45:1090(110)CA - - Patent and Trademark Office and Patent Office Professionals Association - - 1992 FLRAdec CA - - v45 p1090
[ v45 p1090 ]
The decision of the Authority follows:
45 FLRA No. 110
FEDERAL LABOR RELATIONS AUTHORITY
U.S. PATENT AND TRADEMARK OFFICE
PATENT OFFICE PROFESSIONAL ASSOCIATION
DECISION AND ORDER
September 3, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to negotiate with the Union over "signatory authority" and certain pay related matters. The Judge also found that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to timely furnish the Union with certain information requested under 7114(b)(4). However, the Judge concluded that the Respondent did not refuse to process a particular grievance, as alleged in the complaint, and recommended dismissal of that allegation.
The Respondent filed exceptions to the Judge's decision only as it relates to the alleged refusal to negotiate over pay matters.(1) The General Counsel and the Union filed an opposition to the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.(2)
Pursuant to section 2423.29 of the Authority's Rules and 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 meet and negotiate with the Patent Office Professional Association (POPA), the exclusive representative of certain of its employees, over negotiable proposals with respect to signatory authority and
over negotiable subjects relating to pay and tuition reimbursement.
(b) Failing and refusing to furnish in a timely manner to POPA information requested by POPA concerning special pay rates.
(c) 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) Negotiate in good faith with POPA about POPA's negotiable signatory authority proposals and about the requested subjects relating to pay, and apply any agreement reached retroactive to the earliest date on which the Patent and Trademark Office was or becomes authorized to make the proposed types of pay adjustments effective, but no earlier than May 5, 1991.
(b) Negotiate in good faith with POPA about the subject of tuition reimbursement.
(c) Furnish to POPA the information concerning special pay rates requested in POPA's letter dated March 22, 1991.
(d) Post at all of its facilities where bargaining unit employees 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 Assistant Secretary and Commissioner of Patent and Trademarks, 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 these Notices are not altered, defaced, or covered by any other material.
(e) Pursuant to section 2423.30 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.
The other allegations in the complaint are dismissed.
WE WILL NOT fail and refuse to meet and negotiate with the Patent Office Professional Association (POPA), the exclusive representative of certain of our employees, over negotiable proposals with respect to signatory authority and over negotiable subjects relating to pay and tuition reimbursement.
WE WILL NOT fail and refuse to furnish in a timely manner to POPA information requested by POPA concerning special pay rates.
We WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Statute.
WE WILL negotiate in good faith with POPA concerning signatory authority and pay matters, and apply any agreement reached retroactive to the earliest date on which the Patent and Trademark Office was or becomes authorized to make the proposed types of pay adjustments effective, but no earlier than May 5, 1991.
WE WILL negotiate in good faith with POPA about the subject of tuition reimbursement.
WE WILL furnish to POPA the information concerning special pay rates requested in POPA's letter dated March 22, 1991.
Date: By: ______________________________
This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Washington Regional Office, whose address is: 1111 18th Street, N.W., 7th Floor, P.O.
Box 33758, Washington, D.C. 20033-9758, and whose telephone number is: (202) 653-8500.
(If blank, the decision does not have footnotes.)
1. In particular, the Respondent does not except to the Judge's findings that it violated the Statute by failing to bargain with the Union over "signatory authority" and by failing to furnish the Union with information requested under section 7114(b)(4) of the Statute in a timely manner. Respondent's Exceptions at 3 n.1. In addition, no exceptions were filed to the Judge's dismissal of the portion of the complaint concerning the alleged failure to process a grievance.
2. The Respondent's sole argument is that the Authority should apply the reasoning of the court in Social Security Administration v. Federal Labor Relations Authority, 956 F.2d 1280 (4th Cir. 1992), to find that unions do not have the right to initiate mid-term bargaining under the Statute, and, therefore, it had no obligation to bargain over the Union's pay proposals in this case. Insofar as the Respondent argues that the Authority is required to follow the court's decision, we reject that argument. See Yellow Taxi Company of Minneapolis v. NLRB, 721 F.2d 366, 384 (D.C. Cir. 1983) (Wright, J., concurring). Moreover, we respectfully disagree with the court's decision and adhere to our holding in Internal Revenue Service, 29 FLRA 162 (1987) that the duty to bargain in good faith imposed by the Statute requires an agency to bargain during the term of a collective bargaining agreement on negotiable union-initiated proposals concerning matters which are not addressed in the agreement, unless during the negotiation of the agreement the union clearly and unmistakably waived its right to bargain about the subject matter involved.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424
U.S. PATENT AND TRADEMARK
Case No. 3-CA-10566
.PATENT OFFICE PROFESSIONAL .
Charging Party .
. . . . . . . . . . . . . . .
Christopher M. Feldenzer, Esquire
For the General Counsel
Phillip Boyer, Esquire
For the Respondent
Pamela Schwartz, Esquire
(Joseph V. Kaplan, Esquire, on the brief)
For the Charging Party
Before: JESSE ETELSON
Administrative Law Judge
The Respondent agency (PTO) is charged with several different unfair labor practices. The complaint issued by the Regional Director for the Authority's Washington Regional Office alleges that PTO failed to respond to requests by the Charging Party (the Union, or its acronym, POPA) to negotiate over two separate matters--"signatory authority" and pay.1/ The complaint also alleges that PTOfailed to respond to an oral grievance filed by POPA, that it failed to respond to POPA's request for information to which POPA was entitled, and that it has refused to provide the requested information. These omissions, the complaint alleges, constitute unfair labor practices in violation of sections 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute).
A hearing was held on November 12, 1991, in Washington, D.C. Counsel for the General Counsel, for PTO, and for POPA, filed post-hearing briefs.
