47:0954(91)NG - - Patent Office Professional Association and Commerce, Patent and Trademark Office, Washington, DC - - 1993 FLRAdec NG - - v47 p954



[ v47 p954 ]
47:0954(91)NG
The decision of the Authority follows:


47 FLRA No. 91

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

PATENT OFFICE PROFESSIONAL ASSOCIATION

(Union)

and

U.S. DEPARTMENT OF COMMERCE

PATENT AND TRADEMARK OFFICE

WASHINGTON, D.C.

(Agency)

0-NG-2097

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

June 18, 1993

_____

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 three provisions which were included in a collective bargaining agreement as the result of an interest arbitrator's award and subsequently 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.(1)

For the reasons stated below, we make the following findings. Provision 1, which provides that certain employees will record certain types of work under the "appropriate" accounting codes, is a negotiable procedure under section 7106(b)(2) of the Statute. Provision 2, which requires that management provide to employees certain information concerning appraisals of their work, also is a negotiable procedure. Provision 3, which provides that the lack of agreement among reviewers on whether a particular matter is an error will be "considered as evidence" that the matter is a difference in professional judgment rather than an error, is negotiable.

II. Background

The Agency issues patents and registers trademarks. The bargaining unit is composed primarily of patent examiners, who determine whether issuance of patents to applicants is consistent with governing law. Also in the unit is a group of some 65 patent classifiers, who perform two primary functions: (1) maintaining and updating the Agency's patent search file system ("project" work); and (2) assigning patent applications to an appropriate examiner for review ("post" work). The disputed provisions respond to the Agency's announced plan to revise the performance appraisal plan for patent classifiers.

III. Provision 1

Section 24E

When a project classifier performs significant amounts of post classification work, she/he may account for such post work under appropriate post classification accounting codes, subject to management approval. Senior classifiers engaged in authorized on-the-job training of new classifiers for classification practices and procedures may account for such training time under appropriate accounting codes.

A. Positions of the Parties

The Agency contends that Provision 1 directly interferes with its rights to direct employees and assign work, under section 7106(a)(2)(A) and (B) of the Statute, by modifying the content of performance standards. The Agency points out that, under one of its performance standards for project work, classifiers are rated on the completion of projects within allotted production time. According to the Agency, time spent working on these projects is charged either as production or nonproduction time. In the Agency's view, by enabling employees to record time in other categories, Provision 1 "actually redefines the content of the standard." Statement of Position at 6. In addition, the Agency argues that the provision is nonnegotiable because it would allow the substitution of an arbitrator's judgment for that of the Agency in determining performance ratings.

The Union asserts that Provision 1 does not characterize time as production or nonproduction. Rather, the Union argues, the provision "provide[s] an accounting of facts relating to performance, and is not intended to establish or define performance standards." Reply Brief at 5. In the alternative, the Union contends that the provision constitutes an appropriate arrangement under section 7106(b)(3) of the Statute for employees adversely affected by management's exercise of its rights to direct employees and assign work.

B. Analysis and Conclusions

Provision 1 applies to patent classifiers, who are principally engaged in "project" work and whose performance evaluations are based, in part, on completion of patent projects within prescribed time limits. The provision concerns situations where project classifiers perform "significant amounts" of "post" work or are engaged in authorized on-the-job training of new classifiers. The provision provides that project classifiers may record the time spent on these two categories of work under "appropriate" accounting codes.

We reject the Agency's contention that Provision 1 directly interferes with its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. In this regard, the provision requires that certain information be recorded. The provision does not, however, prescribe the manner in which management must use the information. In particular, the provision does not prevent management from using the time recorded under "appropriate accounting codes" to evaluate employees' performance as either production or nonproduction time.

