39:0783(68)NG - - Patent Office Professional Association and Commerce, Patent and Trademark Office - - 1991 FLRAdec NG - - v39 p783



[ v39 p783 ]
39:0783(68)NG
The decision of the Authority follows:


39 FLRA No. 68

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

PATENT OFFICE PROFESSIONAL ASSOCIATION

(Union)

and

DEPARTMENT OF COMMERCE

PATENT AND TRADEMARK OFFICE

(Agency)

0-NG-1551

DECISION AND ORDER ON NEGOTIABILITY ISSUES

February 22, 1991

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). It concerns the negotiability of 19 proposals involving the Agency's Signatory Authority Program.(1)

For the reasons that follow we find the last sentence of Proposal 9, all of Proposals 10, 11, 12, Proposal 13 (part E), Proposal 17 (Parts 2, 3, 4, 5, and 6), Proposal 18, and Proposal 19 to be negotiable. We find Proposals 1, 2, 3, 4, 5, 6, 7, 8, 9 (except for the last sentence), Proposal 13 (Part F), Proposals 14, 15, 16, and Proposal 17 (Parts 1, 7, and 8) to be nonnegotiable.

II. Background

The Agency, part of the Department of Commerce, provides assistance to business, industry, and individuals by providing patent protection for inventions and the registration of trademarks. The Union represents a bargaining unit of approximately 1400 patent examiners. Patent examiners are primarily responsible for examining applications for patents in order to determine whether those applications should be granted or denied.

Patent examiners normally enter employment with the Agency at the GS-5 or GS-7 level. Thereafter, they may receive noncompetitive promotions to the GS-13 and GS-14 levels. As explained by the parties, although examiners' basic work functions are the same at each grade level, the difficulty of their work and the quality and productivity standards that apply to their work increase with each grade.

Another distinction, "signatory authority," exists between the GS-13 and GS-14 levels. At grade levels up to and including GS-13, the patent examiner evaluates a patent application, does the necessary research, has contact with the applicants and their attorneys as necessary, and prepares the documents which, once executed, constitute the Agency's action on the application. Examiners below the GS-14 level only recommend appropriate action; they are not delegated the authority to effectuate the action. Rather, their recommendations are effectuated by a higher official, who has been delegated "signatory authority" by the Commissioner of Patents and Trademarks, and who signs the action after reviewing the accuracy and sufficiency of the recommended action. Examiners at the GS-14 level, titled as "primary examiners," are delegated "signatory authority" to execute the action for the Agency that he or she has prepared. According to the Agency, the delegation of signatory authority constitutes the chief difference between the GS-13 and GS-14 level positions, and the ability to perform this duty is the basis for promotion to the higher grade.

The Union's proposals in this case address an Agency program, the "Signatory Authority Program" (Program), in operation for many years prior to this appeal, under which the Agency has assigned various aspects of signatory authority to GS-13 examiners during trial periods to enable the examiners to gain experience with signatory authority and to demonstrate performance that will qualify them for noncompetitive promotion to the GS-14 level. These proposals were initially submitted by the Union in the course of renegotiations for the parties' basic collective bargaining agreement. During interest arbitration proceedings to resolve the parties' impasse in these negotiations, the arbitrator ordered the proposals concerning the Program severed from the negotiations, pending resolution by the Authority of the negotiability issues involved in this case. The arbitrator has retained jurisdiction over the matter in the event the parties cannot reach agreement once the negotiability issues are resolved.

Under the Program, when an examiner is promoted to the GS-13 level, the examiner's productivity requirements increase. The examiner also gains a certain degree of independence, not held at the GS-12 level, for meetings with patent applicants and their representatives and to prepare patent actions. The examiner's performance is evaluated after he or she has performed these duties and responsibilities for 6 months. According to the Agency, if the examiner's performance is rated favorably for this 6-month period, the examiner is offered a grant of temporary "partial" signatory authority (temporary authority to sign documents that commit the Agency to nonfinal, procedural actions on patent applications) for a second 6-month trial period.(2)

The grant of partial signatory authority is made permanent if the examiner's performance is rated favorably for this period. At the expiration of the second trial period, a third 6-month trial period begins, with no further change in the examiner's functions. If the examiner's work is evaluated favorably after the third 6-month period, the examiner is assigned temporary "full" signatory authority, that is, temporary authority to sign and therefore effectuate the Agency's final actions on patent applications. According to the Agency, the examiner retains this temporary authority for a fourth 6-month trial period.(3) If the examiner is evaluated favorably at the end of the fourth period, the examiner is granted permanent full signatory authority. Because permanent full signatory authority is the authority exercised by GS-14 patent examiners, with this grant of signatory authority the examiner receives a noncompetitive promotion to the GS-14 level, and becomes a "primary examiner."

III. Proposal 1

Section 1. A member of the Unit who has performed satisfactorily at the GS-13 level for six months shall be granted temporary partial signatory authority for a period of six months. After having spent a minimum of 700 hours performing the functions of the employee's job which include patent examining and examining related activities in the exercise of this temporary partial signatory authority, the member's performance shall be evaluated and, within two bi-weeks from the end of the 700 hour trial period, he/she shall be granted permanent partial signatory authority, provided he/she has demonstrated that he/she can perform at the level of competence that is expected of an examiner at the partial signatory level. As soon as a member having permanent partial signatory authority has performed at this expectancy for a period of six months, the member shall be granted temporary full signatory authority. After having spent a minimum of 700 hours performing the functions of the employee's job which include patent examining and examining related activities in the exercise of this temporary full signatory authority, he/she shall be evaluated. Within two bi-weeks from the end of 700 hour trial period, he/she shall be granted permanent full signatory authority provided he/she has demonstrated that he/she can satisfactorily perform at the level expected of an examiner having this authority and his/her recognition.

A. Positions of the Parties

1. Agency

The Agency first asserts that the promotion of examiners to the GS-14 level under its Program results from a reclassification of the examiners' positions. Because Proposal 1 covers the circumstances of these promotions, the Agency argues that the proposal is concerned with classification matters, which are outside the duty to bargain under section 7103(a)(14)(B) of the Statute.

Assuming, however, as the Union argues, that the promotion is not a classification action but an extension of the examiners' career ladder to the GS-14 level, the Agency contends that the proposal conflicts with its right to determine its organization under section 7106(a)(1) of the Statute because the intent of the proposal is to require that the career ladder will extend to the GS-14 level.

The Agency further asserts that assignments of signatory functions to examiners constitute the exercise of management's right under section 7106(a)(2)(B) to assign work. It argues that Proposal 1 interferes with this right and the Agency's right to determine the personnel by which its operations are conducted, because the proposal requires that: (1) signatory functions will be assigned to GS-13 employees; and (2) the assignments will be continued for set periods of time.

The Agency also objects to Proposal 1 insofar as the proposal requires the Agency to set, and continue for the life of the parties' collective bargaining agreement, the performance criteria under which it will be required to assign signatory functions to examiners; and the length of the trial periods by which it evaluates examiners' abilities to perform signatory functions. The Agency argues that these requirements conflict with its rights to direct employees and assign work to employees under section 7106(a)(2)(A) and (B), which encompass the right to determine the level of performance the Agency requires of examiners before they are assigned signatory functions and the length of the trial periods in which it evaluates examiners' performance of these duties.

Finally, the Agency argues that the last sentence of Proposal 1 requires the Agency to promote GS-13 examiners to the GS-14 level when the examiners receive summary performance ratings at the fully successful level. The Agency argues that this requirement conflicts with 5 C.F.R. º 335.104 because, for promotion purposes, it does not allow the Agency to require examiners to perform at the fully successful level for each critical element of the examiner's position.

2. Union

The Union first asserts that Proposal 1 is not concerned with classification matters under section 7103(a)(14)(B) or the Agency's right to determine its organization under section 7106(a)(1) of the Statute. It argues that by its longstanding practice under its Program, which is consistent with the requirements of the Federal Personnel Manual (FPM), the Agency has extended the career ladder for examiners to the GS-14 level.

The Union also argues that the proposal does not concern the Agency's rights under section 7106(a), as argued by the Agency, because the assignment of signatory functions does not constitute the assignment of work. It asserts that Proposal 1 is only concerned with the procedures the Agency will follow when evaluating employees' promotion potential and that under Authority precedent union proposals that are concerned only with such matters do not conflict with management's rights and are fully negotiable. Finally, the Union argues that there is nothing in the proposal or its intent with regard to the proposal that conflicts with 5 C.F.R. º 335.104.

B. Analysis and Conclusions

1. Classification Matters Under Section 7103(a)(14)(B).

The Agency has failed to show that Proposal 1 concerns the classification of a position within the meaning of section 7103(a)(14)(B) of the Statute. There is nothing in the record to indicate that promotions of examiners from the GS-13 level to the GS-14 level are the result of classification actions, such as an audit of the duties performed by the examiner with the promotion based on the certification of an appropriate official that the duties performed are properly classified at the GS-14 level. In any event, the Authority has held that section 7103(a)(14)(B) was intended to remove from the scope of bargaining only those determinations regarding which duties and responsibilities will constitute a given position and the placement of that position in a class for purposes of personnel and pay administration. March Air Force Base, Riverside, California, 13 FLRA 255, 258 (1983). By its terms, Proposal 1 does not determine the grade level of any particular duties. It concerns only the circumstances under which certain duties (signatory authority) will be assigned. The Agency mistakenly relies on United States Department of Agriculture, Agricultural Research Service, Eastern Regional Research Center and American Federation of Government Employees, Local Union No. 1131, AFL-CIO, 20 FLRA 508 (1985), in which the Authority expressly found that an arbitrator's award was deficient because it sought to establish the grade level of specific duties performed by the grievant. The record is clear in this case that the Agency's determination that signatory authority is the grade-controlling duty at the GS-14 level is independent of the terms of this proposal.

2. Management's Right to Determine Its Organization

Proposal 1 does not interfere with the Agency's right under section 7106(a)(1) to determine its organization. The right of an agency to determine its organization has been interpreted to include the right to determine the organizational grade structure. American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 26 FLRA 452, 455-57 (1987). The Agency argues that the proposal interferes with that right by requiring it to raise the top of its career ladder for examiners to the GS-14 level. Proposal 1, however, does not, by its terms, establish the grade structure of the Agency, but merely attempts to describe the circumstances under which certain duties will be assigned. As noted above, the Agency's determination with respect to the existence of GS-14 examiner positions is independent of this proposal.

3. Management's Right to Assign Work

Proposal 1 directly interferes with the Agency's right to assign work and, in the absence of an assertion by the Union that it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, it is, therefore, nonnegotiable. We find that the assignment of "signatory authority" constitutes the assignment of work under section 7106(a)(2)(B) of the Statute. Proposal 1 conflicts with management's right to assign work because the proposal requires that such work will be assigned to GS-13 examiners and that these assignments of work will be continued for specified periods of time.

As explained above, when the Agency delegates signatory authority to an examiner, the Agency delegates responsibility to that examiner to effectuate actions on patent applications for the Agency. Contrary to the Union's assertions, the delegation of this responsibility does constitute an assignment of work under section 7106(a)(2)(B). See National Treasury Employees Union and Internal Revenue Service, San Francisco, California, 14 FLRA 65, 71-72 (1984) (the assignment of the responsibility to certify invoices constitutes the assignment of work).

The Union argues that the delegation of signatory authority does not constitute the assignment of work because until the signing of the action, the work performed by GS-13 examiners without signatory authority and GS-14 examiners with signatory authority is identical. That is, the examiners perform the same research, analysis and writing in preparing the patent application actions, whether they are to sign the action or not. Nonetheless, the record indicates that signatory authority is a highly responsible task, which is added to the duties and responsibilities of an examiner who participates in the Agency's Program. In that regard, the record indicates that a GS-14 primary examiner with signatory authority can review and sign actions prepared by nonsignatory examiners, a task concededly not performed by GS-13 examiners.

