ORAL ARGUMENT SCHEDULED FOR MAY 3, 2002
No. 01-1271
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
PATENT OFFICE PROFESSIONAL ASSOCIATION,
Petitioner,
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent,
and
UNITED STATES PATENT AND TRADEMARK OFFICE,
Intervenor.
_______________________________
ON PETITION FOR REVIEW OF AN ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Deputy Solicitor
JAMES F. BLANDFORD
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
ORAL ARGUMENT SCHEDULED FOR MAY 3. 2002
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
A. Parties and Amici
Appearing below in the administrative proceeding before the Federal
Labor Relations Authority (Authority) were the Patent Office
Professional Association (POPA) and United States Patent and Trademark
Office (PTO). The POPA is the petitioner in this court proceeding;
the Authority is the respondent; and the PTO is the intervenor.
B. Ruling Under Review
The ruling under review in this case is the Authority's Decision and
Order on an Unfair Labor Practice (ULP) case in U.S. Patent and
Trademark Office, Case Nos. WA-CA-80405 and WA-CA-80515, decision issued
on May 24, 2001, reported at 57 F.L.R.A. (No. 45) 185.
C. Related Cases
This case has not previously been before this Court or any other court.
Counsel for the Authority is unaware of any cases pending before this
Court which are related to this case within the meaning of Local Rule
28(a)(1)(C).
ADDENDUM
Relevant portions of the Federal Service Labor-Management Relations
Statute, 5 U.S.C. §§ 7101-7135 (2000) A-1
TABLE OF CONTENTS
STATEMENT OF JURISDICTION 1
STATEMENT OF THE ISSUES 2
STATEMENT OF THE CASE 2
STATEMENT OF THE FACTS 3
I. Background 3
History of Term Negotiations between POPA and PTO 3
The Current Bargaining Disputes 5
a. Case No. WA-CA-80405 5
b. Case No. WA-CA-80515 6
II. The ALJ's Decisions and Recommended Orders 7
a. Case No. WA-CA-80405 7
b. Case No. WA-CA-80515 9
III. The Authority's Decision and Order 10
STANDARD OF REVIEW 11
SUMMARY OF ARGUMENT 12
ARGUMENT 15
I. THE PATENT OFFICE PROFESSIONAL ASSOCIATION IS
NOT A "PERSON AGGRIEVED" WITHIN THE MEANING
OF 5 U.S.C. § 7123(a) 15
A. Applicable Legal Principles 15
B. POPA Is Not Aggrieved by the Authority's Order 17
a. POPA Received All the Relief it Sought 17
b. POPA Is Not Otherwise Aggrieved 19
II. ASSUMING THE COURT'S JURISDICTION, THE
AUTHORITY'S DETERMINATION THAT THERE WAS NO
AGREEMENT BETWEEN THE PARTIES INCORPORATING
ALL OF THE UNDISPUTED PROVISIONS OF THE
DISAPPROVED ARBITRATOR'S AWARD IS SUPPORTED
BY SUBSTANTIAL EVIDENCE 21
A. PTO's Disapproval of the 1986 Award Prevented the
Agreement From Going into Effect at That Time 21
The Record Shows That There Was No Subsequent Agreement
to Adopt, as a Comprehensive Agreement, the Entire 1986
Award 22
POPA's Contention That a Comprehensive Agreement Exists
Is Not Supported by the Record 23
III. THE DOCTRINE OF JUDICIAL ESTOPPEL DID NOT
PREVENT THE AUTHORITY FROM FINDING THAT
THERE WAS NO AGREEMENT BETWEEN THE PARTIES
INCORPORATING ALL OF THE UNDISPUTED PROVISIONS
OF THE DISAPPROVED ARBITRATOR'S AWARD 24
II POPA Did Not Raise the Issue of Judicial Estoppel Before
the Authority 25
II To the Extent Judicial Estoppel Is Properly Raised, it Runs
Against PTO, Not the Authority 25
II PTO's Representations in PTO v. FLRA Are Not Inconsistent
with the Authority's Finding in the Instant Case 26
CONCLUSION 28
CERTIFICATION PURSUANT TO FRAP RULE 32 29
TABLE OF AUTHORITIES
AFGE Local 2441 v. FLRA, 864 F.2d 178 (D.C. Cir. 1988) 12
Am. Fed'n of Gov't Employees v. FLRA, 849 F.2d 648
(D.C. Cir. 1988) 15
Bobbie Brooks, Inc. v. Int'l Ladies' Garment Workers Union,
835 F.2d 1164 (6th Cir. 1987) 11, 12
Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) 12
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984) 11, 12
* Deaton Truck Line, Inc. v. NLRB, 337 F.2d 697 (5th Cir. 1964),
cert. denied, 381 U.S. 903 (1965) 15, 17, 19
Dep't of Agriculture, Food and Nutrition Serv. v. FLRA, 879 F.2d 655
(9th Cir. 1989) 15, 16
Diaz v. Chater, 55 F.3d 300 (7th Cir. 1995) 23
EEOC v. FLRA, 476 U.S. 19 (1986) 25
EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984), cert. dismissed,
476 U.S. 19 (1986) 11
El-Hadad v. United Arab Emirates, 216 F.3d 29 (D.C. Cir. 2000) 20
FLRA v. Social Security Admin., 846 F.2d 1475 (D.C. Cir. 1988) 16
Fort Stewart Sch. v. FLRA, 495 U.S. 641 (1990) 12
* Harrison Steel Castings Co. v. NLRB, 923 F.2d 542 (7th Cir. 1991) 16, 17
Insurance Workers Int'l Union v. NLRB, 360 F.2d 823
(D.C. Cir. 1966) 17
Int'l Union, United Automobile, Aerospace & Agricultural
Implement Workers of America v. Scofield, 382 U.S. 205 (1965) 18
LCF, Inc. v. NLRB, 129 F.3d 1276 (D.C. Cir. 1997) 12
Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983) 16
* Liquor Salesmen's Union Local 2 v. NLRB, 664 F.2d 1200
(D.C. Cir. 1981) 15, 16
Nat'l Coal Ass'n v. Fed. Power Comm'n, 191 F.2d 462 (D.C. Cir. 1951) 16
Nat'l Treasury Employees Union v. FLRA, 721 F.2d 1402
(D.C. Cir. 1983) 12
* New Hampshire v. Maine, 532 U.S. 742, 121 S.Ct. 1808 (2001) 26
Newport News Shipbuilding and Dry Dock Co. v. NLRB, 608 F.2d 108
(4th Cir. 1979) 16
Oil, Chem. & Atomic Workers v. NLRB, 694 F.2d 1289
(D.C. Cir. 1982) 16, 17, 19
Overseas Educ. Ass'n v. FLRA, 858 F.2d 769 (D.C. Cir. 1988) 11
Patent and Trademark Office v. FLRA, Nos. 92-2347, 92-2531
(4th Cir. Apr. 19, 1993) 5, 14, 25
Patent Office Prof'l Ass'n v. FLRA, 26 F.3d 1148 (D.C. Cir. 1994) 4
Retail Clerks Union 1059 v. NLRB, 348 F.2d 369 (D.C. Cir. 1965) 16
State of Wyoming v. Alexander, 971 F.2d 531 (10th Cir. 1992) 23
Truck Drivers and Helpers Local No. 728 v. NLRB, 386 F.2d 643
(D.C. Cir. 1967) 18
Willenbrink v. NLRB, 612 F.2d 1088 (8th Cir. 1980) 16
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
Internal Revenue Service, North Fla. Dist., Tampa Field Branch, Tampa, Fla., 55
F.L.R.A. 222 (1999) 11
Interpretation and Guidance, 15 F.L.R.A. 564 (1984), aff'd sub nom.
Am. Fed'n of Gov't Employees, AFL-CIO v. FLRA, 778 F.2d 850
(D.C. Cir. 1985) 4
National Treasury Employees Union, Chapter 251 and U.S. Dep't of
the Treasury, IRS, Washington, D.C., 40 F.L.R.A. 985 (1991) 21
Patent Office Prof'l Ass'n, 25 F.L.R.A. 384 (1987), aff'd, 868 F.2d 458
(D.C. Cir. 1988) 3
Patent Office Prof'l Ass'n, 29 F.L.R.A. 1389 (1987), aff'd, 873 F.2d 1485
(D.C. Cir. 1989) 3
* Patent Office Prof'l Ass'n, 41 F.L.R.A. 795 (1991) 4, 10
DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY
United States Dep't of Veterans Affairs, Med. Ctr., Jamaica Plain,
Mass., 50 F.L.R.A. 583 (1995) 20
United States Patent and Trademark Office, 45 F.L.R.A. 1090
(1992) 26, 27
STATUTES
Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (2000) 1
5 U.S.C. § 7105(a)(2)(G) 1
5 U.S.C. § 7114(c) 3, 10, 21
5 U.S.C. § 7116(a)(1) 2, 8, 17
5 U.S.C. § 7116(a)(5) 2, 8, 17
5 U.S.C. § 7117 4
5 U.S.C. § 7118 2
5 U.S.C. § 7123 17
* 5 U.S.C. § 7123(a) passim
* 5 U.S.C. § 7123(c) passim
5 U.S.C. § 706(2)(A) 11
National Labor Relations Act, 29 U.S.C. § 160(f) (1994) 15, 16
*Authorities upon which we chiefly rely are marked by asterisks.
