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.