POPA leaders outlined the achievements of 2011 and the challenges for 2012 at the union’s annual meeting on Dec. 8.

POPA President Robert Budens told the audience that the union had represented employees that morning before the Court of Appeals for the D.C. Circuit in the USPTO’s appeal of the Federal Labor Relations Authority decision to award employees backpay in the Millennium Pay cases. “While we await the court’s decision, we will continue to try and settle these grievances,” said Budens.

A huge change on the horizon involves the USPTO potentially moving to a new international patent classification system being jointly developed by the European Patent Office (EPO) and USPTO. The Cooperative Patent Classification system (CPC) is planned to replace both the U.S. Patent Classification (USPC) system at the USPTO and the ECLA classification system at the EPO. CPC will be based on the structure of the International Patent Classification, but will have many more divisions (classes/subclasses) than either the USPC or ECLA. POPA is working on a task force with the USPTO to address the issues that will affect examiners.

Budens said that POPA continues to monitor the effects of the Count System Initiatives and the Examiner Performance Appraisal Plan Initiatives (PAP), one of the joint agency-union 2011 achievements. POPA and the USPTO meet regularly to adjust these initiatives as needed. For example, in FY 2012, individual RCE adjustments were phased out in favor of an across-the-board RCE adjustment for the entire examining corps.

In another example, as part of the PAP Initiatives, the USPTO introduced the Docket Management element of the PAP for FY 2012 on Oct. 12, 2011. Developed with POPA input, the Docket Management element fundamentally changed the methods the agency and examiners use to track workloads and act on patent applications in a timely man­ner. “We continue to work with the agency every day to re ­solve PAP issues as they arise,” Budens told employees, “so please let us and the agency know when you find a problem.”

POPA worked closely with the agency in rolling out the new universal laptop computers, which all examiners should have in early 2012. POPA also agreed to implement the Telework Enhancement Act Pilot Program (TEAPP) together with the agency and the other two employee unions—NTEU locals 243 and 245. TEAPP will limit the number of times employees living outside the local commuting area of the USPTO Alexandria headquarters, (the “50 mile radius”) would have to return to the USPTO at their own expense.
[TEAPP article.]

During 2011, POPA also worked on advances for other units and employees in POPA’s bargaining unit, such as employees in the Central Reexamination Unit and employ­ees affected by the settlement of the recent clarification of unit petition. Work in these areas will continue in 2012.

Disciplinary/Adverse Actions

While POPA bargaining unit employees generally experienced a drop in the number of performance-based disciplinary and adverse actions in 2011, actions based on employee conduct rose, according to a report from POPA Vice President and Director of Adverse Action Challenges Howard Locker. Through the creation of performance “safety zones” in the PAP Initiatives, the USPTO has worked with POPA to give employees more opportunities to improve performance and the agency—an initiative that has benefit ed both employees and the USPTO. POPA and the agency continue to communicate with each other and with our bar gaining unit members regarding appropriate work conduct.

In addition to working together to resolve performance and conduct issues, POPA and the agency have addressed many other significant issues to help protect employee rights. These issues include:

■ Performance warnings remain contestable via POPA’s negotiated grievance procedure;

■ Oral warnings, which the agency had tried to abolish, remain in use;

■ Performance measurement parameters have been modified in several respects to better represent employee performance;

■ Production credit reapportionment—the first in more than 30 years—more directly reflects when work is done in a case;

■ Safety zones now exist in all examiner critical PAP elements—unacceptable performance does not necessarily result in a performance warning;

■ Employee terminations remain arbitrable;

■ Examiners can more easily transfer to other art units;

■ The examiner optional clear error review process provides some much-needed transparency into performance errors called by the supervisor, involving the technology center director before the grievance process rather than midway through it and several months after the fact;

■ Errors called by quality assurance specialists do not affect an employee’s PAP—they’re for training purposes only. PAP errors need to be cited by the employee’s supervisor.

 

The above initiatives are good news for employees— they have generally resulted in fewer performance-based actions during this administration. However, recently proposed performance actions are generally better substantiated, with the agency doing a better job of documenting assistance to the employee during improvement periods than had been the case in years past.

Conduct-based disciplinary and adverse actions are, unfortunately, on the increase at the USPTO.

Improper use of the Internet is the largest basis for conduct-related disciplinary and adverse actions. These include excessive bandwidth use, accessing objectionable websites, and downloading unauthorized items on government-issued desktop or laptop computers.

The agency still has not provided employees with the means to monitor their monthly bandwidth usage. The agency has notified employees about the issue with a list of practices to avoid. After working with POPA the agency has agreed that the first documented occurrence of excessive bandwidth usage will result in a letter of counseling (not a disciplinary action). A second occurrence normally will result in a letter of reprimand (lowest level of disciplinary action) and progressive discipline. For a third occurrence, the employee could face suspension. Nevertheless, working with POPA, the current agency policy represents a significant improvement over previous agency policy, wherein an employee faced a 14-day suspension for a first occurrence. The USPTO has also agreed to keep letters of reprimand in an employee’s official personnel file for only 12 months. Prior to this agreement, the Employee Relations division could leave a letter of reprimand in the employee’s file for an undetermined time.

Accessing objectionable websites from any government computer is dealt with very harshly by the agency. Words to the wise—don’t do it. Do not download unauthorized software or Internet browsers to any government computer. The agency has more than 20 contract employees monitoring individual Internet usage with forensic software. If your Internet usage hits or exceeds 5 gigabytes/month, you will get on the agency’s radar screen and could likely face questioning about your Internet usage.

The USPTO also watches the time that hotelers claim to be working and reconciles it with computer usage. The agency can see exactly when you logged in on your computer, what you did and periods of inactivity.