47 FLRA No. 2

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns the negotiability of 48 provisions of a collective bargaining agreement which were included in the agreement by the award of an interest arbitrator and which were disapproved by the Agency head under section 7114(c) of the Statute. The Agency filed a statement of position and the Union filed a reply brief.

For the reasons stated below, we make the following findings. Provisions 1, 2, 5, and 6, which define terms used in performance management, are negotiable. Provisions 3 and 4 which prescribe that certain tasks be performed by identified management officials, directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute and are nonnegotiable. The first sentence of Provision 7, which requires the Agency to identify critical and other performance elements for each employee is nonnegotiable. The second part of the second sentence of Provision 7, which requires that performance elements be consistent with the duties and responsibilities in an employee's position description, is negotiable. The remainder of Provision 7, by limiting the Agency's discretion to determine the content of performance standards, directly interferes with the rights to direct employees and assign work under section 7106(a)(2)(A) and (B) and is nonnegotiable. Provision 8, which concerns the designation of critical elements, is negotiable.

Provision 9, which requires management to meet with employees to discuss establishment or modification of a performance appraisal plan, is a negotiable procedure under section 7106(b)(2). Provision 10, which requires management to respond in writing to written requests for explanations as to why it has not established performance standards in a particular manner, is negotiable. The disputed sentence of Provision 11, which provides that employees will not be held responsible for matters beyond their control, is an appropriate arrangement under section 7106(b)(3). Provision 12, which requires that performance standards be objective and job-related, is consistent with applicable law and is negotiable. Provision 13, which requires that any criterion or policy referenced in a performance standard be attached in written form to the performance appraisal plan, is negotiable.

Provision 14, which requires that the Agency consider all job functions an employee performs in evaluating the employee, and Provision 15, which provides examples of when it is deemed unreasonable to adversely evaluate an employee for failure to meet a timeliness standard, are negotiable. Provision 16, which requires that the Agency give the Union a written explanation of its rationale for establishing a timeliness standard which subtracts points for instances of failure to meet a standard but does not add points when the required action is taken in less than half the allotted time, is negotiable. The first part of the disputed second sentence in Provision 17, which requires that Agency docket reports be delivered to employees on a particular day during the biweek, is negotiable. The second part of the second sentence of Provision 17, which provides that examiners are entitled to rely on the completeness of the docket report, is an appropriate arrangement under section 7106(b)(3).

Provision 18, which requires management to document the contributions of each employee involved in certain actions, is a negotiable procedure under section 7106(b)(2) of the Statute. Provision 19, which requires that management annually provide employees with a list of bases and reasons which the Agency has used to grant a waiver or excuse, is negotiable. Provision 20, which requires that examiners specifically record the time spent on record keeping and time spent providing explanations of excuses and requests for waivers, is negotiable.

Provision 21, which requires evaluation of employees' work products at the completion of each assignment, is a negotiable procedure under section 7106(b)(2). Provision 22, which provides employees with 3 hours' non-examining time to become familiar with reexamination procedures when first assigned reexaminations, constitutes an appropriate arrangement under section 7106(b)(3) and is negotiable. Provisions 23 and 24, which prescribe how time spent on specific aspects of employees' work will be recorded, are negotiable procedures under section 7106(b)(2). Provision 25, which requires that management provide written explanations within 2 weeks when rejecting employees' requests for changes in goals, is also a negotiable procedure. Provision 26, which protects employees from adverse performance evaluations attributable to directed or authorized performance of non-examining functions, is negotiable as an appropriate arrangement under section 7106(b)(3). Provision 27, requiring that complaints against an employee may be considered valid only when in writing and the complainant is identified, excessively interferes with management's rights and is nonnegotiable.

Provisions 28 and 35, which require that employees be evaluated against performance standards established and provided to employees in writing at the beginning of the rating period, constitute negotiable procedures under section 7106(b)(2). Provisions 29 and 30, which require, respectively, that rating officials maintain documentation supporting assigned performance ratings and resolve employees' complaints concerning the accuracy of performance records, are also negotiable procedures. Provision 31, which requires that a supervisor disclose to an employee, normally within 2 weeks, any deficiency that will be used in a performance appraisal and that any delay in disclosure will be considered in mitigating a performance-based action, is negotiable. Provision 32, which requires that rating officials prepare one annual performance appraisal and conduct a performance review at the midpoint of the rating year for each employee, is a negotiable procedure.

Provision 33, which requires management to consider all extenuating circumstances in rating an employee's performance, is negotiable. Provision 34, which requires rating officials to notify employees of the dates and times of formal appraisal meetings, is a negotiable procedure under section 7106(b)(2). Provision 36, which provides that an employee will sign and date a statement certifying that his/her proposed performance rating was discussed with the rating official, is also a negotiable procedure. Provision 37, which provides that, if approving officials deny employees' requests to raise their recommended performance ratings, the reasons for the denials will be explained in writing, is a negotiable procedure.

Provision 38, which provides that performance appraisals will be based on performance during the fiscal year and that ratings generally will be completed by November 15, is a negotiable procedure under section 7106(b)(2). Provision 39, which requires that only performance during the established appraisal period be used in determining employees' ratings for that period, is negotiable. Provisions 40 and 41, which specify the rating levels for three and five level performance rating systems, are negotiable. Provision 42, which provides that performance-based disciplinary actions will be taken for just and sufficient cause and in accordance with applicable laws and regulations, is negotiable. Provision 43, which includes reduction in rank in the definition of performance-based disciplinary actions in the parties' agreement, is negotiable.

The disputed sentence of Provision 44 which requires the Agency to inform an employee of the conditions under which it will defer, modify, or cancel a disciplinary action is negotiable. The portion of Provision 45 that requires the Agency to provide a performance improvement period for employees facing performance-based disciplinary action under 5 U.S.C. chapter 75, is negotiable. However, the second sentence of section D.4 in Provision 45, providing that the required minimum performance improvement to avoid discipline must be reasonably attainable, excessively interferes with management's right to discipline employees under section 7106(a)(2)(A) and is nonnegotiable. Provision 46, which requires that performance-based disciplinary action be progressive, also excessively interferes with management's right to discipline employees and is nonnegotiable. Provision 47, which concerns determinations that employees will not be granted within-grade increases, is negotiable. Provision 48, which provides that the Agency will destroy all documents generated as part of a cancelled performance-based disciplinary action, is negotiable.

II. Background

In May 1981, the parties began negotiations concerning Performance Appraisal Plans. The Agency declared certain proposals to be nonnegotiable, and the Union filed two petitions for review. Subsequently, the Agency implemented performance appraisal plans to meet the October 1, 1981, deadline imposed by section 4303(b)(2) of the Civil Service Reform Act of 1978. The Union requested assistance from the Federal Service Impasses Panel (the Panel) early in 1982, but the Panel declined to assert jurisdiction and directed the parties to bargain on the performance appraisal proposals which the Agency had not declared nonnegotiable.

After bargaining in 1984 and 1985, the Agency declared certain proposals nonnegotiable, and the Union filed a third petition for review. In 1986, after they merged bargaining over performance appraisal issues with negotiations for a basic collective bargaining agreement, the parties again informed the Panel that they were at impasse. The Panel, in response to the parties' requests for binding arbitration, decided that the parties "should select an interest arbitrator" to resolve the parties' dispute over the basic agreement and performance appraisal issues. Reply Brief at 3.

The Arbitrator resolved issues concerning the basic agreement in 1986. Regarding Article 19, Performance Appraisals, he determined:

[i]nasmuch as the parties have several proposals concerning performance appraisal currently pending a negotiability determination before the FLRA, negotiations concerning performance appraisal subjects affected by those proposals may be deferred until the FLRA renders its decision(s) on those proposals. . . . The parties shall negotiate over those subjects which are not affected by the negotiability issues before the FLRA. . . . Within 45 days after the FLRA renders its decision(s), the parties shall negotiate over the appropriate affected performance appraisal subjects. The Arbitrator shall exercise continuing jurisdiction over this subject.

Attachment B to Statement of Position. Subsequently, the Authority issued Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384 (1987) (POPA I), aff'd mem. sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 30, 1988) (per curiam) and Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389 (1987) (POPA II), affirmed sub nom. Patent Office Professional Association v. FLRA, 873 F.2d 1485 (D.C. Cir. 1989). These decisions resolved all outstanding negotiability issues.

In January 1988, the Union submitted a revised package of proposals to the Agency regarding the outstanding performance appraisal issues. The Agency wrote to the Union on July 22, 1988, that "it would not bargain over most of these proposals . . . ." Statement of Position at 5. The Agency asserted that the Union's submission contained "over 40 new proposals" and noted that "some are clearly non-negotiable, some are inconsistent with the Basic Agreement, some are encumbered by ongoing grievance(s) or were previously presented in another set of negotiations, and others are clearly beyond the scope of these negotiations." Attachment E to Statement of Position at 2. In response, the Union filed an unfair labor practice (ULP) charge on February 2, 1989, alleging that the Agency had unlawfully refused to bargain. The Regional Director dismissed the Union's charge on April 28, 1989 because it was untimely filed, and the General Counsel dismissed the Union's appeal of the Regional Director's decision.

Arbitrator Marvin Johnson held an 8-day hearing beginning on September 9, 1989. The Agency refused to participate in the hearing after the first day "because of its objections to the Arbitrator's jurisdiction based upon the lack of any duty to bargain on the majority of [U]nion proposals." Statement of Position at 1-2. However, the Agency served the Arbitrator with an analysis of the differences between its proposals and the Union's including the Agency's "rationale as to the appropriate resolution of those differences." Attachment 1 to Union's Reply Brief. The Arbitrator issued his award, regarding Article 19, Performance Appraisals, on November 30, 1990.

III. Authority Jurisdiction

The Agency asserts that there is "uncertainty in the caselaw [sic] on the proper appeal of interest arbitration awards[,]" and notes that it filed exceptions to the Arbitrator's award under section 7122(a) of the Statute. Statement of Position at 2.

On July 31, 1991, the Authority issued an Order directing the Agency to show cause why its exceptions should not be dismissed because they related to an interest arbitration proceeding entered into under section 7119(b)(1) of the Statute. The Order noted the Authority's holding in U.S. Department of Justice and Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 37 FLRA 1346 (1990) (INS), petition for review dismissed sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA,

No. 90-1613 (D.C. Cir. Nov. 6, 1991) that interest arbitration directed by the Panel under section 7119(b)(1) of the Statute does not constitute binding arbitration to which exceptions can be filed under section 7122(a). The Authority's Order also cited Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 798 (1991) (POPA III), where we held that another interest arbitration award, issued by the Arbitrator pursuant to the same 1986 Panel decision involved in this case, resulted from the Panel's direction under section 7119(b)(1). After the Agency failed to respond to the Order to Show Cause, the Authority dismissed the Agency's exceptions.

