DEPARTMENT OF COMMERCE PATENT AND TRADEMARK OFFICE ARLINGTON, VIRGINIA and PATENT OFFICE PROFESSIONAL ASSOCIATION
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF COMMERCE
PATENT OFFICE PROFESSIONAL
Case No. 03 FSIP 18
DECISION AND ORDER
The Patent Office Professional Association (POPA or Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Commerce, U.S. Patent and Trademark Office, Arlington, Virginia (PTO or Employer).
Following investigation of the Union’s request for assistance, which arose during negotiations over the Employer’s decision to install Office Action Correspondence Subsystem (OACS) software,(1) the Panel determined that the dispute should be resolved through an informal conference with Panel Member Joseph C. Whitaker. If a voluntary settlement was not reached during the informal conference, Member Whitaker would report to the Panel on the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a binding decision. The parties also were advised that, if the Panel is forced to impose a resolution, it would be limited to selecting from the parties’ final offers on a package basis, insofar as they are otherwise legal.(2)
Pursuant to this procedural determination, Member Whitaker met with the parties on January 29 and 30, 2003. Although they modified their proposals considerably during the procedure, and the Union withdrew 23 sub-sections of its proposal, the parties were unable to resolve many of the disputed issues. Following the informal conference, they submitted brief statements in support of their final offers. Member Whitaker has reported to the Panel and it has now considered the entire record, including the parties’ supporting statements.
The Employer’s mission is to issue patents and register trademarks. The Union is the exclusive representative of a bargaining unit of approximately 3,500 professional employees in pay grades GS-5 through -15, most of whom are patent examiners. The unit also includes reference librarians and classifiers. The parties have different views regarding whether they are covered by a master collective bargaining agreement (MCBA).
ISSUES AT IMPASSE
The parties disagree over numerous items. The five main areas in dispute concern: (1) the extent of additional training on OACS software that examiners may request; (2) how to assist examiners (some 50 to 150) who will be affected by the Employer’s plan to phase out the use of typists, and how soon typists will no longer be available; (3) what, if any, adjustments in production requirements will be offered during the transition period; (4) the extent to which the Employer will maintain and support legacy software and WordPerfect document access; and (5) bargaining over future impacts.
POSITIONS OF THE PARTIES
1. The Union’s Position
In abridged form, the Union proposes that: (1) the agreement not prevent bargaining over future changes in "electronic application files or electronic application examination;" (2) for 6 months, a joint committee gather information and make reports with recommendations for enhancements and improvements; (3) for examiners who used typists as of July 1, 2002, typists be available for 3 more years; delays in counting or mailing office actions due to typing delays not count against an examiner; and typists provide documents in paper and electronic formats; (4) Action, Form, and PCT Writer software (the legacy group) be maintained and supported for 6 months; fully functional copies of WordPerfect software be maintained in certain locations for 3 years; and employees be provided reasonable time to convert macros, etc., from the old to the new software; (5) a comprehensive Microsoft Word manual be provided to every bargaining-unit employee who requests one; for some categories of employees, a 2-hour classroom refresher course, further training if needed at the discretion of the supervisory patent examiner (SPE), and the option to select six training modules, respectively, be provided; for others who do not type, there be 20 hours of classroom instruction; training requests not be unreasonably denied, and denials be in writing; training time be "accurately recorded and separately accounted for," and not charged against optional automation training time; for those learning to type, 1 hour extra be allowed examiners per action typed for a 3-month period; (6) repeat training could be requested when a computer is not working or course material is not fully covered; (7) training be provided in the future on new substantive upgrades of OACS; and (8) the agreement be implemented in accordance with the Statute.
Given the likelihood that the Employer will "significantly modify" OACS, which is part of a "much larger automation package for electronic filing and examination," the Union’s proposed preamble leaves the door open to future bargaining. On the joint committee to gather information on OACS implementation, although the parties are close in most respects, its proposal has the advantage of being more specific than the Employer’s on scheduling and reporting.