Proposal 1 dictates under what circumstances and for what periods of time the Agency will assign employees the various stages of signatory authority. It therefore directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. See National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 9 FLRA 983, 988 (1982), remanded as to other matters sub nom. Department of the Treasury v. FLRA, No. 82-2225 (D.C. Cir. 1984) (under section 7106(a)(2)(B) an agency cannot be required to assign higher-graded duties to its personnel).(4)

4. The Union's Other Arguments

The Union argues that the Authority's decision in National Treasury Employees Union and NTEU Chapter 72 and Internal Revenue Service, Austin Service Center, 11 FLRA 271, 273-77 (1983) (Austin Service Center) controls this case. In Austin Service Center, the Authority found negotiable a proposal providing a specific level of performance as "prima facie evidence of good performance for the purpose of making [career ladder] promotion decisions." The Authority held that the proposal only provided nonmandatory "guidelines for predicting future performance at a higher graded position." Id. at 276. The Union argues that Proposal 1 also constitutes negotiable procedures for evaluating employees for the purpose of predicting future performance at the higher grade. The cases are, however, distinguishable. The Authority specifically noted in Austin Service Center that the proposal there did not mandate the assignment of any specific higher-graded duties. Id. at 274 n. 6. But that is precisely the ground upon which we have determined that Proposal 1 is outside the obligation to bargain. Accordingly, the Union's reliance on Austin Service Center is misplaced.

Finally, the Union's reliance on Patent and Trademark Office and Patent Office Professional Association, 26 FLRA 295 (1987), and the arbitration award sustained therein, is misplaced. There the arbitrator found that an earlier interest arbitration award, which provided that the Agency defer all changes in conditions of employment until final agreement was reached on the parties' collective bargaining agreement, prohibited unilateral changes in the Signatory Authority Program. Id. at 295-96. The Union claims that those decisions are examples of third parties upholding their right to bargain over the promotion criteria contained in the Signatory Authority Program. But neither the arbitrator's award, nor the Authority's decision denying exceptions, addressed the negotiability of specific proposals concerning the Program. The decisions concerned only the interpretation of the existing interest arbitration award. Id. at 297.

To the extent those decisions support the proposition that the Agency cannot implement changes in the Program without providing the Union with an opportunity to bargain, our decision finding Proposal 1 outside the duty to bargain does not conflict with that proposition. To claim that the Agency must bargain over a change in conditions of employment is not to say that every aspect of that change is subject to negotiations. Such determinations must be made on a proposal-by-proposal analysis. Indeed, that is the method we employ in the instant case. In finding Proposal 1, which purports to establish the essence of the Program itself, nonnegotiable, we do not conclude that all aspects of the Program established by the Agency are outside the duty to bargain. Rather, we will analyze the subsequent proposals for consistency with law, rule or regulation, as required by section 7117 of the Statute.

IV. Proposal 2

Section 2. Achievement at the satisfactory level under the existing performance appraisal plan, or any subsequent performance appraisal plan, shall be deemed "satisfactory" performance for the purpose of entry or re-entry onto [sic] the Signatory Authority Program.

A. Positions of the Parties

The Agency states that this proposal, like Proposal 1, is outside the duty to bargain because it requires the Agency to assign work (signatory functions) to examiners. The Agency also states, as it did with regard to Proposal 1, that Proposal 2 is nonnegotiable insofar as it establishes the level of performance the Agency must accept from examiners in order to be assigned signatory authority functions. The Agency argues that it retains the right under section 7106(a)(2)(A) and (B) of the Statute to determine the levels of performance it will require of examiners in their performance of existing duties in order to be assigned more responsible duties.

The Union states that Proposal 2 requires that satisfactory performance will be the level of performance required of an examiner in order to be assigned signatory functions when the examiner first begins or repeats stages of the Program. The Union also states that the proposal requires that an examiner who has previously failed at the full signatory stage of the Program need not repeat the earlier stages of the Program. The Union argues that the proposal is negotiable because the assignment of signatory functions does not constitute the assignment of work under section 7106(a)(2)(B) and the proposal addresses only the procedures by which the Agency evaluates GS-13 examiners' promotion potential.

B. The Meaning of the Proposal

Proposal 2 states only that achievement at the satisfactory level under the Agency's performance plan shall be deemed satisfactory performance for entry or re-entry onto the Program. The proposal does not state or imply that examiners who have previously failed in the Program will re-enter the Program at a particular stage. Therefore, we find that Proposal 2 does not include the latter requirement and that the Union's assertion that this requirement is part of the proposal is inconsistent with the language of the proposal. Accordingly, we do not address this requirement in the resolution of the parties' dispute over this proposal. See, for example, International Federation of Professional and Technical Engineers, Local 4 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 35 FLRA 31, 35 (1990) (Portsmouth Naval Shipyard) (the Authority does not base negotiability determinations on a union's statement of intent that is inconsistent with the express language of the proposal).

C. Analysis and Conclusions

Proposal 2 establishes specific performance levels under the applicable performance appraisal plan for entry or re-entry into the Program. As discussed above in connection with Proposal 1, assignment of the various stages of signatory authority constitutes the assignment of work. Accordingly, entry into the Program is tantamount to determining that the examiner will be assigned specific duties. This proposal establishes explicit standards for the assignment of signatory authority, and thereby places external constraints on management's determinations as to whether employees are qualified for the assignment, thus directly interfering with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. See American Federation of Government Employees, Local 2761 and Department of the Army, Army Publications Distribution Center, St. Louis, Missouri, 32 FLRA 1006, 1008 (1988) (Army Publications Distribution Center) (proposal that establishes level of performance that will qualify employee for overtime interferes with right to assign work).

The Union also claims the proposal is negotiable because it constitutes a "procedure . . . not for purposes of assessing their performance at their current grade, but, rather to provide a measure of their promotion potential at a higher grade." Union Response at 16. Although it is not cited for this point, it is clear that Austin Service Center is the intended authority for the Union's contention.(5) In so doing, the Union attempts to characterize Austin Service Center as holding that any procedure used in the determination of fitness for a higher grade would be per se negotiable. There is nothing in Austin Service Center to suggest that such a sweeping holding was intended. To the contrary, in Austin Service Center the Authority expressly analyzed the specific proposal there and found that it did not interfere with any management right or was otherwise inconsistent with law, noting in particular that it did not in any way require management to assign particular duties. Certainly, Austin Service Center left open the question of whether a proposal would be negotiable if it concerns determinations of fitness for promotions but also would otherwise directly interfere with management's right to assign work.(6) We conclude that it would not be negotiable. Accordingly, as Proposal 2 directly interferes with the agency's right to assign work and as the Union has not asserted that the proposal constitutes an appropriate arrangement under section 7106(b)(3), Proposal 2 is outside the duty to bargain.

V. Proposal 3

Section 3. Achievement at the satisfactory level for one having signatory authority, under the existing performance appraisal plan or any subsequent performance appraisal plan, shall be prima facie evidence of sufficient performance to warrant the grant of permanent signatory authority.

A. Positions of the Parties

The Agency argues that Proposal 3 is concerned with the circumstances under which examiners are promoted to the GS-14 level. For this reason the Agency contends, as it contended with regard to Proposal 1, that Proposal 3 is concerned with classification matters that are outside the duty to bargain under section 7103(a)(14)(B) of the Statute. The Agency also argues that Proposal 3, like Proposal 2, conflicts with section 7106(a)(2) because it interferes with the Agency's ability to evaluate employees' ability to perform new duties. Alternatively, the Agency argues that the proposal conflicts with 5 C.F.R. º 335.104, because it permits a grant of full signatory authority to an examiner who receives an overall fully successful rating without regard to whether the employee was fully successful on each critical element of the position.

The Union states that Proposal 3 is not concerned with classification matters within the meaning of section 7103(a)(14)(B). In the Union's view, the proposal does not conflict with management's rights under section 7106, because (1) the proposal applies to the performance of examiners to whom the Agency has assigned signatory functions; and (2) the proposal does not limit management's ability to evaluate examiners' performance. The Union also argues that the proposal does not conflict with 5 C.F.R. º 335.104, because it allows the Agency to require successful performance from examiners on each critical element of their positions.

B. Analysis and Conclusions

Proposal 3 is outside the duty to bargain because it conflicts with 5 C.F.R. º 335.104. We note at the outset that, for the reasons found in the discussion of Proposal 1, Proposal 3 does not concern a classification matter under section 7103(a)(14)(B) of the Statute. Insofar as the proposal is concerned with the circumstances under which GS-13 examiners will be promoted to the GS-14 level, the proposal merely reflects, but does not determine, the manner in which the Agency has independently classified its GS-13 and GS-14 positions.

We find, however, that the proposal conflicts with 5 C.F.R. º 335.104, which states:

No employee shall receive a career ladder promotion unless his or her current rating of record under Part 430 of this chapter is "Fully Successful" (level 3) or higher. In addition, no employee may receive a career ladder promotion who has a rating below "Fully Successful" on a critical element that is also critical to performance at the next higher grade of the career ladder.

In American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and Department of Education, 34 FLRA 1078, 1087-90 (1990), we considered a proposal that established, among other things, a criterion for career ladder promotion requiring "perform[ance] at a satisfactory level[.]" There we found the proposal to conflict with 5 C.F.R. º 335.104, a Government-wide regulation, because it did not restate or refer to the regulation, nor did it require that determinations regarding eligibility for promotion shall conform to governing regulations. We also rejected the union's claim in that case that the proposal was intended to incorporate 5 C.F.R. 335.104, finding the plain wording of the proposal to be inconsistent with that interpretation. Id. at 1089-90. We noted that the proposal used different terminology than the regulation and did not acknowledge the existence of the regulation. Id.

Nothing warrants a different result in this case. Even assuming that the parties understood "satisfactory" to be synonymous with "Fully Successful," as used in the regulation, the plain wording of the Union's proposal would allow eligibility for promotion with a summary performance rating of fully successful, without regard to the regulation's requirement that the employee achieve a fully successful rating on each element critical to performance at the higher level.

As we noted in Department of Education, the Union could have, but did not, construct the proposal in such a way as to incorporate the requirements of the regulation either expressly or by reference. See Overseas Education Association v. FLRA, 827 F.2d 814, 821 (D.C. Cir. 1987) ("[I]t is for the Union, not the FLRA, to draft proposals which come fully within the Employer's duty to negotiate.")

The Union also claims that the Authority's decision in Austin Service Center controls this case. We find, however, that the cases are distinguishable. In Austin Service Center we found that a proposal providing that a particular level of performance be prima facie evidence of good performance for the purpose of making promotion decisions did not interfere with management's right to assign work or direct employees. 11 FLRA at 273-77. Whether the proposal there was inconsistent with 5 C.F.R. º 335.104 could not have been at issue because the regulation was not in existence at that time. Further, we note that unlike Proposal 3, the proposal in Austin Service Center did not refer to summary ratings on the agency's performance appraisal plan, the subject of 5 C.F.R. º 335.104. As our determination that Proposal 3 is outside the duty to bargain rests on grounds not present in Austin Service Center, we reject the Union's claim that Austin Service Center is dispositive in this case.

In light of our determination that Proposal 3 conflicts with a Government-wide regulation, we do not address the Agency's additional arguments with respect to section 7106 of the Statute.

VI. Proposal 4

Section 4. Achievement above the unsatisfactory level under the existing performance appraisal plan or any subsequent performance appraisal plan shall be deemed an acceptable level of performance for retaining a permanent grant of signatory authority.

A. Positions of the Parties

The Agency contends that this proposal precludes the Agency from removing signatory authority from an employee, or the promotion which accompanies it, if an employee performs at a marginal level. The Agency asserts that the proposal interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) because management does not have to justify its decisions on assigning work, and it cannot be precluded by contract from assigning different work to an employee.

Insofar as the Union states that Proposal 4 permits the Agency to remove an employee from his or her position for poor performance, the Agency asserts that the proposal would lead to nonsensical results. The Agency argues that under the Union's explanation, the Agency could remove an employee from the higher-graded position but could not withdraw the grant of permanent signatory authority, which is the basis for the higher-graded position.

The Union states that Proposal 4 is intended to preclude the Agency from arbitrarily and prematurely withdrawing signatory authority from a GS-14 examiner before it has demoted an employee for unacceptable performance under the required statutory procedures. The Union asserts that Proposal 4 does not concern the right to assign work because, in its view, the grant of signatory authority does not involve the assignment of work. It also asserts that the proposal does not lead to nonsensical results, because once an examiner has been demoted in accordance with applicable law and regulation, the signatory authority available to the employee would be limited to the authority which is available at that grade.