Because the interest arbitration proceeding in this case arose under section 7119(b)(1) of the Statute, the agreement provisions imposed by the Arbitrator were subject to Agency head review under section 7114(c). The Agency followed those procedures, and the Union filed a petition for review of the Agency head's disapproval of the award. Consequently, the petition for review is properly before us.

IV. Preliminary Issues

A. Agency's Position

First, the Agency asserts that the Arbitrator "exceeded his jurisdiction under 5 CFR Parts 2470 and 2471, and must have his entire award set aside." Statement of Position at 10. In particular, the Agency argues that the Arbitrator could not consider new proposals offered by the Union following the Authority's negotiability determinations in POPA I and POPA II because the Agency had no duty to bargain concerning those proposals. In this connection, the Agency argues that the Arbitrator was authorized to resolve duty to bargain issues under Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988). The Agency asserts that, consistent with the General Counsel's refusal to issue a complaint on the Union's ULP charge, the Arbitrator had no jurisdiction to issue an award which included proposals the Union submitted in January 1988.

The Agency also argues that the Arbitrator exceeded his jurisdiction by including in his award proposals made by the Union in connection with a change in the performance standard for workflow management because this change was "clearly beyond the scope" of the dispute for which the Arbitrator was appointed. Statement of Position at 20. In addition, the Agency asserts that the Arbitrator had no jurisdiction over the majority of the proposals because the parties had not negotiated to impasse and the Arbitrator "failed to provide any mediation." Id. at 17 (footnote omitted). The Agency further asserts that the Arbitrator "disregarded" the parties' negotiated grievance procedure by resolving grievances filed by the Union. Id. at 18.

Second, the Agency argues that Article 19, "in its entirety," directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute by requiring management to spend "a substantial portion of its work day in meetings, drafting written responses and/or participating in joint committees . . . ." Id. at 50, 52-53. The Agency argues that the "practical consequences" of Article 19 directly interfere with management's "ability to exercise its rights," and, consequently, the article is nonnegotiable. Id. at 51.

B. Union's Position

The Union disputes the Agency's contention that the Arbitrator could not include provisions in his award that the parties had not discussed. The Union asserts that the Arbitrator had "jurisdiction over subject matters, not particular proposals or issues." Reply Brief at 7. The Union also contends that the dismissal of a ULP charge "has no precedential value, particularly when it was dismissed on the grounds of timeliness." Id. at 8. The Union further argues that the Agency is attempting to "sandbag the interest arbitration process" by "submit[ing] alternative language to the arbitrator, argu[ing] for the need for that alternative language, and then declar[ing] that very same language as nonnegotiable when the arbitrator adopts it." Id. at 4. The Union urges the Authority to establish a doctrine of equitable estoppel to prevent "this kind of abuse of the negotiations process[.]" Id. at 5.

C. Analysis and Conclusions

1. Arbitrator's Authority

Section 7119(b)(1) of the Statute empowers the Panel to direct parties to use interest arbitration to resolve negotiation impasses. INS, 37 FLRA at 1354-57. In INS, we specifically reaffirmed the Panel's authority to designate a private, outside arbitrator and noted that section 7119 "expressly authorizes the Panel to take whatever action it deems necessary to resolve an impasse[.]" Id. at 1357. In addition, under section 7119(c)(5)(ii) of the Statute, the Panel is authorized to resolve an impasse "through whatever methods and procedures, . . . it may consider appropriate." In this regard, the Panel "is empowered to take whatever action is necessary to resolve an impasse, including ordering parties to agree to specific proposed language." National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 415 (1990). The Arbitrator in this case was selected by the parties under the Panel's direction and, in our opinion, possessed the same authority to resolve the parties' dispute as the Panel. We find no basis on which to conclude that the Arbitrator was limited in any manner in resolving the parties' dispute concerning performance appraisal issues. Accordingly, we reject the Agency's argument that the Arbitrator exceeded his jurisdiction.

Furthermore, the Agency's position that the entire award should be set aside because the Arbitrator either failed to resolve, or improperly resolved, the argument that the Agency had no duty to bargain on certain proposals is not dispositive of this negotiability dispute. In this case, the Agency asserts, in addition to its position that the entire award should be set aside, that each provision contained in the petition for review is inconsistent with law and regulation and, therefore, nonnegotiable. Under section 7117(c) of the Statute and Part 2424.1 of the Authority's Rules and Regulations, the Authority will consider a petition for review of a negotiability issue where the parties disagree over whether a provision conflicts with law, rule, or regulation. See National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Typographic Production Center, Louisville, Kentucky, 45 FLRA 1199, 1200 (1992). The Agency clearly has declared that the disputed provisions are inconsistent with law or regulation. Consequently, we conclude that the dispute is properly before us for resolution as a negotiability appeal and we reject the Agency's argument that, apart from the negotiability of specific proposals, the award should be set aside.

Where, as here, the conditions for review of a negotiability appeal have been met, a union is entitled to a decision on whether a disputed provision is negotiable under the Statute even if additional issues exist, including whether an agency is obligated to bargain over certain proposals made by a union. To the extent that such issues exist, they should be resolved in other appropriate proceedings. See National Federation of Federal Employees, Local 341 and U.S. Department of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, Wapato, Washington, 39 FLRA 1272, 1275 (1991); American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984).

2. Remaining Arguments

We reject the Agency's argument that Article 19, taken as a whole, directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and, consequently, must be found nonnegotiable. The Agency cites no authority, and none is apparent to us, to support the Agency's argument that the negotiability of the entire article can appropriately be determined apart from the negotiability of its specific provisions. Accordingly, we will consider the negotiability of the specific provisions in Article 19 that the Agency has asserted are nonnegotiable.

Finally, we reject the Agency's assertion that certain provisions are nonnegotiable because their inclusion in the parties' collective bargaining agreement would subject to arbitral review management's exercise of its rights under section 7106(a) of the Statute. An agency's assertion that an arbitrator's judgment may be substituted for the agency's own is not a basis for finding a provision to be nonnegotiable. See, for example, National Federation of Federal Employees, Council of GSA Locals and General Services Administration, 41 FLRA 728, 744 (1991). As we discussed above, the negotiability of each of the provisions before us must be decided on its own merits. Those provisions which we find are negotiable will be included in the parties' agreement. The question as to whether a subsequent arbitral award based on these provisions constitutes an impermissible interference with management's rights must be directed to the merits of such an award. We will not address this argument further.

V. Provisions 1-6

Provision 1: Section 1 - B.

Performance elements are job functions for which performance standards are set.

Provision 2: Section 1 - C.

Performance standards are expressed measures of the quality, quantity and timeliness of accomplishment of performance elements.

Provision 3: Section 1 - D.

The rating official is responsible for, among other functions connected with performance appraisal, disclosing to, and discussing with, [sic] the elements (both critical and noncritical) of the employee's position and the performance standards for those elements, appraising performance, and assigning the recommended performance rating. Normally, this is the employee's immediate supervisor.

Provision 4: Section 1 - E.

The approving official is the supervisor who assigns, controls and is responsible for the work of the rating official, normally the rating official's immediate supervisor. The approving official is responsible for assigning the final performance rating.

Provision 5: Section 1 - F.

Performance means an employee's accomplishment of assigned duties and responsibilities.

Provision 6: Section 1 - G.

A critical element is a performance element that is of sufficient importance that: (1) performance in that element below the satisfactory level merits the denial of a within grade increase and (2) unacceptable performance in that element merits one of the corrective actions of (a) reassignment and the denial of a within grade increase, (b) reduction in grade, or (c) removal. These actions may be taken regardless of the performance in other performance elements.

A. Positions of the Parties

The Agency contends that the definitions of "performance elements" and "performance standards" in Provisions 1 and 2 are inconsistent with 5 C.F.R. § 430.203.⁽¹⁾ The Agency also argues that the definitions of "rating official" and "approving official" in Provisions 3 and 4 directly interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Finally, the Agency asserts that the definition of "performance" in Provision 5 is inconsistent with the definition in 5 C.F.R. § 430.203,⁽²⁾ and the definition of "critical element" in Provision 6 is inconsistent with 5 C.F.R. Part 432 because it does not refer to the opportunity to improve period provided in 5 C.F.R. § 432.104.⁽³⁾

Initially, the Union notes that the parties agreed to Provisions 1 through 6 before they reached impasse on Article 19 and that the Agency could have, but did not, challenge their negotiability in 1981 or 1985. The Union asserts that the definition of "performance elements," in Provision 1, is found in the Federal Personnel Manual (FPM), chapter 430, subchapter 2. Regarding the definition of "performance standard" in Provision 2, the Union argues that it is not intended "to limit a standard to a measure of quality, quantity or timeliness." Reply Brief at 10. The Union argues that Provisions 3 and 4 are not intended "as any limitation on who management may appoint as rating and approving officials." Id. at 11. The Union also asserts that the definition of critical element found in Provision 6 was not intended "as a waiver of unit employees' right to have an opportunity to demonstrate improved performance." Id. Finally, the Union asserts, none of the provisions is intended to be applied in any manner which is "inconsistent with statutory or regulatory provisions . . . ." Id. at 10.

B. Analysis and Conclusions

At the outset, we reject the Union's assertion that Provisions 1 through 6 are not properly before us because the Agency could have, but did not, declare them nonnegotiable in 1981 or 1985, when the Union requested written allegations of nonnegotiability. As noted in Section III, the Arbitrator imposed certain Article 19 provisions, including Provisions 1 through 6. Consistent with INS, 37 FLRA 1346, these provisions were subject to agency head review under section 7114(c) and were disapproved. Because the Union has requested review of the provisions, their negotiability is properly before us.⁽⁴⁾

We also reject the Agency's arguments that the definitions in Provisions 1, 2, and 5 are inconsistent with 5 C.F.R. § 430.203 and that Provision 6 is inconsistent with 5 C.F.R. § 432.104.

