DEPARTMENT OF COMMERCE U.S. 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
U.S. PATENT AND TRADEMARK OFFICE
ARLINGTON, VIRGINIA

and

PATENT OFFICE PROFESSIONAL
     ASSOCIATION

 

Case No. 03 FSIP 108

DECISION AND ORDER

    The Department of Commerce, U.S. Patent and Trademark Office, Arlington, Virginia (PTO or Employer), 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 Patent Office Professional Association (POPA or Union).

   Following an investigation of the request for assistance, which arose during negotiations over the Employer’s decision to consolidate and relocate its offices from Crystal City to Alexandria, Virginia (referred to as the "Carlyle Campus"),(1) the Panel determined that issues under 11 separate categories should be resolved through an informal conference with Panel Member John G. Cruz.(2) The parties also were directed to submit written statements of position, with supporting evidence and arguments, prior to the informal conference, and informed that if no settlement was reached, Mr. Cruz would notify the Panel of the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse. After considering this information, the Panel would resolve the dispute by selecting one of the party’s final offers on a category-by-category basis, to the extent they otherwise appear legal.

    In accordance with the Panel’s procedural determination, Mr. Cruz conducted an informal conference with the parties from August 25 through August 27, 2003. The parties memorialized a number of tentative agreements that had been reached during mediation, and settled their dispute over one of the 11 categories (entitled "Briefings"). They continued to discuss settlement possibilities bilaterally until August 29, and submitted their final offers on all remaining issues to the Panel on September 3. The parties also filed post-conference statements of position in support of their final offers. Mr. Cruz has reported to the Panel and it has now considered the entire record, including the parties’ pre- and post-conference statements of position.

BACKGROUND

   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 under the following 10 categories: (1) Category 1, "Preamble;" (2) Category 2, "Site Accessibility and Security;" (3) Category 3, "HVAC and Lighting;" (4) Category 4, "Office Selection;" (5) Category 6, "Paper Files Removal;" (6) Category 7, "Move Process;" (7) Category 9, "Operations During Transition Period;" (8) Category 10, "Parking;" (9) Category 11, "Union Issues;" and (10) Category 12, "General."

POSITIONS OF THE PARTIES

1. Category 1: Preamble

a. The Union’s Position

The Union’s final offer on this category is as follows:

M1 - Employee, as used herein, means the bargaining unit members of the Patent Office Professional Association (POPA), unless otherwise specifically stated.

M4 - The USPTO, Office, Agency, and Management are used interchangeably to mean the United States Patent and Trademark Office.

U - The Office will maintain an employee locator system including information on the location of Office personnel, including employees’ telephone numbers, and current location of all search files.

U - Wherever practical, employee mailboxes used for non-confidential documents will be located on the same floor as the employees.

U - If central files are present, but not on the same floor as the examiners served, there will be a central pick up and delivery request station on each floor not having central files. Delivery requests will normally be responded to within one working day.

U - Whenever practical, examiners who have paper search files will be on the same floor as their search files. Examiners, whose primary search files are not located on their floor, will receive time to travel to their search files, within their building, of up to two minutes per trip. The time will be permitted to accumulate over one or more pay periods and will be granted in one-hour increments of accumulated time. Time for travel within the building will be granted to a maximum of thirteen (13) hours per fiscal year.

U - The parties reaffirm the March 29, 1999 award, 99 FSIP 15,(3) of Panel Member Mary Jacksteit concerning the Carlyle facility.

Both parties acknowledge the continued existence and operation of the 1999 Award, so reference to it in the Preamble is appropriate. The adoption of its final offer would make it clear that the results of the parties’ current negotiations are intended "to build on rather than replace the earlier award." Failure to refer to the 1999 Award in the Preamble also could lead someone reading the Panel’s decision to conclude that no provisions other than the instant relocation MOU apply to the move to Carlyle. As to the Employer’s final offer, the Union objects to the inclusion of MP3f under this category(4) because, at the time the Panel asserted jurisdiction, the Employer had not proposed it as part of the parties’ Preamble. Consequently, the Employer’s action in placing it in the Preamble is "inconsistent" with the Panel’s procedural determination. Finally, the Union also objects to the Employer’s characterization of any agreement or award(5) that results from this Panel procedure as a "supplement" to the TARP. The TARP is a management document that the Employer "feels free" to change unilaterally, and not a product of negotiations between the parties which cannot be altered except by mutual agreement.

b. The Employer’s Position

The Employer proposes the following:

MP1. Employees, as used herein, means the bargaining unit members of the Patent Office Professional Association (POPA), unless otherwise specifically stated.

MP2. The USPTO, Office, Agency, and Management are used interchangeably to mean the United States Patent and Trademark Office.

MP3. The parties agree that the following practices will be continued for the relocation to Carlyle:

    a. The Office will maintain an employee locator system, including information on the location of Office personnel, including employees’ telephone number and current location of all search files.

    b. Wherever practical, employee mailboxes used for non-confidential documents will be located on the same floor as the employees.

    c. If central files are present, but not on the same floor as the examiners served, there will be a central pickup and delivery request station on each floor not having central files. Delivery requests will normally be responded to within one business day.

    d. Whenever practical, examiners who have paper search files will be on the same floor as their search files.

    e. Examiners whose primary search files are not located on their floor will receive time to travel to their search files, within their building, of up to two minutes per trip. The time will be permitted to accumulate over one or more pay periods and will be granted in one-hour increments of accumulated time. Time for travel within the building will be granted to a maximum of thirteen (13) hours per fiscal year.

    f. All supervisors shall encourage accurate recording of time spent packing and unpacking offices. There will be no arbitrary uniform rules about the amount of time that can be spent packing and unpacking. Employees will engage in a reasonable good faith effort to diligently pack and unpack their offices. Any time used because a professional being moved decides that this is an appropriate occasion to determine which items to discard or retain is not envisioned as caused by the move.

MP4. To supplement the material contained in the Transition and Relocation Plan (TARP), the parties agree:

While many of the parties’ proposals in the Preamble are "the same or substantially similar," the Employer’s final offer should be adopted for a number of reasons. Its wording in MP4 is "crucial" because it explains how the TARP "fits in" with the Relocation MOU. Where the TARP is superceded, it is noted in specific provisions within the Relocation MOU. The Union’s final offer does not include equivalent wording, so it should be rejected. It also should be rejected because it includes a reaffirmation of the 1999 Award. Even though the Employer acknowledges it is obligated to follow the 1999 Award, the parties have differing interpretations of some of its provisions. Without a clear understanding of what is being reaffirmed, the result would be "confusion" and "further litigation." An additional reason for rejecting the Union’s proposal is that it "may be read as an attempt to preclude the Panel from modifying or clarifying the 1999 Award."

CONCLUSIONS

   Having carefully considered the evidence and arguments presented by the parties regarding the Preamble to the Relocation MOU, we conclude that the Union’s final offer should be adopted to resolve their dispute. First, the Union is correct that Employer proposal MP3f was not raised under the Preamble section when the Panel asserted jurisdiction. Its appearance in two separate categories is unfair because it gives management two chances to have it included in the Relocation MOU. More importantly, it is unclear why the Relocation MOU should be viewed as supplementing the TARP, when the former is the result of bilateral negotiations between the parties, while the latter is a document created unilaterally by management. As to the 1999 Award, reaffirming that it continues to apply to the move to Carlyle is consistent with the Employer’s oral and written acknowledgments in this regard, and does not alter the fact that the parties disagree over the meaning of some of its provisions. Moreover, given the parties’ relationship, even if reference to the 1999 Award is excluded from the Preamble, this is unlikely to prevent further litigation over its meaning.