B. Analysis and Conclusions

This proposal is similar to Proposal 2, above. As explained in connection with Proposal 1, the determination to grant signatory authority constitutes a determination with respect to the assignment of work. Determinations to continue a particular assignment are within the scope of an agency's right to assign work no less than determinations to initiate such assignments. See National Treasury Employees Union v. United States Customs Service, 31 FLRA 31, 33 (1988) (proposal that would prohibit agency from reducing the duration of an assignment interferes with the agency's right to assign work under section 7106(a)(2)(B)). Accordingly, like Proposal 2, which sets standards for entry into the Program, Proposal 4 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) by setting standards for continuation in the Program. Because the proposal directly interferes with management's right and the Union has not asserted that the proposal constitutes an appropriate arrangement under section 7106(b)(3), Proposal 4 is outside the duty to bargain.

VII. Proposal 5

Section 5(B). When an examiner has relied upon or followed technical or legal instruction from a supervisor, or a person to whom the examiner reports his/hers [sic] action, which is later deemed to be incorrect, the examiner shall not be adversely evaluated on the signatory authority program as a result of that reliance.

A. Positions of the Parties

The Agency asserts that Proposal 5 is nonnegotiable under section 7106(a)(2) of the Statute because it improperly limits the Agency's ability to fully evaluate employee performance. The Agency states that an employee's reliance on bad advice should be considered when the employee's work is being evaluated. The Agency further states that examiners assigned signatory authority are fully responsible for the action to be taken on a patent application and the decision to seek or accept advice. The Agency argues that the proposal's requirement that an examiner will not be adversely evaluated when the examiner has relied on bad advice goes too far, because it would preclude negative evaluations without consideration of the employee's individual circumstances.

The Union states that Proposal 5 is necessary to ensure that only the examiner's performance is evaluated, rather than the performance of another employee. It argues that the proposal is negotiable because it is solely concerned with the procedures management will use when evaluating employees' promotion potential.

B. Analysis and Conclusions

As established with regard to Proposal 1, granting signatory authority is an exercise of management's right to assign work, that is, it is a determination to assign higher-graded duties to an employee. The evaluation process that is part of the Program is intended to determine whether an employee is qualified for assignment of those duties. The right to assign work includes the right to determine the particular qualifications and skills needed to perform the work and to make judgments as to whether a particular employee meets those qualifications. Army Publications Distribution Center, 32 FLRA at 1008 (proposal that establishes level of performance to qualify employee for overtime interferes with right to assign work). Proposals that would limit management's ability to gather information necessary to make determinations reserved to it interfere with the right to make those determinations. See Overseas Education Ass'n Inc. v. FLRA, 872 F.2d 1032, 1034-35 (D.C. Cir. 1989) (proposal that limits the data agencies can use in performance appraisals interferes with the rights to assign work and direct employees inherent in the performance appraisal process).

The parties agree that a patent examiner who performs signatory authority duties must exercise a high degree of initiative and independent judgment. This applies not only to the ultimate determination as to the action to be taken on a patent application, but also to determinations of the need to seek counsel from other personnel and to judgments about the worth of that counsel as well. Proposal 5 would enable examiners to exercise signatory authority functions with less initiative and independent judgment because they would have diminished accountability when advice is sought from other personnel. Certainly, the exercise of independent judgment includes judgments with regard to what advice to accept and which to reject. This proposal would limit the Agency's ability to evaluate that judgment by holding the examiner harmless when he or she accepts incorrect advice. See National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of The Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 456 (1990) (proposal that would prevent management from holding employees accountable for their work performance when it is affected by matters beyond the employees' control, directly interfered with management's rights to direct employees and assign work).

The Union cites Austin Service Center and Patent Office Professional Association and Patent and Trademark Office, Department of Commerce (POPA I), 29 FLRA 1389, 1399-1400 (1987) (Proposal 5) in support of the proposal. As addressed previously, Austin Service Center did not concern the assignment of specific tasks or duties, or the qualifications necessary for such assignments, and therefore is distinguishable from this case. In POPA I, which cites Austin Service Center, we found to be negotiable a proposal that would, in the context of promotion decisions, make the degree of employee accountability for an error a function of the level of supervision received on a project. POPA I involved the issue of the effect of supervisory advice when evaluating the promotion potential of an examiner at grades GS-12 and below. The Program is not operative at those levels. In contrast, this proposal involves the effect of supervisory assistance related directly to the Program, which is a grade-controlling duty. In view of the fact that evaluation of promotion potential under the Program specifically requires an assessment of the examiner's exercise of independent judgment, we do not find the decision in POPA I to control this case. Moreover, we will no longer follow POPA I insofar as it can be read as adopting a broad reading of Austin Service Center that would find any proposal concerning determinations with respect to fitness for promotions to be per se negotiable. For reasons stated in connection with Proposal 1, we reject such a reading of Austin Service Center.

Accordingly, we find that the proposal is outside the obligation to bargain because it directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute and, accordingly, does not constitute a negotiable procedure. The Union has not claimed that the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

VIII. Proposal 6

Section 6. The grant or denial of permanent signatory authority must be given to the examiner within the two bi-weeks from the end of the 700 hour trial period. . . . [The underscoring indicates the language which is in dispute.]

A. Positions of the Parties

The Agency's objections to the trial period requirement of this proposal duplicate the arguments it raised with respect to the identical requirements of Proposal 1, above. The Union argues that the length of the trial period is negotiable because the minimum length of the trial period is determined by regulation and management retains the authority to set the minimum qualifications needed at each grade level. The Union argues that the time periods in the Union's proposal are purely procedural in nature and go to how an employee's promotion potential will be measured for a higher level.

B. Analysis and Conclusions

The trial period requirements of this proposal directly interfere with the Agency's rights under section 7106(a)(2)(A) and (B) on the same basis and for the same reasons as the trial period requirements of Proposal 1.

Moreover, the Union's arguments concerning the requirements of regulations are not persuasive. In the first place, the Union has not cited any regulation that would limit the length of the trial periods in the Agency's Program to 700 hours. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982) (the parties bear the burden of creating a record upon which the Authority can make a decision). But, in any event, the regulations as described concern minimum time-in-grade requirements for eligibility for promotion. This proposal, on the other hand, is nonnegotiable because it establishes the duration of specific duty assignments, and, as such it directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. As the proposal directly interferes with the Agency's right to assign work, it cannot constitute a negotiable procedure under section 7106(b)(2) of the Statute. The Union does not claim that Proposal 6 constitutes an appropriate arrangement under section 7106(b)(3). Accordingly, Proposal 6 is outside the duty to bargain.

IX. Proposal 7

Section 7. The level of performance necessary for any re-grant of temporary authority shall be no higher than the level of performance necessary to qualify for the original grant of temporary signatory authority.

A. Positions of the Parties

The Agency asserts that it is uncertain about the standard of performance required for a re-grant of signatory authority under this proposal in view of Proposal 1, which states that successful performance will be the standard for entry into the Program (the initial grant of signatory authority). However, it argues that as the standard of performance inherently concerns the assignment of work, the proposal is nonnegotiable under section 7106(a)(2)(A) and (B) because management cannot be required to negotiate the conditions under which it will assign work to employees. The Agency also argues that management has the right under section 7106(a)(2)(A) and (B) to determine the qualifications and skills needed to do signatory authority work.

As explained by the Union, Proposal 7 requires that the fully successful level will be the performance level required of an examiner for entry and re-entry into the Signatory Authority Program. The Union states that the proposal's intent is to ensure that an examiner who has previously withdrawn from or failed in the Program will re-enter the program under the same standard of performance required when the examiner first entered the Program. The Union contends that the proposal is negotiable because: (1) the proposal is linked to the Agency's methods for determining fully successful performance; (2) the Agency retains discretion to determine the criteria and methods by which it determines that an examiner's performance is fully successful; and (3) the assignment of signatory authority duties does not involve the assignment of work under section 7106(a)(2).

B. Analysis and Conclusion

Based on the Union's explanation of this proposal, the performance level requirements of this proposal duplicate the performance level requirements of Proposal 2, above, which were held to directly interfere with the Agency's rights under section 7106(a)(2)(B). Accordingly, this proposal conflicts with management's rights under section 7106(a)(2)(B) for the same reasons and on the same basis as the requirements of Proposal 2 and is, therefore, nonnegotiable.

X. Proposal 8

Section 8. Only actions taken during the 700 hour trial period shall be evaluated in the review.

A. Positions of the Parties

The Agency objects to the 700-hour trial period in Proposal 8 for the reasons it expressed regarding the trial periods in Proposal 1 and Proposal 6, above. The Agency also objects to Proposal 8 insofar as it limits the work of examiners that the Agency may review. The Agency argues that these limitations conflict with management's rights under section 7106(a)(2)(A) and (B) because they directly interfere with management's ability to fully evaluate the work of examiners who participate in the Agency's Program.

The Union maintains that the 700-hour trial period is negotiable for the reasons it expressed for Proposals 1 and 6. It argues that the limitations in the proposals on the examiners' work that may be reviewed are proper because the evaluations of employee performance that flow from the reviews concern examiners' promotion potential, rather than their performance in their regularly assigned position. In this regard, the Union states that management is not prevented from reviewing all of an examiner's work during a trial period when preparing a general performance appraisal.

The Union contends that the proposal adds procedural protections to the Agency's Program that will ensure that the Program is administered fairly and equitably. It argues that the proposal is negotiable under Austin Service Center, because it is concerned with the procedures management will use when evaluating employees' promotion potential, rather than employees' performance of the duties of their regular positions.

B. Analysis and Conclusions

Based on the Union's explanation, this proposal requires that the length of the trial periods during which the Agency evaluates examiners' performance in the Program shall be limited to 700 hours. As explained with regard to Proposals 1 and 6 above, which include the 700-hour limitation, this requirement is not a negotiable procedure because it directly interferes with management's rights under section 7106(a)(2)(A) and (B) to direct employees and assign work. Further, the Proposal restricts what documents the Agency can use to make its determinations as to qualifications to perform the work associated with signatory authority. As we noted in discussing Proposal 5, the right to make those determinations includes the right to determine what information is to be relied upon in the process. Accordingly, Proposal 8 directly interferes with the right to assign work for that reason as well and, as the Union has not asserted that it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, it is nonnegotiable.

XI. Proposal 9

Section 9. The error rates for patentability determination and action taking assume that all work performed during the period under review will be subject to review. However, as with regular performance appraisals, it is not contemplated that all work will actually be reviewed for each examiner. In determining whether an examiner has performed satisfactorily on the program, a sample of 17 randomly chosen cases will be reviewed by at least two independent reviewers. If management chooses to review more than the usual 17 cases, then each additional case chosen will be independently reviewed by at least three reviewers. The examiner will be informed whenever any question of clear error is raised.

A. Positions of the Parties

The Agency contends that the proposal constitutes an infringement on its rights to determine the way it audits an examiner's work. It recognizes that the proposal does not strictly prohibit the audit of more than 17 cases, but argues that requiring an additional reviewer for the extra cases is so cumbersome that it is not practical. Accordingly, the Agency claims the proposal does limit the number of cases to be audited.

Further, the Agency argues that the last sentence of the proposal interferes with the agency's deliberative process under section 7106 of the Statute. It claims that the determination of "error" is made only after deliberation between the reviewers and the examiner's Group Director. According to the Agency, requiring individual reviewers to notify examiners of "alleged" errors prior to this final determination would make the decision-making process unwieldy and have an adverse impact on management's decision making. Lastly, the Agency denies the proposal can be found to be an appropriate arrangement under section 7106(b)(3) because there is no identifiable adverse impact on unit employees resulting from the audit of additional cases.

The Union claims that the Agency mistakenly relies on Authority precedent concerning the way management conducts reviews of employee work in the course of the Agency's general performance appraisal system. Relying on Austin Service Center, the Union claims that such precedent is inapplicable to procedures used to evaluate employees for determining promotion potential. The Union denies that the last sentence of the proposal interferes with the deliberative process, because the reviewers are free to deliberate without interference once the individual reviews are complete.

