36:0606(68)NG - - NTEU and Commerce, Patent and Trademark Office - - 1990 FLRAdec NG - - v36 p606

[ v36 p606 ]
The decision of the Authority follows:

36 FLRA No. 68











August 15, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The Agency filed a statement of position and the Union filed a response to that statement. The dispute concerns the negotiability of a proposal that would specify what actions taken by employees will constitute a "count" of work under the Agency's performance standards. The Agency contends that the proposal interferes with its rights under section 7106(a)(2)(A) and (B) of the Statute to assign work and direct employees because it would define the content of the performance standards. We find that the proposal is negotiable because it constitutes a procedure, under section 7106(b)(2), governing the exercise of the Agency's reserved rights under the Statute.

II. Background

The employees to whom the proposal would apply are trademark attorneys. The attorneys examine trademark applications for legal sufficiency and process the trademark for publication when appropriate. One of the critical elements in the performance appraisal plan for these employees is entitled "Production." Under this element, employees are held accountable for completing a certain number of "balanced production" units per examining hour. Agency's Statement of Position at 2 (Agency's Statement). The Agency counts as units "first actions [on a case]" and "disposals [of a case.]" Id.

In June 1989, during the course of negotiations, the Union proposed that certain intermediate casehandling steps, as well as casehandling steps to be taken in "second examinations," also be counted as work units. Union's Petition for Review at 1-2 (Union's Petition). "Second examinations" are actions that were expected to be required pursuant to a change in trademark laws which was to take effect in November 1989.

III. Proposal

ARTICLE "X" - Counts of Work

So long as productivity is evaluated on the basis of counts of work, a "count" will be credited for the following:

First Examination

1. First actions;

2. Final refusals;

3. Allowances/approvals for publication;

4. Abandonments;

Second Examination

5. First actions;

6. Final refusals;

7. Allowances/approvals for publication;

8. Abandonments[.]

IV. Positions of the Parties

A. The Agency

According to the Agency, trademark attorneys are held accountable under the Agency's performance appraisal plan (PAP) for a specified number of "balanced production" units (first actions or disposals) per examining hour. The Agency states that it "does not want to measure total productivity or actions worked," but has instead "established a standard for the production of completed cases by counting when the attorney begins work on an application (first action) and when he or she disposes of an application (disposals)." Agency's Statement at 2.

The Agency contends that the portion of the proposal entitled "first examination" would create a category of action--final refusals--to be counted in evaluating employee production in addition to the three types of action that are already included in the PAP--first actions, approvals for publication, and abandonment. Id. at 2-3. The Agency explains that a "final refusal" is not the final step in the processing of an application, but concerns a "requirement to an applicant on a specific issue where the applicant has an opportunity to amend the application." Id. at 3. The Agency states that if the applicant abandons the claim at this point, the employee receives credit for a "disposal"; but if not, credit for a disposal is given when the action is approved for publication or is subsequently abandoned. Id.

As to the Union's characterization of the proposal as determining the aspects of an employee's job that will constitute discrete units for counting purposes, the Agency claims that this characterization is "not appropriate[.]" Id. at 3-4. The Agency contends that the current standard is "not a measure of 'discrete units' for counting an employee's total productivity," but "a measure of how productive an employee is in starting and closing cases[.]" Id. at 4. The Agency argues, therefore, that the proposal "changes the very nature of this standard by measuring total production." Id. The Agency also notes that if the purpose of its performance standards were to measure "total productivity," "there are other intermediate actions which could also be counted." Id.

The Agency notes, citing Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389 (1987) (Patent and Trademark Office), review denied as to other matters sub nom. Patent Office Professional Association v. FLRA, 873 F.2d 1485 (D.C. Cir. 1989), that proposals that establish general criteria governing the content of performance standards directly interfere with management's rights to direct employees and assign work. The Agency claims that the proposal would "change the intent of the existing standard and preclude management from measuring what it has determined is important." Agency's Statement at 4-5. The Agency also argues that even if the Union withdrew the category of "final refusals" and incorporated the current practice in the proposal, that proposal would still be nonnegotiable because it would "prevent the [A]gency from revising its performance standards to only measure, for example, an employee's production of disposals." Id. at 5.