Findings of Fact
A. Request to negotiate over "signatory authority"
The parties had negotiated about "signatory authority" for some time and had gone to interest arbitration over it. At a certain point they had agreed that, in the event that a negotiability dispute concerning this subject were presented to the Authority, the parties would negotiate, within 45 days after the Authority issued its decision, "over the appropriate affected subjects of signatory authority in accordance with Article 14 [of the parties' 'basic Agreement']."2/ The parties did, in fact, present to the Authority the issue of the negotiability of 19 proposals involving PTO's Signatory Authority Program. The Authority determined that some of the proposals were negotiable and that others were not. It ordered PTO to "negotiate on request, or as otherwise agreed to by the parties," over those proposals it found to be negotiable. Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 838 (1991) (POPA).
The Authority issued its negotiability decision on February 22, 1991. On April 4 (41 days later), POPA delivered to PTO and PTO received a written request "that the parties resume negotiations regarding signatory authority in light of the recent FLRA decision on this subject."
At an unspecified time after POPA's April 4 request, and perhaps on more than one occasion, the new Chief of PTO's Labor Relations Division, Deanna Shepherd, discussed with POPA President Ronald Stern the fact that the Department of Justice was considering an appeal of the Authority's negotiability decision to the U.S. Court of Appeals.3/ Shepherd told Stern she had been advised that PTO was not required to negotiate yet on the matters that were the subject of the proposed appeal--"that everything is on hold anyway" (Tr. 51). Stern responded that negotiations were required unless PTO obtained a stay of the Authority's order.
Although not communicated "specifically" (Shepherd, at Tr. 52) to
the Union, Shepherd was also inquiring within the agency whether POPA's request
to "negotiate" was appropriate inasmuch as "we were not at the
point of negotiations in a pure sense, that we had moved forward, and we were
really before the panel". (Id.)4/ On
May 29, PTO still not having
agreed to resume negotiations, POPA executed for filing the unfair labor practice charge that underlies this case. The charge states in passing that the Department of Justice "has appealed the Authority's negotiability decision." (See also Tr. 52., to the same effect.) The unfair labor practice complaint was issued on August 30, 1991.
On October 10, Shepherd responded in writing to POPA's April 4 request. In this letter she presented PTO's position as to why the Union's request to begin or resume negotiations within 45 days of the Authority's decision "is not relevant to the situation at hand." The reasons she gave were the previously communicated suggestion of a pending appeal, the fact that the Department of Justice had made a "final determination" to file an appeal, and the previously uncommunicated objection that the parties would not be returning to the bargaining table for "negotiations" in the traditional sense.
Before the hearing in this case (November 12, 1991) but apparently after Shepherd's October 10 letter to the Union, she learned informally that the Department of Justice "has decided that they are not pursuing the appeal" (Tr. 53). She communicated to the Union that PTO was now willing to "move forward to the panel" (Tr. 54). Apparently, however, some disagreement remained as to the format for "negotiations" (Tr. 101-4).
B. Request to negotiate over pay issues
On April 10, 1991, POPA requested midterm bargaining on pay, special pay rates, pay allowances, and pay bonuses. Accompanying the letter of request were 44 substantive and procedural proposals. (PTO does not dispute that the request was timely under the provision of the parties' collective bargaining agreement dealing with midterm bargaining.) The special pay rates proposals refer to a practice by which PTO examiners may be paid at rates set by the Office of Personnel Management (OPM) that are higher than the rates provided under the general schedule for Government white-collar employees. POPA sought input into the process by which PTO made requests to OPM for special rates. Other proposals covered a 5% staffing differential, recruitment bonuses, retention allowances (all apparently authorized under the Federal Employees Pay Comparability Act of 1990, P.L. 101-509, and interim regulations issued by OPM), and law school tuition reimbursement.
At an unspecified time after this request, Shepherd informed POPA President Stern orally that the proposals were premature because, with respect to those calling for implementation of the Pay Comparability Act (FEPCA), the implementing regulations were still in the "comment" stage, and neither OPM nor PTO's parent organization, the Department of Commerce, could as yet give PTO guidance on implementation. It was PTO's position, as communicated to the Union by Shepherd and characterized, consistent with Shepherd's testimony, by POPA President Stern, that no other agencies had negotiated over implementation of FEPCA yet and that PTO did not want to be the agency that set precedents in this area (Tr. 42-45, 76-77).
Shepherd stated at the hearing that she had also been concerned with the general issue of negotiability of the subject of special pay rates. (Authorization for establish- ing such rates predated FEPCA.) Although POPA presented Shepherd with an Authority decision holding that the subject was negotiable, it seemed to her to be a "departure from what we've been doing in federal government for years." For that reason she requested research from agency counsel to determine whether that decision had been appealed. As of the date of the hearing, Shepherd was satisfied that Authority precedent required bargaining on this subject. Bargaining over implementation of pay concepts authorized by FEPCA, however, would have to await determination of agency policy as to "what they are going to implement" (Tr. 80). Meanwhile, nothing was communicated to the Union except, as explained above, that the proposals were premature.
C. The special rates grievance and information request
The parties' collective bargaining agreement provides for an informal grievance procedure that begins with an oral presentation. In the case of a grievance by the Union, as opposed to one filed by an employee, it is presented to the lowest official with authority to adjust the grievance or "to effectively recommend its adjustment." That official "shall inform . . . the [Union] . . . of his/her decision within 20 calendar days after receipt of the grievance." A written memorandum is required if the decision does not resolve the grievance. The contract's formal grievance procedures follow if the grievant is not satisfied with the "informal grievance decision."
In September 1990 the Department of Commerce requested approval from OPM of a special salary rate for certain patent examiners employed by PTO. This request was apparently made under laws and regulations that predated FEPCA. In connection with the request, PTO certified to OPM that sufficient funds were available to pay the special rates. OPM approved a special rate pay schedule, which was published in FPM Supplement 990-2, Installment 530-D-237, with an effective date of the first pay period beginning on or after January 1, 1991. According to PTO, however, between the date of PTO's certification of fund availability and the effective date approved for implementation, it "encountered funding problems which made it impossible to pay the special pay rate until at least October 1991" (R Exh. 4).
