accordingly, we shall
 dismiss this portion of the complaint.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, the
 Authority hereby orders that the U.S. Patent and Trademark Office shall:
 
    1.  Cease and desist from:
 
    (a) Refusing to be bound, to the extent consonant with law, by the
 Memorandum of Understanding agreed to on December 2, 1982, with the
 Patent Office Professional Association.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Immediately effectuate and honor, to the extent consonant with
 law, the Memorandum of Understanding agreed to on December 2, 1982, with
 the Patent Office Professional Association.
 
    (b) Post at its facilities in Washington, D.C., 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 of the U.S. Patent and Trademark Office, or a designee, and
 shall be posted and maintained for 60 consecutive days thereafter, in
 conspicuous places, including 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.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region III, 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.
 
    IT IS FURTHER ORDERED that the remaining allegations of the complaint
 in Case No. 3-CA-30778 be, and they hereby are, dismissed.  
 
 Issued, Washington, D.C., June 21, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT refuse to be bound, to the extent consonant with law, by
 the Memorandum of Understanding agreed to on December 2, 1982, with the
 Patent Office Professional Association.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL immediately effectuate and honor, to the extent consonant
 with law, the Memorandum of Understanding agreed to on December 2, 1982,
 with the Patent Office Professional Association.
                                       (Activity)
 
    Dated:  By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region III, Federal Labor Relations Authority, whose address
 is:  1111 18th Street, NW., Room 700, P.O. Box 33758, Washington, D.C.
 20033-0758, and whose telephone number is:  (202) 653-8500.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Ira Sandron, Esquire
    For the General Counsel
 
    Hugh Jascourt, Esquire
    For the Respondent
 
    Mr. Edward J. Wojciechowicz
    For the Charging Party/Union
 
    Before:  BURTON S. STERNBURG, Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of the U.S. Code, 5 U.S.C. 7101, et seq.
 and the Rules and Regulations issued thereunder.
 
    Pursuant to a charge filed on September 29, 1983, by the Patent
 Office Professional Association (hereinafter called POPA or the Union),
 a Complaint and Notice of Hearing was issued on December 30, 1983, by
 the Acting Regional Director for Region III, Federal Labor Relations
 Authority, Washington, D.C.  The Complaint alleges, in substance, that
 the U.S. Patent and Trademark Office (hereinafter called the Respondent
 or PTO), violated Sections 7116(a)(1) and (5) of the Federal Service
 Labor-Management Relations Statute (hereinafter called the Statute), by
 virtue of its action in repudiating a Memorandum of Understanding
 dealing with the impact and implementation of a planned relocation of
 professional employees to four or five different buildings.
 
    A hearing was held in the captioned matter on August 8, 1984, in
 Washington, D.C.  All parties were afforded the full opportunity to be
 heard, to examine and cross-examine witnesses, and to introduce evidence
 bearing on the issues involved herein.  The General Counsel, the
 Respondent and the Charging Party submitted post hearing briefs on
 September 25, 1984, which have been duly considered.  /3/
 
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings of fact,
 conclusions and recommendations.
 
                             Findings of Fact
 
    The Union is the exclusive representative of the professional
 employees, other than Trademark professionals, working in the Patent and
 Trademark Office.
 
    On May 15, 1981, following notice from the PTO that it proposed to
 make a reallocation of office space, POPA requested negotiations
 concerning the impact and implementation of the proposed reallocation of
 office space.  Included along with POPA's request for bargaining were a
 number of proposals.
 
    On June 11, 1981, PTO sent a memorandum to Mr. Alan Douglas,
 President of POPA, wherein it agreed to negotiate the impact and
 implementation of the proposed reallocation of office space and named
 PTO's bargaining team.
 
    Subsequently, starting in late June 1981 and continuing to
 approximately December 1, 1982, some 35 bargaining sessions on the
 matter were held.  Mr. Gary Auton acted as POPA's chief spokesman during
 the negotiations.  He was accompanied by Mr. Ray Johnson.  Mr. Joseph
 Ervin, a labor relations specialist, acted as PTO's chief spokesman
 during the negotiations.  Mr. Ervin was accompanied by Mr. Lee Brown,
 Mr. Gary Solyst and Mr. Ed Earls.  Only Mr. Ervin and Mr. Earls attended
 all the negotiating sessions.
 