GLOSSARY
Add. Addendum
ALJ Administrative Law Judge
App. Appendix
Deaton Truck Deaton Truck Line, Inc. v. NLRB, 337 F.2d 697
(5th Cir. 1964), cert. denied, 381 U.S. 903 (1965)
EEOC EEOC v. FLRA, 476 U.S. 19 (1986)
FLRA or Federal Labor Relations Authority
Authority
Harrison Steel Harrison Steel Castings Co. v. NLRB, 923 F.2d 542
(7th Cir. 1991)
IRS, Tampa Field Internal Revenue Serv., North Fla. Dist., Tampa Field
Branch Branch, Tampa, Fla., 55 F.L.R.A. 22 (1999)
Liquor Salesmen Liquor Salesmen's Union Local 2 v. NLRB, 664 F.2d 1200 (D.C.
Cir. 1981)
NLRA National Labor Relations Act
NTEU v. FLRA Nat'l Treasury Employees Union v. FLRA, 721 F.2d 1402 (D.C.
Cir. 1983)
NTEU Chapter 251 Nat'l Treasury Employees Union, Chapter 251 and U.S.
Dep't of the Treasury, IRS, Washington, D.C., 40 F.L.R.A. 985 (1991)
Oil, Chem. & Oil, Chem. & Atomic Workers v. NLRB, 694 F.2d 1289
Atomic Workers (D.C. Cir. 1982)
POPA Patent Office Professional
POPA I Patent Office Prof'l Ass'n, 41 F.L.R.A. 795 (1991)
POPA v. FLRA Patent Office Prof'l Ass'n v. FLRA, 26 F.3d 1148
(D.C. Cir. 1994)
PTO United States Patent and Trademark Office
PTO v. FLRA Patent and Trademark Office v. FLRA, Nos. 92-2347
92-2531 (4th Cir. Apr. 19, 1993)
Statute Federal Service Labor-Management Relations Statute, 5 U.S.C. §§
7101-7135 (1994 & Supp. V 1999)
ULP unfair labor practice
Wyoming v. Alexander State of Wyoming v. Alexander, 971 F.2d 531
(10th Cir. 1992)
ORAL ARGUMENT SCHEDULED FOR MAY 3, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 01-1271
_______________________________
PATENT OFFICE PROFESSIONAL ASSOCIATION,
Petitioner,
v.
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent,
and
UNITED STATES PATENT AND TRADEMARK OFFICE ,
Intervenor.
_______________________________
ON PETITION FOR REVIEW OF AN ORDER OF
THE FEDERAL LABOR RELATIONS AUTHORITY
BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY
STATEMENT OF JURISDICTION
The decision and order under review in this case was issued by the Federal
Labor Relations Authority ("FLRA" or "Authority") in 57 F.L.R.A. 185 (2001),
a copy of which is found at Appendix (App.) 15-45. The Authority exercised
jurisdiction over the case pursuant to § 7105(a)(2)(G) of the Federal
Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (2000)
(Statute).[1] This Court lacks jurisdiction to review the Authority's final
decision and order because petitioner is not a "person aggrieved" by the
Authority's order as required by § 7123(a) of the Statute.
STATEMENT OF THE ISSUES
I. Whether the Patent Office Professional Association is a "person aggrieved"
within the meaning of 5 U.S.C. § 7123(a).
II. Assuming the Court's jurisdiction, whether the Authority's determination
that there was no agreement between the parties incorporating all of the
undisputed provisions of the disapproved arbitrator's award is supported by
substantial evidence.
III. Whether the doctrine of judicial estoppel prevented the Authority from
finding that there was no agreement between the parties incorporating all of the
undisputed provisions of the disapproved arbitrator's award
STATEMENT OF THE CASE
This case arose as an unfair labor practice (ULP) proceeding brought under §
7118 of the Statute. Based upon ULP charges filed by the Patent Office
Professional Association (POPA), the Authority's General Counsel issued two
complaints (Case Nos. WA-CA-80405, WA-CA-80515), both alleging that the
United States Patent and Trademark Office (PTO) violated § 7116(a)(1) and
(5) of the Statute. App. 15. The complaints cited distinct instances of
alleged refusals to negotiate over conditions of employment of PTO employees
represented by POPA. Id. The complaints were consolidated for hearing
before an Administrative Law Judge (ALJ), who concluded in separate
decisions that PTO had violated the Statute as alleged. Id. After both PTO
and POPA filed exceptions to the ALJ's decisions and recommended remedial
orders with the Authority, the Authority consolidated the cases for
decision. Id. In agreement with the ALJ, the Authority concluded that PTO
violated the Statute as alleged and ordered an appropriate remedy. App.
26-27.
POPA seeks review of the Authority's decision and order pursuant to 5 U.S.C.
§ 7123(a) of the Statute.[2] PTO has intervened in this proceeding.
STATEMENT OF THE FACTS
I. Background
A. History of Term Negotiations between POPA and PTO
Since 1981, POPA and PTO have had numerous bargaining disputes, many of
which have been litigated before the Authority, this Court, and the United
States Court of Appeals for the Fourth Circuit. Most of these disputes
arose from a 1986 interest arbitrator's decision concerning the parties'
impasse over a comprehensive collective bargaining agreement. The
arbitrator issued an award in 1986 covering all matters except performance
appraisals. With respect to the performance appraisal article, he ordered
further negotiations, noting that there were pending negotiability disputes.
After these negotiability disputes were resolved,[3] negotiations again
reached impasse and the arbitrator issued a supplemental award in 1989.
App. 16, 28-29.
With respect to the 1986 award, PTO exercised its right of agency head
review and disapproved the arbitrator's award.[4] Nonetheless, since that
time PTO and POPA have entered into several agreements and followed
practices that gave effect to, and made enforceable, some of the provisions
of the agreement that were not specifically disapproved. For example, in
1986, the parties made effective, among other sections, Article 14 dealing
with the procedures for "midterm" bargaining. The agency head disapproval
of the 1986 award was ultimately upheld by the Authority in 1991. See
Patent Office Prof'l Ass'n, 41 F.L.R.A. 795 (1991) (POPA I). App. 16.
PTO also disapproved the 1989 supplemental award on performance appraisals.
Various disputes over the agency's disapproval were ultimately resolved when
this Court substantially upheld the disapproval. Patent Office Prof'l Ass'n
v. FLRA, 26 F.3d 1148, 1153-54 (D.C. Cir. 1994) (POPA v. FLRA). App. 16.
Although the parties have subsequently met to discuss matters contained in
both disapproved arbitrator's awards, they have been unable to execute a
comprehensive collective bargaining agreement. Meetings conducted in 1993
and 1994 ended with a dispute as to whether they had an agreement
incorporating all undisputed provisions of the arbitrator's awards. Since
those meetings concluded PTO has referred to the awards as the "'defunct'
agreement, the 'non-existing contract,' the 'null and void contract.'" App.
16. However, the parties have continued to occasionally cite to and follow
various of the provisions resulting from the arbitrator's 1986 award.
App. 31-32.
Additional negotiations over performance evaluations in September 1994 also
failed to produce an agreement. When PTO declined to adopt, as the
Performance Appraisal article, those provisions imposed by the arbitrator,
excluding those found nonnegotiable by this Court and the Authority, POPA
filed an unfair labor practice charge. The Authority's Regional Director
declined to issue a complaint, stating that PTO had no obligation to
implement the negotiable provisions in Article 19, relying in part on a
finding that the parties did not have a comprehensive collective bargaining
agreement. The Authority's General Counsel upheld this determination on
appeal, but found it unnecessary to reach the issue of the existence of a
comprehensive agreement, determining instead that there was no meeting of
the minds on performance appraisals. App. 16.
In addition to the continuing dispute over the effect of the 1986
arbitrator's award, POPA and PTO have had other bargaining disputes.
One of these, occurring in 1991, resulted in litigation before the
Fourth Circuit. In that case PTO refused to bargain over certain pay-
related proposals initiated by POPA. In the ensuing ULP proceedings,
PTO defended its refusal to bargain on the grounds that it had no
obligation to bargain over union-initiated midterm proposals. Although
the Authority rejected PTO's defense, the Fourth Circuit, in an
unpublished decision, denied enforcement of the Authority's order.
Adopting the uncontested assumption that the parties had a collective
bargaining agreement, the Fourth Circuit followed its precedent and held
that the Statute did not require Federal agencies to bargain over union-
initiated midterm proposals. Patent and Trademark Office v. FLRA, Nos.
92-2347, 92-2531 (4th Cir. Apr. 19,1993) (PTO v. FLRA). App. 17.