The subject of these special rates apparently came up during a "labor-management committee" meeting on February 13, 1991. (POPA President Stern later asserted that it was at that meeting that he learned that PTO "had secured a commitment from OPM to authorize new special pay rates for selected examiners." (Unnumbered attachment to GC Exh. 1(a).) Stern asked management officials at that meeting for correspondence concerning the request to OPM. That request bore no fruit.
On March 22, 1991, POPA presented an informal grievance to Deanna Shepherd and James Gallo, the designees of PTO's Personnel Officer, Carolyn Acree, on the subject of these special rates. POPA's representatives complained about not having received the information previously requested orally. Management officials Shepherd and Gallo caucused to gather whatever information PTO had and would be willing to share with the Union. They returned with a copy of the OPM-approved special rate schedule. POPA's representatives asked why the approved rates were not being paid. The management officials could not answer because, as Shepherd testified, they were not familiar with the situation or PTO's position at that time.
At some point in the meeting POPA renewed its request for the background correspondence regarding the approval sought from OPM. Shepherd testified credibly that she and Gallo informed POPA's representatives that "we were going to have to do some research, and that we didn't know where the material was that they had requested" (Tr. 62). She also requested that POPA put the information request in writing. Before the March 22 meeting ended, POPA made it clear that its oral presentation regarding the failure to pay the authorized special rates was to be considered an official "informal" contractual grievance.
Later the same day, March 22, Stern composed a written request for information and delivered it to Personnel Officer Acree, who was with Shepherd at the time. He requested, under section 7114(b)(4) of the Statute:
. . . copies of any correspondence with OPM during the last two years requesting authorization for special pay rates or increased pay for any of our bargaining unit members along with the supporting documentation for the requests to OPM. POPA also requests copies of any responses from OPM concerning these requests along with any attachments.
In addition, for the past two years, please identify and forward to me copies of the documents that specifically authorize the payments of special rates and the pay scales of all of the categories of positions in our bargaining unit.
Stern's request letter asserted that POPA intended to use the requested information "in our deliberations regarding pay related negotiation proposals and to justify [POPA's] claim in the grievance filed today. . . ."
Shepherd discovered that PTO itself did not know how to proceed on the issue raised by the grievance. She testified that she informed POPA that she would have to check with OPM and the Department of Commerce for guidance. A letter from POPA to PTO's Commissioner on August 12, 1991 (part of R Exh. 3) confirms that Shepherd told POPA representative Lawrence Oresky in April that PTO had written to OPM concerning the special rates.
PTO made an inquiry to the appropriate OPM official. Gallo prepared it on April 2, 1991, and Personnel Officer Acree signed it on April 3 (R Exh. 4). The memorandum reviewed the events leading up to the special rates approval and recited the difficulties encountered since the approval. In addition to the funding problems, it seems that PTO had still been unable to comply with certain "administrative requirements" upon which approval was conditioned. The memorandum recited that PTO had previously made informal inquiries to OPM for guidance, not yet received, on the "critical issue of specific PTO liability for the inability to pay the special pay rate on the implementation date given with the published special pay scale."
Acree's April 3 memorandum informed OPM of the need for guidance, in order to respond to POPA's grievance and "for PTO to fully understand their legal obligation relative to the payment of the special pay rate." Acree asked specifically, among other things, whether PTO could lawfully postpone or cancel the special rate due to lack of funds, and whether it could implement the special rate before the administrative requirements have been met. However, the memorandum contained no inquiry about the correspondence that POPA had requested.
Notwithstanding a certain degree of urgency in Acree's inquiry to OPM, April passed into May and May into June without a response. POPA kept asking for a response from PTO. At the end of May POPA filed the unfair labor practice charge, which included the allegation that PTO's failure to respond to the grievance at the informal stage "constitutes an obstruction to POPA's ability to raise the grievance to arbitration." Finally, when most of June passed without a word from OPM, PTO sent POPA, on June 26, a written "formal reply" to POPA's March 22 oral, "informal" grievance. The substance of the reply was that PTO had made the April 3 inquiry to OPM, a copy of which was attached to the reply, and that PTO would continue to "pursue a determination by OPM."
The parties treated the June 26 "formal reply" as a "decision" on an informal grievance, pursuant to the collective bargaining agreement, but one that "does not resolve the grievance" (Unnumbered attachment to GC Exh. 1(a): Article 11, Section 6). This meant that, under Section 7 of the same article, POPA had to file a "formal written grievance" within 10 days in order to invoke the contract's formal grievance procedure. However, POPA had still not received any of the information it requested on March 22 in connection with pay negotiations and the grievance (which, as noted, concerned PTO's failure to pay special rates). Lawrence Oresky, for POPA, requested and was granted several extensions of time to file a formal grievance. POPA filed a formal grievance on August 12, 1991. In its letter presenting the formal grievance, POPA reviewed the history of the grievance, including the still outstanding information request.5/ After POPA invoked the formal grievance procedure, the parties moved forward with the grievance as the contract provides. As of the date of the hearing in this case, PTO's final pre-arbitration response was due.
Pertaining to the information request, Shepherd testified that none of the data POPA requested on March 22 was available to PTO at that time. She testified that PTO had not maintained a file "that had in it all of the corre- spondence back and forth" that POPA had requested (Tr. 71- 72). PTO therefore "had to call OPM and ask them to search their files for requests that were made and responses to requests" (Tr. 72). As for the requested documents that authorize the payment of special rates, Shepherd testified that management thought that the special rate schedule it had provided POPA on March 22 was the only special rate scale "there was," but that later they "found out that was incorrect" (Id.). Although the record lacks the clarity one might hope for in this respect, it appears that Shepherd's statement concerning management's misaprehension about the existence of other pay rate scales applied also to the requested "pay scales of all of the categories of positions in our bargaining unit." See Tr. 72-73.