With respect to typing, the 50 to 150 experienced examiners who rely on typists and perform superior-level work that is "vital to the agency’s goal of issuing high quality patents," ought to be able to retain such services for the next 3 years. For many, this will enable them to finish out their careers, and for others, the extra time will provide an opportunity to master typing skills without impairing their current ability to exceed established performance standards. The availability of typed documents in paper and electronic format should facilitate the examiner’s ability to edit the typed product. Similarly, a 6-month transition period before requiring examiners to use OACS software exclusively will also help them to meet production standards while they gain proficiency with the new software. In this regard, it should be noted that, while some examiners were trained solely on the OACS system, and some have acquired such skills voluntarily, others have yet to make the transition. During the transition, the legacy tools should be maintained in working order, including, for example, an update for daylight saving time so they will not become unusable. Over the next 3 years, some access to documents prepared using WordPerfect is also important since the prosecution of related patent applications can span many years. This will also afford examiners an opportunity to convert any self-made macro paragraphs specific to their technological area to the OACS system.
On training, the Employer’s proposals are inadequate because of "a complete lack of any significant assurances that employees will receive necessary training." They are also "so vague" as to be "virtually unenforceable." By contrast, the Union’s proposals, which permit "supervisory review" of training requests, and require that such requests not be "unreasonably denied," do more to ensure "adequate training . . . [without] plac[ing] an undue burden upon the agency" than the Employer’s. As to the "quick guides" that the Employer offers, they only help the user with the most basic functions, and are not a "substitute for the more comprehensive [word] user’s manual" that the Union proposes be provided on request. The 2-hour training module the Employer proposes is inadequate for teaching this "reflexive motor skill" to affected examiners, who are "virtually all older employees." Furthermore, training should be given when "a significant upgrade of OACS is released" to ensure that examiners can effectively use the enhanced functions. Finally, to support examiners’ production levels during the training and refresher periods, they should be given a 1-hour adjustment each time they type their own office actions; such training time should be accounted for separately from the examiner’s normal duties.
2. The Employer’s Position
In summary, the Employer proposes that: (1) for certain unit employees, typists be available for 2 more years; (2) Action, Form, and PCT Writer software remain on examiners’ computers for 6 months; (3) a joint working group gather information on problems relating to OACS over a 6-month period, and make quarterly reports with recommendations for enhancements and improvements; (4) a fully functional copy of WordPerfect be maintained for 2 years; (5) user guides and manuals on OACS continue to be provided; (6) for examiners who currently do not use OACS, guidelines be issued to supervisors on appropriate training (formal course work, one-on-one formats with Information Technology Resource Providers (ITRPs), etc., lasting at least 2 to 4 hours); for employees lacking basic typing skills, 2 to 4 hours for completing a typing module and practice time be provided; and employee requests for training not be unreasonably denied; (7) when an employee’s workstation is not fully operational or the training is incomplete, an affected employee may request retraining; (8) before new substantive upgrades of OACS are made, the Employer decide whether to provide training and record any training time accurately under a separate time code; and (9) the agreement be implemented in accordance with the Statute.
The move to OACS software is necessary because the three legacy tools, which were developed informally by an examiner, cannot be easily updated or made compatible with PTO’s integrated system. While the parties agree that the legacy tools should remain on examiners’ computers for 6 months, the Union’s position that they be updated during that period, even if possible, would entail an unwarranted amount of time and expense for a system that PTO "has been trying to retire for 3 years." Regarding how long WordPerfect software should be available, 2 years is more than adequate for maintaining a "‘short-cut’ of using a previously issued office action to create a subsequent one that [examiners] are given production time to produce."
With respect to the phase-out of typists, the 2-year period represents "a very generous learning curve" for those employees who cannot type. For those examiners who simply have not been typing their documents because they "believe that part of the status of being a professional is having someone else do their typing for them," guaranteeing typist services for 3 years is not justified. The Union’s proposal contains elements such as a 35-word-per-minute typing test requirement that PTO "is not equipped to do." Furthermore, to produce office actions in OACS, examiners mainly use "a combination of pointing and clicking a mouse to select form paragraphs and typ[e only the] text that is unique to the office action." The lengthy sample office action the Union has placed in the record is not representative; most office actions run from four to eight pages, with some 30 to 50 percent being typed by the examiner.