    At the first meeting Mr. Ervin announced that he was the PTO's chief
 negotiator and requested that the parties initial "all agreed to"
 provisions at the time they were agreed to.  When Mr. Auton asked what
 the initialling meant, Mr. Ervin replied that the initials meant
 committal of the parties to the provision and that agreement thereon had
 been reached.  The POPA negotiators then asked what Mr. Ervin's powers
 were and whether he had the authority to commit the PTO.  Further
 according to Mr. Auton, nothing in writing was presented to POPA with
 respect to how PTO would proceed after the negotiations were completed
 and no one from PTO specifically stated that the Commissioner of PTO
 would have to sign any final agreement reached between the PTO and POPA
 negotiators.
 
    In subsequent meetings Mr. Ervin repeated that he wanted he parties
 to initial proposals agreed to during negotiations.  In practice,
 however, the parties did not initial all agreed to proposals but rather
 simply wrote "agreed to" and sent the matter on for typing.  Further
 according to Mr. Auton, during the negotiations Mr. Ervin and Mr. Earls
 on a number of occasions stated that they would have to check with PTO
 management, usually then Acting Commissioner Tegtemeyer, on certain
 points.
 
    At the September 17, 1982, meeting Mr. Ervin proposed separating
 negotiations.  According to Mr. Auton, Mr. Ervin informed the POPA
 negotiators that PTO wanted to sign a document incorporating the
 proposals or articles that had been agreed to and put the non-agreed
 proposals into a different document that could be negotiated at a later
 date.  Mr. Ervin informed the POPA negotiators that he had Mr.
 Tegtemeyer's approval for the division of the negotiations into separate
 documents.  Both Mr. Ervin and Mr. Earls stated that they did not want
 POPA to try to renegotiate areas already agreed to and accordingly
 proposed a specific provision in the memorandum of understanding stating
 that the non-agreed to articles or proposals set forth in an addendum
 were not to be used for purposes of renegotiating the already agreed to
 items.  At the September 17, 1982, meeting the PTO typed and presented
 to the POPA representatives an unsigned memorandum which read as
 follows:
 
          PTO prefers to separate the classification and examiner issues
       previously agreed to from the remaining examiner and
       classification issues pertaining to this and future moves
       including the examining corps.  PTO is willing to sign off on the
       classification/examiner issues already agreed to and to continue
       to negotiate on those issues that pertains to this and future
       examiner and classification corps moves.
 
    Subsequently, after the POPA negotiators received permission from
 POPA to separate the issues and enter into a separate agreement covering
 the already agreed to items, the POPA and PTO representatives held
 approximately four bargaining sessions between September 17 and December
 1, 1982.  At a meeting held on October 26, 1982, Mr. Auton informed the
 PTO negotiators that POPA would go along with the PTO's request for a
 separate document covering the agreed upon proposals.  At subsequent
 meetings the parties discussed language changes for purposes of
 consistency and each side agreed to various changes on a working copy of
 a "Memorandum of Understanding", hereinafter referred to as the "MOU".
 On December 1, 1982, Mr. Ervin gave the POPA negotiators a final
 word-processed version of the working MOU for proof reading purposes.
 The meeting ended with the understanding that after proof reading Mr.
 Auton would go to Mr. Ervin's office the next day, December 2, 1982, for
 final initialling off on all the articles contained in the MOU.
 
    The next day, December 2, 1982, Mr. Auton met with Mr. Ervin.
 Following a discussion wherein PTO agreed to pay for the cost of
 printing the MOU, both Mr. Ervin and Mr. Auton initialled-off on all the
 provisions contained in the MOU which, according to Mr. Auton, signified
 agreement on all the wording in the MOU.  In the last paragraph of the
 MOU the parties set forth an "attached addenda" incorporating proposals
 which were to be negotiated in the future.  Additionally, the MOU made
 it clear that the agreement to negotiate the addenda items "did not mean
 re-negotiation on the issues negotiated and agreed to herein.
 