Shepherd informed POPA's representative Oresky, during discussions about the grievance, that management was trying to reconstruct the information but could not provide it yet. Shepherd came into possession of the "complete file" containing all of the requested data, about a month before the hearing (thus around the middle of October 1991) and was prepared, within a week after the hearing date, to furnish it (Tr. 73-74, 87). Shepherd did not know where the documents had been found, but only that her immediate source was Mr. Gallo, who did not testify. Nor was there any evidence about when particular items of information within POPA's request became "available" to PTO.
Discussion and Conclusions
A. Scope and effect of complaint allegations of failure to respond to requests to negotiate
Paragraph 9(b) of the complaint alleges that PTO "did not respond" to POPA's April 4, 1991, request to negotiate about signatory authority. Paragraph 10(b) alleges another failure to respond, this time to POPA's April 10 request to negotiate over certain pay matters. Paragraph 15 alleges that "[b]y the conduct described in paragraphs 9, 20, 11, and 13, Respondent committed an unfair labor practice in violation of 5 U.S.C. §7116(a)(1), (5) and (8)."
The "did not respond" allegations of paragraphs 9(b) and 10(b) of the complaint originated in POPA's May 1991 unfair labor practice charge, which provided more detail as to the nature of the allegations. Under the heading, "Refusal to Re-enter Signatory Authority Negotiations," the charge presents a brief review of the background and then states that, "[t]o date, there has been no response by the Agency whatsoever." Under the same heading, the charge states that an appeal of the Authority's negotiability decision in POPA had been filed but that the filing of an appeal does not act as a stay of the Authority's decision. "Consequently, the Agency's refusal to respond to our request to resume negoti- ations constitutes a violation of 5 USC 7116(a)(1) and (5)."
Under its next heading, "Refusal to Negotiate on Certain Pay Related Matters," the charge alleges that PTO "has remained entirely silent with respect to this request for negotiations." The charge continues:
The Agency's failure to enter into negotiations constitutes a violation of 5 USC 7116(a)(1) and (5). The Agency's failure to provide any response in a timely manner, such as a request for an extension of time or an explanation of reasons for delay, constitutes a separate and independent violation of 5 USC 7116(a)(1) and (5).
At the opening of the hearing, Counsel for the General Counsel moved to amend paragraphs 9(b) and 10(b) of the complaint to add, after the words, "did not respond," the words, "and refused to negotiate with respect to." Each of these allegations would then have concluded with a reference to one of POPA's requests to negotiate. Thus, for example, paragraph 9(b) would have read: "Respondent did not respond and has refused to negotiate with respect to the Union's April 4, 1991, request to negotiate signatory authority."
Counsel for PTO opposed the motion to amend, contending that it would add a "brand new allegation" that would change "the nature of proof and the nature of our evidence" (Tr. 5). Counsel elaborated by arguing that the duty to respond and the duty to negotiate are "substantively different" because the duty to negotiate goes beyond the duty to respond and gets into "the whole duty to bargain issue," including the negotiability of the subject matter of the request.
Counsel for the General Counsel and for PTO agreed that the significance of the proposed amendment is its impact on the appropriate remedy for a violation--that is--an order to negotiate instead of an order merely to respond. Counsel for PTO stated that that is why it is a "substantive change." He argued that PTO did not have adequate notice that it would be called upon to defend itself against such an order.
I denied the motion to amend at the hearing, but with the understanding that I intended to protect PTO only against the necessity of defending against any allegations of fact that would not have been litigable under the original complaint. I noted that paragraph 15, by virtue of its reference to section 7116(a)(5) of the Statute, indicates (and puts PTO on notice) that the refusals to respond are alleged to constitute refusals to negotiate. (The duty to respond to a bargaining request is an essential part of the statutory obligation to bargain. Army and Air Force Exchange Service, McClellan Base Exchange, McClellan Air Force Base, California, 35 FLRA 764, 769 (1990) (AAFES).) I concluded that as long as the General Counsel adduced evidence that supported the legal conclusion encompassed in paragraph 15, and not evidence that added to the factual allegations of paragraphs 9(b) and 10(b), PTO would not be prejudiced (Tr. 6, 9). The hearing was conducted on that basis.
In its brief, PTO updates its argument against consideration of the allegations of refusal to bargain, contending that it was not provided an opportunity to litigate anything beyond the refusals to respond. In one respect, I can now see an arguable point here.
While the charge clearly is aimed both at PTO's failures to respond and its refusals to negotiate on the issues of signatory authority and pay, the complaint is arguably drawn more narrowly. However, the charge's allegations concerning signatory authority link failure to respond and refusal to negotiate, and in my view it would be fair to charge PTO with reading the complaint in light of the charge. Thus, PTO should not have been surprised if the "did not respond" allegation of paragraph 9(b) of the complaint encompassed the issue of the legitimacy of PTO's claim that it could resist bargaining while the appeal of the Authority's decision was pending or the legitimacy of other defenses PTO might assert for its failure to enter into negotiations.
With respect to the allegations concerning the request to negotiate over pay issues, the charge treats the failure to respond as an unfair labor practice that is "separate and independent" from the "failure to enter into negotiations." By framing paragraph 10(b) of the complaint solely in terms of failure to respond, the Authority's Regional Director might appear to have found no merit in the allegation of "failure to enter into negotiations." That appearance might lead PTO to assume that it need not be prepared to litigate anything beyond the failure to respond. Still, given that the complaint also alleged that PTO's conduct constituted a violation of section 7116(a)(5)--a refusal to negotiate-- PTO is not prejudiced by my consideration of a conventional refusal to negotiate remedy, unless that remedy is premised on facts that would not have been relevant to the "did not respond" allegation.