2. Category 2: Site Accessibility and Security

a. The Union’s Position

The Union’s final offer is the following:

U3. For purposes of HVAC only, the Facility Operation Hours will be 6:00 AM to 8:00 PM, Monday through Friday.

U9. The Agency will provide one hour of mandatory security training every year to bargaining unit members. This training will include, but is not limited to, building evacuation procedures and how to handle bomb threats.

The adoption of the Union’s proposals is necessary "to increase safety and ameliorate traffic congestion." The Carlyle Campus is adjacent to the U.S. District Court for the Eastern District of Virginia, the site of high profile criminal trials which are expected to "increase problems for commuters in an already congested traffic area." As discussed during the informal conference, the relocation "will actually create more stressful and/or longer commutes for at least 80 percent of employees." By increasing the daily HVAC operating hours, as it proposes in U3, employees would have greater flexibility in arrival and departure times, permitting them to plan their commutes in a manner that avoids traffic congestion and reduces commuting times. With respect to U9, its basis is the Employer’s continued "unwillingness to commit to talking with employees about security," even after the enormous stress they experienced during "9/11" because of the close proximity of the Pentagon to the PTO’s current site. In this regard, the Employer "ought to be ashamed and embarrassed" to have argued in its earlier submission to the Panel that providing 1 hour of security training would cost $250,000 annually. As the Union has demonstrated,(6) 9/11 prompted other bureaus within the Department of Commerce to give security training, while PTO’s employees have "received nothing."

b. The Employer’s Position

The final offer of the Employer is as follows:

M3. Facility operating hours will be 6:00 am to 7:00 pm, Monday-Friday, except for Federal holidays, or as otherwise set forth in the TARP with respect to specific areas of the campus such as IT facilities and the Security Command Center.

M7. Security alerts shall be disseminated by e-mail and existing PA systems if possible.

M9. Employees moving to Carlyle will be provided approximately one hour of mandatory training on security issues within one year of moving. Updated information on security issues will be provided as necessary.

M14. The parking garages will be monitored with security cameras and roving guards. Each parking garage will include duress alarms tied to the Security Command Center.

The Employer’s proposal "expands the operating hours by 2 hours per business day from what is currently provided in Crystal City." The Union, on the other hand, "has simply failed to show why the expense of an additional hour running the HVAC is justified, and why HVAC should be run on Federal holidays." It is unclear why the Union chose to address this topic under the Site Accessibility and Security section, rather that under the HVAC section. This could lead to inconsistencies depending on which final offers the Panel ultimately decides to adopt. On the issue of security, the "comprehensive" arrangements set forth in the TARP, such as restricted access and numerous methods of monitoring, demonstrate that the Employer "shares the Union’s concerns about security at the Carlyle facility." It has also agreed to discuss security at Carlyle during the relocation briefing that each employee will attend a few weeks prior to moving, and proposes to provide 1 hour of mandatory security training for all employees within 1 year of the move (M9). The Union’s security proposal would require management to provide training every year, "something [it] has never done." It should be rejected because it interferes with management’s right to assign work, fails to address an adverse impact of the move, and would cost $250,000 in lost productivity every year for a bargaining unit of this size.

CONCLUSIONS

    After thorough consideration of the parties’ positions regarding this category, we are persuaded that the Employer’s final offer provides the more reasonable basis for resolving the dispute. Its approach would increase the operation of the HVAC system by 2 hours per business day, and provide security briefings/training for employees both before and after they move to Carlyle. In our view, it strikes an appropriate balance between the demonstrated needs of employees in these areas and cost considerations. With respect to the Union’s final offer, it is unclear whether expanding the operation of the HVAC system to 8 p.m. during the normal workweek would be of more than marginal benefit to a few employees. It also provides no exception for HVAC operation on Federal holidays, and would establish annual security training requirements that go beyond the scope of the negotiations over the relocation. For these reasons, we shall order the adoption of the Employer’s final offer.

3. Category 3: HVAC and Lighting

a. The Union’s Position

The Union’s final offer reads as follows:

U15. Appliances prohibited in employee offices are set forth in the Jacksteit Award of March 29, 1999 (99 FSIP 15). However, if the Agency determines that it needs to exclude space heaters from the new facility, it will permit each employee to have one of a refrigerator (approximately four cubic feet or smaller) or a microwave in their office.

U17(a). When the Examining Corps is approved to do paid overtime, the Agency will provide at least 4 hours of HVAC on each Saturday and Sunday between the hours of 8:00 AM and 5:00 PM. The HVAC will be provided at the levels specified for normal operating hours.

U17(b). In order to aid the Agency in reaching its quarterly/yearly goals, for the last bi-week of each quarter, the Agency will provide 8 hours of HVAC between the times of 7:00 AM and 6:00 PM, on each Saturday and Sunday.

Currently, employees are permitted to have a wide range of appliances in their offices. During the negotiations that preceded the 1999 Award, the Employer proposed that no appliances be permitted at Carlyle, and the parties eventually reached a compromise that was incorporated into the 1999 Award. By specifically excluding only three appliances - refrigerators, microwaves, and hot plates - the Union "won the right for employees to have in their offices other specifically discussed appliances." Given the fact that the parties already have a binding Arbitrator’s decision on this issue, the Panel’s assertion of jurisdiction "was improper." The Union is "discussing this topic under continuing protest" because it is a permissive subject over which it chooses not to bargain. On its merits, U15 would benefit employees by, among other things, allowing them to avoid the use of communal refrigerators where theft of personal items occurs. The Employer’s "evidence" that the use of space heaters is solely within the discretion of the building manager, and its argument that appliances such as microwaves and refrigerators would adversely affect the Carlyle HVAC, "should not be considered persuasive." Among other things, "the new facility will have plenty of electrical capacity and easily will handle the small amount of heat generated by appliances that run intermittently." Its proposed wording under U17(a) and (b), by providing additional hours of HVAC operation, would encourage employees to work overtime during periods when overtime is authorized, potentially increasing the agency’s productivity and revenue. Any additional HVAC cost "is compensated for by additional income and reduction in pendency" of patent applications.

b. The Employer’s Position

The following wording is proposed by the Employer:

M15. Temperature and humidity controls within the ranges specified in the lease will be provided by the lessor during facility operating hours.

M15.a. The Agency will request LCOR to allow small personal fans in employee work areas, and will allow use of such fans if the landlord approves.

M16. A system capable of reducing or completely turning off lights during non-facility operating hours will be installed.

M17. HVAC will be provided Monday through Friday (except Federal holidays) 6:00 am to 7:00 pm; Saturday from 1:00 pm to 4:00 pm; and Federal holidays from 1:00 pm to 4:00 pm when examiner overtime is authorized and approved in advance.