As nothing in the provision would affect management's authority to determine the content of performance standards or to appraise any aspects of employees' work, it does not directly interfere with the rights to direct employees and assign work. Instead, we conclude that the provision constitutes a negotiable procedure under section 7106(b)(2) of the Statute. See, for example, Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, Washington, D.C., 47 FLRA 10, 52-53 (1993) (Patent and Trademark Office), petition for review filed sub nom. U.S. Department of Commerce, Patent and Trademark Office, Washington, D.C. v. FLRA, No. 93-1293 (D.C. Cir. May 3, 1993). Compare American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 28 FLRA 714, 716-18 (1987) (proposal limiting management's authority to change type and amount of work sampled in evaluating performance held to directly interfere with rights to direct employees and assign work); and American Federation of Government Employees, AFL-CIO, Local 1923 and Department of Health and Human Services, Social Security Administration, 12 FLRA 17-18 (1983) (proposals preventing management from counting certain time in evaluating employee performance found to interfere with rights to direct employees and assign work).

In finding that Provision 1 is a negotiable procedure, we reject the Agency's argument that the provision is nonnegotiable because it would allow the substitution of an arbitrator's judgment for that of management in determining performance ratings. This argument does not provide a basis for finding the provision nonnegotiable. See, for example, Patent and Trademark Office, 47 FLRA at 34.

IV. Provision 2

Section 24H

Management shall provide the author of a classification order with a written record identifying each reviewer and listing all major and minor errors alleged by the reviewer. If more than one person reviews a classification order on behalf of management, then, prior to any oral or written communication with other reviewers, each review shall state in writing the portion of the order reviewed and all major and minor errors found. As soon as completed, these documents shall be given to the employee who authored the order.

A. Positions of the Parties

The Agency asserts that Proposal 2 is nonnegotiable because it "clearly and substantially" interferes with its right to assign work under section 7106(a)(2)(B) of the Statute. Statement of Position at 10. According to the Agency, the provision directly interferes with that right by: (1) requiring that management officials perform particular functions; (2) describing the functions to be performed by those management officials; and (3) stipulating when the work will be performed. The Agency claims that the Union would use the information generated by Provision 2 to challenge management actions in arbitration.

In the Union's view, the provision's first and third sentences are negotiable procedures under section 7106(b)(2). The Union further asserts that, even if the second sentence is held to directly interfere with the Agency's right to assign work, the entire provision is negotiable as an appropriate arrangement under section 7106(b)(3). According to the Union, the Authority "has repeatedly recognized that provisions for timely receipt of performance evaluation information constitute an appropriate arrangement for employees adversely affected by management's right to assign work, direct employees and impose performance-based discipline." Reply Brief at 8.

B. Analysis and Conclusions

Under Provision 2, management officials designated by the Agency to review and identify errors in a classification order are required to provide the author of an order with lists of identified errors before communicating among themselves about the errors. However, nothing in the provision interferes with the Agency's right to determine what is an error, to change or rescind such determinations, or to evaluate employees' work as containing errors. As such, we conclude that Provision 2 does not interfere with the Agency's rights to direct employees and assign work through evaluation of performance.

As the Union acknowledges, the second sentence of Provision 2 "requires a particular management official, the reviewer, to reduce his findings to writing." Reply Brief at 7. However, we conclude that this requirement does not necessitate a conclusion that the sentence interferes with the Agency's right to assign work.

In this regard, the second sentence merely requires certain actions by management personnel whom the Agency has already designated, without restriction by the provision, to review classification orders. If these additional actions--identifying in writing the portions of the work reviewed and listing the errors found--are to be accomplished at all, it appears only reasonable and logical that they would be accomplished by the official designated by management to review the work and identify the errors. As such, and noting again that the Agency is free under the provision to designate whomever it chooses to act as reviewers, we find no basis on which to conclude that the second sentence of Provision 2 substantively limits the Agency's right to assign work by designating particular officials to whom the disputed work must be assigned. Moreover, most procedures are not self effectuating. That is, most procedures, including the one here, are satisfied only through some action by some agency personnel. In recognition of this, the Authority holds that otherwise negotiable procedures entailing some assignment of work to employees or management officials do not necessarily directly interfere with an agency's right to assign work. Patent and Trademark Office, 47 FLRA at 60. See also National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 43 FLRA 1279, 1293 (1992). Accordingly, we find that the requirement in Provision 2 that reviewers provide the authors of classification orders with written records of errors on completion of their reviews does not interfere with management's right to assign work. See Patent and Trademark Office, 47 FLRA at 31.