As it is, there are few if any disputes over material facts concerning these issues, and what factual disputes there are seem confined to the events relating to the nature of PTO's response or lack of response to POPA's requests to negotiate. There are essentially no additional facts that go into the question of refusal to bargain. The real issues presented here are essentially legal issues concerning the duty to bargain at the time the requests were made and since then. These are the same issues that must be resolved whether the alleged unfair labor practices are characterized as failures to respond which constituted refusals to negotiate or simply as refusals to negotiate. PTO was, of course, free to make any legal arguments it wished in its brief. In short, I find that the allegations of refusal to negotiate are properly before me and that PTO has had a fair opportunity to litigate them.
B. PTO's actions concerning "signatory authority" negotiations
In POPA, the Authority specifically ordered PTO to negotiate on certain "signatory authority" proposals, "on request, or as otherwise agreed to by the parties." 39 FLRA at 838. POPA made a specific request to "resume negotia-tions regarding signatory authority in light of" the Authority's decision in POPA. Moreover, POPA's request accorded with the provision in the parties' agreement that negotiations over the appropriate aspects of signatory authority begin within 45 days of an Authority decision on negotiability.
PTO did respond in a sense to POPA's request. Its initial, informal response was that the request was premature because an appeal of the Authority's decision was being considered. Its formal, written response, made six months after the request (and more than a month after the unfair labor practice complaint was issued), indicated that at some time in the interim a "final determination" had been made to file such an appeal and, also, that the request to negotiate was "not relevant to the situation at hand" because those proposals ultimately found to be negotiable "will be returned to the Impasses Panel for impasse resolution."
PTO's informal response to the April 4 request was not one that satisfied its statutory obligation, which was to make a good faith effort to begin negotiations over negotiable subjects, absent waiver or other valid defenses. PTO relied, presumably in good faith, on advice from the Department of Justice that it was not obligated to negotiate while Justice was considering an appeal. However, such reliance is not the same thing as a good faith effort to negotiate. A party relies at its own peril on legal advice as to its bargaining obligation. Cf. U.S. Department of the Treasury, Customs Service, Washington, D.C., 38 FLRA 770, 788 (1990) (Respondent acts at its peril when it refuses to bargain over proposals subsequently held negotiable by the Authority. "Bad faith . . . is not a necessary element of finding a violation in these circumstances.")
Justice's advice was wrong. Where an obligation to bargain is based on an Authority negotiability decision, a party is not excused from that obligation during the period in which it might have filed for court review. Kansas Army National Guard and National Guard Bureau, 10 FLRA 303, 307 (1982). This is especially true where, as here, the parties have committed themselves specifically to negotiate within an agreed-on period after the Authority issues its decision.
PTO acknowledged to POPA in its October 10 memorandum, more than seven months after the Authority's decision, that at least part of the reason for its failure to accede to the request to negotiate up to that point was Justice's "final determination" to file a petition for review. That was an improper reason. In the absence of a stay ordered either by a court (Section 7123(c) of the Statute) or by the Authority (National Treasury Employees Union and Federal Deposit Insurance Corporation, 32 FLRA 1131, 1136 (1988)), the Authority's order to "negotiate on request, or as otherwise agreed," was to be obeyed.
In ordering PTO to "negotiate . . .," the Authority was perfectly aware that negotiations over the signatory authority proposals had advanced to the stage of interest arbitration to resolve the parties' impasse. POPA, supra, at 785. Shepherd's October 10 formal response to the April 4 request, in which the request was in effect refused, relied in part on an asserted difference of opinion as to the forum for resumed negotiations. This asserted difference does not excuse PTO from an affirmative response to the request to negotiate. Such a response would have advanced matters to the point of discussing, if necessary, ground rules and any other preliminaries.
I conclude, ultimately, that PTO failed, in its response to POPA's request to negotiate on signatory authority, to fulfill the duty prescribed in Section 7114(a)(4) of the Statute: to "meet and negotiate in good faith." By virtue of this failure, PTO violated Sections 7116(a)(1) and (5).
B. PTO's actions concerning pay negotiations
As set forth in more detail above, Shepherd withheld any commitment to enter into the multifaceted negotiations POPA's requested on April 10, on the grounds that (1) some of the subjects involved were newly authorized under FEPCA and still in the "comment" stage for implementing regula- tions and (2) Shepherd was uncertain as to the negotiability of special pay rates. No reason was given for not negotiating over POPA's proposal concerning reimbursement for law school tuition.
PTO now concedes that the subject of special pay rates is negotiable under Authority precedent (Tr. 80). National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 37 FLRA 147 (1990) (NTEU). With respect to the other subjects of the April 10 request, POPA neither expressly concedes nor contests negotiability. In fact, the only statement made on behalf of any party concerning the obligation to bargain over the subjects raised in the April 10 request is the General Counsel assertion that the "the pay matters at issue" in POPA's proposals concerned "conditions of employment" within the meaning of the Statute (citing Fort Stewart Schools v. FLRA, 495 U.S. 641, 110 S.Ct. 2043 (1990)). I cannot tell whether this assertion is intended to cover the subject of tuition reimbursement. No party addressed at all the question of the negotiability of any of POPA's specific proposals.