Finally, the Union claims that there is an adverse impact associated with additional audits because if management reviews more cases, the likelihood of discovering errors increases. The Union contends that by requiring an extra reviewer on the additional cases, the proposal insures "an extra measure of certainty and objectivity." Union Response at 27. Accordingly, the Union argues that the clause requiring a third reviewer on those additional cases constitutes an appropriate arrangement for examiners adversely affected by management's exercise of its right to review more than the typical sample of 17 cases.

B. Analysis and Conclusions

The proposal requires that 1) at least 17 cases be reviewed; 2) that the first 17 cases reviewed be done so by at least 2 reviewers; 3) that any cases in excess of 17 be reviewed by at least 3 reviewers; and 4) that the examiner be informed when a reviewer alleges that an error has been made. We find that only the last aspect of Proposal 9 is negotiable.

As we found in connection with Proposal 5 above, the right to assign work includes the right to make determinations as to qualifications of employees to perform that work and the right to determine what data is required to make that determination. The proposal, by its terms, prevents the Agency from reviewing fewer than 17 cases even if it deems a lesser number to be sufficient. By limiting the Agency's discretion to determine how many cases to review, the proposal interferes with the Agency's right to determine what data it needs to make determinations with respect to the assignment of the various stages of the Signatory Authority Program. Accordingly, that aspect of the proposal which requires at least 17 cases be reviewed directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.

Further, by dictating the number of reviewers to be assigned to cases, the proposal directly interferes with the Agency's right to determine the number, types and grades of employees assigned to a work project under section 7106(b)(1) of the Statute. See International Organization of Masters, Mates, and Pilots and Panama Canal Commission,, 26 FLRA 92, 93 (1987) (Panama Canal Commission) (proposal requiring assignment of two employees to specific job directly interferes with management's right under section 7106(b)(1)).

Finally, we reject the Union's contention that the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Authority articulated the analytical framework it would apply in determining whether proposals constitute appropriate arrangements that are negotiable under section 7106(b)(3) of the Statute in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard). Under that framework the Authority first determines whether, as a threshold matter, a proposal is an arrangement for employees adversely affected by management's exercise of its rights. This is accomplished by examining the record to determine how employees will be detrimentally affected by management's exercise of its rights and how the matter proposed for bargaining is intended to address or compensate for the actual or anticipated adverse effects of management's actions. Id. at 31. Once the proposal is determined to be an arrangement, the Authority determines whether the proposed arrangement is appropriate, or whether it is inappropriate because it excessively interferes with management's rights. This is accomplished by weighing the competing practical needs of employees and management. Id. at 31-32.

With respect to the fourth sentence of Proposal 9, the Union claims that the extra reviewer for cases reviewed in excess of 17 provides a greater degree of certainty and objectivity that will overcome the adverse effect of the extra reviews. According to the Union's description of the Program, success or failure depends on the total number of errors found in the reviews. The number of allowable errors is proportionate to the total number of actions processed during the trial period. For example, the Agency may determine that 5 per cent is the minimal acceptable error rate. In that case, if the examiner processed 100 cases during the trial period, he or she would be allowed no more than 5 errors to "pass". As the Union notes, the likelihood of finding errors increases as the number of cases reviewed increases. Accordingly, if one examiner was reviewed on 17 cases, and another on 30, the latter is more likely to be found to have committed the sixth error that affects the examiner's promotion simply because the Agency chose to review more of his or her cases. Therefore, according to the Union's description of the Program, extra reviews have a discernible adverse effect on the examiners. It is clear that the fourth sentence of Proposal 9 is intended to ameliorate this adverse effect. Therefore, we conclude that it is intended to be an arrangement within the meaning of section 7106(6)(3) of the Statute.

In determining whether the arrangement is appropriate, we note that the determination of whether more than 17 cases will be reviewed is entirely outside the control of the examiner whose cases are reviewed and who, according to the Union, would suffer adverse effects from the additional reviews. However, it does not appear at all certain that this portion of the proposal would in fact ameliorate the purported adverse effects. Although the Union apparently is contending that a third independent reviewer would offset the increased statistical chance of discovering errors if the Agency chooses to increase the number of cases reviewed, in our view it is just as likely that the additional reviewer would discover errors missed by the first reviewers. Therefore, the benefits to the employees of this portion of the proposal are speculative. On the other hand, it would place substantial burdens on the Agency, which would be required either to assign a third reviewer to each review where it determined there was a need to sample more than 17 cases or to forego a more extensive review if a third reviewer was not available or could not be spared from other assignments. In different circumstances, the Authority found that a proposal dictating the assignment of a specific number of employees to a particular job left management no discretion to determine staffing patterns and therefore excessively interfered with management's right to determine the number of employees assigned to a work project under section 7106(b)(1) of the Statute. Panama Canal Commission, 26 FLRA at 94. Although in the instant case the fourth sentence of the proposal does not preclude the Agency from conducting case reviews, it does remove the Agency's discretion to conduct reviews of more than 17 cases with fewer than 3 reviewers. Balancing the foreseeable benefit to affected employees with the burden placed on the Agency's exercise of its reserved rights, we find that the fourth sentence of the proposal excessively interferes with management's rights and is therefore nonnegotiable.

With regard to the last sentence of the proposal, we find that it constitutes a negotiable procedure.(7) It requires the reviewer to discuss an allegation of error with the examiner at the time the alleged error is discovered. The purpose of the proposal is to give the examiner an opportunity to explain or clarify his/her position, prior to a final determination that an error was committed. The proposal does not affect the substance of the review. That is, it does not affect the standards to be applied during the review, or the way in which the review is conducted. The proposal only requires communication between the reviewer and the examiner. The reviewer remains free to use his or her best judgment with respect to the case after discussion with the examiner. Further, and contrary to the Agency's contentions, the requirement does not interfere with the Agency's deliberations concerning the review. After discussing the allegation with the examiner, the reviewers are free to discuss and deliberate among themselves without interference from the Union. See National Federation of Federal Employees and Department of the Army, Fort Monmouth, New Jersey, 13 FLRA 426, 427-28 (1983) (Fort Monmouth) (requirement that a proposed performance appraisal be discussed with an employee before the appraisal is submitted to higher management officials for action constitutes a negotiable procedure under section 7106(b)(2)). Accordingly, we find the last sentence of the proposal to be a negotiable procedure under section 7106(b)(2) of the Statute.

To summarize, we find that, with the exception of the last sentence, Proposal 9 directly interferes with the Agency's rights under section 7106(a)(2)(B) and (b)(1) of the Statute. Further, with respect to the Union's claim that the portion of the proposal requiring a third reviewer for all reviews in excess of 17 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, we find that the requirement excessively interferes with the Agency's right to determine the number of employees assigned to a work project. Finally, the last sentence of Proposal 9, which provides for notification of alleged errors, constitutes a negotiable procedure.

XII. Proposal 10

Section 10. In order to insure that reviews are conducted independently, each reviewer will remove his review sheet and any other notes or comments from the case being reviewed before passing the case to the next reviewer. In addition, while the review is under way, no reviewer will discuss any aspect of the review with anyone else but the employee being reviewed.

A. Positions of the Parties

The Agency contends that Proposal 10 conflicts with section 7106(a)(2)(B) of the Statute because it interferes with management's right to determine the appropriate methods for auditing employees' work. The Agency also argues that the proscription against intra-management communications improperly interjects the Union into management's decision-making process under section 7106.

The Union maintains that Proposal 10 conforms to the Agency's current practice and that its requirements are necessary to ensure that one reviewer's professional judgment on an examiner's actions are not biased by a prior reviewer's judgments. It asserts that the proposal's requirements provide for assessments of examiners' work in the Program that are objective and fair. The Union states that the proposal is not intended to preclude discussions between management officials once each reviewer has completed his or her independent review. Finally, the Union states that the proposal only applies to assessments of examiners' progress in the Program, rather than the Agency's appraisals of employees' work in their regularly assigned positions.

B. Analysis and Conclusions

Proposal 10 is within the Agency's obligation to bargain. We find that the proposal constitutes a negotiable procedure under section 7106(b)(2) of the Statute.

The proposal requires only that each reviewer initially review the case free of knowledge of any other reviewer's opinion of the work contained in the case. The proposal in no way affects the standards the reviewers are to apply or any other matter that may affect a reviewer's substantive evaluation of the work. We reject the Agency's contention that the proposal interferes with its deliberative process in evaluating the examiner's work on a case under review. The Union's statement that the proposal does not preclude discussion among management officials subsequent to the independent reviews is consistent with the wording of the proposal. It is clear that once the initial reviews are complete, the reviewers may discuss the case among themselves, and with the employee's Group Manager, and may then deliberate without constraints, prior to a final determination.

The Authority has consistently rejected arguments that certain procedures interfere with management's rights simply because they would require the Agency to take some action it might otherwise not take, for example, to forward a case to subsequent reviewers without comment. As any procedural requirement would have that effect, such a conclusion would completely nullify section 7106(b)(2) of the Statute. See National Federation of Federal Employees, Local 2099 and Department of the Navy, Naval Plant Representative Office, St. Louis, Missouri, 35 FLRA 362, 368 (1990) (NFFE, Local 2099). Where, as here, a proposed procedure places no substantive restraints on an agency's ability to act with respect to its reserved rights, the Authority will find it to be within the agency's obligation to bargain. Id. at 366-67.

We also note that the Union states that Proposal 10 is intended as a response to the occasional problem caused by a second reviewer who may be prejudiced in a review by the comments of a previous reviewer. This proposal is intended to eliminate that problem by ensuring that each interview is free of such influences. Thus, we conclude that the proposal is intended to be an arrangement to ameliorate the adverse effects on examiners of such a practice. As stated above, we find that Proposal 10 does not directly interfere with management's rights. But even if there were some interference with these rights, the significant benefit to the employee of receiving a more objective evaluation would outweigh that burden on management, and the proposal would constitute an appropriate arrangement under section 7106(b)(3) of the Statute. See Kansas Army National Guard, 21 FLRA at 31-33.

XIII. Proposal 11

Section 11. Whenever a reviewer raises a question as to the appropriateness of an action, he shall consult with the employee before making a final determination that a clear error exists. The employee shall be granted non-examining time for the time used in such consultations. [Only the first sentence is in dispute.]

A. Positions of the Parties

The Agency argues that the consultation requirements of Proposal 11 are nonnegotiable for the reasons it expressed regarding the requirement of Proposal 9 that reviewers notify examiners when they determine that a question of clear error may exist in the examiner's action. It argues that this proposal interferes with management's right to determine the manner in which examiners' work will be reviewed and with management's internal deliberative process when exercising its rights under section 7106. The Agency also argues that Proposal 11 is nonnegotiable when it is read in conjunction with the requirements of Proposal 10, above, which precludes consultations between reviewers. The Agency states that its reviewers should not be required to consult with examiners regarding their work when the reviewers are precluded from consulting with each other.

The Union states that the examiners often have more specialized expertise in the technical area of their work than the reviewer. It argues that the consultation requirements of Proposal 11 would enable examiners to clear up misunderstandings about their work with reviewers before the reviewers reach judgments on the quality of that work. The Union argues that the proposal's consultation requirement is appropriate for this reason. It asserts that the burdens placed on management by this proposal are very small in relation to the benefits for employees.

B. Analysis and Conclusions

Proposal 11 is similar to the last sentence of Proposal 9 in that it requires consultation with the examiner when a reviewer finds a potential error. We find that, like the last sentence of proposal 9, the proposal constitutes a negotiable procedure under section 7106(b)(2).

The proposal requires reviewers only to consult with examiners before reaching a judgment on the quality of the examiner's work, in order to hear the examiners' clarifying explanations. The proposal does not require that the examiner concur in the reviewer's assessment of the case. Further, the proposal does not affect the quality of work the Agency can require of examiners or the standards the Agency expects reviewers to apply when evaluating examiners' work.

The proposal also does not affect the ability of higher management officials who receive reviewers' evaluations to: (1) accept or reject the reviewers' evaluations; (2) consult with the reviewers or other management personnel on examiners' work after the evaluations are done; or (3) reach decisions on the quality of examiners' work or their status in the Program by any means without interference or participation by the examiner or the Union. See Fort Monmouth, 13 FLRA at 427-28.

