U.S. Patent and Trademark Office (Respondent) and Patent Office Professional Association (Charging Party/Union)

[ v57 p185 ]

57 FLRA No. 45

U.S. PATENT AND TRADEMARK OFFICE
(Respondent)

and

PATENT OFFICE PROFESSIONAL ASSOCIATION
(Charging Party/Union)

WA-CA-80405
WA-CA-80515

_____

DECISION AND ORDER

May 24, 2001

_____

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

I.     Statement of the Case

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

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

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

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

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

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

II.     Preliminary Matter

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

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

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

III.     Case No. WA-CA-80405

A.     Background  [n4] 

1.     History of Term Negotiations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B.     Positions of the Parties

1.     Respondent's Exceptions

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

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

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

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

2.     The General Counsel's Opposition

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

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

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

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

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

3.     The Charging Party's Opposition

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

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

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

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

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

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

C.     Analysis and Conclusions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

D.     Charging Party's Exceptions

1.     Exceptions

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

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

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

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

2.     Analysis and Conclusions

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

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

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

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

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

55 FLRA at 222.

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

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

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

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

IV.     Case No. WA-CA-80515

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B.     Positions of the Parties

1.     Respondent's Exceptions

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

2.     The General Counsel's Opposition

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

3.     The Charging Party's Opposition

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

C.     Analysis and Conclusions

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

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

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

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

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

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

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

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

D.     Charging Party's Exceptions

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

V.     Order

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

      1.     Cease and desist from:

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

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

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

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

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

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

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

           (c)     Post at its facilities where bargaining unit employees represented by the Patent Office Professional Association are located copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commissioner and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

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


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

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

We hereby notify bargaining unit employees that:

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

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

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

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

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

      ________________________
(Activity)

Date: ___________ By: _________________________

      (Signature) (Title)

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

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


File 1: Authority's Decision in 57 FLRA No. 45
File 2: ALJ's Decision in WA-CA-80405
File 3: ALJ's Decision in WA-CA-80515


Footnote # 1 for 57 FLRA No. 45 - Authority's Decision

   Member Pope did not participate in this decision.


Footnote # 2 for 57 FLRA No. 45 - Authority's Decision

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


Footnote # 3 for 57 FLRA No. 45 - Authority's Decision

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


Footnote # 4 for 57 FLRA No. 45 - Authority's Decision

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


Footnote # 5 for 57 FLRA No. 45 - Authority's Decision

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


Footnote # 6 for 57 FLRA No. 45 - Authority's Decision

   The MOU provided as follows:

Article 14, Section 2 of the currently effective PTO-POPA Basic Agreement provides, in part, that mid-term changes in conditions of employment shall be proposed on a quarterly basis.
In order to promote more effective bargaining and take into account the need of all participants to schedule time, the parties agree that Article 14, Section 2, shall mean that the time for proposing mid-term changes referenced in Article 14, Section 3A, shall coincide with the 10th day in each of the months of January, April, July, and October, and shall continue in this fashion until superceded by a new Agreement.
Initial proposals submitted in accordance with Article 14, Section 3A, after the 10th day of January, April, July, and October shall be considered to have an effective submission date which is the 10th day of the next quarter.

Union Exhibit 2.

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


Footnote # 7 for 57 FLRA No. 45 - Authority's Decision

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


Footnote # 8 for 57 FLRA No. 45 - Authority's Decision

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


Footnote # 9 for 57 FLRA No. 45 - Authority's Decision

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


Footnote # 10 for 57 FLRA No. 45 - Authority's Decision

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


Footnote # 11 for 57 FLRA No. 45 - Authority's Decision

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


Footnote # 12 for 57 FLRA No. 45 - Authority's Decision

</