Provisions 1, 2, 5, and 6 define, respectively, "performance elements," "performance standards," "performance," and "critical element." With regard to Provision 2, we note the Union's assertion that the definition of performance standards "is not intended to limit a standard to a measure of quality, quantity or timeliness." Reply Brief at 10. As the Union's statement of intent is consistent with the plain wording of Provision 2, we adopt that interpretation in analyzing that provision. We also find that the Union's statement that it does not intend any of these definitions to be applied in a manner inconsistent with "statutory or regulatory provisions" is consistent with the plain wording of Provisions 1, 2, 5, and 6, and we adopt it in analyzing these provisions. Id. Based on the plain language of Provisions 1, 2, 5, and 6 and the Union's statements of intent, we find that nothing in these provisions is inconsistent with the definitions in 5 C.F.R. §§ 430.203 and 432.104. As no other basis for finding these provisions nonnegotiable is argued or apparent to us, Provisions 1, 2, 5, and 6 are negotiable.

In reaching this conclusion, we reject the Agency's assertion that Provision 6 is inconsistent with 5 C.F.R. § 432.104 simply because it does not refer to the opportunity to demonstrate acceptable performance afforded by that regulation. Nothing in the plain wording of Provision 6 compels the conclusion that the provision would eliminate such an opportunity. Moreover, it is unreasonable to attribute to the Union an intent to deprive unit employees of an opportunity to demonstrate acceptable performance.

The Agency's sole argument concerning Provisions 3 and 4 is that they directly interfere with management's right to assign work under section 7106(a)(2)(B) by requiring that particular management officials prepare and approve performance appraisals. On the other hand, the Union asserts that the provisions are not intended to limit management's discretion in designating rating and approving officials. We find that the Union's assertion is inconsistent with the provisions' plain wording. Provision 3 delineates certain functions performed by the rating official and identifies that official as "[n]ormally . . . the employee's immediate supervisor." Similarly, Provision 4 describes certain responsibilities of the approving official and states that official is "normally the rating official's immediate supervisor." In our view, the provisions prescribe that the specified functions be assigned to the identified management officials. Moreover use of the word "normally" in the provisions does not eliminate the restrictions imposed on the Agency's right to assign work. See, for example, American Federation of Government Employees, Local 1658 and U.S. Department of the Army, Army Tank-Automotive Command, Warren, Michigan, 44 FLRA 1375, 1387-88 (1992). As such, the Union's assertion that the provisions do not restrict management in selecting rating and approving officials is inconsistent with their plain wording. We do not base negotiability determinations on a statement of intent that is inconsistent with the plain wording of a provision. See, for example, National Federation of Federal Employees, Local 1974 and U.S. Department of Veterans Affairs, Regional Office, Portland, Oregon, 46 FLRA 1170, 1172 (1993).

Proposals or provisions that concern the assignment of specific duties to particular individuals directly interfere with an agency's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1428 (1992) (Health Care Financing Administration). As Provision 3 and 4 specify that certain tasks are "normally" performed by particular management officials, we find that the provisions directly interfere with the Agency's right to assign work under section 7106(a)(2)(B). See id. Because the Union does not claim that the provisions are intended as appropriate arrangements under section 7106(b)(3), we do not reach that issue. Accordingly, Provisions 3 and 4 are nonnegotiable.

In sum, we find that Provisions 1, 2, 5, and 6 are negotiable and Provisions 3 and 4 are nonnegotiable.

VI. Provisions 7 and 8

Provision 7

Section 2- Procedures for Developing Performance Elements

B. Critical and other performance elements must be identified for each employee. Performance elements must include only those aspects of work over which the employee has control and must be consistent with the duties and responsibilities covered in the employee's position description. These performance elements and performance standards shall be identified through a systematic approach which will assure the job relatedness of elements and performance standards. The approach must identify what employees are expected to do in terms of duties and responsibilities and what they are to produce or achieve.

[Only the underscored sentences are in dispute.]

Provision 8

Section 2- Procedures for Developing Performance Elements

C. No job function can be designated a critical element unless it is so important that removal of the employee for unacceptable performance in that element would be a reasonable option regardless of the employee's performance in other performance elements.

A. Positions of the Parties

The Agency argues that the first and second sentences of Provision 7 are nonnegotiable. According to the Agency, to the extent that sentence 1 would require the identification of noncritical elements for employees, it directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency contends that sentence 2 in Provision 7 has the effect of establishing "substantive criteria governing the determination of the content of a critical or non-critical element." Statement of Position at 26. Provision 8, according to the Agency, is inconsistent with the definition of "critical element" in 5 C.F.R. § 430.203,⁽⁵⁾ because it restricts management's right to designate a job function as a critical element "'unless it is so important that removal of the employee for unacceptable performance would be a reasonable option.'" Id.

The Union asserts that sentence 1 in Provision 7 is not intended to require management to establish noncritical performance elements. The second sentence of Provision 7, the Union asserts, is not "materially different" from other proposals found negotiable by the Authority. Reply Brief at 12. Citing Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616, 635 (1987) (Newark), the Union also argues that because the content of performance standards, including those which hold employees accountable for matters beyond their control, can be arbitrated, the parties should be able to negotiate the content of such standards. Provision 8, the Union asserts, is not inconsistent with 5 C.F.R. § 430.203 and is not intended to be applied in any manner which is inconsistent with applicable statutory or regulatory provisions. Finally, the Union asserts that all of Section 2, including Provisions 7 and 8, is intended to constitute a procedure for satisfying the requirements of 5 U.S.C. § 4302(b)(1).⁽⁶⁾

B. Analysis

Management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute encompass the authority to identify critical elements of performance and to establish performance standards. See, for example, National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Western Region, 42 FLRA 964, 974-78 (1991) (decision and order on remand) (Food and Nutrition Service) and cases cited therein. Provisions which restrict an agency's authority to determine the content of performance standards directly interfere with management's right to direct employees and assign work. See, for example, id. at 975-77. On the other hand, provisions which concern the application of performance standards do not directly interfere with management's rights to direct employees and assign work. See, for example, National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 846 (1990) (NAFEC). Accordingly, the task in deciding the negotiability of a provision similar to Provisions 7 and 8 "'is primarily one of determining, based on the record, whether [it] concern[s] substantive matters, such as the content of performance standards and critical elements, or whether [it] concern[s] the application of those standards and elements and other nonsubstantive matters such as procedures.'" Food and Nutrition Service, 42 FLRA at 974 (brackets in original, quoting POPA I, 25 FLRA at 387).

The Union asserts that the first sentence of Provision 7 is "not intended to require management to establish non-critical elements for employees if it does not wish to." Reply Brief at 12. More particularly, the Union states that it intends sentence 1 to have the same effect as Proposal 1 in American Federation of Government Employees, AFL-CIO, Local 3028 and Department of Health and Human Services, Public Health Service, Alaska Area Native Health Service, 13 FLRA 697, 698 (1984) (Public Health Service) The Union asserts that, like Proposal 1 in Public Health Service, the first sentence of Provision 7 does not require the Agency to designate any elements as non-critical.

We disagree. The Authority noted that the Public Health Service proposal did not "require that any elements of any job be deemed to be 'noncritical.'" Id., 13 FLRA at 699. In contrast, sentence 1 in Provision 7 mandates that "[c]ritical and other performance elements must be identified[.]" The Union concedes that "other performance elements" include non-critical elements. See Reply Brief at 12. Therefore, sentence 1, unlike the Public Health Service proposal, requires management to identify non-critical elements for each position. Accordingly, we find the Union's explanation of the first sentence inconsistent with its plain wording and, consequently, we reject that explanation. See, for example, National Federation of Federal Employees, Local 1214 and U.S. Department of the Army, Headquarters, United States Army Training Center and Fort Jackson, Fort Jackson, South Carolina, 45 FLRA 1222, 1224-25 (1992).

As noted above, the authority to identify critical elements of a position is a component of management's rights to direct employees and assign work. Similarly, as the Authority noted in International Federation of Professional and Technical Engineer, Local 25 and Department of the Navy, Mare Island Naval Shipyard, 13 FLRA 433, 437 (1983), "the identification of job elements, if any, which are not critical is also an exercise of those rights." As the first sentence of Provision 7 provides that management "must" identify non-critical elements for each employee, it directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See id. As the Union does not claim that the first sentence of Provision 7 constitutes an appropriate arrangement, it is nonnegotiable.

The first part of sentence 2 in Provision 7 requires that performance elements include only those aspects of work over which employees have control. Provisions which require management to adjust or change performance expectations in specified circumstances dictate the content of performance standards and, thereby, directly interfere with management's rights to direct employees and assign work. NAFEC, 36 FLRA at 845. The first part of sentence 2, by limiting the content of critical elements to those aspects of work over which employees have control, restricts the Agency's authority to determine the content of employees' critical elements. Therefore, we conclude that the first part of sentence 2 directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See, for example, id. at 847-48 (provision requiring management to make allowances for factors beyond the control of an employee in evaluating performance held to require management to change or adjust its performance expectations).

The Union does not assert that the first part of the second sentence constitutes an appropriate arrangement under section 7106(b)(3) for employees adversely affected by the exercise of a management right. In this regard, the first part of the second sentence is distinguishable from a proposal, requiring that management make allowances for factors beyond employees' control in applying performance standards, which we recently determined was an appropriate arrangement in National Federation of Federal Employees, Local 1974 and U.S. Department of Veterans Affairs, Regional Office, Portland, Oregon, 46 FLRA 1170 (1993) (Department of Veterans Affairs). See also Provision 11, below. The first part of the second sentence bars inclusion of aspects of work beyond employees' control in performance standards. Even assuming, without deciding, that the first part of the second sentence is an arrangement for adversely affected employees, the Union has not explained how preclusion of performance standards which, for example, may be aimed at assessing employees' ability to cope with exceptional situations would not excessively interfere with management's rights to direct employees and assign work. We will consider whether a provision constitutes an appropriate arrangement when it is not argued in order to avoid an anomalous result. However, where, as here, the Union has not created a record that would permit us to determine whether the first part of the second sentence constitutes an appropriate arrangement, we will not examine that issue.

The parties bear the burden of creating a record on which we can base a negotiability determination. Association of Civilian Technicians, New York State Council and U.S. Department of Defense, National Guard Bureau, State of New York, Division of Military and Naval Affairs, 45 FLRA 17, 21 (1992). As the record does not provide a basis for determining whether the first part of the second sentence of Provision 7 constitutes an appropriate arrangement, and as it directly interferes with management's exercise of the rights to direct employees and assign work under section 7106(a)(2)(A) and (B), the first part of the second sentence is nonnegotiable.