Accordingly, we find that Proposal 11 is a negotiable procedure under section 7106(b)(2) of the Statute. In light of this finding, we do not reach the Union's contention that the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

XIV. Proposal 12

Section 12. During the review process, copies of the review sheets will be given to the employee after each case is reviewed and prior to passing the case on.

A. Positions of the Parties

While acknowledging the court's holding in National Labor Relations Board Union, Local 6 v. FLRA, 842 F.2d 483 (D.C. Cir. 1988) (NLRBU Local 6), that section 7106 does not limit disclosures of information by management, the Agency nonetheless contends that Proposal 12 interferes with management's internal deliberative process with respect to the exercise of its rights under section 7106 of the Statute. Further, the Agency asserts that the disclosure requirements of this proposal are nonnegotiable because the disclosures contemplated by the proposal are not required under section 7114(b)(4) of the Statute. The Agency also states that reviewers do not always prepare and/or report their evaluations on written review sheets and that the review sheets that are prepared are routinely destroyed. In this respect the Agency argues that it cannot be required to create the review sheets or to retain the review sheets it routinely destroys.

The Agency also argues that written evaluations by reviewers are not necessary to the Union's representational functions. It asserts that the written material which is relevant to the Union's functions is the material prepared by the Agency to support and defend higher management officials' decisions on the examiners' status in the Program.

The Union states that Proposal 12 requires reviewers to prepare review sheets that summarize their conclusions on examiner's actions. It argues that the proposal creates a negotiable procedural requirement for fair, objective and accurate assessment of employees' promotion potential in the Program. The Union asserts that the proposal does not conflict with management's rights under section 7106 and that the Agency's contentions with respect to section 7114(b)(4) are not pertinent to whether the proposal is within the duty to bargain.

B. Analysis and Conclusions

We find that Proposal 12 is negotiable. In so finding, we hold only that the Agency is required to provide employees with existing documents summarizing reviewers' findings. The proposal, by its terms, does not require the Agency to reduce findings to writing where it does not already do so. Rather, the wording of the proposal presupposes the existence of the review sheets. The Authority will not make negotiability determinations based on a union's statement of meaning or intent which is inconsistent with the plain wording of the proposal. See, for example, Portsmouth Naval Shipyard 35 FLRA at 35.

Like Proposal 11, Proposal 12 requires the Agency reviewers to communicate with the examiner concerning results of the review prior to management's internal deliberations over the results of the reviews. Unlike Proposal 11, which requires consultation before the individual reviewer concludes that an error exists in the case, Proposal 12 requires that the reviewer provide his/her conclusions at the completion of his/her review. Nonetheless, we find this difference to be without significance and accordingly find the proposal to be a negotiable procedure.

The Agency's arguments are misplaced. The Agency analyzes the bargaining proposal for the release of certain information as if it were a request for information under section 7114(b)(4) of the Statute and argues that under that section the Union would not be entitled to the information. Significantly, however, the proposal requires that the review sheets be given to the employee, not the Union. The Authority has held that section 7114(b)(4) applies only to the disclosure of information by an agency to a union and that it is not a consideration with respect to proposals requiring disclosure of information by an agency to its employees. American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic-Topographic, Washington, D.C., 39 FLRA No. 45, slip op. at 5 (1991); National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 640 (1990). The proper inquiry with respect to union proposals that require agencies to provide general information to employees is whether: 1) the information concerns conditions of employment of unit employees; and 2) disclosure of the information violates any law or applicable regulation. Cf. National Treasury Employees Union, Chapter 237 and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 32 FLRA 62, 68 (1988) (Food and Nutrition Service).

It cannot be contested that information concerning the evaluation of employee work for the purpose of determining promotion potential concerns conditions of employment. The Agency, however, claims that disclosure of the review sheets would interfere with its deliberative process with respect to those evaluations. By reference to its earlier arguments, the Agency apparently grounds this deliberative process right in section 7106 of the Statute. However, in agreement with the U.S. Court of Appeals for the District of Columbia Circuit, the Authority has held that the deliberative process associated with the exercise of management's section 7106 rights does not prohibit the disclosure of information relied on in exercising those rights. American Federation of Government Employees, AFL-CIO, National Council of Field Locals and Department of Health and Human Services, Social Security Administration, 32 FLRA 982, 986-87 (1988) (citing National Labor Relations Board Union, Local 6 v. FLRA, 842 F.2d 483 (D.C. Cir. 1988), on remand, 38 FLRA 506 (1990)). There the Authority found negotiable proposals requiring the release of statements setting forth the reasons for the agency's selection of critical elements and the data used to make those determinations.

The Agency has pointed to no other law that would prohibit the release of the review sheets to the affected employees, nor are we aware of any such law. Further, we note that the Authority has found proposals that would reveal preliminary determinations with respect to employee performance to be negotiable. See Fort Monmouth, 13 FLRA at 427-28 (1983) (requirement that a proposed performance appraisal be discussed with an employee before the appraisal is submitted to higher management officials for action constitutes a negotiable procedure under section 7106(b)(2)). Accordingly, Proposal 12 is negotiable.

XV. Proposal 13

Section 13. The Office will routinely provide to the Association within one week of each occurrence the following information:

. . . . . . .

E. at the end of each review, copies of all review sheets used during the review.

F. at the end of each review, the amount of time used by the reviewer to conduct the review of each case.

A. Positions of the Parties

The Agency objects to the disclosure requirements of subsection E of this proposal for the same reasons it expressed regarding the disclosure requirements of Proposal 12, above. With respect to subsection F, the Agency states that it does not maintain records on the time reviewers expend when evaluating examiners' work. It argues that subsection F is outside the duty to bargain in that it conflicts with the Agency's right to assign work under section 7106(a)(2)(B) because it requires the creation and maintenance of certain records. It also argues that the requirements of subsection F do not concern conditions of employment of unit employees under section 7103(a)(14) of the Statute.

The Union states that subsection E is negotiable for the same reasons as the disclosure requirements of Proposal 12. The Union argues that subsection F is necessary to provide the Union with statistical data as to how much time is being spent on the Program and to track the cost of the Program to the Agency. It contends that both subsections would enable it to assure that the Program is being uniformly applied throughout the Agency.

B. Analysis and Conclusions

We conclude that the disclosure requirements of subsection E of this proposal are within the duty to bargain. The principal difference between the requirements of Proposal 12 and Proposal 13 is that Proposal 13 requires release of the review sheets to the Union instead of to the examiner subject to the review.

The Agency asserts that the disclosure requirements of this proposal are nonnegotiable because the disclosures contemplated by the proposal are not required under section 7114(b)(4) of the Statute. We reject this assertion. The issue is not what information the Union is entitled to by law, but, rather, what it may bargain for. The Authority has held that the entitlement to information contained in section 7114(b)(4) is a statutory floor and not a ceiling. Food and Nutrition Service, 32 FLRA at 69. Nothing in that section of the Statute prohibits a union from negotiating a right to information over and above the statutory entitlement. Id.

In view of our finding with regard to Proposal 12 that the review sheets concern conditions of employment, their release and disclosure to the Union is negotiable unless disclosure would be contrary to law or regulation. Accordingly, we have considered whether disclosure of the review sheets to the Union would violate any rights to privacy held by the employee under the Privacy Act, 5 U.S.C. º 552a, even though the issue has not been raised. Based on the record before us, we find that the proposal does not violate the Privacy Act.

The Privacy Act restricts the disclosure of personally identifiable records. Subsection (b) specifically restricts disclosure of "any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with express consent of, the individual to whom the record pertains" unless the disclosure falls within one of the specified exceptions. 5 U.S.C. º 552a(b).(8)

Records required to be disclosed under the Freedom of Information Act (FOIA) constitute an exception to the prohibition against disclosure. 5 U.S.C. º 552a(b)(2). The FOIA provides that unless the disclosure of information in personnel and medical files and similar files would constitute a "clearly unwarranted invasion of personal privacy," the information must be disclosed. 5 U.S.C. º 552(b)(6).

The review sheets do not constitute the Agency's overall evaluations of employee performance, but are limited to technical evaluations of particular recommendations with respect to patent applications. Accordingly, the privacy interest of an employee in such records is substantially less than that associated with performance appraisals themselves or records pertaining to discipline. Compare U.S. Department of Justice and Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 37 FLRA 1346, 1362-64 (1990) (proposal requiring unsanitized disclosure to union of all proposed and final disciplinary and adverse actions found to be nonnegotiable). Balancing this somewhat limited privacy interest with the interest of the public in assuring that the Agency administers its programs in a fair and consistent manner, which would be furthered by release of the documents to the Union, we find that disclosure does not constitute an unwarranted invasion of employee privacy. See American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 309, 333-334 (1990) (disclosure of specific information concerning individual disciplinary cases not prohibited).

With respect to subsection F, which requires an accounting of the time reviewers spend on each case, we find that this portion of the proposal does not concern the conditions of employment of unit employees. The information sought concerns neither the substance of the reviews nor their subsequent effect on the employee's promotion, and the Union's statement that it needs to monitor the cost of the Program is insufficient to establish the required nexus between the proposal and the working conditions of unit employees. See Overseas Education Association v. FLRA, 827 F.2d 814, 820 (D.C. Cir. 1987) (the duty to bargain over matters that affect working conditions does not extend to everything that has an indirect, indeed speculative, effect on working conditions). Based on the record, therefore, we find that the disclosure of this information does not concern unit employees' conditions of employment under section 7103(a)(14) and is therefore not within the Agency's duty to bargain.

XVI. Proposal 14

Section 14. No application may be pulled for review until such time as the examiner has had an opportunity to review the typed action for accuracy as indicated by his/her signature affixed to the action.

A. Positions of the Parties

The Agency asserts that this proposal, like Proposal 8, places limits upon the work that it may review. It claims the proposal limits reviewable work to cases which the examiners have fully completed. It argues that this proposal directly interferes with management's rights under section 7106(a)(2)(A) and (B) to direct employees and assign work, because the proposal precludes the Agency from evaluating all of an examiner's work in the Program, including work in progress.

The Union states that this proposal is negotiable because it merely establishes a procedure by which an examiner is able to proofread typing work on the examiner's actions. It states that the procedure ensures that reviewers will evaluate the examiner's actual work, rather than possible mistakes by typists.

B. Analysis and Conclusions

Proposal 14 is outside the obligation to bargain. By its terms, this proposal prohibits the Agency from reviewing an examination of a patent application before the case is completed by the examiner. The Union confirms this in its Statement of Meaning incorporated in its Response to the Agency's Statement of Position at page 32, where it states "[t]his section insures that only completed work products will be reviewed." Accordingly, the Agency would be prohibited from reviewing a work in progress whenever it deems such a review necessary (for example, to determine if the case is proceeding on schedule). A proposal that would directly interfere with management's determinations as to how it samples the performance of its employees in preparing performance appraisals is not a negotiable procedure. National Federation of Federal Employees, Local 1263 and Defense Language Institute, Presidio of Monterey, California, 29 FLRA 61, 64 (1987). For example, a proposal that would prohibit an agency from checking an employee's progress on a particular work assignment interferes with the agency's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See National Federation of Federal Employees, Local 1454 and Veterans Administration, 26 FLRA 848, 850-51 (1987) (proposal that prohibits spot checks of employee work interferes with the right to direct employees and assign work). Because Proposal 14 directly interferes with management's rights and as the Union does not claim Proposal 14 is an appropriate arrangement under section 7106(b)(3), we find it to be nonnegotiable.

XVII. Proposal 15

Section 15. If an examiner on the signatory authority program is assigned any applications from a docket other than the docket that the examiner has examined for the 1 year period prior to the grant of temporary signatory authority, then, at the option of the examiner;

A. The examiner shall be evaluated solely on the work performed up to the assignment of any applications from another docket and the examiner must be given a written denial or grant of the permanent signatory authority within one month of the date of the assignment of any applications from another docket, but, no later than within the original 700 hour trial period.

or,

B. The examiner can elect to continue the program when applications from another docket are assigned to the examiner with appropriate adjustments, as agreed upon by the examiner, his supervisor and POPA, to compensate for the increased difficulty in achieving the performance standards due to the change in the examiner's docket.