Although both parties have proposed additional HVAC services beyond the normal operating hours to accommodate employees on flexible work schedules and overtime, the Union’s proposals require "unjustified expenditure of limited agency resources." If adopted, the HVAC system would operate at normal temperature levels during Federal holidays and on Sundays, and from 7 a.m. through 6 p.m. on weekends of the last bi-week of each quarter. Among other things, HVAC currently is not provided on Sundays, which are not part of the regular workweek. Moreover, "the relationship of HVAC and increased employee production is nothing more than speculation," because the PTO is already meeting its production goals without the additional hours the Union wants. In contrast to the Union’s proposals, these aspects of the Employer’s final offer should be imposed because they "would make employees comfortable during the hours that the vast majority of them actually work on the premises," comply with GSA temperature standards, and "promote energy efficiency.

   As to the issue of appliances in employee offices, the Union’s interpretation of the 1999 Award, under which space heaters and fans would be permitted, "is in error." In addition, GSA regulations expressly prohibit such devices from operating in Government-controlled facilities, "except in limited circumstances which are not present here."(7) The use of certain appliances, especially space heaters, would be detrimental to the efficient operation of the HVAC system, and "adversely affect electrical loads throughout the building." Conditioning management’s right to exclude space heaters upon permitting employees to use refrigerators and microwaves "is absurd" because each floor at the new facility has two pantries containing both items. Nevertheless, in recognition of the fact that space heaters have the most adverse impact, the Employer is willing to request the lessor to permit employees to use small personal fans in work spaces, and "will permit such fans if the lessor approves."

CONCLUSIONS

    Upon careful review of the record presented by the parties on this category of issues, we shall order the adoption of a modified version of the Employer’s final offer to settle the dispute. On the matter of HVAC operating hours, consistent with our decision on the previous category, we are convinced that the Employer’s proposal appropriately balances the need to provide a comfortable working environment for employees so that the PTO’s production goals are met with considerations of cost. With respect to the key issue of the use of personal appliances by unit employees at the new facility, the Union contends that this concerns a permissive subject of bargaining because it is already governed by the terms of an existing agreement between the parties, i.e., the 1999 Award. It raises essentially the same contention under Categories 4 and 5. The Panel takes this opportunity to address the Union’s jurisdictional argument.

   The goal of the Panel since its inception has been the voluntary resolution of impasses. The attainment of that goal is normally enhanced when settlement efforts are conducted over disputes as a whole, rather than in a piecemeal fashion. Where the Panel asserts jurisdiction over all or, as in this case, selected parts of a dispute, it reserves the right to decline to retain jurisdiction at some future point if a voluntary settlement is not reached, and either party raises (or continues to raise) a legitimate challenge to its jurisdiction. While the informal conference in this case met with limited success in voluntarily settling the entire dispute, serious discussions between the parties occurred on a wide range of topics, including those which the Union continues to contend are governed by the terms of existing agreements, so the Panel’s goal was partially attained. With regard to the particular agreement at issue under this category, the Employer has acknowledged that it is bound by the 1999 Award, but interprets the requirements of some of its provisions differently than the Union. The Panel’s statutory authority, however, is restricted to the resolution of impasses, and not the resolution of conflicting interpretations of existing agreements. Such disputes are the province of the parties’ negotiated grievance procedure. For this reason, the Panel declines to retain jurisdiction over this aspect of the parties’ dispute under Category 3, and shall impose only those portions of the Employer’s final offer that do not involve the use of personal appliances at the new facility.

4. Category 4: Office Selection

a. The Union’s Position

The Union proposes the following as its final offer:

U27. Consistent with the Jacksteit Award of March 29, 1999 (99 FSIP 15), office selection will be by seniority as set forth in the Ross Award. Employees may choose any office as their private office.

This is another topic over which the Panel asserted jurisdiction where the Union is participating "under protest." In this regard, the parties have an existing agreement (the 1999 Award), which recently reconfirmed their commitment to an established 20-year practice of permitting employees to select private offices by seniority. In accordance with this practice, "no offices are reserved based on single or double occupancy." Since an agreement including office selection procedures already exists, "negotiation on the topic is permissive and POPA has opted not to negotiate and not to take the issue to impasse." On the merits, adoption of the Employer’s proposal would negatively affect senior examiners’ morale, for many of whom office selection is one of the "few perks" they still enjoy. Modifying an earlier Panel Member’s award also would undercut the goal of providing stability to the "management/labor relationship," and invite all agencies "to scour existing Panel awards" for reconsideration. Moreover, providing two telephone, electric, and data lines (TEDs) in all offices would involve a "minor expense," is "a cost of doing business," and would not disrupt the agency’s relocation schedule because most of the offices have not been built. Finally, by supporting the Employer when it acts in a manner inconsistent with its prior agreements, the Panel would be rewarding it "for poor management and poor planning."

b. The Employer’s Position

    The final offer of the Employer on this category is the following:

M27. Certain exterior offices will be designated by management as double occupancy rooms and may not be available for selection as private offices. Three interior offices per each of the following seven (7) Technology Centers will be available for selection as private offices: 1600, 1700, 2100, 2600, 2800, 3600, and 3700/2900.

Permitting employees to choose any office as their private office would result in significant additional expense, and could delay the move, because "not all offices at Carlyle are equipped for double occupancy." If examiners entitled to a single office select offices that are equipped for double occupancy, the agency may have to spend about $1,000 "per single-constructed office" to install an additional TED outlet so that two examiners can be housed in them. In this connection, it would have been "nonsensical" for management to have equipped all offices for double occupancy when more than half of the POPA bargaining unit is entitled to private offices. The Employer’s final offer fulfills the requirement that it must provide all unit employees GS-13 and above with a single office without incurring the expense of having to install two TED outlets in every office, and also meets one of the Union’s expressed interests by accommodating some senior examiners who may want interior offices. In the past, on occasion, management has limited the offices examiners may select from, for example, by refusing to allow a senior examiner entitled to a single office to choose a larger interior office when it is needed to house two or more junior examiners.

CONCLUSIONS

   Having carefully considered the evidence and arguments presented by the parties, we shall decline to retain jurisdiction over their dispute concerning unit employees’ office selection. As in the previous category, the Union contends that this matter is governed by the terms of the 1999 Award, an existing agreement which the Employer has acknowledged it is bound to apply, but interprets differently than the Union. The Panel’s statutory authority, however, is limited to resolving impasses, and not questions concerning the interpretation and application of existing agreements. Such disputes are more appropriate for resolution under the parties’ negotiated grievance procedure.

5. Category 6: Paper Files Removal

a. The Union’s Position

The Union proposes the following wording as its final offer:

U38/51. Sections of the remaining 25% of the U.S. Patent Search Files may be removed when at least one of the following criteria is met:

    a. Since primary examiners work most closely and frequently in the class(s) of their assigned dockets, U.S. Patent Search Files may be removed in classes in which a majority of primary examiners vote that the paper files are no longer necessary to maintain the quality of patent examination.

    b. Since significant amounts of examiner added information will be lost when certain areas are removed, the Office shall retain those patent classes where figures have been color-coded on and/or notes have been added to U.S. Patent documents until such time as this additional information is available in electronic format. So that new information may be captured, the Agency will also provide a mechanism to add new color-coded images and notes to the image database.