B. The Current Bargaining Disputes
1. Case No. WA-CA-80405
On January 12, 1998, PTO informed POPA that it proposed to make certain
changes to its performance appraisal system. Shortly thereafter, POPA
responded, stating that it wished to bargain over the entire subject of
performance appraisals and that negotiations would be conducted pursuant to
Article 14. App. 17.
The parties' bargaining teams met in February and March 1998. At these
meetings, POPA reiterated that it wanted to bargain over the entire subject
of performance appraisals. PTO, however, refused to bargain over anything
other than the specific changes it had proposed on January 12.
Subsequently, on April 6, 1998, PTO withdrew its January 12 notice, stating
that it did not intend to make the change it had proposed, and that no other
bargaining would be conducted on this matter. By memorandum dated April 20,
1998, POPA responded stating that it still wished to bargain over the
subject of performance appraisals. PTO never responded to POPA's request,
and the parties have no agreement on performance appraisals. POPA then
filed the ULP charge that formed the basis of the complaint in Case No. WA-
CA-80405. App. 17.
2. Case No. WA-CA-80515
In December 1997, PTO informed POPA that it was implementing a recruitment
bonus program. Further, on or about January 6, 1998, PTO announced in the
Washington Post both its intent to provide recruitment bonuses and a job
fair scheduled for January 23 and 24. PTO did not give POPA notice of the
job fair and the fair was held as planned. At the fair, applicants were
informed that a 10% recruitment bonus would be paid to newly-appointed
patent examiners. Since February 1998, PTO has paid 10% recruitment bonuses
to certain employees. These bonuses had not been paid to employees
appointed to such positions during the previous two years. App. 24.
On January 9, 1998, POPA requested to bargain over the recruitment bonus
program, and other pay-related issues, attaching bargaining proposals that
addressed all of the subjects over which POPA requested to bargain. On
January 16, 1998, POPA, by memorandum entitled "Mid-Term Bargaining,"
addressed among other things PTO's proposal to pay recruitment bonuses.
App. 24
PTO responded to POPA's request to bargain by stating that it would
consider proposals on recruitment bonuses and relocation expenses, but would
not entertain the other proposals because the proposals were not related to
management initiatives. Subsequently, POPA reiterated its interest in
bargaining on all of its proposals, including those PTO stated that it would
not entertain. PTO responded once more that it would negotiate only over
those matters it had proposed to implement. App. 24.
Negotiations began in March 1998 and continued through October of that year.
The parties reached tentative agreements on certain proposals related to
recruitment bonuses and relocation expenses. Nevertheless, POPA filed a ULP
charge concerning PTO's conduct in establishing the recruitment bonus plan
and PTO's refusal to bargain on other matters. That charge formed the basis
for the complaint in Case No. WA-CA-80515. App. 24.
II. The ALJ's Decisions and Recommended Orders[5]
A. Case No. WA-CA-80405
The ALJ first noted that the complaint addressed only PTO's failure to
respond to POPA's bargaining request submitted after PTO withdrew its
proposed change to the performance appraisal system. According to the ALJ,
the request was not rendered moot by PTO's withdrawal of its proposed change
because unions may initiate bargaining, during the term of an agreement or
before an agreement is reached, independent of proposals by management to
change unit employees' conditions of employment. Citing Authority
precedent, the ALJ found that this request was a general request for
negotiations on the matter and required a response and negotiations in good
faith. App. 33. Noting that POPA's bargaining request was not predicated
on the existence of a basic collective bargaining agreement, the ALJ
rejected PTO's contention that it had no obligation to bargain over POPA's
proposals in the absence of such an agreement. App. 33.
Although POPA contended before the ALJ that PTO was obligated to bargain
regardless of whether the parties had an effective collective bargaining
agreement, it nonetheless argued that all of the arbitrator's 1986 award had
matured into a binding agreement as a result of the parties' actions.[6]
App.32. Addressing POPA's argument only "[t]o the extent that [such a
determination] is relevant," the ALJ found that the record established that
the parties did not have a basic agreement as contended by POPA. App. 33.
Although noting that the parties had adopted a number of provisions of the
arbitrator's award either explicitly or by their actions, the record showed
that since at least 1991, the parties have disagreed on whether they have an
agreement consisting of all the undisputed provisions of the disapproved
agreement. App. 33-34.
Based on the foregoing, the ALJ concluded that the Respondent violated §
7116(a)(1) and (5) of the Statute as alleged and recommended an appropriate
cease and desist order. He also granted POPA's request for a retroactive
bargaining order, finding it appropriate because PTO's unlawful conduct had
deprived POPA of an opportunity to bargain in a timely manner over
negotiable conditions of employment. App. 34.
B. Case No. WA-CA-80515
As pertinent here, the ALJ found that PTO implemented its recruitment bonus
program after POPA had requested bargaining but before bargaining commenced.
Noting that no bonuses had been paid prior to this time, the ALJ concluded
that such conduct constituted a unilateral change in conditions of
employment and was violative of the Statute. App. 43.
With regard to the allegations that it illegally refused to bargain over
various pay-related matters as requested by POPA, PTO contended before the
ALJ that POPA's bargaining request was predicated on the existence of a
basic agreement and that no such agreement exists. As he did in the
companion case, the ALJ noted that POPA and the General Counsel contended
that PTO's bargaining obligation was not dependent on the existence of a
basic agreement and held that POPA's bargaining request was not predicated
on the existence of a such an agreement. Again, the ALJ addressed the issue
of the existence of an agreement incorporating all of the provisions of the
arbitrator's award not disapproved only to the extent such an award "is
relevant," and concluded that no such agreement exists. In conclusion, the
ALJ held that PTO violated the Statute by refusing to bargain over pay-
related issues as requested by POPA. App. 44-45.
The ALJ recommended that the Authority order PTO to cease and desist from
unilaterally implementing recruitment bonuses and refusing to bargain over
pay and pay-related matters as requested by POPA. Again as POPA requested,
he further recommended that PTO be ordered to bargain with retroactive
effect, to the extent the parties have not already reached agreement, over
recruitment bonuses and those pay-related matters requested by POPA. App.
44.
III. The Authority's Decision and Order
In both cases, PTO excepted to the ALJ's findings and conclusions that it
violated the Statute as alleged. In that regard, PTO argued that it had no
obligation to bargain where there is no management-initiated change in
conditions of employment and where there is no basic agreement in effect.
The Authority rejected those arguments, finding, as pertinent here, that the
absence of a collective bargaining agreement does not excuse an agency from
its obligation to bargain. The Authority, therefore, held in both cases
that PTO was obligated to bargain over the union-initiated proposals and
violated the Statute when it refused to do so. Accordingly, the Authority
affirmed the ALJ's determinations that PTO violated the Statute as alleged
in the complaints and adopted the ALJ's recommended orders without
modification. App. 20-22; 26-27.
Although granted full relief by the ALJ's recommended order, POPA
nonetheless filed exceptions. Specifically, POPA excepted to the ALJ's
finding, in both decisions, that at least "since the Authority upheld the
1986 agency head disapproval in 1991, the parties have disagreed on whether
they have an agreement consisting of all the undisputed provisions of the
disapproved agreement." App. 22 (quoting from ALJ decision, App. 34). The
Authority concluded that the ALJ did not err in this finding and denied the
exception. The Authority stated that it held in POPA I, 41 F.L.R.A. at
805, that the agency head disapproval served in 1986, "was timely and served
to disapprove the entire agreement." Relying on well-established precedent,
the Authority noted that where an agency head timely disapproves an
agreement under § 7114(c) of the Statute, the agreement does not take effect
and is not binding on the parties. App. 23.
As to whether the parties had agreed to an agreement incorporating all
provisions not specifically disapproved, the Authority first stated that,
"'a meeting of the minds of the parties must occur before a labor contract
is created.'" App. 23 (citing Internal Revenue Serv., North Fla. Dist.,
Tampa Field Branch, Tampa, Fla, 55 F.L.R.A. 222 (1999) (IRS, Tampa Field
Branch) (quoting Bobbie Brooks, Inc. v. Int'l Ladies' Garment Workers Union,
835 F.2d 1164, 1168 (6th Cir. 1987))). The Authority found no meeting of
the minds, agreeing with the ALJ that the record established that "since the
Authority upheld the 1986 Agency head disapproval in 1991, the parties have
disagreed on whether they have an agreement consisting of all the undisputed
provisions of the disapproved agreement." App. 23.
The Authority also rejected POPA's reliance on the United States Court of
Appeals for the Fourth Circuit's unpublished 1993 per curium opinion in PTO
v. FLRA, where the court referenced a 1986 collective bargaining agreement
of the parties. The Authority stated that since the issue of the validity
of the agreement was neither litigated or decided, the court's decision did
not establish that a basic agreement exists. Consequently, the Authority
found that the record did not establish by a preponderance of the evidence
that a basic agreement exists on all the undisputed provisions of the
disapproved agreement. Therefore, the Authority denied POPA's exception.