Turning to the second part of sentence 2, we find that this part of Provision 7 does not restrict the Agency's authority to determine the content of critical elements. Rather, it requires that each employee's performance elements be consistent with the duties and responsibilities in the employee's position description. Provisions requiring consistency between position descriptions and performance elements do not restrict an agency's choice of performance elements. Rather, such provisions permit an agency to achieve consistency between performance elements and the position description by amending the descriptions. An agency's right to direct employees and assign work through the establishment of performance elements and standards remains unaffected, subject to the procedural requirement that the position descriptions involved must accurately reflect the work assigned. Accordingly, provisions that require consistency between position descriptions and performance elements are negotiable procedures under section 7106(b)(2) of the Statute. See, for example, United Power Trades Organization and U.S. Department of the Army Corps of Engineers, Walla Walla, Washington, 44 FLRA 1145, 1155 (1992) (Corps of Engineers), dismissed as to other matters sub nom. United Power Trades Organization v. FLRA, No. 92-70520 (9th Cir. Aug. 26, 1992).

The second part of sentence 2 in Provision 7 requires consistency between performance elements and the duties and responsibilities in an employee's position. In order to comply with this aspect of Provision 7, the Agency is required only to take the procedural step of assuring that employees' position descriptions accurately reflect the work assigned. Consequently, consistent with Corps of Engineers, we find that the second part of sentence 2 in Provision 7 constitutes a negotiable procedure under section 7106(b)(2) of the Statute.

Turning to Provision 8, we reject the Agency's assertion that it is inconsistent with 5 C.F.R. § 430.203. Provision 8 requires that in order to be designated a critical element, a job function must be "so important" that removal would be "a reasonable option" if an employee's performance in that element was unacceptable. 5 C.F.R. § 430.203 requires that a critical element must involve job functions which are of "such importance that unacceptable performance on [sic] the element would result in unacceptable performance in the position." We find no material difference between the regulatory definition of critical element and the definition contained in the provision. Consequently, we conclude that Provision 8 is not inconsistent with 5 C.F.R. § 430.203. As the Agency has asserted no other basis for finding Provision 8 nonnegotiable, and none is apparent to us, we conclude that the provision is negotiable.

C. Conclusions

Sentence 1 and the first part of sentence 2 of Provision 7 directly interfere with management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. Because the Union does not assert that the first sentence and the first part of the second sentence constitutes a negotiable appropriate arrangement, sentence 1 and the first part of sentence 2 of Provision 7 directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and are nonnegotiable. The second part of sentence 2 is a negotiable procedure. Finally, Provision 8 is negotiable.

VII. Provision 9

Section 3.C.

Prior to the establishment or substantive modification of any performance appraisal plan the following procedure will be used:

3. After consulting with the Association as to a mutually convenient date, time and place, management shall distribute a memo to all affected employees notifying them of the date, time and place of the meeting, its purpose and that they are afforded one hour of official time in accordance with Article 14, Section 3(C). Unless the parties agree otherwise or adequate space is not available, all employee meetings shall be completed within two weeks of the first employee meeting.

[Only the underscored sentence is in dispute.]

A. Positions of the Parties

The Agency asserts that the last sentence of Provision 9 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute by "dictat[ing] when the meetings must be completed . . . ." Statement of Position at 27.

With regard to the last sentence of Provision 9, the Union asserts that the Agency asked the Arbitrator to establish "'a reasonable but fixed timeframe [sic] to complete the employee meetings. . . .'" Reply Brief at 14. The Union now asserts that it has "no position" on the negotiability of that sentence because the Agency is "object[ing] to the adoption of its own proposal[.]" Id.

B. Analysis and Conclusions

We reject the Agency's argument that the last sentence of Provision 9 directly interferes with management's right to determine when assigned work will be performed. It is undisputed that the meetings referred to in Provision 9 are intended to implement the requirement in 5 U.S.C. § 4302a(a)(2) that employees and management jointly participate in developing performance standards.⁽⁷⁾ The Agency does not claim that holding employee meetings directly interferes with its exercise of the right to assign work. Rather, the Agency argues that the provision interferes with that right by specifying when the meetings must be completed. We find that the requirement to complete such meetings within a particular time frame does not directly interfere with the exercise of management's right to assign work under section 7106(a)(2) of the Statute. Instead, we find that the timing requirement is one step that the Agency will follow in holding meetings with employees and, therefore, constitutes a procedure that management will follow. As such, the requirement to complete employee meetings within 2 weeks of the first meeting is a negotiable procedure under section 7106(b)(2). Health Care Financing Administration, 44 FLRA at 1510-11 (proposal concerning equal employment opportunity (EEO) complaint processing that included time limits held to constitute negotiable procedure).

VIII. Provision 10

Section 3.D.

1. Within a given job classification such as patent examiners or patent classifiers, it is normally expected that the performance standards, the units of measurement, and the levels at which different ratings will be given would be (1) the same for all employees performing the same job function and (2) reasonably based on the differences in job functions for employees performing similar job functions. However, it has been held that deviation from the expectation is a management right. To promote better understanding, management will, upon the presentation of a written request, provide a written explanation of any deviation from that expectation.

2. Between different job classifications, it is normally expected that the performance standards, the units of measurement, and the levels at which different ratings will be given would be comparable for employees performing similar job functions with any variances being reasonably based on differences in job functions. However, it has been held that deviation from that expectation is a management right. To promote better understanding, management will, upon the presentation of a written request, provide a written explanation of any deviation from that expectation.

A. Positions of the Parties

The Agency asserts that Provision 10 directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute because it concerns the content of performance standards. In support, the Agency argues that the provision is "almost identical" to Sections 3.E. and 3.F. in POPA I, which the Authority held directly interfered with management's rights to direct employees and assign work. Statement of Position at 27.

The Union asserts that Provision 10 differs from the proposals found nonnegotiable in POPA I because it "explicitly recognizes that deviation from consistent performance standards [is] a matter of management right[.]" Reply Brief at 15. The Union also argues that because Newark, 30 FLRA at 635, permits arbitrators to review performance standards for conformity with existing legal and statutory requirements, provisions, such as Provision 10, which "supply[] information by which such conformity may be evaluated[,]" are negotiable. Reply Brief at 15. Finally, the Union contends that the provision is negotiable because it is consistent with FPM chapter 430, subchapter 2-3(b)(13) and 2-3(c).⁽⁸⁾

B. Analysis and Conclusions

Provision 10 describes the "expected" practices in establishing "performance standards, the units of measurement, and the levels at which different ratings will be given." In this regard, we note that the described practices parallel the guidance from the Office of Personnel Management contained in FPM Chapter 430, subchapter 2-3(b)(13) and 2-3(c) concerning the characteristics of good performance standards. However, the provision recognizes management's prerogative to deviate from the expectations outlined in the provision. If management elects to exercise that prerogative, the provision obligates the Agency to respond in writing to written requests for explanations of the variations. As such, the provision does not require the Agency to establish its performance standards in a particular manner, or to modify or adjust those standards and does not directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B). Accordingly, Provision 10 is negotiable. See, for example, Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 813-14 (1991) (Patent and Trademark Office II).

In reaching this conclusion, we reject the Agency's argument that Provision 10 is nearly identical to Sections 3.E and 3.F, which were found to directly interfere with management's rights to direct employees and assign work in POPA I. Provision 10 is similar to Sections 3.E and 3.F in that Provision 10 describes certain characteristics performance standards, units of measurement, and performance levels are "normally expected" to possess. Unlike the two sections in POPA I, however, Provision 10 acknowledges that "deviation from the expectation is a management right." Therefore, Provision 10 is distinguishable from Sections 3.E and 3.F because it does not "substantively restrict the establishment of standards and levels and thus . . . directly interfere with management's rights to direct employees and assign work." Id., 25 FLRA at 389.

On the other hand, Provision 10 provides that, "[t]o promote better understanding," management will provide "a written explanation of any deviation from that expectation" in response to written requests. Sections 3.E and 3.F in POPA I also required management to explain in writing any variations from the expectations described in those sections. In POPA I, the Authority found that this requirement directly interfered with management's rights to direct employees and assign work because, in reviewing the agency's explanation, an arbitrator would "be required to substitute his judgment as to how the [a]gency should be run for that of management." Id., 25 FLRA at 390. However, the Authority no longer finds a proposal nonnegotiable on that basis. See, for example, National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377, 403 (1991) (IRS), petition for review filed sub nom. Department of the Treasury, Internal Revenue Service v. FLRA, No. 91-1573 (D.C. Cir. Nov. 25, 1991); and Newark, 30 FLRA at 635. Accordingly, we find that the holding in POPA I is not controlling as to Provision 10 in this case.

IX. Provision 11

Section 3.F. All applications of performance standards to an individual's work shall be fair, equitable and reasonable. In addition, no employee shall be held responsible for matters beyond his control.

[Only the underscored sentence is in dispute.]

A. Positions of the Parties

Citing POPA I, 25 FLRA at 393-95, the Agency asserts that the disputed sentence in Provision 11 is nonnegotiable because it directly interferes with its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute by preventing management from establishing performance standards which hold employees accountable for matters beyond their control.

The Union argues that Provision 11 "deals exclusively with the application of standards to employees, and not to [sic] the content of standards." Reply Brief at 16. The Union also asserts that the disputed sentence of Provision 11 is intended as an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

Initially, the Agency argues that the holding in POPA I, 25 FLRA at 393-95 is controlling as to the negotiability of Provision 11. In POPA I, the Authority held that certain proposals were nonnegotiable because they resulted in arbitrators' substituting their judgment for that of the agency in determining the content of performance standards. However, as discussed in Section IV, we will no longer find proposals nonnegotiable on that basis. Consequently, the Agency's reliance on POPA I is misplaced.

As noted previously in our discussion of Provisions 7 and 10, provisions which restrict an agency's right to determine the content of performance standards and critical elements directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B). The disputed sentence of Provision 11 prohibits the Agency from holding an employee responsible "for matters beyond his control." Consequently, this sentence requires the Agency to adjust its performance standards so that employees' performance will not be downgraded because of matters beyond their control. As the disputed sentence requires that performance standards be adjusted or modified to compensate for such matters, it directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See Customs Service, 40 FLRA at 580-81 (provision requiring that, in "application of performance standards," management take into account certain mitigating factors held to directly interfere with rights to direct employees and assign work). Unless this sentence is an appropriate arrangement under section 7106(b)(3), as the Union argues, it is nonnegotiable.