    On or about December 20, 1982, Mr. Ervin telephoned Mr. Auton and
 informed him that there were some minor problems with the MOU and that
 the PTO wanted several typographical errors corrected and other minor
 word changes.  According to Mr. Earls, he and Mr. Ervin met with Mr.
 Auton on December 20, 1982, and informed him, Mr. Auton, that the MOU
 did not accurately reflect what PTO thought it had agreed to and asked
 him to look into alternate language.
 
    In any event, on December 27, 1982, Mr. Ervin handed Mr. Auton a
 memorandum dated December 27, 1982 wherein PTO took the position that
 the December 2, 1982, MOU did not clearly reflect the intent of the
 parties and requested a meeting on January 5, 1983, to clear up certain
 ambiguities.  Attached was an edited copy of the December 2, 1982, MOU
 which contained a substantial number of suggested changes.  Later that
 day, after reviewing the December 27th memorandum, Mr. Auton telephoned
 Mr. Ervin and characterized the memorandum as a "blatant attempt at
 renegotiation." Mr. Auton then informed Mr. Ervin that POPA would not
 renegotiate the MOU but would meet on January 5, 1983, if the PTO had
 some legitimate typographical mistakes to correct.  Mr. Auton asked Mr.
 Ervin if the Commissioner was refusing to sign the MOU and Mr. Ervin
 replied "no."
 
    In early January 1983, Mr. Auton showed Union President Stern the
 December 27, 1982, memorandum from Mr. Ervin.  Subsequently on January
 12, 1983, Mr. Stern hand delivered a memorandum to Commissioner
 Mossinghoff's office wherein he summed up POPA's position on the matter
 and requested that the Commissioner sign the December MOU.  Mr. Stern
 received no immediate response to his memorandum to the Commissioner.
 
    Pursuant to his agreement, Mr. Auton met with Mr. Ervin and Mr. Earls
 on January 5, 1983, for purposes of discussing the MOU.  Mr. Ervin and
 Mr. Earls informed Mr. Auton that the PTO had some problems with the
 wording contained therein.  According to Mr. Earls, the PTO had received
 some feedback that interpretations of the MOU were being announced by
 unnamed persons which were contrary to what the PTO negotiators had
 intended.  Mr. Auton refused to go along with the proposed changes,
 characterized the proposed changes as an attempt to renegotiate and
 informed the PTO that it would only correct typographical errors.  Mr.
 Auton then asked if the Commissioner had refused to sign the MOU.
 According to Mr. Auton, Mr. Ervin replied in the negative and further
 stated that while the Commissioner wanted the changes, he might sign
 without them.  Mr. Earls admitted that neither he nor Mr. Earls said at
 that time that the Commissioner would not sign.
 
    At about this time, the Union members voted to ratify the MOU as
 required by the Union's Constitution.
 
    Mr. William Crout, Chief of Employee and Labor Relations Branch, PTO,
 and Mr. Ervin's immediate supervisor, testified that he had a number of
 conversations with Mr. Stern during the two week period after January 6,
 1983, wherein he told Mr. Stern that certain passages of the MOU had to
 be clarified, that certain passages of the MOU which conflicted with the
 Statute had to be resolved, and that there had to be a meeting of the
 minds on certain other language.  He further testified that he told Mr.
 Stern that the MOU could be approved if the changes were made but that
 in his opinion the Commissioner would not sign unless the suggested
 changes were made.  However, on cross-examination he, Mr. Crout, changed
 his testimony and stated that the first time he told Mr. Stern that the
 Commissioner would not sign was at a meeting on March 7 1983.  Mr. Stern
 denies ever receiving notice that the Commissioner would not sign before
 March 31, 1983, when he received a memorandum to that effect from the
 Commissioner.
 
    According to Mr. Stern, on February 24, 1983, he attended a meeting
 in Commissioner Mossinghoff's office to discuss general labor relations
 matters.  At the end of the meeting Mr. Stern asked the Commissioner
 what had happened to the December 2, MOU.  According to Mr. Stern, the
 Commissioner replied that he did know but that he would look into it.
 Although the date is not entirely clear from the record, according to
 Mr. Crout at a meeting held with Commissioner Mossinghoff, the
 Commissioner told Mr. Stern that he would not sign the MOU in its
 present form.
 