A. Positions of the Parties

The Agency asserts that Proposal 15 (1) conflicts with its rights under section 7106(a)(2) to assign work, determine the aspects of examiners' work which it will evaluate, and set performance standards, and (2) does not constitute an appropriate arrangement under section 7106(b)(3), as claimed by the Union.

The Agency disputes the Union's contention that examiners are adversely affected by the assignment of unfamiliar work. It states that although assignments of such work may influence an employee's performance, the resulting effect depends on how much of this work is assigned, how different the work is, and the background of the employee. It asserts that its performance appraisal plan recognizes and includes an adjustment for the adverse effects that may occur. It also states that the Program is structured to evaluate examiners' performance in a normal work environment, which includes assignments of unfamiliar work.

The Agency states that option A of the proposal allows the employee to bar the Agency from evaluating any additional work and forces the Agency to give examiners immediate grants or denials of signatory authority, even where a single outside case was assigned one week into the Program. The Agency states that option B's requirements for adjustments of "errors permitted" and "goals" allow the Union and employees to negotiate performance standards. On these grounds, the Agency argues that the proposal excessively interferes with management's rights under section 7106(a)(2) to evaluate employees, determine the aspects of employees' work that will be evaluated, and set performance standards.

The Union states that this proposal is necessary because examiners tend to specialize in technology or "art" areas in their work. It asserts that when management assigns unfamiliar work to an examiner, the assignment results in a major impact on the employee's performance. The Union argues that the proposal constitutes an appropriate arrangement under section 7106(b)(3) for this reason. The Union also argues that Proposal 15 is negotiable under Austin Service Center, 11 FLRA at 273-74, because, as it argued in connection with proposals discussed above, the proposal is concerned with the manner in which management evaluates employees' promotion potential and does not affect the Agency's evaluations of employees' performance in their regular positions.

B. Analysis and Conclusions

Under part A of Proposal 15, whenever the Agency assigns relatively unfamiliar work to an examiner, the examiner has the option of requiring the Agency to decide whether the examiner should receive a grant of permanent signatory authority within one month of the work assignment, based on an evaluation of the examiner's work that excludes the unfamiliar work. This option does not, by its terms, prevent the Agency from assigning unfamiliar work to an examiner. However, it interferes with management's rights under section 7106(a) in other ways.

The effect of Part A is to allow any employee assigned applications from another docket to dictate when the Agency must make its determination with regard to whether the employee is qualified for the permanent grant of signatory authority. As we discussed with regard to Proposal 1, the granting of any stage of signatory authority constitutes an exercise of the Agency's right to assign work under section 7106(a)(2)(B). As we found in connection with Proposal 5, the right to assign work includes the right to determine who is qualified for the specific assignments and the right to determine what data is necessary for that determination. Option A would require the Agency to make a determination with regard to qualifications, even if it believed there was insufficient data to make that determination. Accordingly, this clause would directly interfere with the Agency's right to assign work.

Option B allows the employee to choose to continue in the Program when the unfamiliar work is assigned, but requires that the Agency, employee, and the Union agree on adjustments in the evaluation to compensate for the difficulty associated with the assignment. As discussed in connection with Proposal 5, the Agency's right to assign work includes the right to determine the aspects of performance it will evaluate in determining whether an employee is qualified for an assignment. The Union's proposal directly interferes with the Agency's right to fully evaluate employees on their ability to handle cases in subject areas outside their current areas of expertise. See American Federation of Government Employees , AFL-CIO, Local 1760 and Department of Health and Human Services, Social Security Administration, 28 FLRA 160, 168-70 (1987) (proposal that would prevent agency from evaluating employees' ability to master new tasks interfered with the agency's right to assign work). By requiring that there must be agreement between the Union, employee, and the Agency, the proposal gives the Union and employee an effective veto over any determination the Agency may make in this regard. See National Treasury Employees Union and Department of the Treasury and U.S. Customs Service, 31 FLRA 181, 184-85 (1988) (Customs Service) (proposal that requires employee agreement prior to the exercise of management right interferes with that right).

We reject the Union's contention that the proposal constitutes an appropriate arrangement. Even assuming for the sake of argument that the assignment and subsequent evaluation of unfamiliar work has a foreseeable adverse effect and that the proposal was therefore intended as an arrangement to ameloriate that effect, neither part of Proposal 15 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute because both excessively interfere with the Agency's reserved rights under section 7106(a). Indeed, both options effectively take determinations with regard to the assignment of work completely out the Agency's hands and put them in the control of the employee or the Union. Requiring the Agency to relinquish control in such a manner excessively interferes with the Agency's exercise of its reserved rights. See Customs Service, 31 FLRA at 185-86 (proposal that allows employee veto of assignment excessively interferes with right to assign work).

XVIII. Proposal 16

Section 16. Each reviewer shall communicate the results of his/her review in writing which shall include:

A. The reviewer's conclusion of whether or not the examiner has made any chargeable errors under the employee's Performance Appraisal Plan.

B. Reviewers shall not include in the review any comments on matters not directly determinative of an employee's fitness for assuming signatory authority.

C. Allegations of error shall be set forth in the manner provided for in Section 6A.

A. Positions of the Parties

The Agency argues that this proposal interferes with management's internal deliberative process under section 7106(a) for the reasons it advanced in connection with the requirements of Proposals 12 and 13, above. Stating that reviewers' evaluations are used by higher management officials who make the ultimate decisions on examiners' status in the Program, the Agency argues that it may only be required to disclose the decisions of those officials and the reasons for their decisions. The Agency also argues that the proposal conflicts with management's right to assign work under section 7106(a)(2)(B) because the proposal requires the Agency's managers to create certain documents.

The Agency also objects to the proposal insofar as it specifies the type of information that will be included in and excluded from reviewers' written evaluations of examiners' work.

The Union disputes the Agency's claims that the proposal interferes with management's internal deliberative process or management's right to assign work under section 7106. The Union argues the proposal is negotiable because it is concerned with Agency procedures for evaluating employees' promotion potential, which is separate from the normal exercise of management's rights under section 7106.

B. Analysis and Conclusions

We reject the Agency's deliberative process argument for the reason set forth in our discussion of Proposal 12. We find the proposal to be nonnegotiable, however, because it directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Proposal 16, like Proposals 11 and 12, requires the Agency to communicate the results of the case reviews to the examiner. But unlike those proposals, Proposal 16 requires that a specific individual, the reviewer, create a report. The Authority has consistently held that proposals that require a particular employee to perform a particular task interfere with an agency's right to assign work. Compare National Treasury Employees Union and Department of Agriculture, Food and Nutrition Service, 35 FLRA 254, 260 (1990) (Department of Agriculture) (proposal requiring supervisors to discuss employees' performance with the employees prior to preparation of ratings interferes with agency's right to assign work) with National Labor Relations Board Professional Association and General Counsel, National Labor Relations Board, 32 FLRA at 563-65 (proposal that required the agency, but no specific individual, to respond to employee requests in writing does not interfere with right to assign work).

We emphasize, however, that the "defect" in the proposal would be cured by eliminating the specific reference to the reviewer. See, for example, Department of Agriculture, 35 FLRA at 261. This would render Part A of Proposal 16 negotiable, as it would merely require the Agency, through whatever means it chose, to communicate with the employee concerning the results of the case review. But even with this modification, Part B of Proposal 16 would remain nonnegotiable. Part B addresses the content of the reviews themselves rather than a method whereby the Agency will communicate the results of the reviews. As the content of the reviews constitutes part of management's determination of an employee's qualifications to perform specific work, a proposal that would limit matters to be included in the reviews interferes with the Agency's right to make that determination. See Army Publications Distribution Center, 32 FLRA at 1008 (right to assign work includes the right to determine what qualifications are needed to perform the work). Accordingly, as Part B of Proposal 16 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute, and as the Union has not asserted that it is an appropriate arrangement under section 7106(b)(3), the proposal is outside the Agency's obligation to bargain.

Finally, we note that the Agency has made no specific argument with respect to Part C, nor does the record indicate that it objects to Section 6A, referenced in Part C. Accordingly, we would find Part C of Proposal 16 to be negotiable if the proposal were crafted so as to eliminate the reference to "the reviewer."

XIX. Proposal 17

Section 17. It is recognized that in order to provide for the most objective review and evaluation of an examiner's performance on the trial program, it is desirable that the reviews be conducted by the most competent and experienced reviewers in the relevant art area. Therefore, the following procedure will apply during the review and evaluation:

1. each case will be reviewed by at least two independent reviewers;

2. whenever possible, each case will be reviewed by a reviewer having technical competence in the art area being reviewed;

3. whenever possible, each case will be reviewed by a reviewer who is familiar with the specific examining procedures used in the art area being reviewed;

4. the technical and legal qualifications of each reviewer will be disclosed in accordance with the requirements of Section 18.

5. any written allegation of an error presented to the examiner will include a disclosure as to whether a technically competent reviewer in that art area actually reviewed the case and identify such reviewer.

6. any written allegation of an error presented to the examiner will include a disclosure as to whether a technically competent reviewer in that art area also alleged the same error.

7. Management may not repudiate the competence of a reviewer.

8. Each reviewer shall indicate the amount of time used to conduct the review of each case.

A. Positions of the Parties

1. Agency

The Agency argues that Proposal 17 conflicts with its internal deliberative process under section 7106 for the reasons asserted regarding proposals discussed earlier. The Agency further contends that Proposal 17 is not negotiable because it places restrictions on which management officials may review examiners' work and provide advice and guidance to the Agency's decision-makers. The Agency asserts that insofar as the proposal conflicts with section 7106, it is not negotiable simply because its requirements are qualified by a "whenever possible" standard, as argued by the Union.

The Agency argues that the requirements concerning the competence of its reviewers interfere with its rights to direct employees, assign work, and evaluate employees under section 7106(a)(2)(A) and (B), because these requirements would subject its determinations on the technical competency of reviewers to arbitral review. Citing National Treasury Employees Union v. FLRA, 767 F.2d 1315 (9th Cir. 1985), the Agency also argues that information concerning the competence and qualifications of its reviewers is outside the duty to bargain because this information does not concern conditions of employment of unit employees.

Finally, the Agency asserts that the proposal's requirements do not constitute appropriate arrangements under section 7106(b)(3), as argued by the Union. The Agency argues that adverse effects on employees do not arise from management's decisions on which management officials will advise other managers on the quality of employees' performance. It states that all managers must apply the same standards when reviewing employees' work and that the decisions of group directors on examiners' status in the Program are grievable and must be substantiated by the Agency.

2. Union

The Union states that this proposal recognizes that the Agency's patent examining functions are divided into disciplines and that the competence of persons generally practicing one discipline may not carry over to another discipline. It argues that the proposal establishes procedures and appropriate arrangements to ensure that the greatest degree of accuracy and validity is obtained from reviews of examiners' work in the Program.

The Union states that Proposal 17 does not prevent management from assigning reviews to any reviewers, but requires only that records will be established that reveal the circumstances of each review and the factors other than the employee's performance, if any, that influence examiners' promotion potential in the Program. The Union states that the requirement in subsection 7 regarding repudiation of reviewers is intended to preclude the Agency from disavowing a reviewer's judgments on the basis of lack of competence after it has assigned a reviewing task to the reviewer.

Finally, as earlier stated with regard to other proposals, the Union asserts that the requirements of this proposal are negotiable under Austin Service Center because the proposal's requirements relate to the Agency's methods in its Program for evaluating employees' promotion potential.

B. Analysis and Conclusions

Subsection 1 of Proposal 17 is outside the duty to bargain. The requirement of this subsection that at least two reviewers will evaluate examiners' work duplicates a requirement of Proposal 9, above. As stated with respect to Proposal 9, this requirement directly interferes with management's right to determine the number of employees assigned to a work project under section 7106(b)(1). Accordingly, for the reasons explained with regard to Proposal 9, subsection 1 of Proposal 17 directly interferes with management's right under section 7106(b)(1). As the Union has not indicated in what manner subsection 1 would serve as an appropriate arrangement under section 7106(b)(3) of the Statute, we find subsection 1 of Proposal 17 to be nonnegotiable.