App. 23.
STANDARD OF REVIEW
The standard of review of Authority decisions is narrow: Authority action
shall be set aside only if "arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law[.]" 5 U.S.C. §§ 7123(c) and 706(2)
(A); Overseas Educ. Ass'n v. FLRA, 858 F.2d 769, 771-72 (D.C. Cir. 1988);
EEOC v. FLRA, 744 F.2d 842, 847 (D.C. Cir. 1984), cert. dismissed, 476 U.S.
19 (1986). Under this standard, unless it appears from the Statute or its
legislative history that the Authority's construction of its enabling act is
not one that Congress would have sanctioned, the Authority's construction
should be upheld. See Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 844 (1984); see also Fort Stewart Sch. v.
FLRA, 495 U.S. 641 (1990).
The merits question before the Court, concerning the existence and content
of a collective bargaining agreement, is one of fact. Bobbie Brooks, Inc.
v. Int'l Ladies Garment Workers Union, 835 F.2d 1164, 1168 (6th Cir. 1987).
Factual findings of the Authority that are supported by substantial evidence
on the record as a whole are conclusive. 5 U.S.C. § 7123(c); Nat'l Treasury
Employees Union v. FLRA, 721 F.2d 1402, 1405 (D.C. Cir. 1983) (NTEU v.
FLRA). The Authority is entitled to have reasonable inferences it draws
from its findings of fact not be displaced, even if the court might have
reached a different view had the matter been before it de novo. See AFGE
Local 2441 v. FLRA, 864 F.2d 178, 184 (D.C. Cir. 1988); see also LCF, Inc.
v. NLRB, 129 F.3d 1276, 1281 (D.C. Cir. 1997). POPA concedes that the
question before this Court is whether the Authority's determination is
supported by substantial evidence.
Finally, as the Supreme Court has stated, the Authority is entitled to
"considerable deference when it exercises its 'special function of applying
the general provisions of the [Statute] to the complexities' of federal
labor relations." Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S.
89, 97 (1983).
SUMMARY OF ARGUMENT
1. This Court lacks jurisdiction in the instant case because POPA, the
petitioner, is not a "person aggrieved by [a] final order of the Authority," as
required by § 7123(a) of the Statute. POPA is not aggrieved because it objects
not to a "final order" of the Authority, but only to a collateral factual
finding made in the course of an Authority decision which was otherwise wholly
favorable to POPA's interests.
Further, POPA, the charging party in the ULP proceedings, cannot be
considered aggrieved by the Authority's order because it received all the
relief it sought from the Authority. In that regard, PTO, respondent before
the Authority, was found to have violated the Statute exactly as alleged in
the complaint. No portion of the complaint was dismissed. In addition, the
Authority's order fully remedied the violations, in some instances granting
precisely the remedy requested by POPA.
Finally, the Authority's finding does not cause POPA direct or immediate
harm. The finding at issue, i.e., that there is no comprehensive collective
bargaining agreement between the parties, was not required to resolve the
ultimate question before the Authority. Accordingly, not only was POPA not
harmed in the instant case, but in addition, because the finding was mere
dictum it has no preclusive effect in future litigation.
2. In any event, the Authority's finding that there was no comprehensive
agreement adopting all provisions of the 1986 arbitrator's award that were not
specifically disapproved by PTO is supported by substantial evidence.
Initially, and as found by the Authority, PTO's disapproval of the 1986 award
prevented the agreement from going into effect at that time. Further, although
POPA and PTO entered into several agreements that gave effect to some of the
provisions not disapproved, nothing in the record indicates express mutual
assent to a
comprehensive collective bargaining agreement. Indeed, the existence of
separate agreements giving effect to specific provisions belies the assertion
that the parties ever agreed to execute a comprehensive agreement. Lastly,
uncontroverted testimony indicates that PTO has continued to deny the existence
of a comprehensive agreement.
3. Finally, POPA challenges the Authority's decision based on judicial estoppel
- a doctrine that prevents a party from asserting a claim that is inconsistent
with a claim made by that same party in a previous proceeding. In this regard,
POPA relies on an alleged assertion by PTO in PTO v. FLRA, Nos. 92-2347, 92-2531
(4th Cir. Apr. 19,1993) that there was an effective collective bargaining
agreement between the parties. POPA's reliance on this doctrine is unavailing.
First, POPA failed to raise the judicial estoppel argument before the Authority
and, therefore, cannot assert it before this court. 5 U.S.C. § 7123(c).
Second, even if the Court were to consider POPA's judicial estoppel
objection, the Court should not apply the doctrine to overturn the
Authority's decision. Judicial estoppel bars a party from asserting a claim
inconsistent with a claim that same party has asserted in prior litigation.
To the extent estoppel can be raised, it can only be raised against PTO, not
the Authority. POPA cites no precedent that would prevent the Authority
from defending before this Court the Authority's finding that no
comprehensive agreement exists between POPA and PTO.
Finally, even if judicial estoppel could be applied to the Authority's
litigation of this case, it would not provide a basis for reversing the
Authority's finding because the finding at issue here is not "clearly
inconsistent" with PTO's alleged assertion before the Fourth Circuit. At
most, PTO "asserted" before that court that there was some form of
collective bargaining agreement, sufficient under Fourth Circuit precedent,
to bar midterm negotiations. The nature or content of such an agreement was
neither discussed nor litigated. PTO's general claim is not inconsistent
with the Authority's more narrow finding here that the parties never agreed
to adopt as a comprehensive collective bargaining agreement all provisions
of the 1986 arbitrator's award not specifically disapproved by PTO.
ARGUMENT
I. THE PATENT OFFICE PROFESSIONAL ASSOCIATION IS NOT A "PERSON AGGRIEVED"
WITHIN THE MEANING OF 5 U.S.C. § 7123(a)
POPA seeks review, pursuant to § 7123(a) of the Statute, of the Authority's
determination that there was no comprehensive collective bargaining
agreement between POPA and PTO. This discrete factual determination was
made in the course of an Authority decision which is otherwise wholly
favorable to POPA's interests. Under these circumstances, POPA is not a
"person aggrieved" by the Authority's final order within the meaning of §
7123(a). POPA is not aggrieved because it has received all the relief it
sought from the Authority. Liquor Salesmen's Union Local 2 v. NLRB, 664
F.2d 1200, 1206 and n.8 (D.C. Cir. 1981) (Liquor Salesmen). In addition,
POPA cannot be considered "aggrieved" for purposes of judicial review
because it seeks to contest not the Authority's order, but only a collateral
finding unnecessary for the Authority's ultimate holding. See Deaton Truck
Line, Inc. v. NLRB, 337 F.2d 697, 698 (5th Cir. 1964), cert. denied, 381
U.S. 903 (1965) (Deaton Truck). Therefore, this Court lacks jurisdiction
over the petition for review since POPA does not have standing to file such
a petition.
A. Applicable Legal Principles
Section 7123(a) provides in relevant part that "[a]ny person aggrieved by
any final order of the Authority . . . may . . . institute an action for
judicial review of the Authority's order" in an appropriate United States
court of appeals. 5 U.S.C. § 7123(a). There is no definition of "person
aggrieved" in the Statute. However, the courts that have interpreted and
applied this provision have relied on precedent developed under analogous
provisions of the National Labor Relations Act (NLRA), 29 U.S.C. §§ 160(f)
(1994). See Am. Fed'n of Gov't Employees v. FLRA, 849 F.2d 648 (D.C. Cir.
1988) (per curium); see also Dep't of Agriculture, Food and Nutrition Serv.
v. FLRA, 879 F.2d 655, 658 (9th Cir.1989). It is well established that
private sector precedent can be a relevant and useful guide in interpreting
the Statute where, as here, the legal concepts involved are comparable. See
FLRA v. Social Sec. Admin., 846 F.2d 1475, 1478 (D.C. Cir. 1988)
(interpreting judicial review provisions of the Statute as parallel to those
of the NLRA); see also Library of Congress v. FLRA, 699 F.2d 1280, 1287
(D.C. Cir. 1983).
Similar to § 7123(a) of the Statute, § 10(f) of the NLRA, permits "[a]ny
person aggrieved" by a final order of the National Labor Relations Board (
Board) to seek judicial review.[7] Standing to appeal an administrative
order as a "person aggrieved" under § 10(f) "arises if there is an adverse
effect in fact[.]" Oil, Chem. & Atomic Workers v. NLRB, 694 F.2d 1289, 1294
(D.C. Cir. 1982) (Oil, Chemical & Atomic Workers) (quoting Retail Clerks
Union 1059 v. NLRB, 348 F.2d 369, 370 (D.C. Cir. 1965)). In order to be
adversely affected by an administrative order, a petitioner must show that
such an order results in direct and immediate injury to him. Nat'l Coal
Ass'n v. Fed. Power Comm'n, 191 F.2d 462 (D.C. Cir. 1951); see also
Harrison Steel Castings Co. v. NLRB, 923 F.2d 542, 545-46 (7th Cir. 1991)
(Harrison Steel); Willenbrink v. NLRB, 612 F.2d 1088, 1091 (8th Cir. 1980);
Newport News Shipbuilding and Dry Dock Co. v. NLRB, 608 F.2d 108, 114 (4th
Cir. 1979).