The Union once again addresses the merits of this issue "under protest" because it believes that an existing agreement (the "Millennium Agreement") encompasses paper files removal. In its view, the Panel had no authority to assert jurisdiction over the matter in the first place because it involves a subject permissive to the Union over which it has chosen not to negotiate. This having been said, its final offer is a "compromise" which meets the agency’s need to continue to remove paper search files and examiners’ needs to "retain notations on patents and figures that are essential for quality examination." When management destroyed the 75 percent of paper patents that have already been removed, both the PTO community and others recognized that "vast amounts of valuable second-generation, examiner-added information" had been lost. The Union’s final offer would preserve the paper files which have the largest amount of examiner-added information, or the poorest quality images in the database. The Employer’s final offer contains "inconsistent, confusing provisions" (M38 and M41) that set forth conflicting standards for determining whether the paper files are to be removed or retained. It also "wrongly states" that some examiners are adverse to using electronic search tools, when the real issue is that the current scanning technology is inadequate to capture fine details and color-coding added by examiners. The Union’s final offer allows the agency to remove paper files at any time once it can capture the information, or immediately if a majority of primary examiners vote that the files are no longer necessary.

b. The Employer’s Position

The Employer’s final offer is as follows:

M38. No remaining U. S. patent paper examiner search room files will be moved to the Carlyle Site except in cases where management determines that the paper search file is necessary for a quality examination of patent applications in a given art area.

M41. At its discretion, management may use refile statistics as a factor for consideration in determining whether U.S. patent paper search files are necessary for a quality examination of patent applications in a given art area.

M41.a. Management will canvass the primary examiners using the remaining 25% of US paper search files as their primary search tool to identify classes and subclasses from the remaining 25% of US paper search files that contain significant annotations or color designations. Management will consider employee input and will retain, for a minimum of 18 months, those files that it determines would be helpful for examiners to transition to a completely electronic patent examination process.

Its final offer creates "an acceptable balance" addressing the parties’ long-standing dispute over the removal of the remaining paper files by allowing patent examiners to provide input regarding which paper files should be retained, but leaving management with ultimate discretion to determine which methods and means of performing work are necessary for accomplishing quality examination. It should be noted that the paper files in question are copies of the original patent grants, and are not the only copies available. Thus, "contrary to the impression that POPA attempted to create, the Agency is not attempting to remove the last copy of historical patent documents." Adoption of its final offer would, however, reduce the approximately 51,000 square feet of storage space required to house the remaining paper files "which the vast majority of examiners no longer use." Moreover, individual examiners could still retain copies of paper search files they may wish to use as long as they are willing to store them in their private offices.

   The Union’s final offer infringes on management’s right to determine the methods and means of performing the agency’s work by substituting management’s judgment with that of a majority of patent examiners, or until such time as information added by examiners is available in electronic format. Implementation of the latter would require exhaustive search of 158,000 subclasses of patents and their retention in certain circumstances even if documents containing color-coding or notes are unhelpful. U38/51b also introduces a requirement to provide a mechanism for adding color-coded images and notes to its image data base which management "has not determined is necessary for quality patent examination."

CONCLUSIONS

    After reviewing the evidence and arguments presented by the parties concerning the removal of the remaining paper files, we shall decline to retain jurisdiction over the matter. The Union has consistently contended that the removal of the paper files is governed by the terms of an existing agreement between the parties, i.e., the Millennium Agreement, and that, as such, it concerns a subject of bargaining permissive to the Union. Unlike the 1999 Award addressed in previous categories, the Employer does not appear to have specifically confirmed or denied whether the Millennium Agreement continues to apply to the parties.(8) In our view, however, the jurisdictional issue raised by the Union clearly involves the interpretation and application of an existing agreement which should be resolved under the parties’ negotiated grievance procedure, rather than by the Panel.

6. Category 7: Move Process

a. The Union’s Position

The Union proposes the following wording:

U52.a. POPA bargaining-unit employees who do not have a monthly parking pass, and have personal items in Crystal City to move to Carlyle, will be provided, upon request, with 1 day of free parking at Carlyle to move these items.

    b. Temporary storage area for personal items will be provided at either Crystal City or Carlyle so that items may be temporarily stored while computers, packed moving boxes, and furniture are moved between offices.

The storage area for an art unit will be the size of at least an individual office.

U62. Since the Agency envisions a fully automated work environment, if an employee’s computer is not installed and operational by the time the employee is unpacked, after the first hour, the employee will be granted computer down time until their computer is installed and operational.

U63. Each employee will be granted up to 2 hours of move time in order to organize materials and gather and throw away materials that do not need to be moved to the new site. The amount of time granted will be based upon the amount of time the employee actually spends engaged in the activities set forth.

U164. All supervisors shall encourage accurate recording of time spent packing and unpacking offices. There will be no arbitrary uniform rules about the amount of time that can be spent packing and unpacking. Employees will engage in a reasonable good faith effort to diligently pack and unpack their offices.

Given that the new location is nearly 5 miles from Crystal City, requiring the Employer to provide 1-day of temporary parking at Carlyle (U52a) is justified for employees with personal items who do not have monthly passes. In addition, supplying employees with temporary space to store personal items (U52b) is "necessary and workable" to remove obstacles for the movers and protect personal property, and because there should be ample unused space in both locations. Further, the Union is not requesting move coordinators to do anything other than identify such space. As to its wording in U62, the need to provide "down time" for whatever period after the move that an employee’s computer is not operational should not occur very often, and prevents all employees from having to prepare a full day of non-computer related work in advance. In this regard, the analogy the Employer has attempted to draw between this situation and telework is flawed. Among other things, employees who telework often use personal computers to perform agency work. Moreover, given that the Employer intends to have a fully automated work environment at Carlyle, many employees will find it hard to identify a full day’s worth of non-computer related work. Therefore, its counterproposal (M62) "would incur unnecessary expense and is unworkable." Finally, the difference between the parties’ proposals in U164 and M164 is that the Employer grants no time for discarding unnecessary materials, while the Union provides up to 2 hours. The Union’s approach is consistent with what is contemplated in the 1991 PTO Move Handbook, and "there is a cost savings in not moving unnecessary materials."

b. The Employer’s Position

    The following is the Employer’s proposed wording on this category:

M52. POPA bargaining-unit employees are responsible for moving their personal items unless otherwise provided herein.

M60. Nonproduction time related to the move granted to POPA bargaining-unit employees will not be considered as examining-related time for awards or bonuses.

M62. Computers will be moved overnight and set up the following morning beginning at approximately 7:00 am. Employees should plan for doing a full day’s work that does not require a computer in the event that their computer is not operational after they have finished unpacking. If the employee’s computer is not operational thereafter, then the Office, at its discretion, will provide a suitable replacement computer, assign other duties, or grant appropriate non-production time.

M164. All supervisors shall encourage accurate recording of time spent packing and unpacking offices. There will be no arbitrary uniform rules about the amount of time that can be spent packing and unpacking. Employees will engage in a reasonable good faith effort to diligently pack and unpack their offices. Any time used because a professional being moved decides that this is an appropriate occasion to determine which items to discard or retain is not envisioned as caused by the move.

