ATTACHMENT

On or about June 6, 2003, and continuing, the U.S. Patent & Trademark Office (PTO or Agency), by its agents and representatives, has committed an unfair labor practice under 5 U.S.C. 7116(a)(1) and (5) by its failing and refusing and continuing to fail and refuse to negotiate in good faith over NTEU’s proposal regarding input in the development and testing of new automated features that affect the implementation of Madrid Protocol.

On April 17, 2003, the Agency provided NTEU Chapter 245 notice of the Trademark Organization’s legislative obligation to implement the Madrid Protocol in the United States. The noticed advised that on or about November 2, 2003, the Agency will begin to receive Requests for Extension of Protection (REP) for trademarks based on International Registrations on file at the International Bureau of the World Intellectual Property Organization. It further stated that the REP will be examined and registered in accordance with the Lanham Act, Rules of Practice, and the Trademark Manual of Examining Procedure. On April 30, 2003, NTEU Chapter 245 requested to negotiate all legally negotiable matters associated with the implementation of the Madrid Protocol. On May 7, 2003 the Agency provided a supplement to the notice on the implementation of Madrid Protocol. That notice reiterated that the Agency’s obligations under the treaty become effective November 2, 2003. The Agency attached material providing supplemental information concerning the changes that result from the treaty. However, the Agency claimed that the changes do not have a significant adverse affect on bargaining unit members.

On May 21, 2003, NTEU Chapter 245 submitted proposals in response to the proposed implementation of the Madrid Protocol application process for trademark examiners. NTEU explained that it did not believe it had enough information about the application process and the new responsibilities of examiners under the new filing basis, and as such submitted questions under separate cover on that same date. NTEU reserved the right to submit additional proposals in view of the questions it had, noting that implementation seemed to be a work-in-progress. NTEU asked that the Agency notify it about the commencement of negotiations.

On June 6, 2003, the Agency responded to the request to bargain claming that NTEU’s proposals were beyond the scope of the change and that its proposals relating to electronic systems were covered by the parties’ October 23, 2003 Trademark E-Commerce Law Office Program. Nevertheless, the Agency provided some counter proposals.

On June 11, 2003, NTEU advised the Agency that it was studying the counter proposals. On June 20, 2003, the Agency advised NTEU that negotiations would commence July 8, 2003. On July 3, 2003, the Agency advised NTEU that negotiations would be postponed because “management has to consider other possible changes related to Madrid that may impact the bargaining process.” The parties began the negotiation process on July 8, 2003. On July 24, 2003 NTEU submitted revised proposals to management based on negotiations sessions.

On August 18, 2003, NTEU and the PTO reached a Memorandum of Understanding (MOU) on the implementation of Madrid Protocol. Section IV B of the MOU recognized the Agency’s failure to negotiate with NTEU over a specific proposal. It further stated that the Agency will negotiate to the extent required by law over the Union’s proposal if 1) the Union files an unfair labor practice charge over the Agency’s refusal to bargain over the proposal; and 2) the FLRA determines, in the context of adjudicating that unfair labor practice charge, that the Agency has a duty to bargain over the proposal (the employer may assert any defense it wishes to the unfair labor practice charge.)

The Union’s proposal is as follows: NTEU Chapter 245 will be permitted to provide input in the development and testing of new automated features that affect the implementation of Madrid Protocol before such features are rolled out to the examining attorneys.

The provision in the agreement does not require the Agency to negotiate over any subject not specifically addressed by the union proposal.

On August 27, 2003, pursuant to the parties’ contract, NTEU notified the Agency that it intended to file an unfair labor practice over the Agency’s refusal to bargain over the union proposal referred to in Section IVB of the Memorandum of Understanding on the implementation of the Madrid Protocol. The Agency’s failure to bargain and its continued failure to bargain over these changes in working conditions is a failure to negotiate in good faith and an unfair labor practice under 5 U.S.C. 7116(a)(1) and (5).