As to accommodating typing delays, PTO "is not proposing to change any aspect of the procedures for examiners using typists during the phase-out of the typists." By policy, "an examiner may  request additional time  from his/her SPE to accommodate unusual circumstances  on an office action." Since examiner’s must ensure that their actions are mailed in a timely manner under their performance appraisal plan, the Union’s proposed accommodation would be inconsistent with that plan. The Union also proposes that time for converting macros and form paragraphs into OACS, that examiners created on their own using legacy tools, be "accurately recorded and separately provided for." Insofar as this wording refers to non-production time, "the language cannot legally require [PTO] to grant non-production time." Moreover, the Union’s proposal is unjustified because such materials can be imported directly into OACS.
Regarding training, PTO is proposing "a more comprehensive approach" than the Union. To effectuate such an approach, it will "issue guidelines to SPE’s concerning what training is appropriate." PTO is also proposing a 2-to-4-hour floor for OACS refresher training and the typing practice module. The examiner and the SPE would discuss the examiner’s specific training needs. Any training, including OACS refresher training, that is offered should be within the discretion of the SPE, who "is in the best position to assess an examiner’s training needs and the best method for meeting them." The "18 hours of training" that the Union is proposing, "which is more than [examiners] received as part of the [PTO’s] mandatory OACS training," is excessive, as is its proposed 20-hour classroom typing course. The 2-hour typing module the Employer offers, on the other hand, can be downloaded onto an examiner’s computer, and "nothing prevents the examiner from using the module more than once as a basis for additional learning and practice." Although the Union modified its earlier proposals about the training assigned to examiners, "the Union has not gone far enough to address [PTO’s] concerns about its ability to assign appropriate training to each individual examiner."
Should a training request be denied, recourse is offered in several ways. The examiner may discuss any denial with the SPE’s supervisor or the Technology Center Director. In addition, such requests are not to be "unreasonably denied," and denials are to be in writing. As to providing every examiner with a copy of the comprehensive Microsoft Word user’s guide, that could cost as much as $136,000. The nine more specific guides that PTO produces are sufficient to inform OACS users about the functions that employees perform. Finally, when OACS is changed or upgraded, training needs that arise can be met in various ways, depending on the nature of the change, but formal training should not be mandated in each instance.
Having carefully considered the evidence and arguments presented, we conclude that, on balance, the Employer’s final offer package provides the more reasonable approach for resolving the parties’ dispute. We are persuaded that the 2-year transition period the Employer proposes before OACS becomes the sole software examiners use for preparing written documents is adequate, especially considering that the Employer began training many examiners on OACS over 3 years ago. The parties appear to agree that each examiner may need a different amount and type of training. In our view, this supports the Employer’s approach, where the examiner and the SPE are to discuss individual training requirements before a decision is made about how they are to be met, with the SPE retaining the ultimate discretion to approve training requests. Moreover, a number of other mechanisms are built into the Employer’s proposal to ensure a proper fit between the training and the examiner‘s deficiencies. These include the availability of guidelines to inform SPEs about appropriate training for legacy system users, the opportunity for examiners to discuss training concerns with the Technology Center Director, and recommendations the joint labor-management working group may make to address problems.
Turning to the Union’s final offer package, it appears to set out more arbitrary and expansive parameters for the amount of OACS and automation training to be provided (up to six courses, plus additional training), particularly when addressing those examiners who do not type (20 hours of classroom time on typing skills), which are unwarranted. We also believe that the performance-related time adjustments the Union proposes are already taken into consideration by the overall length of the transition period. While the degree of support for the older legacy tools may prove imperfect, the potential cost of maintaining them outweighs the benefit to employees. Furthermore, if the Employer’s statement that the OACS system enables examiners to import WordPerfect documents is accurate, the Union’s concerns in this area may be exaggerated. Finally, as to future bargaining, the Statute appears to cover this subject sufficiently. Fo