Its final offer is consistent with the way moves within Crystal City, which occur frequently, currently are conducted, and the Union "has shown no need to vary from the current practice." In this regard, requiring management to provide employees with a free day of parking to move personal items would be costly, and is unnecessary given the existence of low-cost hourly parking. In addition, because different units will move at different times over an 18-month period, the Union’s proposal that temporary storage space be supplied for personal items at both facilities would be administratively burdensome, prevent the orderly progress of the move, and require management to hold back space which otherwise would be returned to the landlord. This portion of the Union’s proposal also "puts no time frame on this temporary storage." On the issue of what should happen if computers are not immediately operational once employees arrive at Carlyle, the Employer’s approach permits it to "retain flexibility" and is consistent with an efficient and effective government. The parties’ recent work-at-home agreement demonstrates that employees have work that can be done without a computer, and "management expects employees to do that work." Under the Union’s proposal, management would be required to provide employees with unlimited down time if an employee’s computer is not up within 1 hour of unpacking, so employees could not be required to perform non-computer related work. In addition to resulting in lost productivity, the proposal violates management’s right to assign work. Finally, granting employees up to 2 hours preparation time to discard items that do not need to be moved is inconsistent with the parties’ past practice, and would encourage employees not to keep offices in reasonable order in the future.

CONCLUSIONS

    Upon thorough examination of the record presented by the parties in support of their proposals in this category, we shall order the adoption of the Employer’s final offer to resolve the impasse. In our view, providing those employees who do not have monthly parking passes with a day of free parking to move personal items is excessive, and the Union has not demonstrated the need for temporary storage areas. More troubling, however, is the portion of its final offer which would establish an employee’s right to be unproductive if his or her computer is not installed and operational 1 hour after the employee has finished unpacking. While it is unclear from the record how difficult it would be for employees to identify in advance a full day’s worth of non-computer related work, the Union’s solution to the problem of non-functioning computers is unacceptable. Finally, we agree with the Employer that employees should not be rewarded with up to 2 hours of preparation time during the move for throwing away materials which should have been discarded as they became unnecessary.

7. Category 9: Operations During Transition Period

a. The Union’s Position

The Union’s final offer on this category is as follows:

A. Parking:

U65. While employees are located at both Crystal City and Carlyle, parking passes reserved for employees who have not yet moved will be made available as follows:

    a. Employees whose vanpools or carpools have not yet moved to Carlyle shall be given priority for these passes. Selection seniority shall be based upon Federal Service Computation Date of the requestor.

    b. Any other temporary requests will be prioritized based upon the Federal Service Computation Date of the requestor.

B. Shuttle Service:

U68. Employees may ride the shuttle between Carlyle and Crystal City in order to go to any on site facility that is only at one location or has a service that is offered at only one facility, and that will eventually be consolidated, for example, the fitness center, the credit union, and the child care center.

U69. Shuttle service will run between Carlyle and Crystal City from 5:30 AM to 8:00 PM with the goal of every fifteen (15) minutes.

U70. Shuttle service will run between each of the Eisenhower Avenue and King Street metro stations and the Carlyle site from 5:45 AM to 8:00 PM with the goal of every fifteen (15) minutes between 5:45 AM and 10:00 AM, and 3:00 PM and 8:00 PM; and with the goal of every thirty (30) minutes between 10:00 AM and 3:00 PM. If shuttle service is not available from another source, the USPTO will provide this service.

D. General:

M75. Managers will consider and excuse workflow deductions for failure to complete work due to delays or unavailability of files caused by the move to Carlyle in accordance with the guidance set forth in the patent examiner performance plan.

Unlike the Employer’s final offer, which does not address the needs of employees in vanpools and carpools, under the Union’s, such employees would receive first priority for the distribution of surplus parking passes. Employees who have guaranteed parking passes will not move simultaneously, so there will be plenty of surplus passes available "at any time during the 18-month transition period." This portion of its final offer is warranted as an appropriate arrangement for employees who will be split up solely as a result of the office relocation. By expanding shuttle hours and service times, proposals U68, U69, and U70 would encourage employees to work and schedule meetings outside normal business hours so they can avoid traffic congestion and access employee services, like the fitness center. Providing shuttle service to and from the two nearest Metro stations is consistent with representations the Employer made to the Union during preliminary negotiations in 1998-99, and ensures the safety of employees during the delay in the construction of an underground walkway that the City of Alexandria required as a condition for approval of the relocation to the Carlyle campus.

b. The Employer’s Position

The Employer proposes the following:

A. Parking:

M65.a. After guaranteed permanent parking permits have been allocated in accordance with the 1999 FSIP order there will be an open season for all of the remaining USPTO employees to apply for the remaining permanent parking permits. These permanent parking permits will be assigned to the USPTO employees based on seniority as determined by their Federal Service Computation Date (SCD) for leave.

    b. During the relocation to Carlyle, temporary parking permits may be available to any employee who was not guaranteed a permanent parking permit. These temporary parking permits will be distributed based on seniority as determined by Federal SCD for leave. However, at any time the least senior temporary permit holder, based on their Federal SCD for leave, may lose his/her temporarily assigned monthly parking permit to an employee moving to Carlyle with a guaranteed permanent parking permit.

B. Shuttle Service:

M68. Shuttle service will be provided between Crystal City and Carlyle during the transition period. Use of the shuttle will be for official business/duties, and for visiting the credit union, fitness center, and child-care facility. The shuttle is not to be used as part of the employee’s commute, and only USPTO employees will be permitted on the shuttle.

M69. There will be two shuttle buses running simultaneously from 7:30 a.m. to 5:30 p.m., Monday through Friday, except on Federal holidays.

M70. Within Crystal City, there will be two stops. The shuttle bus will stop and wait at a single location at the Carlyle campus. During the Trademark relocation, the shuttle may also stop at the South Tower.

M71. The PTO will encourage LCOR and other groups to provide additional shuttle service from the Eisenhower and King Street Metro stations to the Carlyle campus.

D. General:

M75. Managers will consider and excuse workflow deductions for failure to complete work due to delays or unavailability of files caused by the move to Carlyle in accordance with the guidance set forth in the patent examiner Performance Appraisal Plan.

M77. Employees in Art Units that have not been converted to electronic examination, if any, will be expected to pack enough materials to constitute approximately 2 weeks’ worth of work. Applications remaining in examiners’ offices must be returned to the appropriate location by the examiner prior to the relocation if no longer needed.

M79. Management will not seek to recover from bargaining unit members for the loss of, or damage to, government property incurred during the move process.

E. Workflow:

M75. Managers will consider and excuse workflow deductions for failure to complete work due to delays or unavailability of files caused by the move to Carlyle in accordance with the guidance set forth in the patent examiner Performance Appraisal Plan.

Overall, its parking proposals provide fair and simple procedures for allocating permanent and temporary parking during the transition to Carlyle. By contrast, the Union’s proposal requiring employees in vanpools and carpools to get priority for temporary spaces would be administratively burdensome because of the difficulty in verifying membership, and confusing because the "bumping" of temporary permit holders by vanpool and carpool employees would be occurring throughout the relocation. On the issue of shuttle service, the Employer’s offer is "preferable for several reasons." It has been substantially revised from earlier versions to permit use of the shuttle for various purposes other than official business, but does so without incurring unnecessary liability or conflicting with Government-wide regulations requiring employees to provide their own transportation to and from the work site. Unlike the Union’s proposal, the Employer’s provides for "the appropriate amount of flexibility" with regard to the amount and hours of shuttle service, and would "serve employees adequately while at the same time efficiently using Government funds."