    Subsequently, from late March through May 1983, ten or so
 negotiations were held on the addendum items not included in the MOU
 which culminated in an arbitrator's decision on November 30, 1983.  Mr.
 Auton was the chief negotiator for POPA while attorney Hugh Jascourt
 represented the PTO.  Mr. Auton testified without controversion that Mr.
 Jascourt frequently attempted to discuss the subject matter contained in
 the MOU during these negotiations but that POPA refused, taking the
 position that it was prohibited.  At an early meeting, perhaps the
 first, Mr. Stern asked Mr. Jascourt if the Commissioner had refused to
 sign the December 2 MOU.  Mr. Jascourt replied that he was discussing
 the MOU with the Commissioner at that time and that the Commissioner
 would have his response shortly.
 
    Mr. Stern and Mr. Robert Tupper, another POPA representative, met
 with Mr. Jascourt and Mr. Crout on March 7, 1983 for purposes of hearing
 PTO's position on the MOU.  During the course of the meeting Mr. Crout
 and Mr. Jascourt raised the "disruption time" language of the MOU and
 informed the POPA representatives that Assistant Commissioner Tegtemeyer
 had some problems with it since its application could be very time
 consuming and result in many arbitration proceedings.  Mr. Jascourt
 proposed a clarification of the MOU which would eliminate small amounts
 of time such as five or ten minutes from the definition of disturbance
 time.  When asked if POPA would be interested in modifying the MOU in
 such a manner, Mr. Stern replied that POPA expected the Commissioner to
 sign the agreement as it was, but would listen to all suggestions.
 Either Mr. Jascourt or Mr. Crout informed Mr. Stern that no final
 decision had been made by management concerning whether the agreement
 would be signed.  According to Mr. Tupper, Mr. Crout asked what the
 situation would be if the PTO negotiators did not have the authority to
 agree to a specific provision of the MOU.  When Mr. Stern asked Mr.
 Crout about the meaning of his statement or question, Mr. Crout replied
 that the PTO would not be happy with the disruption time involved.
 
    On March 29, 1983, Mr. Stern, Mr. Tupper and other POPA
 representatives attended a meeting with PTO representatives Mr.
 Jascourt, Mr. Crout and Mr. Sam Matthews, a supervisor, for purposes of
 discussing PTO's plans to move a number of unit employees.  During the
 course of the meeting POPA inquired as to when the Commissioner was
 going to sign the MOU.  Mr. Jascourt replied that POPA would hear very
 soon.
 
    Two days later on March 31, 1983, Mr. Stern received a memorandum
 from Commissioner Mossinghoff wherein the Commissioner stated that he
 would not sign the December 2, 1983, MOU because parts of the document
 violated Section 7106 of the Statute.  According to Mr. Stern, prior to
 that time no one representing the PTO had ever said anything to him
 about the Commissioner refusing to sign the MOU.  Mr. Crout admitted
 that this was the first written instrument informing POPA that the
 Commissioner would not sign the MOU.  Further according to Mr. Stern
 prior to the receipt of the March 31, 1983 memorandum, no one
 representing the PTO had ever said anything to him about the MOU
 conflicting with management rights.  Similarly, Mr. Auton testified that
 he learned for the first time that the Commissioner was not going to
 sign the MOU on March 31, 1983.  According to Mr. Auton, the
 Commissioner had never before refused to sign any agreement negotiated
 with POPA.
 
    By memorandum dated March 31, 1983, Mr. Stern requested information
 to enable POPA to determine whether the PYO's announced plans for moving
 employees had complied with the space provisions of the December 2,
 1982, MOU.  On April 1, 1983, Mr. Stern sent a memorandum to
 Commissioner Mossinghoff wherein he detailed the ways in which the PTO
 plans did not comply with the MOU and asked that the move be delayed
 until negotiations were concluded on the addenda items and all other
 issues raised at the March 29th meeting between the parties.  By an
 undated memorandum received by POPA on April 1, 1983, Commissioner
 Mossinghoff informed POPA that he planned changes would be delayed until
 May 13, 1983, "so that POPA will have the time necessary to deal with
 any unanticipated aspects and for management to have the time to modify
 its plans if management and POPA enter agreements which would require
 such modifications." According to the memorandum, POPA was given until
 April 18, 1983, to submit written proposals.
 