With respect to a charging party, such party is not aggrieved where it is
accorded all the relief it sought.[8] Liquor Salesmen, 664 F.2d at 1206 and
n.8; see also Insurance Workers Int'l Union v. NLRB, 360 F.2d 823, 827
(D.C. Cir. 1966). Such a party also does not become aggrieved merely
because it is dissatisfied with certain findings and conclusions on which
the favorable order was based. See Deaton Truck, 337 F.2d at 698. Finally,
§ 7123 of the Statute provides for review of Authority orders, not its
particular findings. See Harrison Steel, 923 F.2d at 545 (party before the
Board may seek review only of "orders," not Board "findings" or "actions.").
B. POPA Is Not Aggrieved by the Authority's Order
1. POPA Received All the Relief it Sought
As noted above, a charging party is not aggrieved when it receives all the
relief it sought. In this case, the Authority found that PTO violated the
Statute precisely as alleged in the complaint and issued an appropriate
remedy for that misconduct. In Case No. WA-CA-80405, the complaint alleged
that PTO violated § 7116(a)(1) and (a)(5) of the Statute by: (1) not
replying to an April 20, 1998, memorandum from POPA which stated that POPA
wished to resume negotiations over the subject of performance appraisals;
and (2) refusing to negotiate with POPA over the matter since April 20,
1998. App. 15. The Authority held that PTO's conduct as specified in the
complaint violated the Statute as alleged. The Authority's remedial order
addressed both aspects of the violation. App. at 26-27, Order at 1(a),
2(a).
Similarly with respect to Case No. WA-CA-80515, the Authority addressed and
found violative of the Statute each allegation in the complaint. The
complaint alleged that PTO violated section 7116(a)(1) and (5) of the
Statute by: (1) establishing a Recruitment Bonus Plan for certain unit
employees on or about January 6, 1998; (2) holding a job fair at which it
offered recruitment bonuses to prospective job applicants on or about
January 23 and 24, 1998; (3) sending POPA memoranda dated January 28 and
February 20, 1998, agreeing to bargain over recruitment bonuses and
relocation allowances, but not over other subjects raised in POPA's January
9, 1998, memorandum and attachment; (4) refusing to bargain on March 3, 1998
and on unspecified subsequent occasions on subjects addressed by bargaining
proposals offered by the Charging Party on January 9, 1998, except for
recruitment bonuses and relocation allowances; and (5) paying such bonuses
to certain employees hired in February 1998 and thereafter. App. 15. The
Authority held that PTO violated the Statute precisely as alleged. App. 26.
As with the companion case, the Authority's remedial order addressed each
violation of the Statute. App. 16-27, Order 1 (b), (c), and (2)(b).
That the Authority has granted relief for each and every of PTO's alleged
violations establishes that POPA is not aggrieved. This case is
distinguishable in this regard from what some courts have labeled "hybrid"
cases. In such "hybrid" cases, the Board typically dismisses certain
portions of the complaint and issues remedial orders on others. In those
circumstances, the charging party is aggrieved with respect to those
portions of the complaint dismissed. See Int'l Union, United Automobile,
Aerospace & Agricultural Implement Workers of America v. Scofield, 382 U.S.
205, 210 (1965); see also Truck Drivers and Helpers Local No. 728 v. NLRB,
386 F.2d 643, 644-5 (D.C. Cir. 1967) (union was aggrieved when Board
dismissed complaint with respect to one section of the NLRA, although
affording relief under another section). In sharp contrast, no portions of
the complaints in this case were dismissed.
Similarly, POPA does not and cannot claim aggrievement based on an
insufficient remedy.[9] In the first place, POPA did not except to the
ALJ's recommended remedies and the Authority adopted the ALJ's remedial
order without modification. POPA cannot now object to the remedy. See 5
U.S.C. § 7123(c) (no objection that has not been urged before the Authority
shall be considered by the court). Secondly, it is evident that POPA
received the remedies it sought. Not only was every alleged violation
specifically addressed in the Authority's remedial order, but POPA received
the specific remedies it requested, e.g., a bargaining order with
retroactive effect. App. 34-35.
2. POPA Is Not Otherwise Aggrieved
Before this Court POPA challenges only the Authority's finding that there
was no agreement on all undisputed provisions in the 1986 arbitrator's
award. POPA cannot be aggrieved as a result of this finding. First, and as
noted above, a party does not become aggrieved solely because it is
dissatisfied with certain findings and conclusions on which a wholly
favorable order was based. See, e.g., Deaton Truck, 337 F.2d at 698.
Further, the Authority's finding does not cause POPA direct or immediate
harm. The finding that there is no agreement incorporating all of the
provisions not disapproved played no part in the Authority's reasoning or
its conclusion that PTO was obligated to bargain in response to POPA's
numerous requests. The ALJ, and the Authority in turn, expressly held in
each of the consolidated cases that the asserted absence of a such an
agreement did not affect PTO's obligation to bargain. App. 22. The ALJ
addressed the issue of the existence of the basic agreement only "to the
extent [its existence] is relevant." App. 33-34; 44.
Thus, although the Authority addressed POPA's exception and found that the
ALJ's finding was supported by the record, such a determination was not
required to resolve the ultimate question of PTO's liability under the
Statute. This finding, although contested, is mere dictum, and therefore
has no binding effect. See El-Hadad v. United Arab Emirates, 216 F.3d 29,
32 (D.C. Cir. 2000) (language not necessary to decide a case is dictum and
not binding); see also United States Dep't of Veterans Affairs, Med. Ctr.,
Jamaica Plain, Mass., 50 F.L.R.A. 583, 588 n.3 (1995) (Authority disregarded
statement in earlier decision because it was dictum). Accordingly, POPA
remains free to assert the existence of a comprehensive agreement in any
future case where it is deemed relevant.[10]
For the foregoing reasons, POPA is not a "person aggrieved" within the
meaning of § 7123(a) of the Statute, and therefore this Court is without
jurisdiction over the instant petition for review.
II. ASSUMING THE COURT'S JURISDICTION, THE AUTHORITY'S DETERMINATION THAT THERE
WAS NO AGREEMENT BETWEEN THE PARTIES INCORPORATING ALL OF THE UNDISPUTED
PROVISIONS OF THE DISAPPROVED ARBITRATOR'S AWARD IS SUPPORTED BY SUBSTANTIAL
EVIDENCE
POPA seeks to review the Authority's factual determination that the evidence
does not establish "that a collective bargaining agreement exists on all the
undisputed provisions of the disapproved agreement." App. 23. It is
important to note at the outset the scope of the Authority's finding
disputed by POPA. The Authority made the narrow finding that there was no
agreement between the parties incorporating all of the undisputed
provisions of the 1986 arbitrator's award.
In making this finding, the Authority and the ALJ also recognized that there
were some less comprehensive agreements between POPA and PTO resulting from
the 1986 award. However, the existence of particular agreements between PTO
and POPA notwithstanding, substantial evidence supports the Authority's
conclusion that there was no collective bargaining agreement incorporating
all undisputed provisions.
A. PTO's Disapproval of the 1986 Award Prevented the Agreement From Going
into Effect at That Time
As an initial matter, it is undisputed that, as a matter of law, PTO's
disapproval of the 1986 award prevented the agreement from going into effect
at that time. See National Treasury Employees Union, Chapter 251 and U.S.
Dep't of the Treasury, IRS, Washington, D.C., 40 F.L.R.A. 985, 990 (1991)
(NTEU Chapter 251) (where provisions of a collective bargaining agreement
are timely disapproved by the agency head under section 7114(c), the
collective bargaining agreement does not go into effect and is not
enforceable). Collective bargaining agreements, not specific provisions of
those agreements, are approved or disapproved by agency heads under section
7114(c). Id.
B. The Record Shows That There Was No Subsequent Agreement to Adopt, as a
Comprehensive Agreement, the Entire 1986 Award
Contrary to POPA's contentions, the record supports the conclusion that the
parties have not agreed at any time since 1986 to implement all of the
provisions not disapproved by PTO. Although PTO and POPA entered into
several agreements and followed practices that gave effect to, and made
enforceable, some of the provisions not disapproved (see App. 30-32),
nothing in the record indicates express mutual assent to a comprehensive
agreement incorporating all provisions not disapproved by PTO. Thus, for
example, POPA and PTO never executed a document expressly forming a
comprehensive agreement with such a scope. There is also no evidence of an
express oral agreement to that effect.