As to the portion of the proposal entitled "second examination," the Agency contends that, because that part of the proposal contains the same categories of actions as the portion of the proposal entitled "first examination," it is nonnegotiable for the same reasons. Id. The Agency also notes that employees do not currently perform "second examinations," a term which appears to apply to a change in trademark law that was to take effect in November 1989. The Agency states that because it is not able to determine the effect of this change in the law, it does not know whether changes will need to be made in its performance standards. Accordingly, the Agency argues, there is no duty to bargain on this part of the proposal because it concerns a "matter not yet in existence or in issue between the parties." Id. at 6.

B. The Union

The Union contends that the proposal "is plainly identified as a method of counting work" and that, because the proposal is predicated "upon the continuation of evaluating productivity on the basis of counts of work," it "does not require the Agency to continue the present system." Union's Response to the Agency's Statement of Position (Union's Response) at 1, emphasis in original. The Union argues that the proposal would not preclude the Agency from revising the content of the critical elements and performance standards set forth in an employee's PAP.

According to the Union, employee performance in the critical element for "Production" is "based on meeting standards which reflect the employee's relative success in meeting the prescribed counts." Id. at 2. In particular, the Union states that employee performance "is measured by the number of counts per examining hour with overall office goals of taking First Actions within an average of three months and making Disposals within an average of thirteen months." Id. In short, the Union concludes, employee performance is measured in terms of "counts" and the time taken to accumulate those "counts."

The Union notes that some offices within the Patent and Trademark Office regularly deal with goods and services which result in a greater percentage of first actions and argues that employees in those offices are able to accumulate production counts more easily. Id. at 3. The Union also argues that by counting only first actions and disposals, the Agency's PAP "ignores the effort and time spent by some employees in intervening steps of the application process, particularly the process of issuing a Final Refusal." Id.

Because a final refusal may be the final disposition of an application, the Union claims that "a thorough, well-reasoned and supported Final Refusal increases the chances of disposal" and concludes that a final refusal should therefore "be considered as a count of work so that an [employee's] work in making the Final Refusal can be recognized." Id. The Union argues that the proposal implements the requirement of 5 U.S.C. § 4302(b) that performance standards, to the greatest extent feasible, accurately evaluate employee job performance because the proposal establishes "a procedure to ensure an accurate reflection of the effort and time spent by employees in processing applications." Id. at 4.

The Union contends that the proposal does not concern the content of the Agency's standards, but is a procedure for applying those standards. The Union argues that the proposal does not affect the right of the Agency "to adjust those standards to accommodate the manner in which the work is to be counted." Id. at 5. The Union concludes that the Agency's reliance on Patent and Trademark Office is "misplaced." Id. The Union argues that the proposal at issue in Patent and Trademark Office "would have obligated management to change its production goals and create a new production standard[,]" while the proposal in this case would leave management "free to adjust production standards at its discretion[.]" Union's Response at 6.

As to the Agency's claim that it has no duty to bargain over the portion of the proposal concerning "second examinations," the Union argues that the change in the law is a "certain[t]y" and that the Agency has "already revised its procedures to reflect this change in trademark law." Id. at 7. The Union concludes that it "should be permitted to bargain procedural protections in view of the imminent modification of employee duties." Id. The Union also notes that issues as to the existence of a duty to bargain are not properly raised in negotiability procedures, but may be raised in other appropriate proceedings. Id.

V. Analysis and Conclusions

We find that the proposal determines the aspects of an employee's job that will constitute work units for counting purposes in the Agency's performance standards. Consequently, consistent with Authority precedent, we conclude that the proposal is negotiable because it constitutes a procedure, under section 7106(b)(2), governing the exercise of management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

The Agency contends tha