Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Look up keyword
Like this
3Activity
0 of .
Results for:
No results containing your search query
P. 1
PTO v. FLRA 11-1019

PTO v. FLRA 11-1019

Ratings: (0)|Views: 5,902|Likes:
Published by FedSmith, Inc.

More info:

Published by: FedSmith, Inc. on Mar 28, 2012
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

03/28/2012

pdf

text

original

 
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 8, 2011Decided March 16, 2012No. 11-1019U
NITED
S
TATES
D
EPARTMENT OF
C
OMMERCE
,
 
P
ATENT AND
T
RADEMARK
O
FFICE
,P
ETITIONER
v.F
EDERAL
L
ABOR
R
ELATIONS
A
UTHORITY
,R
ESPONDENT
P
ATENT
O
FFICE
P
ROFESSIONAL
A
SSOCIATION
,I
NTERVENOR
On Petition for Review of a Final Decisionof the Federal Labor Relations Authority
 Howard S. Scher 
, Attorney, United States Department of Justice, argued the cause for the petitioner.
Tony West 
, AssistantAttorney General, and
William Kanter 
and
Thomas M. Bondy
,Attorneys, were on brief.
 Rosa M. Koppel
, Solicitor, Federal Labor RelationsAuthority, argued the cause for the respondent.
 Joyce G.Friedman
, Attorney, Federal Labor Relations Authority, enteredan appearance.
 Richard J. Hirn
argued the cause for intervenor PatentOffice Professional Association in support of the respondent.
 
2
Gregory O’Duden
,
 Larry J. Adkins
,
Peyton H.N. Lawrimore
,
 Andres M. Grajales
and
Teresa J. Idris
were onbrief for the
amici curiae
,
 
American Federation of GovernmentEmployees
et al.
in support of the respondent.Before: H
ENDERSON
, R
OGERS
and T
ATEL
,
Circuit Judges
.Opinion for the Court filed by
Circuit Judge
H
ENDERSON
.Opinion concurring in the judgment filed by
Circuit Judge
R
OGERS
.K
AREN
L
E
C
RAFT
H
ENDERSON
,
Circuit Judge
: The Patentand Trademark Office of the United States Department of Commerce (PTO or Agency) seeks review of a decision of theFederal Labor Relations Authority (FLRA or Authority)upholding an arbitrator’s award in favor of the Patent OfficeProfessional Association (POPA or Union).
U.S. Dep’t of Commerce Patent & Trademark Office
, 65 F.L.R.A. 290 (2010)(
PTO II 
). The arbitrator concluded PTO committed an unfairlabor practice in violation of the Federal ServiceLabor-Management Relations Statute (FSLMRS or Statute), 5U.S.C. § 7116(a)(1) and (5), when it repudiated a provision in anagreement requiring that it make an annual request of the Officeof Personnel Management (OPM) to increase PTO’s specialschedule pay rates and, if OPM refuses, to discuss “substantiallyequivalent alternatives” with POPA.
 Arbitration Decision in rePatent Office Prof’l Ass’n v. U.S. Dep’t of Commerce, Patent &Trademark Office
, FMCS Case No. 04-01463-3 (Arbitral Awardof Arbitrator Arrigo) (July 25, 2006) (
 Award II 
). In particular,PTO challenges the Authority’s determination that the provisionconstitutes an “appropriate arrangement” under 5 U.S.C.§ 7106(b)(3). We grant PTO’s petition on the ground that,under the collateral estoppel doctrine, the Authority was boundby its earlier decision concluding the provision did not constitutean appropriate arrangement.
See U.S. Dep’t of Commerce,Patent & Trademark Office
, 60 F.L.R.A. 839 (2005) (
PTO I 
),
 
3
 pet. for review dismissed 
,
Patent Office Prof’l Ass’n v. FLRA
,180 F. App’x 176 (D.C. Cir. 2006).
I.
In 2000, PTO patent examiners’ wages, like those of mostexecutive branch employees, were determined pursuant to theGeneral Schedule (GS). Because it was experiencing problemsrecruiting and retaining employees, PTO requested and obtainedOPM approval to pay employees special pay rates exceeding thecomparable GS rates by ten or fifteen per cent, depending on thegrade. Over time, however, special rates decrease in valuerelative to the corresponding GS rates because, while both ratesreceive annual general increases, only the latter include annuallocality increases. Accordingly, PTO and POPA negotiated thefollowing provision in an agreement effective January 2001:The [PTO] shall request OPM approval for the nextfive years to increase the special pay schedule so as tomaintain the 10% and 15% salary differentials relativeto the updated GS rates, in a manner consistent withOPM regulations. If OPM refuses the request, theAgency shall enter into discussions with POPA inorder to provide substantially equivalent alternatives.Agreement on Initiatives for a New Millennium between [PTOand POPA], § A.2 (JA 69) (Millennium Agreement).In 2002, federal employees in the Washington, D.C. regionreceived a 3.6% general wage increase and a 1.17% locality payincrease. Pursuant to section A.2 of the Millennium Agreement,in February 2002, PTO requested that OPM increase the specialpay rate by 1.17% to maintain the ten and fifteen per centdifferentials, subsequently lowering the request to 1%. OPMdenied PTO’s request on the ground PTO’s filings did not showit was “experiencing or . . . likely to experience significanthandicaps in recruiting or retaining patent professionals.”
 Award II 
at 11 (internal quotations omitted). OPM

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->