Further, there is substantial record evidence to support the Authority's
finding that the parties have a continuing disagreement concerning the
status of 1986 award. Sometime after the Authority's 1991 decision
upholding PTO's disapproval of the 1986 award, the parties met to discuss
the status of the award. Relying on the uncontroverted testimony of PTO's
labor relations chief, the ALJ found that at the conclusion of these
meetings, PTO stated that there was no agreement.[11] App. 30, 31.
Similarly, discussions in September 1994 attempting to resolve the dispute
over the performance appraisal article also ended without an agreement.
App. 30.
C. POPA's Contention That a Comprehensive Agreement Exists Is Not Supported
by the Record
Initially, POPA's general claim that the Authority did not consider the
entire record is without any merit. The Authority found that no agreement
incorporating all undisputed provisions existed, "despite the evidence
referenced by [POPA]." App. 23. The Authority's failure to specifically
discuss all the evidence does not establish that the evidence was not
considered. See State of Wyoming v. Alexander, 971 F.2d 531, 538 (10th
Cir. 1992) (decisional entity need not comment on every piece of evidence
presented to it) (Wyoming v. Alexander); see also Diaz v. Chater, 55 F.3d
300, 308 (7th Cir. 1995) (administrative law judge need not provide
evaluation of every piece of evidence). Thus, the Authority's failure to
discuss each competing piece of evidence is not grounds for reversal. See
Wyoming v. Alexander, 971 F.2d at 538 (mere allegation that decisional
entity did not properly consider party's evidence inadequate to grant
review).
POPA argues (Brief (Br.). 19-20) that although there was no express
agreement to create a comprehensive agreement, the parties' conduct
demonstrates an intent to do so. However, the record does not establish
such an intent. In that regard, POPA first contends (Br. 20) that PTO's
conduct immediately following its disapproval in 1986 shows that it intended
to adopt, as the parties' comprehensive agreement, all provisions of the
arbitrator's award not specifically disapproved. However, the conduct cited
by POPA does not establish that PTO agreed to incorporate all provisions not
disapproved in 1986. For example, the July 1986 letter concerned only the
retroactive effect of the parties' grievance procedure, not as suggested by
POPA, the entire award.
POPA also erroneously relies (Br. 20) on PTO's letter of October 22, 1986,
and the grievance settlement regarding printing the "basic agreement." At
most, these documents suggest an agreement by PTO that some provisions were
to be considered binding on the parties. Similarly, the June 1987
memorandum referenced by POPA (Br. 20) discusses only one provision of the
award. Finally, contrary to POPA's suggestions (Br. 20), PTO's references
to the "basic agreement" do not establish its assent to an agreement
incorporating all undisputed provisions.
In addition, PTO's post-1991 conduct cited by POPA (Br. 22-25), does not
establish an agreement incorporating all undisputed provisions. Most of the
evidence there cited concerns the effect of specific provisions, not the
existence of a comprehensive agreement. With respect to PTO's assertions in
grievance and arbitration, its statement that it had a "collective
bargaining agreement" at most establishes a concession that it was bound by
agreement to some provisions. The alleged concession does not imply
anything about the content of that agreement. Similarly, with respect to
the grievance settlement cited by POPA, although PTO agreed to comply with
some sections of the award, it also stated that there were others with which
it would not comply. App. 31. This latter assertion is consistent with the
view that PTO did not consider itself to be bound by all the relevant
provisions. POPA's challenge to the Authority's factual findings should,
therefore, be denied.
III. THE DOCTRINE OF JUDICIAL ESTOPPEL DID NOT PREVENT THE AUTHORITY FROM
FINDING THAT THERE WAS NO AGREEMENT BETWEEN THE PARTIES INCORPORATING ALL OF THE
UNDISPUTED PROVISIONS OF THE DISAPPROVED ARBITRATOR'S AWARD
POPA's challenge to the Authority's decision based on the doctrine of
judicial estoppel is also without merit. POPA contends (Br. 26) that PTO
"should be estopped from denying the existence of the 1986 collective
bargaining agreement because it is inconsistent with the position taken
before the Fourth Circuit in 1993[.]" POPA's contentions must be rejected
by this Court for three reasons. First, POPA did not raise this argument
before the Authority and therefore cannot raise the issue before this court.
Second, to the extent the issue can be raised, the estoppel runs against
PTO, not the Authority. Third, to the extent the estoppel argument may be
used against the Authority in this case, the doctrine is inapplicable
because the position PTO asserted in PTO v. FLRA is not inconsistent with
the Authority finding at issue here.
A. POPA Did Not Raise the Issue of Judicial Estoppel Before the Authority
Section 7123(c) of the Statute provides, as here pertinent, that "[n]o
objection that has not been urged before the Authority, or its designee,
shall be considered by the court, unless the failure or neglect to urge the
objection is excused because of extraordinary circumstances." 5 U.S.C. §
7123(c). In EEOC v. FLRA, 476 U.S. 19, 23 (1986) (EEOC), the Supreme Court
explained that the purpose of this provision is to ensure "that the FLRA
shall pass upon issues arising under the [Statute], thereby bringing its
expertise to bear on the resolution of those issues."
POPA did not assert before the Authority that PTO was judicially estopped
from denying the existence of a collective bargaining agreement. In the
administrative proceeding, POPA relied upon the Fourth Circuit's PTO v. FLRA
decision only as additional evidence for its contention that PTO had, in
fact, considered all of the 1986 arbitrator's award to be the parties'
agreement. App. 22. However, POPA did not make the very different claim
that PTO was legally barred from denying the existence of a binding
collective bargaining agreement or that such a purported estoppel bound the
Authority. Because POPA failed to raise the issue before the Authority, §
7123(c) prevents the Court from considering it.
B. To the Extent Judicial Estoppel Is Properly Raised, it Runs Against PTO,
Not the Authority
Even if it is assumed that the Court may consider POPA's judicial estoppel
objection, the Court should not apply the doctrine to overturn the
Authority's decision. As discussed above, the doctrine of judicial estoppel
prevents a party from asserting a claim that is inconsistent with a claim
made by that party in a previous proceeding. POPA bases its argument (Br.
26) on a purported assertion by PTO in proceedings before the Fourth Circuit
that there was a collective bargaining agreement between PTO and POPA. To
the extent judicial estoppel is applicable at all, it can only be applied to
prevent PTO, not the Authority, from asserting an inconsistent position in
subsequent proceedings.
POPA does not establish any basis for extending the asserted estoppel to
prevent the Authority from defending its finding before this Court. POPA
does not contend, nor could it, that the Authority is asserting a claim
inconsistent with one that the Authority asserted in prior litigation. In
this regard, POPA cites to no cases where the doctrine of judicial estoppel
has been applied against an administrative agency in judicial review
proceedings on the basis of allegedly inconsistent positions asserted by a
party appearing before that agency. Accordingly, the doctrine of judicial
estoppel cannot be applied against the Authority in this case.
C. PTO's Representations in PTO v. FLRA Are Not Inconsistent with the
Authority's Finding in the Instant Case
Finally, even if judicial estoppel could be applied to the Authority's
litigation of this case, it would not provide a basis for reversing the
Authority's finding that there was no agreement incorporating all of the
undisputed provisions of the 1986 arbitrator's award. Under the doctrine of
judicial estoppel, a party is prevented from asserting a position in a
judicial proceeding that is "clearly inconsistent" with a position taken in
earlier litigation. New Hampshire v. Maine, 532 U.S. 742, ___, 121 S. Ct.
1808, 1815 (2001). The position that POPA contends PTO asserted in PTO v.
FLRA was not "clearly inconsistent" with the Authority's finding contested
here.
PTO never asserted in the proceedings referenced by POPA that an agreement
existed that incorporated all of the provisions of the 1986 award not
disapproved by PTO. In United States Patent and Trademark Office, 45
F.L.R.A. 1090 (1992), PTO had refused to bargain over pay-related proposals
submitted by POPA. Before the Authority, PTO defended its refusal to
bargain on the ground that unions have no right under the Statute to
initiate midterm bargaining. 45 F.L.R.A. at 1091 n.2. PTO's argument was
based on a recent decision by the Fourth Circuit to that effect. While the
existence of some underlying collective bargaining agreement was implicit in
PTO's defense, the issue of whether such an agreement existed and its
content was not discussed in the Authority's decision. Rather, the
Authority resolved the case by declining to adopt the Fourth's Circuit's
view that a current collective bargaining agreement is a bar to union-
initiated bargaining, and holding that PTO was obligated to bargain over
POPA's proposals. Id.
When PTO petitioned the Fourth Circuit for review, the nature of the
purported PTO/POPA agreement was also not explored in the court's review
proceeding. The existence of a valid collective bargaining agreement was a
matter assumed, rather than litigated. As the Authority properly
characterized it (App. 17), the court accepted the uncontested
representations that the parties had a collective bargaining agreement.
Neither the existence nor the content of a collective bargaining agreement
was litigated or decided.
But even to the extent PTO "asserted" the existence of a collective
bargaining agreement in the course of that litigation, there is nothing to
indicate that it asserted anything about the content of that agreement.