All this leaves the question of subject matter negotia- ability in an odd posture. Surely a finding that each of the subjects addressed in POPA's April 10 request is negotiable is required before PTO may be ordered to bargain concerning each of them. The General Counsel's case is implicitly premised on the assertion that each is a negoti- able subject. Yet in the absence of an explicit joining of this issue (and of even a mention of the issue of the negotiability of the tuition reimbursement) any determina- tion I might make on the negotiability of these subjects should have no precedential significance. My finding is, therefore, that in the face of the implied assertion of negotiability (by the General Counsel and by POPA), the negotiability of these subjects has not been disputed. I therefore conclude for the purposes of this case that they are negotiable.6/
Based, then, on the fact that POPA made a request on April 10 to negotiate over negotiable subjects, PTO had a duty to respond by agreeing to schedule negotiations, at least unless it had a valid reason for not doing so. See U.S. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 36 FLRA 524, 531-32 (1990) (Wright-Patterson).
Shepherd presented to POPA, as PTO's reason for not proceeding to bargain about pay items authorized by FEPCA (5% staffing differential, recruitment bonuses, and retention allowances), the fact that OPM's regulations on these matters were still in the "comment" stage. However, PTO does not assert that fact as a legal defense. Rather it continues to press the contention, treated earlier, that it had no opportunity to defend against an allegation of refusal to bargain, only against an allegation of refusal to respond. Again, I see no practical distinction for the purposes of this case. PTO did in fact present the reasons it failed to accede to the April 10 request to negotiate. I do not understand it to argue that, if the complaint had been more specific in alleging a refusal to bargain, it would have presented different or additional facts concerning its reasons. Moreover, there does not seem to be any real dispute about the reasons Shepherd gave to POPA.
Although PTO does not argue that the fact that OPM's FEPCA regulations were still in the "comment stage" made POPA's bargaining request premature, its Counsel did contend in his opening statement that POPA's bargaining requests presented PTO's new labor relations chief (Shepherd) with "novel issues related to pay, which had not been previously dealt with by the parties," and that as a result, "the agency's position on these issues was in some state of flux and uncertainty." PTO's Counsel implicitly characterized Shepherd's efforts to keep POPA informed about the agency's progress in reaching "a resolution of these various issues" and her assurances that "they would be responding as soon as possible" as conduct that satisfied PTO's statutory duty.
I cannot equate Shepherd's efforts, though they appear to have been made in good faith, with compliance by PTO with its duty to negotiate. To the extent that the argument is that Shepherd was overwhelmed by the number of tough issues with which she was confronted suddenly on assuming her new position, such a defense is akin to asserting a lack of agency resources to provide sufficient labor relations support. That is not a valid defense. See Wright-Patterson, 36 FLRA at 532-33. To the extent that the argument is that PTO needed more time to prepare itself for negotiations, the answer is the same. I must consider the fact that PTO was not prepared to negotiate on these matters even as of the date of the hearing (Tr. 80), seven months after the April 10 request. Part of an agency's duty to negotiate is the duty to "avoid unnecessary delays." Section 7114(b)(3) of the Statute. The legal arguments relied on here to justify the delay are simply insufficient to permit a finding that it was necessary.7/ As the United States Court of Appeals for the District of Columbia Circuit stated in American Federation of Government Employees v. FLRA, 785 F.2d 333, 338 (1986):
Congress has not established a collective bargaining system in which the duty to bargain exists only at the agency's convenience or desire, or only when the employer is affluent.
The Authority has adopted that statement. See, e.g., Service Employees International Union, Local 556 and U.S. Department of the Navy, Navy Exchange, Pearl Harbor, Hawaii, 37 FLRA 320, 334-35 (1990).
PTO apparently would have preferred first to formulate its own "proposal to implement the [FEPCA] provisions" and then to give POPA "an opportunity to come in on impact and implementation bargaining" (Tr. 80). But this is not a case involving changes in conditions of employment that the employing agency seeks to make. Here, the Union made a timely request to negotiate about midterm changes it was proposing. PTO was not privileged to refuse to begin negotiating about negotiable subjects raised by POPA's request simply because it was not ready to make proposals. See Wright-Patterson, supra ("[S]ection 7114(b)(2) of the Statute requires that the Respondent provide 'duly authorized representatives . . . to discuss and negotiate on any condition of employment[.]'")
At the very least, PTO was obliged to accept POPA's request to negotiate, to examine its proposals, and to respond by actually discussing those proposals (even if the initial response to some of the proposals was to raise legitimate questions as to their negotiability). See AAFES, 35 FLRA at 769. PTO did not do even this much, and its failure to do so violated section 7116(a)(1) and (5).
C. "Failure to respond" to the oral grievance
By taking three months to provide a written response to POPA's oral, informal special rates grievance of March 22, PTO undisputedly failed to comply with the contractual requirement that either a decision resolving an informal grievance or a memorandum stating that the grievance could not be resolved be provided within 20 days. The General Counsel argues that this delay constitutes a repudiation of the contract's grievance procedure, and consequently an unfair labor practice, because it effectively prevented POPA from proceeding to the formal stages of the procedure. POPA argues similarly but asserts also that PTO had not met its obligation to issue a grievance decision even as of the date that the complaint in this case issued (August 30). POPA contends, further, that the alleged repudiation of the contract constitutes an unfair labor practice "even without regard to the consequence on the Union's ability to pursue this grievance."
I see no repudiation here. A repudiation, unless made expressly (e.g.: "We have no obligation to follow that procedure.") would have to manifest itself in a disregard of the obligation to respond. Here, it is obvious that PTO was not in a position within 20 days, or even three months, to provide a "decision" resolving the grievance one way or another. PTO could have, within 20 days, as it in effect did in three months, provided a memorandum stating that the grievance could not be resolved informally. And, according to the contract, it should have. But the question is whether this was more than a "mere breach of the parties' agreement" and, instead, a "repudiation of the obligation imposed by the agreement's terms." Department of Defense, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 40 FLRA 1211, 1220 (1991).