To determine whether a provision is an appropriate arrangement, we first decide whether the provision is intended as an arrangement for employees adversely affected by the exercise of a management right. If we determine that the provision is an arrangement, we then examine whether the arrangement is appropriate because it does not excessively interfere with the exercise of the management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986) (KANG).

The Union asserts that the disputed sentence in Provision 11 is intended as an arrangement to provide relief for an employee whose performance is adversely evaluated because of matters beyond the employee's control and, consequently, is "discipline[d], remove[d], suspend[ed] or reduce[d] in pay . . . ." Reply Brief at 16. The Union contends that "[d]iscipline or any of the other recited consequences for proper performance clearly has an adverse [e]ffect on an employee."⁽⁹⁾ Id. (emphasis in original). Based on the Union's assertions, we find that the disputed sentence is intended as an arrangement for employees whose evaluations are lowered because of detrimental effects on performance caused by matters outside their control, and, consequently, are adversely affected by management's exercise of its rights to direct employees and assign work under section 7106(a)(2)(A) and (B).

Next, we consider whether the disputed sentence excessively interferes with management's rights to direct employees and assign work. This requires a balancing of the benefits to employees provided by the disputed sentence against the burden on the exercise of management's rights. KANG, 21 FLRA at 31-32. Employees whose performance ratings could be adversely affected by matters beyond their control would benefit from the disputed sentence because such matters would not be considered in evaluating their performance. As a result, the disputed sentence ensures that employees' evaluations will not be negatively affected by matters beyond their control. This benefit is significant for employees because performance appraisals, in addition to their use as a basis for awards and promotions, also may result in demotions suspensions, removals, and other negative personnel actions.

On the other hand, the burden placed on the Agency to avoid appraising employees on matters outside their control is slight. Initially, we note that the Agency retains discretion to establish performance elements and standards reflecting the work for which employees are responsible.⁽¹⁰⁾ In this regard, we note that management is required to evaluate an employee against the employee's performance elements and standards. See 5 C.F.R. § 430.204(b) ("An employee must be appraised on each critical and non-critical element in the employee's performance plan"). The disputed sentence does not affect that obligation. Accordingly, we find that the requirement in the disputed sentence puts a slight, but acceptable, burden on management. Finally, we note that the disputed sentence of Provision 11 benefits both management and employees by, in effect, requiring that those elements of performance for which an employee is responsible be clearly defined and that performance evaluations reflect employees' accomplishments in comparison with applicable performance standards.

On balance, we conclude that the benefits afforded employees by the disputed sentence of Provision 11 outweigh the effect on management's rights to direct employees and assign work. Accordingly, we conclude that the disputed sentence does not excessively interfere with management's rights and is an appropriate arrangement negotiable under section 7106(b)(3) of the Statute. See Customs Service, 40 FLRA at 582-83.

X. Provision 12

Section 3.G. Objectivity. To the maximum extent feasible, all performance standards and application of the standards to the individual's work shall permit the evaluation of job performance on the basis of objective criteria (which may include the extent of courtesy demonstrated to the public) related to the job in question for the employee or position, and must be described in objective, job-related terms that are independent of the individual making the evaluation.

A. Positions of the Parties

The Agency asserts that Provision 12 directly interferes with management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute because it precludes management from establishing performance standards "which are subjective in nature . . . ." Statement of Position at 28. According to the Agency, 5 U.S.C. § 4302 does not require "rigid, mechanical standards devoid of any subjective judgment."⁽¹¹⁾ Id.

The Union asserts that Provision 12 "does not require a precision in the formulation of performance standards" other than what is required by 5 U.S.C. § 4302. Reply Brief at 17. The Union asserts that Provision 12, like 5 U.S.C. § 4302, only requires the use of objective criteria "'to the maximum extent feasible.'" Id.

B. Analysis and Conclusions

The Union maintains that "[c]onsistent with 5 U.S.C. § 4302(b)(1), [Provision 12] requires that the standards and their application permit evaluation of job performance based on objective criteria 'to the maximum extent feasible.'" Reply Brief at 17. We find that the Union's explanation is consistent with the plain wording of the provision. 5 U.S.C. § 4302(b)(1) requires that agencies establish performance standards "which will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria . . . related to the job in question for each employee or position . . . ."

The exercise of management's rights under section 7106(a)(2) of the Statute is subject to "applicable laws." See IRS, 42 FLRA at 389. We have determined that 5 U.S.C. § 4302(b)(1) constitutes an applicable law within the meaning of section 7106(a)(2). Corps of Engineers, 44 FLRA at 1158.

Provision 12 incorporates into the parties' agreement the requirement in 5 U.S.C. § 4302(b)(1) that performance standards permit evaluations based on objective criteria to the maximum feasible extent. Consequently, we find that Provision 12 does nothing more than obligate the Agency to exercise its rights under section 7106(a)(2)(A) and (B) to direct employees and assign work consistent with applicable law.

The Agency argues that the provision is inconsistent with 5 U.S.C. § 4302(b)(1) because it requires "rigid, mechanical standards devoid of any subjective judgment." Statement of Position at 28. We disagree. Although the last clause of the provision requires that performance standards be described in "terms that are independent of the individual making the evaluation[,]" we find that this clause is also covered by the introductory clause requiring objectivity "to the maximum extent feasible," the same wording that appears in 5 U.S.C. § 4302(b)(1). We conclude, therefore, that Provision 12 allows the same latitude for managerial subjectivity in rating employees as does 5 U.S.C. § 4302(b)(1).

For these reasons, we find that Provision 12 is negotiable. See Corps of Engineers, 44 FLRA at 1156-59 (proposal, requiring objective performance standards "to the maximum extent feasible," found to incorporate permissible statutory limitation and held to be negotiable).

XI. Provision 13

Section 3.P. No performance standard shall refer to a criterion or policy which is not in written form and attached to the performance appraisal plan or to a criterion or policy which is to be specified at a later time.

A. Positions of the Parties

The Agency contends that Provision 13 is nonnegotiable because it directly interferes with management's rights to direct employees and assign work. According to the Agency, the provision affects the content of performance standards by precluding references to unwritten policies and criteria or to policies and criteria to be specified later.

The Union argues that the provision does not preclude management from determining the content of performance standards or from changing those standards. Rather, according to the Union, the provision "only requires that when performance standards incorporate some extrinsic [A]gency policy or criteria concerning work performance, that policy be . . . attached to the performance appraisal plan given to the employee." Reply Brief at 17.

B. Analysis and Conclusions

Provision 13 prevents reference in performance standards to criteria or policies that are not in writing and attached to performance appraisal plans. In addition, the provision prevents management from referring in performance standards to criteria or policies that are not yet promulgated.

The Union states that Provision 13 is intended to assure that employees have "adequate, written notice of the standard of performance that is expected of them." Reply Brief at 17. The Union further asserts that its intent is "only to preclude management from holding employees retroactively accountable for standards of performance before the substance of those standards were actually established and communicated to the employee." Id. According to the Union, the provision would, for example, "preclude the issuance of a performance standard on October 1 which reads 'Employee will comply with [A]gency regulation on timeliness of case closures to be issued on December 1.'" Id. The Union adds that the Agency "may, on December 1, amend the previously established appraisal plan for the employee by the inclusion of a standard requiring compliance with the newly established [A]gency regulation on timeliness, which would have to be attached to the appraisal plan." Id.

Based on the Union's explanation, which is consistent with the provision's plain wording, we find that Provision 13 addresses the content of performance standards only insofar as it prevents management from referring to unpublished criteria and policies in them. In other words, the provision requires the Agency to include in its performance standards the policies and criteria against which employees' performance will be evaluated. As the Union explains, management may subsequently act to incorporate any later published criteria or policies the Agency chooses to include. In this regard, we note that any change in the current performance standards to incorporate new criteria or policies would be subject only to impact and implementation bargaining. See, for example, National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 395 (1990). As such, Provision 13 does not establish substantive criteria governing the content of performance standards. That is, management retains discretion to determine the expectations or requirements employees must satisfy to attain a particular level of performance. Accordingly, Provision 13 is negotiable. 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, 467-68 (1990) (Naval Underwater Systems Center), remanded as to other matters sub nom. United States Department of the Navy, Naval Underwater Systems Center v. FLRA, No. 91-1045 (D.C. Cir. July 23, 1991) (first sentence of proposal requiring inclusion in performance plans of information related to the accomplishment of organizational objectives for informational purposes only did not directly interfere with the agency's right to determine content of such plans).

XII. Provisions 14 and 15

Section 4- Procedures Specific to Developing and Implementing Timeliness Standards

Provision 14

C. No employees shall be evaluated on the basis of production constancy unless the evaluation explicitly takes into account all job functions the employee is expected to perform and the actual amount of time available to perform those functions.

Provision 15

D. The following are examples of situations in which it shall be unreasonable to adversely evaluate an examiner for failure to meet a particular timeliness standard:

1. the action or actions required more time than the actual amount of examining time available to the examiner.

2. an action which the examiner certifies requires a large block of uninterrupted time, such as a particular Examiner's Answer, must be prepared, and the required large block of uninterrupted time is not available to the examiner.

3. the examiner did not have an adequate amount of examining time because he was unavailable due to leave or he was directed or authorized to perform other functions. An examiner is, however, expected to plan his work in anticipation of expected absences.

4. the patent applicant or his representative made an appointment to hold an interview or stated an intention to file a further paper.

5. the application to which the standard applies is unavailable.

6. material necessary for the preparation of an action (e.g., a related application necessary for taking action, a translation of a reference, or a reference on order through the interlibrary loan system) is unavailable but ordered. The examiner should make a reasonable attempt to obtain the needed material. Once it appears impossible to obtain the needed material, the examiner must act on the application.

7. completion of the action is dependent upon the action of another employee over whom the examiner has no control (e.g., the application is out for terminal disclaimer processing, classification disputes, etc.).

E. For employees other than patent examiners, it shall be unreasonable to adversely evaluate the employee under circumstances analogous to those set forth in subsection [D] above.⁽¹²⁾

[Footnote added.]

A. Positions of the Parties

Although the Agency concedes that the Authority found provisions negotiable in POPA I which were the same as Provisions 14 and 15, it argues that Provisions 14 and 15 directly interfere with management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency contends that these provisions place "a substantive limitation" on the Agency's discretion to evaluate an employee's performance because they "preclude an adverse evaluation in certain instances." Id. at 30-31.