    Subsequently, without having reached agreement with POPA the PTO
 proceeded with its relocation of employees.  According to Mr. Auton,
 whose testimony in this regard is virtually uncontested, after May 1,
 1983, between 400 and 800 unit employees were moved into and out of
 Crystal Plaza.  Also, after May 1, 1983 approximately 100 to 200 new
 unit employees were stationed in the Crystal Plaza and Crystal Square
 buildings.  The offices of the relocated employees were less than 150
 square feet, many were in shared offices without partitions.
 Additionally, not all the relocated employees and/or new employees were
 given their own telephones nor awarded disruption time.
 
    With respect to the internal procedures utilized by the PTO in
 connection with the approval of negotiated agreements, Mr. Crout
 testified that management negotiators, such as Mr. Ervin, are expected
 to signify agreement over the subject matter at the bargaining table.
 Such agreed to provisions are then submitted to the Labor Relations
 Office for review to determine whether they legally conform to Chapter
 71 and whether they are compatible with the PTO, Department of Commerce
 and other government wide rules and regulations.  If found consistent
 with the foregoing authorities, the agreement is then forwarded to the
 Commissioner for execution and then to the Department of Commerce for
 final approval.  According to Mr. Crout, during the period of review,
 the negotiated document only reflects the agreement reached by the
 negotiators and has no status.
 
    In terms of written rules and regulations, Mr. Crout testified that
 Administrative Order 202-711, dated September 25, 1979, governs
 labor-management relations in the PTO and requires that the Director of
 Personnel for the Department approve negotiated agreements and that such
 agreements be examined for legal form and effect by the General Counsel
 of the Department or a designee of the General Counsel.  The document
 also states that an agreement will be approved within 30 days if it is
 in accordance with Chapter 71 of Title 5 U.S.C. and other applicable
 law, but does not specifically state who is to make the decision about
 final approval.  /4/ On cross-examination Mr. Crout testified that
 nothing in the Administrative order prohibits delegation from the
 Secretary's office to the Commissioner.
 
    According to Mr. Crout if a review finds problems in a negotiated
 agreement, management negotiators are required to go back to the Union
 negotiators for clarification and make efforts to resolve any problems
 found by the review.  Mr. Crout further testified that during the course
 of his office's review of the MOU, "we had gotten some indications . . .
 I don't remember.  I can't be specific exactly who we got the
 information from, that the language was being interpreted entirely
 differently than what the negotiators felt the intent was." He further
 stated that it was clear to higher management that there was "potential
 for interpretation" that went beyond what management intended and how
 the negotiators had been instructed.  He gave no specifics of how Mr.
 Ervin had been instructed or how he had exceeded his bounds.  Mr. Crout
 acknowledged on cross-examination, that Mr. Ervin reported to him on the
 progress of negotiations and if there were any problems but that not
 until after the agreement was initialled off did he, Mr. Crout, become
 aware of any instance when Mr. Ervin exceeded his instructions, since it
 had been up to Mr. Ervin to know what his parameters were and to remain
 within them.  /5/
 
                        Discussion and Conclusions
 
    The General Counsel and the Charging Party take the position that the
 PTO violated Sections 7116(a)(1) and (5) of the Statute when it issued
 the March 31, 1983 memorandum from Commissioner Mossinghoff wherein the
 Commissioner completely repudiated the December 2, 1982, MOU.  In
 support of their position they argue that the Commissioner and/or the
 Department were, pursuant to Section 7114(c) of the Statute, obligated
 to give the notice of repudiation within 30 days after agreement had
 been reached by the parties on the MOU.  Inasmuch as the repudiation
 occurred more than 30 days after December 2, 1982, the execution date of
 the MOU, the MOU became a binding agreement and the subsequent
 repudiation by PTO was therefore violative of Sections 7116(a)(1) and
 (5) of the Statute.  While acknowledging that the Commissioner had not
 signed the MOU, it is their position that in view of the authority
 delegated to PTO's chief negotiator, the Commissioner was bound by the
 agreement and his signature thereon was merely a ministerial act which
 did not toll the 30 day period set forth in Section 7114 of the Statute.
 
