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August 31, 2006

Cheapskate PTO

There has been acrimonious disagreement at the Patent Office over the Millennium Agreement, a 2001 contested contract that was supposed to maintain a 10%-15% pay scale differential between examiners and your average government bureaucrat; the point being, to retain highly educated and skilled examiners, thus minimizing turnover and maximizing patent quality. It hasn't worked out that way, because agency management reneged.

As an examiner explained:

The agency denies that such a differential was ever to be maintained. Various explanations have been offered by management at employee meetings such as (1) pay agreements are handled by OPM and, therefore, PTO lacked authority to sign a binding pay agreement when it signed the agreement and (2) the agreement was for a one-time and one-time only pay raise.

The collective bargaining unit for patent examiners, POPA, and agency management put the matter before arbitration. Twice. The result was, as stated by POPA VP Larry Oresky last month:

The arbitrator found for POPA on virtually every issue! There is little doubt that the agency will appeal this decision so don't go out and buy any new cars quite yet. However, the Arbitrator did affirmatively find for POPA on the essential factual issues that the FLRA relied upon to overturn the arbitrator's decision in the first pay grievance. This will give us the basis to appeal to the courts and win if the FLRA tries to undercut this decision like they did in the last one.

The Arbitrator agreed with POPA that the remedy should provide for the full amount of pay to maintain the 10% and 15% differentials over the DC area GS pay. Furthermore, the Arbitrator has retained jurisdiction over the administration of the remedy(ies) that the agency and POPA may propose.

Here's Commissioner John Doll's take, from the August 28th Commissioner's Corner:

In 2001, the Office and POPA entered into an agreement that addressed a number of issues including special pay. Under the Millennium Agreement, beginning in 2002, the Office was to seek annual increases in the special pay rate if it could legally do so in a manner consistent with OPM regulations. We believe this is the first time in the past several years that we have had the appropriate legal basis to make such a request in a manner consistent with OPM regulations. These requests are always rigorously scrutinized by OPM, but we are committed to pursuing this request for additional pay. Quite simply this is the right thing to do!

The same laws and regulations that allow the USPTO to seek the pay increase from the OPM this year have unfortunately not supported such a request in the past several years. This has come as a disappointment to many who believe that the Millennium Agreement required the USPTO to maintain the pay increases each year for five years. That interpretation is inconsistent with the law and no agreement between the USPTO and POPA can violate the law.

The USPTO continues to believe that it could not legally and in good faith seek a pay increase in 2003, despite how many have interpreted the Millennium Agreement. Nonetheless, an arbitrator recently determined that the USPTO violated the Millennium Agreement by not certifying a request for the special pay increase in 2003.

The USPTO believes the arbitrator was simply wrong. In fact, a largely similar decision from a previous arbitrator was found unlawful on appeal to the Federal Labor Relations Authority (FLRA). Consequently, we are filing an appeal to that decision today with the FLRA. We do not believe complying with an arbitration decision that we consider to be unlawful is even an option.

There are some who will interpret this decision to appeal the arbitrator's decision as an unwillingness to pay patent examiners all that is legally appropriate. I say with respect to those people that nothing could be further from the truth.

So, while it is disappointing to me to have to bring to you such a legalistic explanation of a decision the USPTO has made, I think it is important to explain why we made the decision. It is important that you understand my commitment to you and to uphold OPM regulations. And finally, it is important to me to personally deliver to you all of the news, the good and the disappointing, because I respect and care about each of you. I am committed to continuing to keep the lines of communication between us open.

Posted by Patent Hawk at August 31, 2006 6:26 PM | The Patent Office

Comments

Compare the following:
( from http://popa.org/pdf/agreements/pay-final.pdf )
The USPTO shall request OPM approval for the next five years to increase the special pay
schedule so as to maintain the 10% and 15% salary differentials relative to the updated GS
rates, in a manner consistent with OPM regulations. If OPM refuses the request, the Agency
shall enter into discussions with POPA in order to provide substantially equivalent
alternatives.

John Doll:
The USPTO continues to believe that it could not legally and in good faith seek a pay increase in 2003, despite how many have interpreted the Millennium Agreement. Nonetheless, an arbitrator recently determined that the USPTO violated the Millennium Agreement by not certifying a request for the special pay increase in 2003.

Me: The millenium agreement looks to be pretty straightforward. The PTO isn't exactly the guy selling the bridge he doesn't own- it's the freakin' PTO! It has a responsibility to keep up its end of the bargain.

Posted by: M at August 31, 2006 10:26 PM

If the USPTO was not obligated by the Agreement to maintain the pay difference or, at least, request OPM to maintain the pay difference then does that mean that the USPTO failed to supply consideration for the Agreement to be binding? POPA gave employee concessions, such as removal of the paper files that old-timers needed to be proficient in their positions, so POPA definitely gave consideration on its side. So, if PTO failed to provide consideration, at best, the Agreement is non-binding and, at worst, the PTO negotiated and signed a contractual agreement in bad faith.

And people wonder why no one wants to work at the PTO. Yeesh!

Posted by: J at September 1, 2006 6:50 AM