The Union argues that Provisions 14 and 15 should be found negotiable for the reasons stated in connection with Section 4.G, H, and I in POPA I, 25 FLRA 401-03.

B. Analysis and Conclusions

The parties agree that Provisions 14 and 15 are the same as Section 4.G, H, and I in POPA I. In POPA I, the Authority found that Section 4.G, which is the same as Provision 14, addressed "the manner in which the [performance] requirements management does impose are applied to employees in evaluating them." POPA I, 25 FLRA at 401 (emphasis in original). The Authority also found that Section 4.H and I, which are the same as Provision 15, concerned "the application of [timeliness] standards to the differing work situations of employees." Id. at 402. The Authority concluded that Section 4.G, H, and I concerned the application of performance standards, did not directly interfere with management's rights to direct employees and assign work, and were negotiable.

The Agency's argument provides no grounds for reassessing the conclusion reached in POPA I concerning the counterparts of Provisions 14 and 15. In this regard, the cases the Agency relies on are inapposite. In Coordinating Committee of Unions and Department of the Treasury, Bureau of Engraving and Printing, 29 FLRA 1436, 1444-46 (1987) (Bureau of Engraving), the disputed portion of Proposal 4 prevented the agency from basing a performance appraisal on performance of certain duties. In American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 28 FLRA 714, 716-18 (1987) (OPM), Proposal 3 restricted management from changing the type and percentage of work reviewed for performance appraisal purposes.

Unlike the proposals in Bureau of Engraving, OPM, and Provision 11, in this case, which address the content of performance standards, Provisions 14 and 15 concern the application of performance standards. Accordingly, we conclude that these provisions do not directly interfere with management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) and are negotiable.

XIII. Provision 16

Section 4- Procedures Specific to Developing and Implementing Timeliness Standards

4(F)- When management establishes any measure of timeliness which subtracts points for instances of a failure to meet a standard but does not also add an equal number of positive points for instances in which the required action is taken before one half of the allocated time expires, management shall give the Association a written explanation of its reasons for not including the positive points.

A. Positions of the Parties

The Agency asserts that Provision 16 directly interferes with its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute by substantively restricting the establishment of performance standards.

The Union asserts that it intends to require management "to expand the number of ways in which examiners could have points added to their score . . . ." Reply Brief at 20. The Union concedes that a proposal requiring additional points for timeliness would be nonnegotiable, but asserts that Provision 16 merely requires the Agency to "explain in writing the reasons for actions it takes in the performance appraisal process . . . ." Id. at 21. Therefore, the Union claims that the provision only obligates the Agency to "consider" adopting a revised performance standard. Id.

B. Analysis and Conclusions

Under Provision 16, if the Agency establishes a timeliness measurement which subtracts points for an employee's failure to meet a standard and does not add points when the required action is taken in less than half the allotted time, then the Agency is required to provide the Union with a written explanation of its reasons for not adding points. Because the provision does not require the Agency to modify or adjust its performance standards, we reject the Agency's argument that Provision 16 is like Section 3.E in POPA I, which limited management's ability to determine the content of performance standards.

Provision 16 simply requires that, in certain circumstances, the Agency explain its reasons for failing to take certain actions. Therefore, we find that Provision 16 does not directly interfere with the Agency's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) and is negotiable. See, for example, Patent and Trademark Office II, 39 FLRA at 813-14.

XIV. Provision 17

Section 4- Procedures Specific to Developing and Implementing Timeliness Standards

4(I)- The docket report shall be expanded to include all cases an examiner is expected to work on during the biweek that are known as of the end of the prior biweek. The report shall be delivered to each examiner by the first Tuesday of each biweek and the examiner shall be entitled to rely on the completeness of the report.

[Only the underscored sentence is in dispute.]

A. Positions of the Parties

The Agency asserts that Provision 17 directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute because the first part of the second sentence "mandates" that the docket report be available by the first Tuesday of each biweek. Statement of Position at 32. According to the Agency, management's right to assign work includes the right to determine when the work assigned to employees will be performed.

The Agency also contends that the second part of the provision's second sentence directly interferes with its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) because, "to the extent it would permit an employee to rely on the completeness of the report . . . to avoid liability for failure to meet his/her timeliness standard, it would preclude an adverse rating in such a situation." Id. Finally, the Agency argues that Provision 17 "is not merely procedural in nature." Id. at 33.

The Union contends that the first part of the second sentence in Provision 17 is "procedural." Reply Brief at 21. The Union further argues that the second part of the provision's second sentence does not absolve employees of accountability if cases are not reported "because management retains the right to update or amend the report to include omitted cases." Id. The Union asserts that the second part of the second sentence is also procedural because it merely requires the Agency to inform employees about matters for which they will be held accountable. The Union maintains that, alternatively, Provision 17 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

1. The First Part of the Disputed Sentence

According to the Union, employees receive biweekly docket reports that list their outstanding cases and how long the cases have been pending. The first sentence of Provision 17 seeks to expand the reports to include cases examiners will be expected to work on during the biweek.

The Agency does not object to the proposed expansion of the docket reports. The Agency argues only that the first part of the second sentence interferes with its right to assign work by specifying when the reports will be delivered to employees. In this regard, Provision 17 is similar to the proposal requiring that employees receive their paychecks 6 days after the close of the pay period, which we held was negotiable in American Federation of Government Employees, Local 1698 and U.S. Department of the Navy, Naval Aviation Supply Office, Philadelphia, Pennsylvania, 38 FLRA 1016 (1990) (Naval Aviation Supply Office). We found that the proposal in Naval Aviation Supply Office did not "directly relate" to management's rights. 38 FLRA at 1023. Rather, we found that the proposal left the agency with discretion to exercise its management rights in any manner that allowed it to meet the proposed paydate. Accordingly, we rejected the agency's claim that the proposal interfered with management's rights.

Like the proposal in Naval Aviation Supply Office, this disputed part of the provision does not specify how, or by whom, management will accomplish delivery of docket reports on the specified day. Therefore, for the reasons more fully explained in Naval Aviation Supply Office, we find that the first clause of the disputed sentence does not interfere with the Agency's right to assign work and is negotiable.

2. The Second Part of the Disputed Sentence

This disputed part of Provision 17 provides that employees "shall be entitled to rely on the completeness" of the docket report. As noted above, the Union states that the docket report is the vehicle selected by management to inform employees of the time frames within which their assignments must be completed. According to the Union, the provision requires management to give employees information to help them meet their performance standards. More particularly, the Union explains that this part of the provision "requires that the employee be notified . . . of the existence of a time deadline that he or she is expected to meet before being appraised on it." Reply Brief at 21 (emphasis added). The Union's explanation is consistent with the plain wording of the provision. As the docket report is the means by which the Agency informs employees of the time frames for their various assignments, we find that this disputed part would preclude the Agency from evaluating employees on cases not included in the report or an amendment to it.

Provisions which prevent management from using particular information in evaluating employee performance directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27, 56-57 (1991) (Office of Chief Counsel), aff'd in part, vacated and remanded sub nom. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068 (D.C. Cir. 1992). By preventing management from evaluating employees on cases omitted from docket reports, or from amended reports, the disputed portion of Provision 17 directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. As this portion of Provision 17 directly interferes with management's rights, it is not a negotiable procedure under section 7106(b)(2). See, for example, American Federation of Government Employees, Local 2452 and U.S. Department of Health and Human Services, Social Security Administration, District Office, Huntington Park, California, 45 FLRA 1213, 1216 (1992) petition for review filed as to other matters sub nom. U.S. Department of Health and Human Services, Social Security Administration, District Office, Huntington Park, California v. FLRA, No. 92-1584 (D.C. Cir. Nov. 12, 1992).

The Union argues that Provision 17 constitutes an appropriate arrangement under section 7106(b)(3). As discussed previously, in determining whether a provision is an appropriate arrangement, we first determine whether the provision is intended to be an arrangement for employees adversely affected by the exercise of a management right. If the provision is so intended, we examine whether the arrangement is appropriate because it does not excessively interfere with the exercise of that right.

The Union asserts that the second part of the second sentence is an arrangement for employees who are "adversely affected by management's exercise of its right to determine the content of performance standards." Reply Brief at 22. More specifically, the Union states that:

[M]anagement has chosen to implement workflow standards by category rather than by the direct assignment of specific work. For example, an examiner must work on all amended applications within two months. There are many such categories. In the absence of a computerized docket report . . . in an organization that handles as many patent applications as the [Agency] does, it would be impossible to determine which applications fall within the performance appraisal categories set forth in management's plan. It is highly predictable that in the absence of a report such as provided in [Provision 17][,] an employee would be adversely affected by criticism and discipline for failure to accomplish the work assigned by the performance appraisal plan.

Id. Based on this explanation, we conclude that the requirement that employees be able to rely on the completeness of the docket report is intended to ameliorate the reasonably foreseeable adverse effect of management's exercise of its rights to direct employees and assign work on employees whose performance ratings would otherwise suffer for failing to complete an assignment on time because it was not listed in a docket report. Compare Office of Chief Counsel, 39 FLRA at 58 (provision barring use of adverse information in evaluating performance if not provided to employee within 45 days of receipt or development found to be an arrangement). As such, this part is intended as an arrangement for employees adversely affected by the exercise of management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B).

This part of Provision 17 would benefit certain employees, who have relied to their detriment on information contained in docket reports, by not subjecting them to poorer performance appraisals or performance-based actions for failure to work on, or timely complete, cases not listed on the docket report. In other words, this part would protect employees who otherwise would be adversely affected for relying on the information provided them by management. Accordingly, we find that this part offers a significant benefit to affected employees.

On the other hand, this part restricts the Agency in evaluating certain employees' performance. Management would be unable to evaluate employees' timeliness on cases omitted from the docket report. However, the accuracy of its docket reports is within management's control, and management can amend docket reports to include previously omitted cases. Therefore, management has the ability to minimize or eliminate the burden on its rights to direct employees and assign work by assuring that the docket reports accurately reflect current assignments. Balancing the significant benefit to affected employees against the burden on the Agency's rights, we find that this disputed part of Provision 17 does not excessively interfere with management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) and, therefore, constitutes an appropriate arrangement under section 7106(b)(3). See, for example, Office of Chief Counsel, 39 FLRA at 56-59 (proposal barring use of certain documents to adversely affect performance ratings held to be negotiable as an appropriate arrangement).