    Alternatively, the General Counsel and the Charging Party take the
 position that even assuming that Section 7114 did not come into play
 because the Commissioner's signature was not affixed to the MOU, a
 Section 7116(a)(1) and (5) finding is in order since the Commissioner's
 action in failing to sign an agreement negotiated by his duly authorized
 agent constitutes bad faith bargaining.
 
    The PTO takes the position that the complaint should be dismissed as
 being untimely, i.e., predicated upon charges filed more than six months
 after POPA became aware that the PTO was not living up to, or honoring,
 the MOU.  /6/ Additionally, PTO takes the position that inasmuch as the
 Commissioner never signed the MOU, the 30 day period for approval set
 forth in Section 7114 of the Statute never began to run and therefore
 the MOU never became a binding agreement between the parties.  Finally,
 the PTO takes the position that inasmuch as the parties had differing
 interpretations of the provisions included in the MOU there was not the
 requisite "meeting of the minds" which would impose an obligation on the
 Commissioner to execute the MOU.
 
    With the exception of the date on which POPA first learned that the
 Commissioner of PTO would not sign the MOU, there is no serious
 disagreement with the facts as reported above.  With respect to the only
 pertinent fact in dispute, i.e. the date that POPA first received notice
 from the PTO that the Commissioner would not sign the MOU, based
 primarily on my observation of the witnesses and their demeanor, I
 credit the testimony of POPA representatives Mr. Auton and Mr. Stern and
 accordingly find that while the PTO representatives had made it clear
 that they and the Commissioner were not particularly happy with the
 wording of the MOU and had indeed sought changes therein, the PTO
 representatives did not at any time prior to March 31, 1983, inform the
 POPA representatives that the Commissioner would not sign the MOU in its
 present form.  Based on the above finding, I further conclude that since
 POPA filed the charges based thereon on September 29, 1983, within the
 six month period provided for in Section 7118(a)(4)(A) of the Statute,
 no basis exists for dismissal of the instant complaint on the ground
 that it was based on an untimely filed charge.
 
    I further find that to the extent that POPA representatives might
 have been aware prior to March 31, 1983, that the PTO was not following
 the provisions of the MOU that such knowledge falls short of
 establishing that POPA should have been aware of the fact that PTO's
 action in such regard constituted a complete repudiation of the MOU.
 There is a substantial distinction between a contract breach and a
 complete repudiation of a contract.  As a general rule the former is
 actionable under the contractual grievance procedure while the latter is
 actionable under the unfair labor practice provisions of the Statute.
 Accordingly, I find that the mere fact that POPA might have been aware
 of a breach of the MOU prior to March 31, 1983, does not serve as a
 basis for a conclusion that the instant complaint alleging repudiation
 of the MOU is based upon untimely filed charges.
 
    Having found that the charge was timely filed, a determination must
 now be made as to the status of the MOU.  In this connection the General
 Counsel and the Charging Party take the position that the MOU became a
 binding agreement when the PTO failed to disapprove the initialed
 agreement within 30 days after December 2, 1982, the date that the
 parties formally initialled off on the agreed to provisions.  The
 Respondent, on the other hand, takes the position that the MOU never
 became a binding agreement since it was never signed by the
 Commissioner.  In such circumstances, according to Respondent, the
 thirty day period provided for in Section 7114 of the Statute never came
 into play.
 
    In view of the positions of the parties, it is obvious that
 resolution of the instant dispute turns on the status of the MOU as of
 December 2, 1982.
 