Specifically, there is no indication that PTO asserted that its agreement
with POPA incorporated all provisions of the 1986 award not specifically
disapproved. Put another way, there is no inconsistency between PTO's
alleged prior assertion there was some form of collective bargaining
agreement sufficient to bar negotiations, and the Authority's more limited
finding in this case that there is no comprehensive agreement specifically
adopting all the undisputed provisions of the 1986 arbitrator's award.
Accordingly, even if PTO should be estopped from denying the existence of
some form of collective bargaining agreement resulting from the 1986 award,
such an estoppel would not have prevented the Authority from finding, as the
Authority did, that there was no agreement incorporating all provisions of
the 1986 award not specifically disapproved. Therefore, judicial estoppel,
even if considered by this Court and applied to the Authority, cannot be
grounds for reversing the Authority's finding.
CONCLUSION
POPA's petition for review should be dismissed for lack of jurisdiction.
Assuming the Court has jurisdiction, the petition should be dismissed
because the Authority's finding contested by POPA is supported by
substantial evidence.
Respectfully submitted,
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Deputy Solicitor
JAMES F. BLANDFORD
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
January 2002
CERTIFICATION PURSUANT TO FRAP 32
Pursuant to Federal Rule of Appellate Procedure 32, I certify that the
attached brief is written in a proportionally-spaced 14-point font and
contains 8129 words.
January 30, 2002
James F. Blandford
Attorney
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________________________
PATENT OFFICE PROFESSIONAL
ASSOCIATION,
Petitioner
v. No. 01-1271
)
FEDERAL LABOR RELATIONS AUTHORITY,
Respondent
and
UNITED STATES PATENT AND
TRADEMARK OFFICE,
Intervenor
_______________________________
SERVICE LIST
I certify that copies of the Brief for the Federal Labor Relations
Authority have been served this day, by mail, upon the following:
William Kanter Richard J. Hirn
Mark S. Davies 5335 Wisconsin Ave., NW
Attorneys, Appellate Staff Suite 440
Civil Division, Room 9604 Washington, D.C. 20015
601 D Street, NW (PHB)
Washington, DC 20530-0001
Thelma Brown
Paralegal Specialist
January 30, 2002
TABLE OF CONTENTS
1. 5 U.S.C. § 7105(a)(2)(G) A-1
2. 5 U.S.C. § 7114(c) A-2
3. 5 U.S.C. § 7116(a)(1), (5) A-3
4. 5 U.S.C. § 7117 A-4
5. 5 U.S.C. § 7118 A-9
6. 5 U.S.C. § 7123(a), (c) A-13
§ 7105. Powers and duties of the Authority
* * * * * * *
(a)(2) The Authority shall, to the extent provided in this chapter and in
accordance with regulations prescribed by the Authority-
* * * * * * *
(G) conduct hearings and resolve complaints of unfair labor practices under
section 7118 of this title;
* * * * * * *
§ 7114. Representation rights and duties
* * * * * * *
(c)(1) An agreement between any agency and an exclusive representative shall
be subject to approval by the head of the agency.
(2) The head of the agency shall approve the agreement within 30 days from
the date the agreement is executed if the agreement is in accordance with
the provisions of this chapter and any other applicable law, rule, or
regulation (unless the agency has granted an exception to the provision).
(3) If the head of the agency does not approve or disapprove the agreement
within the 30-day period, the agreement shall take effect and shall be
binding on the agency and the exclusive representative subject to the
provisions of this chapter and any other applicable law, rule, or
regulation.
(4) A local agreement subject to a national or other controlling agreement
at a higher level shall be approved under the procedures of the controlling
agreement or, if none, under regulations prescribed by the agency.
§ 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair labor practice
for an agency-
(1) to interfere with, restrain, or coerce any employee in the exercise by
the employee of any right under this chapter;
* * * * * * *
(5) to refuse to consult or negotiate in good faith with a labor
organization as required by this chapter;
* * * * * * *
§ 7117. Duty to bargain in good faith; compelling need; duty to consult
(a)(1) Subject to paragraph (2) of this subsection, the duty to bargain in
good faith shall, to the extent not inconsistent with any Federal law or any
Government-wide rule or regulation, extend to matters which are the subject
of any rule or regulation only if the rule or regulation is not a
Government-wide rule or regulation.
(2) The duty to bargain in good faith shall, to the extent not inconsistent
with Federal law or any Government-wide rule or regulation, extend to
matters which are the subject of any agency rule or regulation referred to
in paragraph (3) of this subsection only if the Authority has determined
under subsection (b) of this section that no compelling need (as determined
under regulations prescribed by the Authority) exists for the rule or
regulation.
(3) Paragraph (2) of the subsection applies to any rule or regulation issued
by any agency or issued by any primary national subdivision of such agency,
unless an exclusive representative represents an appropriate unit including
not less than a majority of the employees in the issuing agency or primary
national subdivision, as the case may be, to whom the rule or regulation is
applicable.
(b)(1) In any case of collective bargaining in which an exclusive
representative alleges that no compelling need exists for any rule or
regulation referred to in subsection (a)(3) of this section which is then in
effect and which governs any matter at issue in such collective bargaining,
the Authority shall determine under paragraph (2) of this subsection, in
accordance with regulations prescribed by the Authority, whether such a
compelling need exists.
(2) For the purpose of this section, a compelling need shall be determined
not to exist for any rule or regulation only if-
(A) the agency, or primary national subdivision, as the case may be, which
issued the rule or regulation informs the Authority in writing that a
compelling need for the rule or regulation does not exist; or
(B) the Authority determines that a compelling need for a rule or regulation
does not exist.
(3) A hearing may be held, in the discretion of the Authority, before a
determination is made under this subsection. If a hearing is held, it shall
be expedited to the extent practicable and shall not include the General
Counsel as a party.
(4) The agency, or primary national subdivision, as the case may be, which
issued the rule or regulation shall be a necessary party at any hearing
under this subsection.
(c)(1) Except in any case to which subsection (b) of this section applies,
if an agency involved in collective bargaining with an exclusive
representative alleges that the duty to bargain in good faith does not
extend to any matter, the exclusive representative may appeal the allegation
to the Authority in accordance with the provisions of this subsection.
(2) The exclusive representative may, on or before the 15th day after the
date on which the agency first makes the allegation referred to in paragraph
(1) of this subsection, institute an appeal under this subsection by-
(A) filing a petition with the Authority; and
(B) furnishing a copy of the petition to the head of the agency.
(3) On or before the 30th day after the date of the receipt by the head of
the agency of the copy of the petition under paragraph (2)(B) of this
subsection, the agency shall-
(A) file with the Authority a statement-
(i) withdrawing the allegation; or
(ii) setting forth in full its reasons supporting the allegation; and
(B) furnish a copy of such statement to the exclusive representative.
(4) On or before the 15th day after the date of the receipt by the exclusive
representative of a copy of a statement under paragraph (3)(B) of this
subsection, the exclusive representative shall file with the Authority its
response to the statement.
(5) A hearing may be held, in the discretion of the Authority, before a
determination is made under this subsection. If a hearing is held, it shall
not include the General Counsel as a party.
(6) The Authority shall expedite proceedings under this subsection to the
extent practicable and shall issue to the exclusive representative and to
the agency a written decision on the allegation and specific reasons
therefor at the earliest practicable date.
(d)(1) A labor organization which is the exclusive representative of a
substantial number of employees, determined in accordance with criteria
prescribed by the Authority, shall be granted consultation rights by any
agency with respect to any Government-wide rule or regulation issued by the
agency effecting any substantive change in any condition of employment. Such
consultation rights shall terminate when the labor organization no longer
meets the criteria prescribed by the Authority. Any issue relating to a
labor organization's eligibility for, or continuation of, such consultation
rights shall be subject to determination by the Authority.
(2) A labor organization having consultation rights under paragraph (1) of
this subsection shall-
(A) be informed of any substantive change in conditions of employment
proposed by the agency, and
(B) shall be permitted reasonable time to present its views and
recommendations regarding the changes.
(3) If any views or recommendations are presented under paragraph (2) of
this subsection to an agency by any labor organization-
(A) the agency shall consider the views or recommendations before taking
final action on any matter with respect to which the views or
recommendations are presented; and
(B) the agency shall provide the labor organization a written statement of
the reasons for taking the final action.
§ 7118. Prevention of unfair labor practices
(a)(1) If any agency or labor organization is charged by any person with
having engaged in or engaging in an unfair labor practice, the General
Counsel shall investigate the charge and may issue and cause to be served
upon the agency or labor organization a complaint. In any case in which the
General Counsel does not issue a complaint because the charge fails to state
an unfair labor practice, the General Counsel shall provide the person
making the charge a written statement of the reasons for not issuing a
complaint.
(2) Any complaint under paragraph (1) of this subsection shall contain a
notice-
(A) of the charge;
(B) that a hearing will be held before the Authority (or any member thereof
or before an individual employed by the authority and designated for such
purpose); and
(C) of the time and place fixed for the hearing.