PTO neither denied nor ignored its obligation to respond. It informed POPA that it had to check with OPM and Commerce about how to respond. It promptly (April 3) made a detailed request to OPM for guidance, expressly for the purpose of responding to the grievance. The first record indication that POPA pressed PTO for a response (although there may have been interim conversations) was in a telephone call from Oresky to Shepherd on April 16, just after the contractual 20 days had expired. Shepherd informed Oresky about the OPM inquiry. This did not satisfy POPA, and POPA included PTO's failure to "process" the grievance among the allegations in its end-of-May unfair labor practice charge.
The statement that accompanied the charge contained, as far as the record is concerned, the first indication POPA gave PTO that it regarded the delay in receiving a formal response as "an obstruction to POPA's ability to raise the grievance to arbitration." The extent to which that contention has practical validity is one question, but POPA did react positively if not immediately. It waited a bit longer for a response from OPM, then gave POPA a "formal reply" on June 26, about four weeks after the charge.8/ Since PTO was unable, even then, to do no more than recap its efforts up to then, its response was evidently for the purpose of permitting POPA to proceed, to avoid unfair labor practice liability, or both. In any case it acted consistently with, if not technically in compliance with, its contractual obligation. (The desire to avoid unfair labor practice liability is, at least in this instance, not to be confused with an attempt to cover up or any other unlawful or unsavory purpose.)
The delay in responding formally may or may not have realistically obstructed the grievance process. PTO was unable, at least before it responded in June, to furnish the information POPA had requested in connection with the grievance (PTO's failure to furnish will be treated in the next section of this decision). As it was, POPA secured several extensions of time to proceed with its formal grievance. I think the parties understood, and PTO reasonably would have anticipated, that POPA would prefer to have the requested information before proceeding. Eventually, POPA went ahead rather than wait longer for the information PTO said was not yet available.
POPA President Stern testified about the bargaining history of the contract provision requiring a 20-day response to an informal grievance. He stated that POPA indicated that it wanted that provision "so we know what management's defenses are and what management's theory is." (Tr. 26.) When the instant informal grievance was presented, PTO knew and told POPA, which had little reason to doubt, that PTO could not have provided POPA with its "defenses" or its "theory". PTO continued to be unable to do so up to and beyond the time it made the formal reply that permitted POPA to proceed to the formal grievance stage. All PTO could have done sooner was to comply with the technical requirement of a memorandum indicating that the grievance could not be resolved, in this case because PTO was still seeking the guidance necessary to formulate a substantive response.
I conclude, in sum, that by failing to comply with the contractual time limitation for a formal reply to the informal grievance, PTO did not repudiate that contractual obligation or refuse to process the grievance. Therefore PTO committed no unfair labor practice in this respect.
D. Alleged refusal to furnish information
PTO's answer denies each of the allegations of the complaint that goes to its obligation to furnish the information POPA requested on March 22, 1991. However, in the presentation of its case and in its legal arguments, PTO contests only the related issues of when it came into possession of the requested documents (and thus can be held to have "maintained" them) and when the documents were "reasonably available" to it.
Thus, preliminarily, I deem it worth noting that the prima facie proof that the requested data was "necessary" within the meaning of section 7114(b)(4)(B), of the Statute, consisting mainly of representations POPA made in its correspondence with PTO, is barely sufficient to warrant an affirmative finding. I find statutory "necessity" in the absence of a real contest of this issue. I note also the absence of any affirmative indication from PTO that disclosure is prohibited by law or that the requested data constitutes "guidance, advice, counsel, or training . . . related to collective bargaining."
Proceeding from what is relatively firmly established in the record, toward what is less easily ascertained, Shepherd admitted that she came into possession of the "complete file" containing all the requested data about a month before the hearing. Presumably, based on other credited representations of Shepherd, some of the documents had been obtained either from OPM or from a more careful search of PTO's records. (Shepherd's earlier, internal inquiries had yielded the response that PTO did not have copies.) She was unable to say, however, where any particular documents in the "complete file" had been found, or when any particular documents came into the hands of the individuals PTO engaged for the search. Understandably, neither the General Counsel nor POPA had any evidence on this point.
On the state of this record, and with no basis for discrediting Shepherd, I cannot find that any particular document was "maintained" by PTO or was "reasonably available" to it on any ascertainable date before the middle of October 1991. I have not been asked to draw an adverse inference from the absence of testimony from anyone directly involved in PTO's search. Nor can I make a reliable estimate about where such an adverse inference would lead. However, PTO's delay of at least a month after obtaining the "complete file" before furnishing it (even assuming it has done so since the hearing as Shepherd represented it would) was an unreasonable delay in the circumstances and constituted a failure to comply with section 7114(b)(4).
Information that must be furnished under section 7114(b)(4) must be furnished in a timely manner. Bureau of Prisons, Lewisburg Penitentiary, Lewisburg, Pennsylvania, 11 FLRA 639, 642 (1983). There is, of course, no strict rule regarding whether a delay of a month constitutes a failure to comply. But in the circumstances presented here, where the Union had already been forced to wait seven months while the agency collected the data, during which period the agency had adequate time to determine, at least in the main, whether the data was disclosable, the Union was entitled to swifter action. The fact that a complaint allegation of refusal to provide this information was already scheduled for hearing when PTO "received" the documents was certainly no reason to slow the process down. If anything, it should have imparted a greater sense of urgency.
Finally, the General Counsel and POPA contend that PTO committed the independent unfair labor practice of failing to reply to POPA's request for information, thus violating a duty that section 7114(b)(4) imposes even when the response would be to inform the union that the information sought does not exist. U.S. Naval Supply Center, San Diego, California, 26 FLRA 324, 327 (1987). The complaint does allege such a violation. However, the record does not support it. Shepherd testified credibly that she discussed with POPA representatives, especially Oresky, the fact that PTO did not have the requested documents but was attempting to obtain them. No dates were given for any conversations that occurred after the written request, but Shepherd also testified credibly that on March 22, even before POPA put the information request in writing at her request, she informed its representatives that management would need to do some research to find the requested documents. Thus, POPA was on notice that management was attempting to respond. A more formal "response" would have served no purpose in the circumstances. I conclude that the alleged violation of failure to respond has not been established.