In sum, we conclude that the requirement to furnish the docket report on the first Tuesday of the biweek is negotiable. We also find that the disputed part of the provision that authorizes examiners to rely on the completeness of the docket report is an appropriate arrangement under section 7106(b)(3) of the Statute.

XV. Provision 18

Section 4- Procedures Specific to Developing and Implementing Timeliness Standards

4(J)- Whenever a performance standard involves a time period for an action which requires the sequential cooperation of multiple employees, management shall document the separate contributions of each employee. For example, consider a performance standard that looks to the time taken to mail an action after it is submitted for counting. Mailing an action usually involves work by a docket clerk, a typing pool supervisor, typist, the examiner, a photocopy clerk, and a mailing clerk.

A. Positions of the Parties

The Agency asserts that Provision 18 directly interferes with its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute because it would "mandate the inclusion of . . . the contributions of each employee, in the content of a performance standard" and would limit management's right to determine the aspects of an employee's work to be evaluated where "such contributions were not documented . . . ." Statement of Position at 33.

The Union contends that Provision 18 is "both a procedure and an appropriate arrangement for examiners who are appraised on how well they meet specified deadlines in processing cases." Reply Brief at 22. The Union explains that the provision establishes, for management's consideration in evaluating timeliness, a system to reflect the time taken by each employee involved in processing a case. The Union denies that the provision would change established performance standards or elements.

B. Analysis and Conclusions

Provision 18 applies to actions for which performance standards establish time limits and requires the Agency to "document" the contributions of employees, other than those being evaluated, whose cooperation is necessary to complete those actions within prescribed time limits. Contrary to the Agency's assertions, Provision 18 neither mandates the inclusion of any information in a performance standard nor limits management's right to determine the aspects of an employee's work that it will evaluate. Further, the provision does not expressly obligate management to consider the documented information in evaluating an employee's performance against a timeliness standard. By its plain wording, Provision 18 requires only that, when an employee's performance standard involves timeliness for an action requiring the sequential cooperation of others, management will document the work performed by the other employees. Contrary to the Agency's arguments, nothing in the provision would affect management's discretion to modify, or not modify, performance standards in light of the information provided under the provision and to consider, or not consider, the information in rating performance.

We conclude that Provision 18 does not directly interfere with the Agency's rights to direct employees and assign work and constitutes a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. See, for example, National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 36 FLRA 606, 612 (1990) (Patent and Trademark Office I) (proposal requiring an agency to count a particular action under a performance standard constituted a negotiable procedure).

XVI. Provision 19

Section 4- Procedures Specific to Developing and Implementing Timeliness Standards

4(K)- Whenever performance standards contain an explicit recognition of the possibility of waiver or excuse, management shall publish to each affected employee yearly, a list of all known possible bases and reasons which would justify the grant of a waiver or excuse at a level of description that would permit use of the description as a precedent.

A. Positions of the Parties

The Agency asserts that Provision 19 would require modification of the content of performance standards, and, thereby, directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency states that:

if a standard indicated that the failure to have adequate time due to the examiner's unavailability because he/she was on leave would be a proper excuse, this provision would require management to list this "excuse" and permit its use as a precedent. The result would be to incorporate this "excuse" into the standard itself, thereby modifying the standard.

Statement of Position at 34.

In the Union's view, Provision 19 does not modify the performance standards for timeliness because "the basis for the waivers or excuses are still controlled and established by management," and the provision "does not dictate under what conditions excuses or waivers will be granted." Reply Brief at 23. Provision 19, according to the Union, requires only that management inform employees "of the circumstances in which excuses and waivers of time deadlines have been granted in the past . . . so that employees will know what is and is not an acceptable excuse or waiver . . . ." Id.

B. Analysis and Conclusions

The Union's assertion that Provision 19 requires the Agency to provide employees with a list of excuses and waivers of time deadlines granted by management in the past is consistent with the plain wording of the provision. In particular, the obligation to describe the grounds for granting waivers or excuses "at a level . . . that would permit use of the description as a precedent" does not contradict the Union's assertion, or support the Agency's contention that publication of previously granted excuses and waivers would limit its discretion to deny requests for excuses or waivers in the future. In this regard, Black's Law Dictionary (5th ed. 1979) defines "precedent" as, among other things, "[a] course of conduct once followed which may serve as guide for future conduct[,]" and, similarly, the Random House College Dictionary (1973) includes the definition, "a preceding instance or case that may serve as an example for or a justification in subsequent cases."

Accordingly, adopting the Union's explanation, which is consistent with the provision's plain wording, we find that Provision 19 requires nothing more than publication of guidance for unit employees and does not obligate the Agency to incorporate into its performance standards the list of possible bases and reasons that would justify grants of waivers or excuses. Consequently, Provision 19 does not interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and is negotiable.

XVII. Provision 20

Section 4- Procedures Specific to Developing and Implementing Timeliness Standards

4(M)- Examiners shall separately account for the cumulative amount of time spent each quarter on maintaining records for documenting accomplishment of workflow management standards and for providing explanations of excuses and requests for waivers to supervisors.

A. Positions of the Parties

The Agency asserts that Provision 20 interferes with its right to assign work under section 7106(a)(2)(B) because the provision assigns to examiners the specific task of accounting "for the cumulative amount of time spent each quarter on maintaining records[.]" Statement of Position at 34.

The Union contends that Provision 20 is a negotiable procedure by which employees will record their time spent "documenting the accomplishment of timeliness standards." Reply Brief at 24. The Union also asserts that Provision 20 is similar to Proposal 9.D., which was found to be negotiable in POPA I.

B. Analysis and Conclusions

Provision 20 applies to unit employees, specifically "examiners," who record the amount of time spent on various aspects of their work for use in evaluating their performance against timeliness standards established by the Agency. In this connection, we note that the bargaining unit is comprised of patent examiners. U.S. Office of Personnel Management, Union Recognition in the Federal Government 147 (1991). The provision merely requires that employees record the time spent on such record keeping and on providing their supervisors with explanations of excuses and requests for waivers of their performance standards. It does not specify the manner in which management must use the recorded information. Because Provision 20 neither requires inclusion of any information in performance standards nor limits aspects of employees' work to be evaluated, it does not directly interfere with the rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. We conclude that the provision establishes a negotiable procedure, within the meaning of section 7106(b)(2), for providing management with information it may consider in evaluating employees' performance against timeliness standards.

We reject the Agency's argument that Provision 20 directly interferes with management's right to assign work, because it requires that employees record certain information. Procedures entailing some assignment of work to employees do not necessarily interfere with that right. See, for example, National Federation of Federal Employees, Local 1384 and U.S. Department of Air Force, 3245th Air Base Group, Hanscom Air Force Base, Massachusetts, 41 FLRA 195, 205-06 (1991) (holding that proposal, requiring "[a]gency employees" to perform additional work to implement it, did not directly interfere with management's right to assign employees and work), and American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187, 213-14 (1991) (Merchant Marine Academy) (provision establishing committee of bargaining unit employees to review and make recommendations on proposed adverse actions found not to directly interfere with management's right to assign work). In this case, as in the cited cases, management is required to assign work to examiners who are in the bargaining unit. Accordingly, based on the reasoning in the cited cases, Provision 20 does not interfere with the Agency's right to assign work.

XVIII.Provision 21

Section 5- Patent Examiners Not Having Full Signatory Authority

5(A)- Reviews of work for purposes of performance evaluation of non-primary examiners will take place prior to the signing by a Primary Examiner of the examiner's action or issue for functions which receive a close review. For functions which receive a cursory review, reviews for purposes of performance evaluation will normally take place prior to signing by a Primary Examiner of the examiner's action or issue. Under exceptional circumstances, the review of the examiner's work product may be conducted subsequent to signing the examiner's action or issue.

A. Positions of the Parties

The Agency asserts that Provision 21 directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute and is nonnegotiable because it dictates when review of employees' work will take place.

The Union states that Provision 21 requires primary examiners to review the work of examiners not having full signatory authority "for the purposes of performance appraisal and for the purposes of signature and release simultaneously so that errors are brought to the [employee's] attention earlier in the appraisal period so that deficient work practices can be corrected and improved during the course of the appraisal year." Reply Brief at 25. In the Union's view, the provision constitutes a negotiable procedure under section 7106(b)(2) of the Statute.

B. Analysis and Conclusions

Provision 21 requires the Agency to evaluate employees' work at the end of each assignment, as well as at the end of the annual appraisal period. In our view, Provision 21 constitutes a negotiable procedure under section 7106(b)(2) of the Statute.

We reject the Agency's claim that the provision directly interferes with management's right to assign work under section 7106(a)(2)(A) and (B) of the Statute because it determines when evaluations will occur. Provision 21 merely requires the Agency to provide employees throughout the evaluation period with work appraisals, rather than providing such appraisals only at annual performance evaluations. The provision neither describes the nature or extent of the interim work evaluations nor affects the Agency's discretion to evaluate employees during their annual formal appraisal. Further, Provision 21 does not obligate the Agency to conduct any additional performance evaluations and does not require it to change the nature of its present performance standards or elements or the manner in which the Agency evaluates employees.

Proposals that determine when appraisals are to be given to employees do not directly interfere with management's right to assign work and constitute negotiable procedures under section 7106(b)(2) of the Statute. See, for example, National Labor Relations Board Union and National Labor Relations Board, 42 FLRA 1305, 1319 (1991) (NLRB), petition for review filed sub nom. National Labor Relations Board v. FLRA, No. 91-1608 (D.C. Cir. Dec. 18, 1991); American Federation of Government Employees, Local 2761 and Department of the Army, Army Publications Distribution Center, St. Louis, Missouri, 32 FLRA 1006, 1015 (1988) (Army Publications). Consistent with these decisions, we conclude that Provision 21 is a negotiable procedure under section 7106(b)(2) of the Statute.

XIX. Provision 22

Section 9-B. At the time of initial action on the examiner's first reexamination application, each examiner will be given three hours of non-examining time to review and become familiar with the reexamination procedures.

A. Positions of the Parties

The Union asserts that Provision 22 is negotiable because it is identical to Section 9.C in POPA I, which the Authority found was negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

The Agency acknowledges that the Authority held that Section 9.C in POPA I, which is identical to Provision 22, directly interfered with management's right to assign work under section 7106(a)(2)(B) but found that it was an appropriate arrangement under section 7106(b)(3). However, the Agency argues that Provision 22 is not negotiable as an appropriate arrangement. Citing Department of the Treasury, Internal Revenue Service v. FLRA, 494 U.S. 922 (1990) (IRS v. FLRA), the Agency asserts that "no appropriate arrangement negotiated between the parties in accordance with 5 U.S.C. § 7106(b)(3) can interfere at all with the exercise of management's reserved rights under section 7106(a)." Statement of Position at 36 (emphasis in original).

B. Analysis and Conclusions

The Agency's only argument regarding Provision 22 is that IRS v. FLRA requires the Authority to reverse its holding in POPA I that the identical proposal was negotiable as an appropriate arrangement. However, the Agency's reliance on IRS v. FLRA is misplaced.

In IRS v. FLRA, the Supreme Court did not address, explicitly or implicitly, the standard for determining whether a provision constitutes an appropriate arrangement. Further, the Agency's argument ignores the plain wording of both section 7106(a), which provides that the rights contained therein are "[s]ubject to subsection (b)" and section 7106(b), which provides that "[n]othing" in section 7106 precludes parties from negotiating appropriate arrangements. See generally Office of Chief Counsel, 39 FLRA at 31-33. See also Overseas Education Association, Inc. v. FLRA, 876 F.2d 960, 965-66 (D.C. Cir. 1989); American Federation of Government Employees, AFL-CIO, Local 2782 v. FLRA, 702 F.2d 1183, 1188 (D.C. Cir. 1983). The Authority has reaffirmed the excessive interference test for determining whether a provision constitutes an appropriate arrangement, and the Agency's arguments provide no basis for reconsidering that test here. For example, American Federation of Government Employees, National Border Patrol Council and National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 40 FLRA 521, 525-26 (1991), rev'd as to other matters sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, 975 F.2d 218 (5th Cir. 1992).

Provision 22 gives employees 3 hours of nonexamining time in which to familiarize themselves with the procedures for handling reexaminations the first time they are assigned. We reaffirm the Authority's holding in POPA I, 25 FLRA

at 410, that the language of the first paragraph of Section 9.C, which is identical to Provision 22, directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute "by establishing a priority for a particular work assignment." Id. Consistent with POPA I, however, we also find that Provision 22 does not excessively interfere with management's right to assign work because the burden on management's right to assign work, imposed by the obligation to afford employees 3 hours' preparation time, is "insubstantial" compared to the benefits afforded to employees and management in terms of improved work products. Id. Consequently, for the reasons stated in POPA I, 25 FLRA at 409-10, we conclude that Provision 22 constitutes a negotiable appropriate arrangement, under section 7106(b)(3) of the Statute. See also Patent and Trademark Office II, 39 FLRA at 837-38, (portion of proposal requiring adequate training for certain examiners found to constitute an appropriate arrangement).

XX. Provisions 23 and 24

Provision 23

Section 9-C. In order to implement the performance standard of production goal achievement in an accurate, equitable, and reasonable manner, the following procedures for recording special examining time will be implemented:

1. The time spent on reexamination applications and on applications from unfamiliar arts shall be recorded in a special examining time category that is distinct from the examining time category used to record the production time for regular examination in the familiar, assigned docket.

2. Examiners shall record the actual amount of time needed to read, search, prepare and review PCT applications and such time shall be accounted for separately.⁽¹³⁾

3. Time spent for preparation for and conduct of applicant-or attorney-initiated interviews shall be accounted for separately.

4. Time spent by examiners shall be accounted for separately for any required processing or treatment of patent applications during Public Use Proceedings of those applications.

5. Time spent by examiners in Group 220 for learning unfamiliar arts as necessary for examining applications with SIR (Statutory Invention Registration) requests shall be accounted for separately.

6. Time spent reviewing and preparing an action shall be accounted for separately if a SIR request is received prior to the time the action is turned in for credit.

7. Time spent in preparing an action for a revived abandoned application which does not result in a production count for the examiner shall be accounted for separately.

[Footnote added.]

Provision 24

Section 9 - D. Time spent on service activities that are irrelevant to the amount of patent examination performed by the employee shall be recorded in a separate service time category. The service time category shall at least include the following items:

1. reviewing the Official Gazette and the technical literature for the purpose of adding patents and publications to the search files unless the superior determines that the added patents and publications are not useful;

2. consultations by the examiner from whose docket new or amended applications have been transferred regarding those transferred applications;

3. the assistance of fellow examiners in searches, legal issues, and procedural issues;

4. the assistance of members of the public with searches and applicant-initiated interviews;

5. all service activities for which patent examiners have been authorized in fiscal year 1981 to take non-examining time on the PTO-690E form;

6. assisting Group 220 personnel in examining applications with SIR requests by examiners outside Group 220;

7. processing Rule 312 amendments, certificates of correction and printer waiting applications except when necessary to correct an examiner's own error.

A. Positions of the Parties

The Agency asserts that Provisions 23 and 24 directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statutes because the segregation of "'special examining time' . . . redefines the content of the standard." Statement of Position at 37.

The Union asserts that the preamble and sentence 1 of Provision 23 were found negotiable by the Authority as proposal 9.D. in POPA I, 25 FLRA at 411-12. The Union also asserts that paragraphs 2 through 7 of Provision 23 are "modeled on" the second paragraph of Section 9.D in POPA I and, therefore, are negotiable. Reply Brief at 27. The Union maintains that Provisions 23 and 24 are negotiable procedures under section 7106(b)(2) of the Statute because they merely establish methods for measuring the quantity of employees' production.

B. Analysis and Conclusions

These provisions, like Provision 18, require documentation of the time spent on various elements of an employee's work.⁽¹⁴⁾ The provisions also require the recording of time spent on activities, outside the employees' primary functions, that may affect the ability to meet management's timeliness standards. The Agency argues, as it did concerning Provision 18, that Provisions 23 and 24 would change the content of performance standards. For the reasons stated more fully in our discussion of Provision 18, we conclude that Provisions 23 and 24 constitute negotiable procedures, within the meaning of section 7106(b)(2) of the Statute. See Patent and Trademark Office I, 36 FLRA at 612.

Additionally, we note that Provision 18 requires management to record the contributions of employees other than the individuals to whom the timeliness standards apply, while Provisions 23 and 24 require employees to maintain the records. That difference, however, does not affect our conclusion that the provisions are negotiable. See our discussion of Provision 20.

XXI. Provision 25

Section 9 - K. Amendment of a Goal Whenever an individual examiner or group of examiners request a change in their goal(s), the following procedure shall be utilized:

b. After consultation between and among the examiner(s) and the relevant management official, the request shall be answered, in writing, and shall clearly state the action to be taken and the reasons therefore. All reasons presented by the examiner(s) shall be responded to as fully as possible unless the requested change in the goal is granted. This answer shall be rendered within two weeks of the submission of the request.

A. Positions of the Parties

The Agency asserts that Provision 25 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute by requiring that the "relevant management official" respond to the employee's request in writing within 2 weeks of the request.

The Union contends that Provision 25 does not require a specific management official to prepare an answer. According to the Union, the provision only requires that the employee's request for a change in goals be answered.

B. Analysis and Conclusions

Provision 25 requires that, when an employee seeks a change in performance goals, the "relevant management official" shall consult with the examiner and reply to the request in writing within 2 weeks. Although the provision would require management officials to respond in writing to employee requests to have their performance goals changed, the Agency would retain the right to determine the nature and content of performance standards and elements. Accordingly, we find that Provision 25 does not directly interfere with the right to assign work and constitutes a negotiable procedure under section 7106(b)(2) of the Statute, to be followed by the Agency in exercising its right to evaluate the performance of employees. See Food and Nutrition Service, 42 FLRA at 978-79.

Although the provision would require the "relevant management official," to take a certain action, that requirement does not make the provision nonnegotiable. In our view, the provision does not assign work to any specified manager. Rather, the provision requires certain action by the official whom management has already designated to determine the goals of unit employees. Therefore, the provision does nothing more than require the "relevant management official" to perform an additional function related to the work currently performed by that official. Negotiable procedures entailing some assignment of work to employees do not necessarily directly interfere with an agency's right to assign work. See National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, D.C., 43 FLRA 1442, 1446-47 (1992), petition for review filed as to other matters sub nom. National Treasury Employees Union v. FLRA, No. 92-1161 (D.C. Cir. Apr. 10, 1992) (disputed part of proposal found to be procedural and held not to interfere with right to assign work by requiring management official conducting interview to notify employee of right to union representation). Accordingly, for the reason more fully set out in the cited case, we find that the requirement in Provision 25 that the "relevant management official" undertake an additional function does not interfere with management's right to assign work.

XXII. Provision 26

Section 9 - L. Non-examining Activities

No examiner shall be prejudiced by the fact that he or she is directed or authorized (including authorization by contract) to spend time performing non-examining activities.

A. Positions of the Parties

The Agency contends that Provision 26 directly interferes with its rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and assign work by limiting the aspects of employees' work which can be considered in appraising performance.

The Union denies that Provision 26 determines what aspects of employees' work may be considered in evaluating performance. According to the Union the provision is "intended to ensure that nonexamining activities which the employee is authorized to do (i.e., and in particular, use of official time for labor-management relations activities; EEO activities; training) will not result in a lower performance appraisal." Reply Brief at 30.

B. Analysis and Conclusions

Provision 26 protects employees from adverse ratings under quantitative performance standards resulting from their failure to meet those standards for the specified reasons. The provision, therefore, requires that management adjust quantitative standards to reflect time authorized for certain functions other than work production. Provisions that make adjustments or changes in production expectations directly interfere with management's rights, under section 7106(a)(2)(A) and (B) of the Statute, to direct employees and assign work because they interfere with management's discretion to determine the standards of work production to be required of employees. See, for example, POPA III, 41 FLRA at 812. Provision 26 requires management to make such adjustments to production expectations by including the amount of authorized time spent on other duties in determining the timeliness of projects. Consequently, Provision 26 directly interferes with the Agency's right to direct employees and assign work.

Although the Union does not expressly assert that Provision 26 is an appropriate arrangement, the Authority will examine that issue if a proposal is substantively similar to a proposal previously considered by the Authority under section 7106(b)(3) in order to avoid the anomaly of conflicting results in similar cases. See Naval Underwater System Center, 42 FLRA at 769. In Customs Service, 40 FLRA 576-79, 582-83, we reviewed two proposals which required that the agency: (1)&