    Concerning the matter of shuttle service to and from the nearest Metro stations, encouraging LCOR and other groups to provide such service "is the only lawful action" the Employer can take in trying to accommodate employees. The Union’s proposal would require the Government to expend funds for employees’ commutes to and from work, which "is prohibited by Federal regulation." It is also unnecessary, since both Metro stops "are less than a 10-minute walk from the Carlyle location." Finally, the Union has failed to submit any counter-offers on the subjects covered by M77 and M79, but their adoption by the Panel is "still necessary to this agreement;" the former, to address the circumstance of certain examiners whose art units have not yet been converted to electronic examination, and the latter, to address the Union’s concerns about employee liability for loss or damage of Government property incurred during the move.

CONCLUSIONS

   Having carefully considered the evidence and arguments in support of the parties’ positions on the issues under this heading, we conclude that the Employer’s final offer provides a better balancing of the equities involved. On the issue of shuttle service, for example, its proposal appears adequately to cover the needs of most employees without running afoul of the requirements of Government-wide regulations. Under the Union’s proposal, shuttle service would presumably run more frequently throughout the day, and extend to times before and after normal business hours, without a clearly demonstrated need for the added expenditures this would require. Similarly, we are not persuaded that the benefits of giving employees in vanpools and carpools priority to receive temporary parking passes at Carlyle outweigh what could be a considerable burden on the Employer of administering such an approach. In this regard, there is no evidence in the record regarding the number of current vanpool and carpool participants. We are reluctant to impose such a requirement in circumstances where the potential impact of this portion of the Union’s final offer cannot be accurately assessed. For these reasons, we shall order the adoption of the Employer’s final offer on this category.

8. Category 10: Parking

    a. The Union’s Position

The Union’s final offer is the following:

U86. The dimensions, i.e., length and width, of all parking spaces in the garage will be approximately the same size with the following exceptions: variations caused by structural limitations, approximately 40 motorcycle spots, and dimensions as legally required for handicapped parking spaces. Therefore, all vehicles, including motorcycles, will be charged the same monthly, daily, or hourly fees.

U89. Employees who are currently Crystal City parking permit holders shall not be required to pay for Carlyle parking until they relocate to Carlyle. Additionally, employees may defer acceptance of their guaranteed parking space until the first day of the first full month following their relocation.

U94. The daily rate shall allow an employee to enter the garage twice between the hours of 5:00 AM and 10:30 PM. Upon the first exit from the garage, the employee shall pay the maximum daily rate and shall record the license plate number of the vehicle on the parking receipt. The employee will present the parking receipt upon exiting the garage the second time without having to pay additional monies. The final exit from the garage must occur before 10:30 PM.

U102. A parking committee shall be established to oversee the operation of the parking garages, parking policy and rules, and the fees charged to parkers. The parking committee shall consist of three Agency appointed members and three POPA appointed members, with meetings to be held at mutually agreeable times, such to be at least on a quarterly basis during the transition period and twice a year thereafter. Each member of the parking committee shall have one vote. If a committee vote results in a tie, an agency official shall be appointed to make a determination and break the tie. The parking committee shall be charged with exploring avenues of revenue generation including charges for public use of the parking. The parking committee shall set such rates.

U103. Any income generated by the USPTO parking garages will be reported to the parking committee. Any income generated will first be used for paying the costs of leasing and operating the parking garages and the remainder will be applied to lease and operating costs for the following year so that parking rate increases may be reduced to the lowest necessary level. The cost attributed to offices on the exterior of the parking garages shall not be attributed to the garages.

U109. There will be a mechanism used to indicate when each parking garage is full.

The Union’s primary areas of disagreement with the Employer under the parking category involve its proposals permitting employees without monthly parking passes to enter and leave the garages more than once on a daily basis without incurring additional costs (U94), and the implementation of a joint parking committee (U102 and U103). In response to concerns expressed by the Employer, the Union amended its previous proposal on the former issue to provide a simple procedure which would ensure that employees only pay the maximum daily rate once, and would prevent unlimited entry into the garage. Its wording "makes good business sense" by encouraging employees to return to work after appointments, and is consistent with what is currently provided to Trademark attorneys at Crystal City.

   The Union’s proposals for a joint parking committee are a means to implement the advertisement the Employer makes on its website about its intent to have a labor-management parking committee to "discuss ways of controlling parking costs" and to develop "parking program policies and procedures." This would ensure that the concerns of employees using the garages are taken into account while leaving ultimate decision-making authority with management. Its proposals also provide a mechanism to keep parking rates at the minimum level necessary for "zero profit operation," consistent with the Employer’s stated intent. Finally, U109 is a low-cost way of assisting employees in finding parking spaces when one or both of the parking garages are full, and would minimize the time spent looking for parking.

b. The Employer’s Position

The final offer of the Employer is as follows:

M85. USPTO will not subsidize employee parking after the move to Carlyle is completed. The goal of the Office is to maximize monthly income to keep fees at a minimum. If there is a surplus in any given month that surplus will not be returned, but will be considered in defining the average operating cost of the parking facility.

M86. All vehicles, including motorcycles, will be charged the same monthly, daily, or hourly fees as any other vehicle.

M88. If there are monthly parking permits available after all USPTO employees’ parking needs are met, monthly parking permits will be sold on a temporary basis to non-USPTO employees. Thereafter, if there is ever a waiting list of USPTO employees desiring parking, temporary parking permits sold to non-USPTO employees will be recaptured, as necessary, and made available to the USPTO employees on the first day of the first full month following the employee’s placement on the waiting list.

M89. A monthly parker shall not be required to pay for Carlyle parking until he/she relocates to Carlyle. The parking rate for a partial month will be prorated based on the day the employee relocates.

M91.Free parking will be available to employees from 10:30 pm to 5:00 am, Monday through Friday, and all day Saturday, Sunday, and Federal holidays.

M92. Daily and hourly parking will be available from 5:00 am to 10:30 pm, Monday through Friday, except Federal holidays.

M95. Daily and hourly parking will be on a first-come first-served basis. There will be no designated daily or hourly spots, except for handicapped spaces in each garage.

M99. Daily and hourly parkers will receive a ticket each time they enter the garage and will pay each time they leave the garage. Daily and hourly parkers must exit the garage before 10:30 p.m. Daily and hourly parkers that fail to leave by 10:30 p.m. will be charged the appropriate parking fee plus an additional release fee.

M101. Except for reserved spaces required by law or provided for by regulation, or parking for USPTO executives, no spaces will be reserved based upon the position or title of an employee.

M107. The rate for parking will be $100 monthly until June 30, 2005. Thereafter, parking fees will be determined based on considerations such as the lease and operating costs of the garage.

M112. The elevator vestibules in the parking garages will not be heated or air-conditioned.

M153. Daily parking will be on a first-come, first served basis. As the garages fill up, parking shall be limited to monthly parkers and USPTO daily parkers who show their badge to the attendant.