    The record establishes that Mr. Ervin, the designated bargaining
 representative of the PTO negotiated the provisions of the MOU for
 approximately six months.  During such period he made it clear to POPA
 representatives that he had the power to commit the PTO to binding
 agreements on the provisions under negotiations and in fact requested
 that the parties initial off during the negotiations on any and all
 subjects and/or provisions agreed to.  The record further establishes
 that on a number of occasions Mr. Ervin sought higher management input
 prior to assenting to and initialling off certain provisions.
 Subsequently, at Mr. Ervin's request, the PTO and POPA on December 2,
 1982, formally entered into a memorandum of understanding (MOU) on all
 items then agreed to.  The MOU referenced an Addenda which consisted of
 a number of items to be negotiated in the future.  Additionally, the MOU
 made it clear that during the future negotiations on the subjects
 included in the Addenda there would be no negotiations whatsoever on the
 subjects already agreed to and included in the MOU.  Subsequently,
 allegedly based upon information that different interpretations then
 understood or intended by the PTO negotiators were being put on various
 provisions of the MOU, the PTO attempted to renegotiate various
 provisions of the MOU.  Thereafter, following its unsuccessful attempt
 to renegotiate such provisions, the PTO on March 31, 1983 informed POPA
 that it would not execute the MOU in its present form.
 
    While it is clear that the Commissioner never signed the MOU, it is
 also clear that the MOU was formally initialled off by its authorized
 chief negotiator.  It is the effect of the action of Mr. Ervin, PTO's
 chief negotiator, which must be decided.  Or stated another way, did the
 initialling off by Mr. Ervin establish an agreement which either the
 Commissioner or the Department of Commerce were obligated to disapprove
 within 30 days after December 2, 1982, in order to prevent the agreement
 from becoming binding on the PTO.
 
    The Authority has made it clear that the Statute imposes an
 obligation upon the parties to "provide representatives who are
 empowered to negotiate ane enter into agreements on all matters within
 the scope of negotiations within the bargaining unit." National Treasury
 Employees Union and Department of the Treasury, Internal Revenue
 Service, 13 FLRA 554, 555.  The Authority has further recognized that an
 agency and/or an activity is bound by the acts of its agents on the
 theory of apparent authority.  Great Lakes Program Service Center, SSA,
 Department of HEW and Local 1395, AFGE, AFL-CIO, 9 FLRA 499, 508.
 
    In Great Lakes Program Service Center, supra, the Authority found
 that an agency was bound by an agreement entered into by its chief
 negotiator, a labor relations specialist, even though the negotiator had
 allegedly exceeded the authority conferred upon him by management.
 Similar conclusions were reached by the Assistant Secretary under
 Executive Order 11491.  Defense General Supply Center and Local 2047,
 AFGE, 7 A/SLMR No. 790;  Joint Tactical Communications Office (Tri-Tac),
 Department of Defense, Fort Monmouth, New Jersey & Local 476 NFFE,
 A/SLMR No. 396.
 
    In Joint Tactical Communications Office, supra, the Assistant
 Secretary was faced with a factual situation almost identical to that
 herein.  Having found that the Respondent's negotiator had initialled
 off on the agreement, the Assistant Secretary concluded that the
 activity was bound by the agreement and ordered the activity to sign the
 agreement even though it had not been submitted to higher authority for
 approval.
 
    Applying the above cited case precedent to the facts of the instant
 case, I find that the PTO and POPA had reached final agreement on the
 MOU on December 3, 1982, when their respective chief negotiators
 formally initialed off on the document.  I further conclude that the
 Commissioner violated Sections 7116(a)(1) and (5) of the Statute when he
 failed to timely perform the ministerial act of affixing his signature
 to the MOU.  Finally, I conclude that the failure of the Commissioner to
 perform the ministerial act of affixing his signature to the MOU did not
 toll the 30 day period for disapproval set forth in Section 7114 of the
 Statute.  In this latter regard, a contrary conclusion would allow a
 party to benefit by his own unfair labor practice and extent
 indefinitely the 30 day period for review set forth in the Statute.
 Accordingly, in the absence of any written disapproval of the MOU being
 served upon POPA by January 1, 1983, the MOU became a binding agreement
 on such date and the Commissioner's subsequent complete repudiation of
 the MOU on or about March 31, 1983, constituted an additional 7116(a)(1)
 and (5) of the Statute.  /7/
 
    With respect to Respondent's defense predicated on the absence of a
 "meeting of the minds," I find, based upon the facts herein, such
 defense to be without merit.  While I agree that a party is not bound to
 sign an agreement which contains provisions contrary to what he
 intended, a defense predicated upon the absence of a "meeting of the
 minds" is generally only available prior to the execution of the
 agreement.  Here the defense was raised after the agreement was duly
 executed by the PTO's chief negotiator, whose powers, etc., were not in
 any way restricted by any existing ground rules.  In such circumstances,
 the Respondent's only recourse is to have the matter of its
 interpretation litigated through either the grievance procedure of the
 collective bargaining contract or another specific unfair labor practice
 based thereon.
 