Subsections 2 and 3 of Proposal 17 require that "whenever possible," each case will be reviewed by a reviewer who has technical competence in the art area being reviewed and who is familiar with the specific examining procedures used in that art area. These provisions specifically concern management's selection of the reviewers who will evaluate an examiner's work. The effect of subsections 2 and 3 of Proposal 17 is to establish qualification standards to be applied in the assignment of reviewers. So intended, these provisions directly interfere with management's right to assign work under section 7106(a)(2)(B). See Army Publications Distribution Center, 32 FLRA at 1008 (right to assign work includes the right to determine the qualifications for the work). See also id. at 1014 (the right to assign work encompasses the assignment of work to supervisors); Portsmouth Naval Shipyard, 35 FLRA at 37-38 (1987) (qualifying language such as "make every reasonable effort" does not remove the limitation imposed on management's exercise of its right to assign work).

We find, however, that subsections 2 and 3 constitute negotiable appropriate arrangements under section 7106(b)(3) of the Statute. The Union contends that the assignment of an inexperienced reviewer can adversely affect the accuracy of a review, and that the accuracy and fairness of reviews are enhanced when the reviewer is familiar with the subject matter of the case under review. Accordingly, we find that subsections 2 and 3 were intended to ameliorate the adverse effects on examiners' eligibility for promotion caused by inexperienced reviewers and that they constitute arrangements under section 7106(b)(3).

Further we find that, on balance, the significant benefit to employees associated with fair and accurate reviews outweighs the burden placed on management by these provisions. See Kansas Army National Guard, 21 FLRA at 31-32. In that regard, the proposal does not dictate that management assign any particular individuals as reviewers or limit the organizational segment from which reviewers can be drawn. Further, while it sets a standard for the assignment of reviewers, the standard is general and nonquantitative, thus preserving a great deal of management discretion in these assignments. Finally, the qualifying phrase "whenever possible" allows for instances where there may be no available reviewer with extensive familiarity with the relevant subject matter. Accordingly, we find subsections 2 and 3 to be negotiable appropriate arrangements.

Subsection 4 of the proposal is negotiable. This subsection states that the technical and legal qualifications of each reviewer will be disclosed in accordance with the requirements of "[Proposal] 18." Proposal 18 requires disclosure of the "technical background" and "technical training" of reviewers who allege error in the event an examiner is denied a permanent grant of signatory authority. Reading the proposals together, we understand the Union to be asking for release of objective data concerning a reviewer's background, such as education, work experience, training, and professional certifications, if applicable.

Initially, we reject the Agency's argument that the matters relating to the qualifications of nonunit employees do not concern conditions of employment under section 7103(a)(14) of the Statute. The Authority will find matters that vitally affect the conditions of employment of bargaining unit members to be negotiable, regardless of their effect on nonunit members. National Association of Government Employees, Local R1-134 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 589, 598 (1990); American Federation of Government Employees, Local 32 and Office of Personnel Management, 33 FLRA 335, 338 (1988) (OPM), enforced sub nom., United States Office of Personnel Management v. FLRA, 905 F.2d 430 (D.C. Cir. 1990). Contrary to the Agency's contention, the technical ability and experience of persons who evaluate examiners' patent actions in the Program has a direct effect on the manner in which examiners' work is reviewed and judged. In turn, those evaluations determine examiners' success or failure at Program stages and ultimately their ability to qualify for promotion. Thus understood, the disclosures required by subsection 4 do concern matters that affect examiners' vital interests so as to be matters relating to their conditions of employment under section 7103(a)(14).

Further, subsection 4 of Proposal 17 requires only the disclosure of objective data regarding the reviewers, and not information concerning the Agency's ultimate conclusions and judgments as to the competence of its supervisors. The release of such objective data does not interfere with any deliberations the Agency may have concerning the case review or the assignment of reviewers. Moreover, the Agency has not shown how disclosure of this information conflicts with any law or regulation, and no such conflict is apparent to us.(9) Accordingly, we find that the disclosure required by subsection 4 does not conflict with law or regulation so as to be outside the duty to bargain.

Subsections 5 and 6 of Proposal 17 are, as we understand them, also negotiable. These subsections are essentially duplicative of subsection 4, in that they require disclosure of information relative to the professional qualifications of the reviewers. However, these sections differ from subsection 4 in that they require disclosure of information about reviewers only in those cases where there has been an allegation of error, and they require a conclusory statement as to whether a reviewer is "technically competent." Insofar as the proposals require the release of the identity of reviewers who allege errors, these subsections essentially duplicate the requirements of those parts of Proposals 11 and 16 that require that allegations of error be communicated to the examiners by the reviewers and that we found negotiable. Insofar as these subsections require statements with regard to a reviewer's competence, we find that such disclosure is not inconsistent with any law, rule or regulation, including management's right under section 7106(a)(2)(A) to determine the qualifications necessary to perform a task. See NLRBU, Local 6, 842 F.2d at 486-87 (Management's rights under section 7106 do not prohibit the disclosure of information). We emphasize that the requirement to disclose the Agency's determination in this regard does not affect the Agency's reserved right to make determinations as to whether an employee is qualified to conduct specific case reviews, nor does it allow the Union to share in those determinations. Accordingly, as the proposal requires only the disclosure of information and does not interject the Union into management's determinations with respect to reviewers' qualifications, we find it to be a negotiable procedure under section 7106(b)(2) of the Statute.

Subsection 7 is nonnegotiable. According to the Union, subsection 7 is intended to prevent the Agency from disavowing a reviewer's conclusions because the reviewer is not competent. In other words, subsection 7 would prohibit the Agency, having once assigned a reviewer, from discounting or not considering the review if it subsequently determines that the reviewer does not have sufficient experience in the relevant subject matter area. It would, therefore, interfere with the Agency's right to decide what data it will use in making determinations with respect to employee qualifications. By limiting management's discretion in this way, the proposal directly interferes with the Agency's right to determine which employees are qualified for the grant of signatory authority. Accordingly, subsection 7 directly interferes with management's right to assign work under section 7106(a)(2)(B) and is nonnegotiable.

Subsection 8 duplicates the requirements of Proposal 13(F), which we found not to concern conditions of employment of unit employees and therefore to be outside the Agency's obligation to bargain. For the reasons discussed with regard to Proposal 13(f), subsection 8 is also outside the Agency's obligation to bargain.

XX. Proposal 18

Section 18. If a judgement about the quality of the work performed during the trial period is at issue, it shall be relevant for the examiner to present evidence on the relative competence of the person alleging the error and the examiner.

Any written justification for the denial of a permanent grant of signatory authority will be accompanied by the following disclosure:

1. the technical background of the person alleging the error;

2. the amount of technical training the person alleging the error has received in that art area;

3. A statement as to the amount of examining experience the person alleging the error has in that art area. If the person alleging the error has never examined an application in that art area, they shall disclose the last time they examined an application in any art area;

4. the serial numbers of the applications reviewed by the reviewer alleging an error in the previous full quarter of the fiscal year.

A. Positions of the Parties

The Agency asserts that Proposal 18 concerns the competence of reviewers and the management officials who receive advice from reviewers and that, for this reason, this proposal presents the same negotiability problems as Proposal 17.

The Agency argues that information on the background or training of supervisors does not concern conditions of employment of bargaining unit employees under section 7103(a)(14). The Agency states that it is the decision on examiners' status in the Program that affects employees' working conditions, not the training or experience of those involved in the decision. It argues that the only purpose of the proposal is to personally attack the background of the decision-maker and his or her advisors, and that this is an improper subject of bargaining.

Incorporating its arguments concerning the prior proposals, the Agency asserts that the proposal interferes with the Agency's internal deliberative process and its rights under section 7106(a) to direct employees and assign work.

The Union states that this proposal establishes a procedure to be followed when an examiner is denied a permanent grant of signatory authority. It argues that when reviewers provide advice to higher management officials on an examiner's performance, the reviewer functions in a capacity similar to that of an expert witness. The Union states that the correctness of the reviewer's judgment is highly dependent on his or her background experience in the technology and aspects of patent law that are involved in the examiners' work, and that it is appropriate to establish the reviewer's degree of competence in these areas. Accordingly, in the Union's view, the proposal is a negotiable procedure under section 7106(b)(2) of the Statute.

B. Analysis and Conclusions

This proposal is within the duty to bargain. The proposal requires that denials of permanent grants of signatory authority will be accompanied by disclosures regarding persons alleging errors in the examiners' patent action(s) covering those persons' technical background, technical training, and experience in the art area.

This proposal is incorporated by reference into Proposal 17, subsection 4, which requires disclosure of data regarding the technical qualifications of all reviewers and is not limited to those instances where signatory authority is denied. As discussed in connection with that proposal, the release of the objective data called for in parts 1, 2 and 3 of Proposal 18 does not interfere with the exercise of management's rights or violate any other law or relevant regulation. With regard to part 4 of Proposal 18, the Agency has presented no reason why the disclosure of serial numbers of applications reviewed by a specific reviewer would interfere with any management right or be prohibited by any law. Accordingly, we find Proposal 18 to be negotiable in its entirety.

XXI. Proposal 19

Section 19. It is recognized that one of the primary factors affecting the quality of examination is the adequacy of the technical and legal training given by the PTO to both supervisors and to examiners before they begin the signatory program. Therefore, in order to insure that examiners are adequately prepared to successfully complete the signatory authority program and are not adversely impacted by the lack of proper training for themselves or by the relative competence level of their supervisors vis a vis other supervisors, it is agreed that corrective measures to insure the uniformity of the program will be applied to any group in which the failure rate for candidates on the Signatory Authority Program is greater than 7% during each fiscal year. The corrective measures will include:

1. Attempts to identify the nature and cause of failure rates above the office average for errors, by having each reviewer within the group conduct blind reviews of sample cases to determine if the supervisors in the given group are sufficiently knowledgable [sic] of the art areas and the standards for the Signatory Authority Program, and are applying those standards in a uniform manner.

2. In the event that the sample reviews indicate that the reviewers within a given group are not sufficiently knowledgable [sic] of the technical or legal areas being reviewed or are not uniformly applying the standards of the Signatory Authority Program, as determined by an evaluation of the sample reviews by PTO officials outside the group and with input by POPA, the PTO will take appropriate action to correct the problem, for example, by providing technical and legal training to the reviewers within the group. The PTO shall report to POPA a detailed accounting of what actions were actually taken.

3. When it is determined that examiners have been failing the signatory authority program because the PTO has failed to provide adequate technical training to examiners, for example, where they have been reporting to SPE's who are not technically competent in the art areas they supervise, then to improve the quality of the patent examination system and in the interest of fairness to employees, the PTO will insure that examiners in those affected art units will receive adequate training and supervision by experienced and technically competent individuals.

A. Positions of the Parties

1. Agency

The Agency states that this proposal interferes with the right to assign work under section 7106(a)(2)(B) because the proposal requires the Agency to create and maintain records on pass/fail rates of examiners in its Program that it does not now maintain.

Further, the Agency states that subsection 1 interferes with the right to assign work because it requires it to conduct blind reviews of sample cases. It also argues that by requiring the Agency to test the competency of its supervisors, the proposal is not concerned with conditions of employment of bargaining unit employees under section 7103(a)(14) of the Statute.

The Agency states that subsection 2 requires it to: (1) receive input from the Union as to whether supervisors conducting reviews are (a) competent and (b) applying the Agency's performance standards uniformly; (2) take "appropriate action to correct the problem," such as training; and (3) provide the Union with a detailed accounting of actions taken. The Agency argues that discussions on the competence of its supervisors and the training they receive are not conditions of employment under section 7103(a)(14). It also argues that the Agency cannot be required to provide training to supervisors or subject whatever actions it has taken or should take in relation to supervisors to review in arbitration. In support of this argument, it cites National Federation of Government Employees, Local 29 and U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 20 FLRA 531 (1985) (proposal 1).

The Agency states that subsection 3 requires the Agency to provide examiners with adequate training and supervision by experienced and technically competent individuals. Citing National Federation of Federal Employees and Department of Agriculture, Farmer's Home Administration, 14 FLRA 19 (1984), it argues that this part of the proposal conflicts with management's rights under section 7106(a)(2)(B) to determine who will supervise employees, what training employees will receive, and who will conduct the training.