(3) The labor organization or agency involved shall have the right to file
an answer to the original and any amended complaint and to appear in person
or otherwise and give testimony at the time and place fixed in the complaint
for the hearing.
(4)(A) Except as provided in subparagraph (B) of this paragraph, no
complaint shall be issued on any alleged unfair labor practice which
occurred more than 6 months before the filing of the charge with the
Authority.
(B) If the General Counsel determines that the person filing any charge was
prevented from filing the charge during the 6-month period referred to in
subparagraph (A) of this paragraph by reason of-
(i) any failure of the agency or labor organization against which the charge
is made to perform a duty owed to the person, or
(ii) any concealment which prevented discovery of the alleged unfair labor
practice during the 6-month period,
the General Counsel may issue a complaint based on the charge if the charge was
filed during the 6-month period beginning on the day of the discovery by the
person of the alleged unfair labor practice.
(5) The General Counsel may prescribe regulations providing for informal
methods by which the alleged unfair labor practice may be resolved prior to
the issuance of a complaint.
(6) The Authority (or any member thereof or any individual employed by the
Authority and designated for such purpose) shall conduct a hearing on the
complaint not earlier than 5 days after the date on which the complaint is
served. In the discretion of the individual or individuals conducting the
hearing, any person involved may be allowed to intervene in the hearing and
to present testimony. Any such hearing shall, to the extent practicable, be
conducted in accordance with the provisions of subchapter II of chapter 5 of
this title, except that the parties shall not be bound by rules of evidence,
whether statutory, common law, or adopted by a court. A transcript shall be
kept of the hearing. After such a hearing the Authority, in its discretion,
may upon notice receive further evidence or hear argument.
(7) If the Authority (or any member thereof or any individual employed by
the Authority and designated for such purpose) determines after any hearing
on a complaint under paragraph (5) of this subsection that the preponderance
of the evidence received demonstrates that the agency or labor organization
named in the complaint has engaged in or is engaging in an unfair labor
practice, then the individual or individuals conducting the hearing shall
state in writing their findings of fact and shall issue and cause to be
served on the agency or labor organization an order-
(A) to cease and desist from any such unfair labor practice in which the
agency or labor organization is engaged;
(B) requiring the parties to renegotiate a collective bargaining agreement
in accordance with the order of the Authority and requiring that the
agreement, as amended, be given retroactive effect;
(C) requiring reinstatement of an employee with backpay in accordance with
section 5596 of this title; or
(D) including any combination of the actions described in subparagraphs (A)
through (C) of this paragraph or such other action as will carry out the
purpose of this chapter.
If any such order requires reinstatement of any employee with backpay, backpay
may be required of the agency (as provided in section 5596 of this title) or of
the labor organization, as the case may be, which is found to have engaged in
the unfair labor practice involved.
(8) If the individual or individuals conducting the hearing determine that
the preponderance of the evidence received fails to demonstrate that the
agency or labor organization named in the complaint has engaged in or is
engaging in an unfair labor practice, the individual or individuals shall
state in writing their findings of fact and shall issue an order dismissing
the complaint.
(b) In connection with any matter before the Authority in any proceeding
under this section, the Authority may request, in accordance with the
provisions of section 7105(i) of this title, from the Director of the Office
of Personnel Management an advisory opinion concerning the proper
interpretation of rules, regulations, or other policy directives issued by
the Office of Personnel Management.
§ 7123. Judicial review; enforcement
(a) Any person aggrieved by any final order of the Authority other than an
order under-
(1) section 7122 of this title (involving an award by an arbitrator), unless
the order involves an unfair labor practice under section 7118 of this
title, or
(2) section 7112 of this title (involving an appropriate unit
determination),
may, during the 60-day period beginning on the date on which the order was
issued, institute an action for judicial review of the Authority's order in the
United States court of appeals in the circuit in which the person resides or
transacts business or in the United States Court of Appeals for the District of
Columbia.
* * * * * * *
(c) Upon the filing of a petition under subsection (a) of this section for
judicial review or under subsection (b) of this section for enforcement, the
Authority shall file in the court the record in the proceedings, as provided
in section 2112 of title 28. Upon the filing of the petition, the court
shall cause notice thereof to be served to the parties involved, and
thereupon shall have jurisdiction of the proceeding and of the question
determined therein and may grant any temporary relief (including a temporary
restraining order) it considers just and proper, and may make and enter a
decree affirming and enforcing, modifying and enforcing as so modified, or
setting aside in whole or in part the order of the Authority. The filing of
a petition under subsection (a) or (b) of this section shall not operate as
a stay of the Authority's order unless the court specifically orders the
stay. Review of the Authority's order shall be on the record in accordance
with section 706 of this title. No objection that has not been urged before
the Authority, or its designee, shall be considered by the court, unless the
failure or neglect to urge the objection is excused because of extraordinary
circumstances. The findings of the Authority with respect to questions of
fact, if supported by substantial evidence on the record considered as a
whole, shall be conclusive. If any person applies to the court for leave to
adduce additional evidence and shows to the satisfaction of the court that
the additional evidence is material and that there were reasonable grounds
for the failure to adduce the evidence in the hearing before the Authority,
or its designee, the court may order the additional evidence to be taken
before the Authority, or its designee, and to be made a part of the record.
The Authority may modify its findings as to the facts, or make new findings
by reason of additional evidence so taken and filed. The Authority shall
file its modified or new findings, which, with respect to questions of fact,
if supported by substantial evidence on the record considered as a whole,
shall be conclusive. The Authority shall file its recommendations, if any,
for the modification or setting aside of its original order. Upon the filing
of the record with the court, the jurisdiction of the court shall be
exclusive and its judgment and decree shall be final, except that the
judgment and decree shall be subject to review by the Supreme Court of the
United States upon writ of certiorari or certification as provided in
section 1254 of title 28.
* * * * * * *
[1] Pertinent statutory provisions are set forth in Addendum (Add.) A to
this brief.
[2] PTO had also sought review of the Authority's decision and order and the
Authority had sought enforcement of its order directed to PTO. United States
Patent and Trademark Office v. FLRA, No. 01-1315 (Jan. 2, 2002). The Court had
consolidated that case with the instant case. However, the parties filed a
stipulation to dismiss their respective actions in Case No. 01-1315, and the
Court dismissed the case on January 2, 2002.
[3] See Patent Office Prof'l Ass'n, 25 F.L.R.A. 384 (1987), aff'd 868 F.2d
458 (D.C. Cir. 1988) (Table); Patent Office Prof'l Ass'n, 29 F.L.R.A. 1389
(1987), aff'd 873 F.2d 1485 (D.C. Cir. 1989).
[4] Under § 7114(c) of the Statute, the agency head may review a collective
bargaining agreement to assure that its provisions are consistent with
applicable law, rule, or regulation. A union may appeal an agency head's
disapproval as a negotiability appeal under§ 7117. Interpretation and Guidance,
15 F.L.R.A. 564, 567 (1984), aff'd sub nom. Am. Fed'n of Gov't Employees, AFL-
CIO v. FLRA, 778 F.2d 850 (D.C. Cir. 1985).
[5] Although the Judge issued separate decisions, he had consolidated the
cases for hearing because the complaints involved the same parties and many of
the same witnesses. App. 28 n.1.
[6] The General Counsel, who issued the complaints and prosecuted the case,
did not rely on the existence of a collective bargaining agreement to establish
PTO's obligations to bargain. To the contrary, the General Counsel argued that
it was irrelevant. Unlike POPA, the General Counsel did not contend that any
such agreement existed. App 32.
[7] Section 10(f) of the NLRA provides in pertinent part that "[a]ny person
aggrieved by a final order of the Board granting or denying in whole or in part
the relief sought may obtain a review of such order in any [appropriate] United
States court of appeals[.]" 29 U.S.C. § 160(f).
[8] In ULP cases, the "charging party" is the private party bringing
allegations of ULPs before the Board or the Authority, and the "charged party"
is the alleged wrongdoer. See Oil, Chemical & Atomic Workers, 694 F.2d at 1294
n.10.
[9] Courts have found aggrievement where the Board found the respondent to
have violated the NLRA as charged, but provided the charging party less of a
remedy than sought. See, e.g., Oil, Chemical & Atomic Workers, 694 F.2d at
1295-96 (holding that the union was aggrieved when Board's remedial order
required employer to disclose most, but not all, information requested by the
union).
[10] Even if it were assumed that the Authority's finding might have some
precedential effect, the Authority found only that there was no agreement
incorporating all the provisions not disapproved on agency head review. The
Authority and the ALJ recognized that PTO had agreed to be bound by some
provisions. Nothing in the Authority's decision prevents POPA from enforcing
any specific provision that PTO has agreed to adopt.
[11] POPA disputes the probative value of the testimony of PTO's labor
relations chief (Br. 21-22, 24-25). However, the discrepancies cited by POPA,
regarding the dates of meetings, do not contradict the witness's testimony that
at the end of the meetings there was no agreement.