    Having concluded that the U.S. Patent and Trademark Office violated
 Sections 7116(a)(1) and (5) of the Statute by the actions of the
 Commissioner in not immediately performing the ministerial act of
 affixing his signature to the December 2, 1982, MOU, and subsequently,
 more than thirty days thereafter completely repudiating the December 2,
 1982 MOU, I hereby recommend that the Federal Labor Relations Authority
 issue the following order designated to effectuate the purposes and
 policies of the Statute.
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and Section 7118 of the Statute, it is
 hereby ordered that the U.S. Patent and Trade Office shall:
 
    1.  Cease and desist from:
 
          (a) Refusing to sign the Memorandum of Understanding negotiated
       with the Patent Office Professional Association on December 2,
       1982.
 
          (b) Refusing to place in effect and be bound, to the extent
       consonant with law, by the Memorandum of Understanding agreed to
       on December 2, 1982, with the Patent Office Professional
       Association.
 
          (c) In any like or related manner interfering with, restraining
       or coercing its employees in the exercise of their rights assured
       by the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute.
 
          (a) Upon request, sign the Memorandum of Understanding
       negotiated with the Patent Office Professional Association on
       December 2, 1982.
 
          (b) Upon request, place in effect and be bound, to the extent
       consonant with law, by the Memorandum of Understanding agreed to
       on December 2, 1982, with the Patent Office Professional
       Association.
 
          (c) Post at its facilities in Washington, D.C. 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 of the U.S. Patent and Trademark Office
       and shall be posted and maintained by him for 60 consecutive days
       thereafter, in conspicuous places, including all bulletin boards
       and other places where notices to employees are customarily
       posted.  The Commissioner shall take reasonable steps to insure
       that such Notices are not altered, defaced, or covered by any
       other material.
 
          (d) Pursuant to Section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region III, 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.
 
                                       BURTON S. STERNBURG
                                       Administrative Law Judge
 
    Dated:  November 29, 1984
    Washington, D.C.
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT refuse to sign the Memorandum of Understanding negotiated
 with the Patent Office Professional Association on December 2, 1982.
 
    WE WILL NOT refuse to place in effect and be bound, to the extent
 consonant with law, by the Memorandum of Understanding agreed to on
 December 2, 1982, with the Patent Office Professional Association.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon request, sign the Memorandum of Understanding
 negotiated with the Patent Office Professional Association on December
 2, 1982.
 
    WE WILL, upon request, place in effect and be bound, to the extent
 consonant with law, by the Memorandum of Understanding agreed to on
 December 2, 1982, with the Patent Office Professional Association.
                                       (Agency or Activity)
 
    Dated:  By:  (Signature)
 
    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 of the Federal Labor Relations Authority, Region III,
 whose address is:  1111 18th Street, N.W., Suite 700, P.O. Box 33758,
 Washington, D.C. 20033-0758 and whose telephone number is:  (202)
 653-8500.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Judge's one inadvertent reference to this date as December 3,
 1982, is hereby corrected.
 
 
    /2/ In so concluding, we also find, contrary to the Respondent's
 implied assertion, that the date of ratification of the MOU (on or about
 January 12, 1983) by the Charging Party's membership does not dictate a
 different result in this case.  Assuming without deciding that the
 30-day period provided in section 7114(c)(3) did not begin until the
 January 12, 1983 ratification took place, the MOU would nonetheless have
 become binding on or about February 11, 1983, long before the action
 that is here found to be violative of the Statute.
 
 
    /3/ In the absence of any objection, the General Counsel and the
 Respondent's respective Motions to Correct Transcript are hereby
 granted.
 
 
    /4/ In support of Mr. Crout's testimony with respect to the
 procedures to be followed in approving collective bargaining agreements,
 Respondent entered into evidence a number of negotiated contracts which
 followed the procedure outlined in Mr. Crout's testimony.
 
 
    /5/ Mr. Crout did admit,