I have found that PTO violated sections 7116(a)(1) and (5) of the Statute by failing to fulfill its duty to engage in negotiations, on POPA's request, on the subjects of signatory authority and matters of pay and tuition reimbursement. I have further found that PTO violated sections 7116(a)(1), (5), and (8) by failing to furnish requested information in a timely manner. I have found that PTO did not violate the Statute in any other way as alleged in the complaint and I recommend that those allegations be dismissed.
POPA has requested a retroactive rather than a prospective bargaining order for the refusal to negotiate violations, and that copies of the posted notice be distributed by PTO to all bargaining unit employees.9/ As the signatory authority proposals about which PTO refused to negotiate were previously found negotiable by the Authority, I shall recommend a retroactive bargaining order with respect to those proposals. U.S. Department of the Army, Fort Stewart Schools, Fort Stewart, Georgia, 37 FLRA 409, 422 (1990) (Fort Stewart). The Authority also has a stated policy of making bargaining orders retroactive in cases involving refusals to bargain over rates of pay that are negotiable. U.S. Department of Defense Dependents Schools, Mediterranean Region, Madrid, Spain, 38 FLRA 755, 759 (1990). I shall therefore also recommend such an order with respect to negotiations over the pay matters included in POPA's April 10 request to bargain.10/
The question remains: retroactive to when? Typically, in cases where the unfair labor practice involves an agency's continued insistence that a proposal already found negotiable by the Authority is nonnegotiable, the bargaining order makes the resulting agreement retroactive to the date of the assertion of nonnegotiability. See, e.g., Fort Stewart, 37 FLRA at 423. In cases where the unfair labor practice that warrants a retroactive bargaining order is a unilateral change, the Authority typically makes the resulting agreement retroactive without a date but implicitly to the time of the unilateral change. See, e.g., U.S. Department of the Air Force, Griffiss Air Force Base, Rome, New York, 37 FLRA 570, 582-83 (1990); Department of the Air Force, Scott Air Force Base, Illinois, 35 FLRA 844, 860-61. The express intent in these cases was to attempt to compensate employees for harm caused by the changes.
The violations that are of concern here are a little different in that it is not easy to pin down the dates on which PTO's failures to respond adequately became refusals to negotiate. Regarding the request to negotiate over signatory authority proposals, I find that an appropriate date for retroactive application of any resulting agreement is April 8, 1991, 45 days after the Authority's negotiability decision (making it the outside date within which PTO previously agreed to begin negotiations) and four days after POPA's request to negotiate. However, in the event that mandatory retroactivity would for some reason impede negotiations, the parties should be permitted, by mutual consent (that is, only with POPA's consent), to waive or modify it.
Regarding the negotiations over pay matters, the most appropriate provision for minimizing loss to employees would appear to be (because of the unique circumstances presented here) to make any resulting agreement retroactive to the earliest date on which PTO was or becomes authorized to make the proposed types of pay adjustments effective, but no earlier than May 5, 1991--the beginning of the second biweekly pay period after POPA's April 10 request.11/
As for the requested negotiations over tuition reimbursement, a prospective bargaining order is appropriate. This subject, although analogous to pay, has a closer affinity to reduced parking rates, a subject for which the Authority has, with court approval, ordered prospective bargaining only. See National Treasury Employees Union v. FLRA, 910 F. 2d 964 (D.C. Cir, en banc, 1990). Finally, I do not find that the extraordinary remedy of distributing copies of the posted notice to all bargaining unit employees, as requested by POPA, is necessary here to bring these unfair labor practices to the employees' attention. For these reasons, I recommend that the Authority issue the following order.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Patent and Trademark Office shall:
(a) Failing and refusing to meet and negotiate with the Patent Office Professional Association (POPA), the exclusive representative of certain of its employees, over negotiable proposals with respect to signatory authority and over negotiable subjects relating to pay and tuition reimbursement.
(b) Failing and refusing to furnish in a timely manner to POPA data requested by POPA concerning special pay rates.
(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Negotiate in good faith with POPA about POPA's negotiable signatory authority proposals and about the requested subjects relating to pay, and apply retroactively, as described in the section of this decision called "Remedy,"
the terms of any agreement reached as a result of such negotiations.
(b) Negotiate in good faith with POPA about the subject of tuition reimbursement.
(c) Furnish to POPA the data concerning special pay rates requested in POPA's letter dated March 22, 1991.
(d) Post at all of its facilities where bargaining unit employees are located copies of the attached Notice on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Assistant Secretary and Commissioner of Patents and Trademarks and shall be posted and maintained for 60 consecutive days, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Take reasonable steps to ensure that these Notices are not altered, defaced, or covered by any other material.
(e) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Washington, D.C. 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 with it.
Issued, Washington, DC, April 21, 1992
Administrative Law Judge
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to meet and negotiate with Patent Office Association (POPA), the exclusive representative of certain of our employees, over negotiable proposals with respect to signatory authority and over negotiable subjects relating to pay and tuition reimbursement.
WE WILL NOT refuse to furnish in a timely manner upon request of POPA, data concerning special pay rates.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL negotiate in good faith with POPA about signatory authority and pay and will apply any agreement reached retroactively.
WE WILL furnish POPA the data it requested on March 22, 1991, concerning special pay rates.
WE WILL negotiate in good faith with POPA about tuition reimbursement.
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, Washington, D.C. Regional Office, whose address is: 1111 18th Street, NW, 7th Floor, P.O. Box 33758, Washington, DC 20033-0758, and whose telephone number is: (202) 653-8500.