2. Union

The Union states that examiners are distributed among 16 groups specialized by art areas, with group directors and supervisors whose expertise in the art areas varies. It contends that whereas some groups have directors and supervisors who have had long experience and who are technically knowledgeable in the group's art areas, other groups have directors and supervisors from technical disciplines outside those of their groups. According to the Union, the proposal seeks to ensure uniformity and fairness in the Program by identifying groups with disproportionate failure rates. It argues that the proposal establishes: (1) a procedure by which the parties can address the problem areas where the work of examiners is not being fairly or accurately assessed; and (2) an appropriate arrangement for those examiners who have been disadvantaged by inadequacies in their training or supervision.

The Union states that subsection 1 of the proposal does require the Agency to create and maintain records and to conduct sample reviews, but that these requirements do not conflict with the right to assign work, as contended by the Agency, because the proposal does not require that this work will be performed by particular personnel. It argues that the sample reviews would assist in identifying the problem in groups because this procedure would determine if the standards are being applied in a correct and uniform manner.

The Union acknowledges that subsection 2 of the proposal does require corrective action when the sample reviews indicate that reviewers are not sufficiently knowledgeable or are not uniformly applying Program standards, but that the proposal does not require management to provide training for supervisors, as contended by the Agency. The Union states that training is merely one possible corrective action management may wish to take. Noting that the requirements of subsection 2 apply for employees who have been adversely affected in their ability to complete the Program, the Union contends that the requirement for some, albeit nonspecific, corrective actions constitutes an appropriate arrangement under section 7106(b)(3). The Union asserts that the same rationale applies to the Agency's objection to subsection 3 of the proposal.

B. Analysis and Conclusions

As we understand Proposal 19, it would require that, in those groups where examiners are failing in the Signatory Authority Program at a disproportionate rate, the reviewers in those groups would conduct sample reviews, which would be evaluated in order to determine the cause of the failures, so that certain corrective action could be taken.

We find that Proposal 19 is negotiable. Initially, we reject, as we have done in connection with Proposal 17, the Agency's argument that the matters relating to the qualifications of nonunit employees do not concern conditions of employment under section 7103(a)(14) of the Statute. The Authority will find matters that vitally affect the conditions of employment of bargaining unit members to be negotiable, regardless of their effect on non-bargaining unit members. OPM, 33 FLRA at 338.

This proposal is concerned with matters that vitally affect the working conditions of examiners in the Union's bargaining unit. Examiners participating in the Agency's Program have a substantial interest in the quality of their training, supervision and evaluation in the Program and, as a consequence of these factors, in their opportunities to qualify for promotion. The data collection requirement of the proposal directly concerns such matters. Indeed, the Agency does not dispute the Union's contention that the examiners' ability to succeed in the Program is substantially affected by: (1) technical abilities of the supervisors and reviewers in the examiners' assigned art areas and the manner in which they apply Program standards when evaluating examiners' work; (2) the training the Agency provides to its supervisors and reviewers; and (3) the training it provides examiners who participate in the Program. The proposal's requirements are directly concerned with these matters. Accordingly, the proposal does concern conditions of employment under section 7103(a)(14) of the Statute.

The proposal does require the Agency to perform certain tasks, including maintaining records on failure rates in the Program. But as we noted with respect to Proposal 10, proposals do not interfere with management's rights simply because they would require the Agency to take some action it might otherwise not take. See NFFE, Local 2099, 35 FLRA at 368. In this case, the part of the proposal requiring the error rate studies does not dictate to the Agency which individuals are to conduct the error rate studies or how they are to proceed. Accordingly, conducting error rate studies would not place any substantive restraints on the agency's ability to act with respect to its right to assign work. Id.

The proposal requires that the Agency assign reviewers in a group to conduct blind reviews, and that these reviews be evaluated by Agency officials outside of the group, with Union input. By so doing, the proposals directly interfere with the Agency's right to assign work. Contrary to the Union's contention, the proposal does specify that the blind reviews are to be conducted by the reviewers in the Signatory Authority Program. While it is true that Proposal 19 does not specify who shall conduct these regular reviews, the proposal appears to limit these blind reviews to those previously designated as reviewers. Further, by requiring that these blind reviews be evaluated by Agency officials from outside the group, the proposal further limits the Agency in its exercise of its right to assign work.

Further, the proposal requires corrective action, such as training of the reviewers and, therefore, directly interferes with management's right to assign work under section 7106(a)(2)(A) of the Statute insofar as it dictates the assignment of training or other work to the reviewers. See U.S. Army Transportation Center, Fort Eustis, Virginia, 33 FLRA 391, 395 (1988) (Fort Eustis) (a requirement to assign training to particular employees, including supervisors, is inconsistent with management's right to assign work); see also Army Publications Distribution Center, 32 FLRA at 1014.

A similar analysis is appropriate for subsection 3 of the proposal, which requires that where it is determined that examiners have not received adequate technical training, they will receive adequate training and "supervision by experienced and technically competent individuals." As we noted above, proposals requiring agencies to provide training have been found to directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. Fort Eustis, 33 FLRA at 395. Further, as we found in connection with proposal 17, part 2, proposals requiring the assignment of "competent" individuals directly interfere with the Agency's right to assign work by establishing substantive criteria for the assignment. See Army Publications Distribution Center, 32 FLRA at 1007 (proposal which prescribes standard to be met in assigning overtime interferes with the right to assign work); id. at 1014 (right to assign work includes the assignment of work to supervisors).

We conclude, however, that these parts of the proposal are intended to be "arrangements" under section 7106(b)(3). The Union has identified an adverse impact resulting from an exercise of the Agency's reserved management rights. Specifically, as a result of promotions and other assignments to supervisory positions, there can be a disparity in the relative experience in subject matter areas of supervisors and reviewers. As a result of this disparity, examiners in groups with less experienced and less knowledgeable supervisors can foreseeably be disadvantaged with regard to their preparation for successful completion of the Signatory Authority Program. This proposal seeks to ameliorate that problem by establishing a procedure to identify disadvantaged groups and require the Agency to take certain unspecified corrective action. For the reasons discussed below, we find the corrective actions called for in Proposal 19 to be negotiable appropriate arrangements.

The intended benefit of the blind reviews, which themselves will be evaluated, is to identify the cause or causes of a particular group's high failure rate. Once the cause is identified, appropriate action may be taken, resulting in more uniform opportunity for examiners to succeed in the Program. While this is a distinct benefit for the bargaining unit employees, it does not constitute an excessive interference with the exercise of the Agency's reserved rights. In that regard, the Agency retains the discretion to determine the number of blind reviews. While limiting the evaluators to Agency personnel outside the affected group, the proposal puts no other constraints on whom management may select for that task. With regard to Union input into the reviews, we find that any interference into management's rights would be minimal at most. The proposal requires only that the Union be permitted to express its views. The Agency retains the discretion to adopt or reject the Union's views. See American Federation of Government Employees, AFL-CIO, Local 2761 and U.S. Department of the Army Adjutant General, Publication Center, St. Louis, Missouri, 14 FLRA 438, 439 (1984) (proposal for union participation on committee to review agency training program is a negotiable procedure where union is provided only the opportunity to express its views, but is not able to mandate joint determination of substantive aspects of the training program).

Concerning the requirement that the Agency take corrective action where appropriate, the Agency retains the ultimate decision-making authority as to whether or what action is appropriate. Accordingly, the proposal does not excessively interfere with its right to assign training or other work it deems appropriate. Further, as we read the reporting requirements, the proposal merely requires that the Agency inform the Union as to what action, if any, was taken. It does not provide for further input or comment from the Union with regard to the appropriateness of that action. Accordingly, that part of the proposal also does not interfere with any right reserved to the Agency. See NLRBU Local 6, 842 F.2d at 486-87 (management's rights under section 7106 of the Statute do not prohibit the disclosure of information).

We also find the part of Proposal 19 that requires adequate training for examiners, where indicated, to be a negotiable appropriate arrangement. Correcting training deficiencies should serve to improve an examiner's performance in the Program, and therefore, such training would be an obvious benefit to the employee. On the other hand, the requirement does not place an onerous burden on the Agency. The proposal does not specify the type of training to be provided, such as formal classes or on-the-job training. Further, it does not dictate the training's scheduling or duration, nor does it specify who is to provide the training. These matters are left to the discretion of the Agency. The Authority has previously found proposals requiring "adequate training" to compensate for inadequacies caused by the exercise of management's rights to be negotiable appropriate arrangements where the determinations as to the substance and form of training are left to management's discretion. See American Federation of Government Employees, Local 3231 and Social Security Administration, 22 FLRA 868, 872-74 (1986) (proposal requiring adequate training where a reorganization required employees to be assigned new tasks found to be a negotiable appropriate arrangement). Similarly, we find here that the training requirement does not excessively interfere with the Agency's right to assign work and is, therefore, a negotiable appropriate arrangement.

Finally, we find that the provision of Proposal 19 that requires the Agency to assign supervisors who are "experienced and competent" constitutes an appropriate arrangement. This provision is similar to those in Proposal 17 that required that case reviewers would be competent and familiar with the subject matter being reviewed, whenever possible. The value to an examiner's career development of being supervised and trained by competent and experienced individuals is both obvious and significant. On the other hand, as we noted in connection with Proposal 17, general, nonquantitative standards such as "competent and experienced" leave a great deal of discretion to management with respect to its determinations regarding the qualifications of supervisors. Significantly, the proposal does not attempt to define competence nor does it require the assignment of any specific individuals to supervisory tasks. Accordingly, we find this part of Proposal 19 also to be a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

XXII. Order

The Agency must negotiate on request, or as otherwise agreed to by the parties, concerning the last sentence of Proposal 9, Proposal 10, Proposal 11, Proposal 12, Proposal 13 (part E), Proposal 17 (Parts 2, 3, 4, 5 and 6), Proposal 18, and Proposal 19.(10)

We dismiss the petition as to Proposals 1, 2, 3, 4, 5, 6, 7, 8, 9 (except for the last sentence), Proposal 13 (Part F), Proposals 14, 15, 16 and Proposal 17 (Parts 1, 7 and 8).




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Union's petition for review identified 20 proposals in dispute. In its statement of position the Agency stated that Proposal 20 was not inconsistent with any law, Government-wide regulation, or Agency regulation for which there was a compelling need, so as to be nonnegotiable under section 7117 of the Statute. Rather, the Agency claimed it had no obligation to bargain because the proposal was unrelated to the general subject of the negotiations. We will only consider a petition for review of a negotiability issue where the parties disagree over whether a proposal is inconsistent with law, rule, and regulation. See National Federation of Federal Employees, Local 1900 and Department of Housing and Urban Development, 33 FLRA 192, 195 (1988). Accordingly, the portion of the petition for review concerning Proposal 20 is dismissed without prejudice to the Union's right to file a negotiability appeal should the conditions for review be met. Id.

2. The Agency claims that the second and fourth trial periods are for 6 months; the Union describes those periods as extending from 4 to 6 months.

3. See note 2, above.

4. In light of our determination that Proposal 1 directly interferes with the Agency's right to assign work, we need not reach the Agency's argument that the proposal is inconsistent with 5 C.F.R. º 335.104.

5. With regard to Proposal 2, the Union incorporated by reference all its arguments with respect to Proposal 1, which included a lengthy discussion of Austin Service Center.

6. Throughout this case, the Union repeats the argument that when a particular proposal concerns "procedures for determining fitness for promotion" it is negotiable under Austin Service Center. As stated above, we reject the proposition that any matter related to such determinations is per se negotiable on that basis and therefore we will not address that argument again. Rather, we will analyze the specifics of each proposal to determine the extent to which it is contrary to applicable law, rule, or regulation.

7. The last sentence raises distinct legal issues from the rest of the proposal. Accordingly, it is appropriate to consider it separately. See Defense Logistics Council v. FLRA, 810 F.2d 234, 239-40 (D.C. Cir. 1987).

8. As the parties did not raise the privacy issue, they did not address whether the review sheets constitute a "record" under the Privacy Act. We will, for the sake of analysis, assume, without deciding, that they do constitute such "records."

9. To the contrary, courts have ordered that such information about Federal employees is disclosable under FOIA