Its approach to parking addresses the "many concerns" raised by the Union about the issue by keeping parking fees to a minimum (and less than what many employees currently pay in Crystal City). Its final offer is also "consistent with the industry standard in comparably-sized commercial parking garages." It has also been modified during the bargaining process to provide employees with prorated monthly parking fees depending on when they move to Carlyle. The Union’s proposal to allow employees without monthly parking passes to enter the garage twice at the daily rate, on the other hand, is inconsistent with industry practices and administratively burdensome, and a similar privilege is not provided to unit employees in Crystal City. Moreover, it could allow unscrupulous parking attendants and members of the public to abuse the system, ultimately decreasing parking revenue and leading to higher parking fees for employees. The parking committee suggested by the Union in U102 "appears to have broad authority to set parking rates not only for bargaining unit members, but also for the public." It is unacceptable to the Employer because the Union has "no right to determine rates charged to the public."

CONCLUSIONS

   After carefully considering the record established by the parties on the parking issues, we shall order the adoption of the Employer’s final offer to resolve the issues that remain in dispute over this category. In our view, the scope of what would be addressed under the parking committee concept proposed by the Union is too broad. The concept also is defective because it does not include the participation of either of the other bargaining units that represent PTO employees while purporting to set parking policy for the entire facility. Moreover, unlike the Union, we take the Employer at its word that its overall goal is to minimize employee parking fees. The Union’s proposal to permit employees without monthly parking passes to enter and leave the garages more than once on a daily basis without incurring additional costs has some appeal, but it could be subject to abuse, and appears to be inconsistent with the standard practices of comparable public parking facilities. While we recognize that the Employer currently permits employees represented by another labor organization to enjoy such privileges at Crystal City, that unit is a fraction of the size of the one represented by POPA.

9. Category 11: Union Issues

a. The Union’s Position

The Union’s final offer reads as follows:

U115. All travel time (e.g. on the shuttle) otherwise properly charged to union activities shall be charged to non-bank time. However, the amount of non-bank travel time chargeable for travel related to bank time activities shall be limited to twelve hours per bi-week.

U117. On floors housing POPA employees, POPA shall be provided with one glass-encased bulletin board in or near each elevator lobby, which can easily be viewed when exiting the elevators or, at management’s option, two glass-encased bulletin boards per floor. The bulletin boards shall be easily viewable from the exits of the rest rooms. Since the restrooms have multiple exits, the bulletin boards shall be located diagonally across the floors from one another. Bulletin boards will be keyed alike with keys being provided to POPA.

U145. POPA will be permitted to have furnishings, computers and other POPA-owned equipment and materials at the Carlyle facility in POPA offices and private offices of its officers and representatives. The office shall move POPA-owned furnishings, equipment, supplies and records to the new facility as requested by POPA.

U152. POPA will have a 150 square foot office in the Remsen Building that will be available when the first POPA representative is moved into the building. This office will be retained by POPA after the move as a small file room/office.

The Union’s wording would preserve use of its bank time for bank time activities, rather than traveling between Crystal City and Carlyle. In this regard, its bank time has not increased since 1986, despite the fact that the size of the bargaining unit "has increased four-fold," and it should not be penalized simply because management has decided to relocate. Under its proposal, however, the official time used by its representatives to travel for bank-time activities would not be unlimited, i.e., it would be capped at 12 hours per pay period. On the issue of bulletin boards, unit employees are most likely to see them if they are placed either near the elevators or restrooms. In addition, the Union has been provided with bulletin boards in elevator lobbies in certain Crystal City locations. With respect to the matter of moving the Union’s furniture, materials, and sensitive equipment, management has always agreed to move POPA’s computer equipment in the past 33 years, and the parties have been silent with respect to the Employer’s liability for any items that are damaged or lost. While silence has "not caused the Agency to assume liability," it "may cause [PTO] staff overseeing the move to be a little more careful."

    The adoption of the Union’s proposal for a permanent auxiliary office of 150 square feet would provide it with needed space, as some Union officials with large amounts of labor relations material will be moving from personal space that is 50 square feet smaller in the new location. Because the space was promised to the Union orally by a management official formerly in charge of the Carlyle project, the adoption of its proposal by the Panel would save the parties the expense of having an arbitrator order the Union to receive the additional space, and demonstrate that "having the Government honor its word is important to" Panel Members.

b. The Employer’s Position

The following wording is proposed by the Employer:

M115. Time spent traveling between facilities by union officials shall be bank time if related to a bank time activity and nonbank time if related to a nonbank time activity.

M117. Management will provide one lockable bulletin board in each pantry (two per floor) for POPA’s exclusive use, on floors with offices assigned full time to bargaining unit members.

M120. Within one year of the conclusion of the move, management will provide POPA with floor plans to scale for the facility. At the same time, Management will also provide a listing of all USPTO employees and the location of their offices at Carlyle.

M125. The Agency will promptly inform POPA of significant deviations from the TARP and will bargain on such to the extent required by law.

M145.a. POPA will be permitted to have furniture, computers, and other POPA-owned equipment and materials at the Carlyle facility in POPA office space and private offices of its officers and representatives. The Office shall move POPA-owned furniture, supplies, and records to the new facility as requested by POPA.

    b. USPTO will not move POPA- or privately-owned CPUs, scanners, printers, fax machines, keyboards, or monitors. Up to 11 one-day Carlyle parking passes will be provided to the POPA executive committee to allow them to move such equipment. c. USPTO will not be liable for any damage or loss to POPA furniture, supplies, or records resulting from the move to Carlyle.

M162. POPA will be provided with keys to lockable bulletin boards set aside for their use.

The Employer’s offer regarding official time for travel during the transition to Carlyle has been modified from its original position, and addresses the Union’s concern that "travel time would consume too much of its official time bank." Given that the Union will have some representatives at both locations, it also provides an incentive to Union officials to manage their time wisely by limiting travel to trips that are necessary. The Union’s proposal on use of non-bank official time for travel to and from Carlyle "goes too far" because it would have the effect of increasing the Union’s current bank time, "which is already 10,000 hours per year." In addition, its proposal for additional office space would permit the Union to retain permanently the temporary office the Employer previously agreed to provide it. The Union’s justification that other unions were given more space than management previously planned overlooks the fact that its permanent 450 square foot office in Carlyle is larger than what management is providing to either of the others, and that its office space is already being supplemented by the private offices of the Union’s representatives, at least three of whom "perform no examining work and work 100 percent on Union official time."

   The Union’s proposed alternative locations for two lockable bulletin boards on each floor are "unworkable." Some of the walls of the elevator lobbies are marble, and the walls on either side of the lobbies have special color schemes and large signs indicating the floor number. In any case, the pantry areas "are the most appropriate location" because they are the spots most likely to be frequented by all unit employees. The Employer’s proposals to provide copies of floor plans to the Union (M120), and to inform it when significant changes to the TARP are necessary (M125), address concerns expressed by the Union during bargaining. Finally, concerning the issues covered under M145 and U145, the only area of disagreement concerns the Agency’s liability for damage to, or loss of, POPA property. The Employer’s final offer would make it clear that the PTO accepts no liability for damaging or losing the Union’s property, and should be adopted. Since the Government does not accept liability when it moves the personal property of employees, there is also no justification for accepting liability for the personal property of the Union.

CONCLUSIONS

   Having carefully considered the evidence and arguments presented under this category of issues, we are persuaded that a modified version of the Employer’s final offer should be adopted to resolve the matter. Among its more attractive features, the Employer has adjusted its previous offer sufficiently to address the Union’s concerns about the impact of travel on the existing bank of official time hours, while providing incentives for the Union to be efficient in its choice of representatives. With respect to the Union’s proposal for additional office space, its adoption would put the Panel in the unwelcome position of enforcing what the Union contends is an oral agreement with management. In our view, it should seek such enforcement in an appropriate forum. Finally, we believe that the Employer’s wording in M125 to promptly inform POPA of "significant deviations from the TARP," and to "bargain on such to the extent required by law," would set a higher threshold for triggering a mid-term bargaining obligation than the de minimis standard applied by the FLRA under the Statute. Accordingly, in imposing the Employer’s final offer to settle the parties’ impasse over this category, the wording in M125 shall be modified to ensure that the Union’s statutory bargaining rights are not waived.

10. Category 12: General

a. The Union’s Position

The Union proposes the following as its final offer:

U131. If there are ‘team’ meeting rooms as indicated in the Carlyle site floor plans, half of each ‘team’ meeting room will be devoted to storage area for examiners’ work-related materials. Appropriate storage furniture will be provided.

Patent examining work does not generally require group, or "team" activity or meetings, yet the Employer has designated for general use in Carlyle far more space than is needed. For this reason, "it makes sense" to devote half of each "team" meeting room as storage area for examiners’ work-related materials. In this regard, most senior examiners have accumulated numerous work-related references which, under its proposal, would be accessible to all examiners for research of patents. Because the Employer is not planning to purchase new furniture in the move to Carlyle, the Union is also proposing that the Employer provide appropriate storage furniture to facilitate the use of the materials. The proposals in the Employer’s final offer are unnecessary because the Agency "inherently controls" the use of its computer rooms and meeting areas.

b. The Employer’s Position

    The final offer of the Employer on this category is the following:

M127. Supervisors must approve all employee training conducted or taking place in the Computer Training Rooms in the Madison Building. Other training requests or supervisory directed training will be handled under current procedures.

M129. Employees may reserve floor conference and team meeting rooms, subject to management approval, for business related and other activities. Reservations are subject to cancellation by management if the space is needed for official government business.

The Employer’s offers attempt to counter previous Union proposals on employee access to computer training rooms to take automated CLE courses, and employee eligibility to reserve meeting rooms and conference rooms. Although the corresponding Union proposals now have been withdrawn, its proposals would still be of value in clarifying the procedures that apply concerning these subjects. As to the Union’s final offer under this category, the Employer agreed to provide examiners with 150 square foot offices partially because the Union argued that larger space was necessary to meet storage needs. Converting half of the space of each team meeting room for storage would make it impossible for full teams to meet, nor has the Union "shown that there is a shortage of examiner storage areas and that this space is necessary for that purpose."

CONCLUSIONS

   Having carefully considered the evidence and arguments presented on this category, we shall order the adoption of the Employer’s final offer to settle the parties’ impasse. While we recognize that it was attempting to counter previous Union proposals on issues which have since been withdrawn, the Employer’s wording should be of value in clarifying the procedures that apply concerning these subjects. The Union’s proposal to convert half of each team meeting room into storage space, on the other hand, would undercut the reason such rooms where included in the floor plan, i.e., to provide enough space for full teams to meet. Moreover, we are not convinced that the Union has demonstrated a need for additional storage space.

ORDER

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel, under 5 C.F.R. § 2471.11(a) of its regulations, hereby orders the following:

1. Category 1: Preamble

The parties shall adopt the Union’s final offer.

2. Category 2: Site Accessibility and Security

The parties shall adopt the Employer’s final offer.

3. Category 3: HVAC and Lighting

The parties shall adopt the following wording:

M15. Temperature and humidity controls within the ranges specified in the lease will be provided by the lessor during facility operating hours.

M16. A system capable of reducing or completely turning off lights during non-facility operating hours will be installed.

M17. HVAC will be provided Monday through Friday (except Federal holidays) 6:00 am to 7:00 pm; Saturday from 1:00 pm to 4:00 pm; and Federal holidays from 1:00 pm to 4:00 pm when examiner overtime is authorized and approved in advance.

The Panel declines to retain jurisdiction over the issue involving the use of personal appliances at the Carlyle facility.

4. Category 4: Office Selection

    The Panel declines to retain jurisdiction over the remaining issue under this category.

5. Category 6 ; Paper Files Removal

    The Panel declines to retain jurisdiction over the remaining issue under this category.

6. Category 7: Move Process

    The parties shall adopt the Employer’s final offer.

7. Category 9: Operations During Transition Period

    The parties shall adopt the Employer’s final offer.

8. Category 10: Parking

    The parties shall adopt the Employer’s final offer.

9. Category 11: Union Issues

    The parties shall adopt the Employer’s final offer, with the exception of section M125, which shall be modified as follows:

The Agency will promptly inform POPA of deviations from the TARP which have more than a de minimis effect on conditions of employment, and will bargain on such to the extent required by law.

10. Category 12: General

    The parties shall adopt the Employer’s final offer.

By direction of the Panel.

H. Joseph Schimansky
Executive Director

December 16, 2003
Washington, D.C.

1. The Employer’s “Consolidation, Transition and Relocation Plan” (or TARP) was provided to its unions (POPA and Chapters 243 and 245 of the National Treasury Employees Union) in November 2002. The document’s Overview indicates that employees and contractors will be consolidated into an interconnected campus of 5 buildings from the current 18; the phased relocation will take 18 months and is scheduled to begin in December 2003.

2. The Panel also declined to assert jurisdiction over Union proposals 127 through 144 and 156 through 158 (under the category titled “General”), and 167 through 186 (submitted for the first time on July 11, 2003, in its response to the Employer’s jurisdictional statement of position to the Panel) because no impasse had been reached on those matters. In this regard, on August 11, 2003, the Union requested that the Panel reconsider its determination to decline jurisdiction over Union proposals 127 through 131, because, in its view, the parties had negotiated over them sufficiently for the Panel to conclude that an impasse had been reached. The matter was discussed during the informal conference and, on August 29, the Employer withdrew its opposition to the Union’s request for reconsideration, essentially agreeing that the Panel should include them when it considers the issues on their merits. The parties’ proposals on the issues that remain in dispute relating to this matter have been included in this Decision and Order under Category 12, “General.”

3. The Union’s proposal refers to an earlier impasse between the same parties involving the preliminary phases of the relocation to the Carlyle Campus which eventually was resolved through the issuance of an Arbitrator’s Opinion and Decision by a former Panel Member. That case, Department of Commerce, Patent and Trademark Office, Arlington, Virginia and Patent Office Professional Association, 99 FSIP 15 (March 29, 1999), Panel Release No. 419, is referred to in this Decision and Order in various ways, among them, the “Jacksteit Award,” or the “1999 Award.”

4. It should be noted that the Employer also includes the same proposal under Category 7, “Move Process” (see proposal M164).

5. The combination of what the parties have already agreed to, and the terms the Panel imposes regarding the 10 categories addressed in this Decision and Order, are hereinafter referred to as the “Relocation MOU.”

6. The Union’s contention is supported by an affidavit from an employee of the National Oceanic and Atmospheric Administration (NOAA), who stated that NOAA had recently provided him and his colleagues with “shelter-in-place” training.

7. 41 C.F.R. § 102-74.190 states