In sum, we conclude that Provision 2 constitutes a negotiable procedure. We note, in this connection, the Agency's argument that the provision would generate information which the Union would attempt to use as evidence in arbitration to challenge management actions. We find no basis on which to conclude that such potential use of the information has any effect on the negotiability of the provision. Finally, as Provision 2 is a negotiable procedure, we need not address the Union's contention that the provision is an appropriate arrangement.

V. Provision 3

Section 24I

The failure of all reviewers to agree that a particular matter is an error shall be considered as evidence that the matter is not an error [but] a difference in professional judgement.

A. Positions of the Parties

The Agency contends that Provision 3 is nonnegotiable because it directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute by restricting the Agency's determination of the content of performance standards. In the Agency's view, the provision "would have the practical effect of precluding management from considering, in evaluating employees, those errors which any subordinate reviewers had overlooked or did not find to be an error." Statement of Position at 14.

The Union asserts that Provision 3 "constitutes a procedure under [section] 7106(b)(2) that does not infringe upon management's right to direct employees and assign work." Reply Brief at 10. According to the Union, the provision is "an attempt to distinguish between the concepts of error and of differences in professional judgement." Id. at 9. In this regard, the Union points out that, as it is "possible for an expert to be wrong, the failure of all to agree is merely treated as evidence and is not treated as conclusive." Id. Alternatively, the Union argues that the provision is an appropriate arrangement under section 7106(b)(3) of the Statute for employees adversely affected by a reviewer's allegation of "errors in performance." Id. at 10.

B. Analysis and Conclusions

Provision 3 provides that the failure of all reviewers to identify a particular error in an employee's work shall be "considered as evidence" that the matter may be a difference of professional judgment rather than an error. The Union explains that, under the provision, a lack of unanimity does not eliminate a matter as an error. Rather, according to the Union, "the failure of all to agree is merely treated as evidence and not as conclusive." Id. Furthermore, the Union asserts that "a mistake on the part [of] a reviewer can be overcome by the submission of additional evidence that the employee's action was improper." Id. at 11.

The Union's explanation of Provision 3 is consistent with its plain wording, and we adopt it for the purpose of this decision. Therefore, we reject the Agency's assertion that the provision precludes it from "considering, in evaluating employees, those errors which any subordinate reviewers had overlooked or did not find to be an error." Statement of Position at 14. Instead, when all reviewers fail to identify a particular matter as an error, management is required to consider whether the lack of unanimity supports a conclusion that there was no error on an employee's part.

Proposals or provisions requiring management to "consider" specific matters do not direct a particular result but, rather, permit management to weigh and assess the significance of those factors before reaching a decision. In this instance, the provision requires management to weigh an absence of unanimity in favor of a finding of difference in professional judgment rather than error, but it does not compel that conclusion, if other evidence supports the contrary result. In Patent and Trademark Office, 47 FLRA at 68-69, we found that a provision that required management to consider a supervisor's failure timely to apprise an employee of performance deficiencies, together with other factors, in determining the degree to which performance-based action should be mitigated did not directly interfere with management's rights because it did not mandate a particular result. As Provision 3 does not limit the Agency's discretion to determine what constitutes error in an employee's work product, it does not directly interfere with management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. Therefore, we conclude that Provision 3 is negotiable. In view of our conclusion, we need not address the Union's assertion that the provision is an appropriate arrangement.

VI. Order

The Agency shall rescind its disapproval of the three disputed provisions.(2)




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

1. Although the Agency head originally disapproved the entire award, the Agency addresses only three provisions of the award in its statement of position. Accordingly, we conclude that the other provisions are not in dispute and we will order the Agency to rescind its disapproval of them. See National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696, 743, 750, 765 (1992) (where agency statement of position addressed only portions of disapproved provisions, agency was ordered to rescind its disapproval of those portions not addressed). See also Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLR