File 1: Authority's Decision in 56 FLRA No.
10
File 2: Opinion of Member Cabaniss
File 3: Opinion of Chairman Wasserman
[ v56 p69 ]
56 FLRA No. 10
PATENT OFFICE PROFESSIONAL ASSOCIATION
(Union)
and
U.S. DEPARTMENT OF COMMERCE
PATENT AND TRADEMARK OFFICE
WASHINGTON, D.C.
(Agency)
0-NG-2161
0-NG-2163
_____
DECISION AND ORDER ON
NEGOTIABILITY ISSUES
February 29, 2000
____
Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members. [n1]
These consolidated cases are before the Authority on petitions for review of negotiability issues filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petitions for review contain 78 proposals. [n2]
For the reasons fully explained below, we find that Proposals 4, 12, 16, 17, 20, 21, 24, 29, 30, 37, 41, 44, 52, 53, 55, 58, 59, 62, 63, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, and 78 are within the Agency's duty to bargain. We find that Proposals 56 and 65 are negotiable at the election of the Agency under section 7106(b)(1) of the Statute, and pursuant to section 2424.10 of the Authority's Regulations, we dismiss the Union's petition with regard to those proposals. [n3] We dismiss the petition for review, as it pertains to: (1) Proposals 3, 13, 31, 32, 35, 36, 43, 45, and 57, because the proposals are outside the Agency's duty to bargain; and (2) Proposals 22, 33, 34, 47, and 54 because they have been resolved by the Federal Service Impasses Panel (FSIP). We dismiss without prejudice the petition for review as it pertains to: (1) Proposals 1, 2, 5, 6, 7, 8, 9, 10, 11, 14, 15, 18, 19, 23, 25, 26, 27, 28, 38, 39, 40, 42, 46, 48, 49, 50, and 51 because these proposals have not been alleged outside the duty to bargain by the Agency; and (2) Proposals 60, 61, and 64 because the record is insufficient to determine their negotiability.
For purposes of this decision, the disputed proposals are grouped into five categories. The text of each proposal appears in the section of the decision where it is analyzed.
The first category of proposals concerns bargaining during the term of the parties' agreement. See Part V, infra.
The second category of proposals requires the Agency to treat specific aspects of unit members' work time as non-examining time or as special examining time. See Part VI, infra.
The third category of proposals concerns the Agency's obligation to bargain over section 7106(b)(1) matters. See Part VII, infra.
The fourth category of proposals concerns performance appraisal matters. See Part VIII, infra.
The fifth category of proposals concerns a variety of other issues. See Part IX, infra.
This case concerns the negotiability of proposals that the Union submitted as a result of the Agency's decision to implement the Classified Search and Image Retrieval System (CSIR), a computerized patent search system. As is discussed in more detail below in connection with specific proposals, the Union maintains, among other things, that as a result of implementation of CSIR, patent examiners, whose work is measured in 6-minute increments, will be less productive under CSIR. The Union also maintains that examiners will not experience losses in productivity evenly, and that its proposals are necessary to counteract the negative effects of implementing the new system. [ v56 p70 ]
The Union submitted 105 proposals to the Agency concerning implementation of CSIR. Subsequently, with 78 proposals still at issue, the Union requested and received a declaration of nonnegotiability concerning many of the proposals. The Union then submitted its petitions for review of all 78 proposals. The Authority made several unsuccessful attempts to assist the parties in resolving and/or narrowing the bargaining issues through alternative dispute resolution. In addition, for a period of time, the parties agreed to pursue settlement discussions on their own and the cases were placed in abeyance. When these settlement discussions were not successful, the Union requested that the Authority take the cases out of abeyance. The Authority then issued an Order directing the parties to show cause why these cases should not be dismissed as moot because the proposals are no longer relevant to existing working conditions. In response, the parties demonstrated that, with the exception explained in the next section as to proposals resolved by the FSIP, the proposals are not moot. [n4]
The Agency contends that several proposals should not be considered by the Authority, since the Agency never declared them outside the duty to bargain. Agency Response to Order to Show Cause at 2. The Union contends that the Agency failed to respond to the Union's request for a statement of what the Agency considers outside the duty to bargain and that, under the Authority's regulations then in effect, this failure constitutes a "constructive declaration of non-negotiability." Union Response to Order to Show Cause at 1. Therefore, according to the Union, all 78 proposals contained in the petitions for review are properly before the Authority for adjudication.
Under section 7117 of the Statute and section 2424.1 of the Authority's Regulations applicable in this case, a petition for review of a negotiability issue will be considered only where the parties are in dispute over whether a proposal is inconsistent with law, rule, or regulation. See, for example, National Treasury Employees Union and U.S. Department of Health and Human Services, Region X, Seattle, Washington, 46 FLRA 444 (1992), request for reconsideration denied, 46 FLRA 814 (1992). Although the Union is correct that an agency's failure to respond to a request for an allegation of nonnegotiability is treated as a constructive allegation of nonnegotiability sufficient to permit the union to file a petition for review, such failure to respond does not necessarily mean that there is a negotiability dispute to be resolved by an Authority ruling.
In this case, the Agency responded to the Union's petition for review by stating that it has not declared Proposals 1, 2, 5, 6, 7, 8, 9, 10, 11, 14, 15, 18, 19, 23, 25, 26, 27, 28, 38, 39, 40, 42, 46, 48, 49, 50, and 51 outside the duty to bargain. It is undisputed that the Agency has never alleged that these proposals are outside the duty to bargain. Accordingly, we dismiss the petition for review as to these proposals, without prejudice to the Union's right to file a new petition for review, if and when the conditions governing review have been met.
In addition, the parties' bargaining impasse over Proposals 22, 33, 34, 47, and 54 was resolved in a proceeding before the Federal Service Impasses Panel. U.S. Department of Commerce, Patent and Trademark Office, Washington, D.C. and Patent Office Professional [ v56 p71 ] Association, 93 FSIP 137 (1993). As such, any negotiability dispute as to these proposals is moot. Cf. American Federation of State, County and Municipal Employees, Local 1418 and United States Information Agency, 53 FLRA 1191 (1998) (resolution of a dispute by an interest arbitrator rendered the union's request for a negotiability determination concerning its proposal moot). Accordingly, we dismiss the petition for review as to Proposals 22, 33, 34, 47, and 54.
The Union asserts that many of the disputed proposals are within the duty to bargain because they are appropriate arrangements. We describe here the framework applied in resolving whether a proposal is an appropriate arrangement, which was established by the Authority in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under this analysis, the Authority first determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. See United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992); American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA 133, 141 (1995). Proposals must address management's exercise of its reserved rights or they do not constitute arrangements. See, e.g., National Association of Government Employees, Local R1-100 and U.S. Department of the Navy, Naval Submarine Base New London, Groton, Connecticut, 39 FLRA 762, 766 (1991). The adverse effect need not flow from the management right that a given proposal affects. See, e.g., National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 185, (1994) (NTEU, Chapter 243).
The claimed arrangement must also be sufficiently "tailored" to compensate employees suffering adverse effects attributable to the exercise of management's rights. See id. at 184 (1994). As the Authority has explained, relying on U.S. Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158, 1162 (D.C. Cir. 1992), section 7106(b)(3) brings within the duty to bargain proposals that provide "balm" to be administered "only to hurts arising from" the exercise of a management right. American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1319 (1996). See also National Association of Government Employees, Local R14-23 and U.S. Department of Defense, Defense Commissary Agency, Kelly Air Force Base, Texas, 53 FLRA 1440, 1443 (1998).
If the proposal is determined to be an arrangement for the exercise of management's rights, then the Authority determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right. The Authority reaches this determination by weighing the "competing practical needs of employees and managers." KANG, 21 FLRA at 31-32.
Proposal 66
As the implementation of foreign patents and non-patent literature on the automated system has not been clearly defined, POPA reserves the right to mid-term negotiations.
Proposal 67
As the implementation of Patent Application Management (PAM) or equivalent on the automated system has not been clearly defined, POPA reserves the right to mid-term negotiations.
Proposal 68
As the implementation of Classification Data Systems (CDS) or equivalent on the automated system has not been clearly defined, POPA reserves the right to mid-term negotiations.
Proposal 69
Should the Office make mandatory the use of text searching and/or Named Document Collections (NDC) additions or equivalents, POPA reserves the right to mid-term negotiations.
Proposal 70
Should the Office change its practice/policy concerning the use of background monitoring reports, POPA reserves the right to mid-term negotiations.
Proposal 71
Should the Office decide to remove the paper files, POPA reserves the right to mid-term negotiations. [ v56 p72 ]
Proposal 72
As the implementation of the future text search enhancements as recited in the Information Technology Plan [has] not been determined, POPA reserves the right to mid-term negotiations.
Proposal 73
Should the Office define a set of standards which define what the Office considers to be an abuse of the automated system, POPA reserves the right to mid-term negotiations.
Proposal 74
Should the Office decide to discontinue the granting of non-examining time for first-actions-on-the-merits and update searches, POPA reserves the right to mid-term negotiations.
Proposal 75
Negotiations shall be reopened one year after the third examining group or documentation implements the automated search to consider problems or conditions which have arisen since the signing of this document.
Proposal 76
As the impact on unit members which review design applications, patents, or equivalents, has not been determined, POPA reserves the right to mid-term negotiations.
Proposal 77
As the impact of the desktop workstation on unit members has not been determined, POPA reserves the right to mid-term negotiations.
The Agency asserts that these proposals are outside the duty to bargain because they would allow the Union to initiate mid-term bargaining. The Agency argues that because its offices are located within the jurisdiction of the U.S. Court of Appeals for the Fourth Circuit, the Authority must find, consistent with the holding of the Fourth Circuit in Social Security Administration v. FLRA, 956 F.2d 1280 (1992) (SSA) that the proposals are outside the duty to bargain.
According to the Union, the Agency's reliance on SSA is misplaced. In this regard, the Union asserts that Proposals 66 through 74, 76 and 77:
involve expected future negotiations under 5 U.S.C. § 7106(b)(2) and (b)(3). The intent of these proposals is to have negotiations due to a change in working conditions generated by the Agency without unfair labor practice disputes, such as the dispute that led to this negotiation.
Response at 81. The Union states that the proposals "specify matters which are not contained in the agreement, and for which the Union explicitly does not waive its rights to bargain about the subject matter involved." Id. at 82. The Union asserts that SSA, relied on by the Agency, does not support the Agency's position that the proposals are outside the duty to bargain because "nothing in SSA . . . demonstrates that the Agency is prohibited by law from entering into the proposed . . . non-waiver reservation clauses, or that the proposals are otherwise non-negotiable." Id. at 81.
With respect to Proposal 75, the Union claims that:
Proposal 75 is a reopener proposal which is needed because the automated system is fast evolving and it is difficult to anticipate a changing system with proposals which address changes in working conditions.
Union Response at 81. [ v56 p73 ]
The wording of Proposals 66-74, 76, and 77 is, in pertinent part, virtually identical. All these proposals refer to a subject matter, and provide that, with respect to that subject matter, "POPA reserves its right to mid-term negotiations." With respect to certain of these proposals (69, 70, 71, 73, and 74), bargaining is required in the event the Agency takes a specified action. For example, Proposal 69 requires bargaining in the event the Agency makes "mandatory the use of text searching . . . ." With respect to the remainder of these proposals (66, 67, 68, 72, 76, and 77), bargaining is required because "implementation" of the subject matter specified in the proposals "has not been clearly defined" or the impact on employees has not been determined. [n5] For example, Proposal 66 states that "the implementation of foreign patents and non-patent literature has not been clearly defined." Consistent with the Union's explanations, which comport with the plain wording of the proposals, we find that these proposals would require bargaining over the subject matters set forth in them; proposals that refer to Agency action require bargaining in the event that the Agency takes the specified action.
With respect to Proposal 75, the Union's interpretation also comports with its plain wording. Accordingly, we construe the proposal as requiring negotiations over "problems or conditions" in the automated system 1 year after the system is implemented by the third examining group.
The Agency's sole argument regarding these proposals - that they are outside the duty to bargain based on SSA - is based on a misinterpretation of the proposals. Proposals 66 through 74, 76, and 77, as found above, seek impact and implementation bargaining in response to Agency-instituted changes in conditions of employment. Proposal 75 provides for reopener negotiations. As these proposals do not involve Union-initiated bargaining, the Agency's reliance on SSA is misplaced. In any event, SSA was reversed by the Supreme Court in National Federation of Federal Employees v. Department of the Interior, 526 U.S. 86 (1999). Because no basis is asserted for finding the proposals, properly construed, to be outside the duty to bargain, we find the proposals are within the duty to bargain.
In this part of the decision, we address and resolve the parties' claims about 11 proposals that would require the Agency to treat specified work performed by unit employees as either "special examining time" or "nonexamining time." To begin, we describe in this section the meaning of these terms and prior precedent concerning similar proposals. In Section B, we resolve the Agency's arguments applicable to all examining time proposals and find, for the reasons explained there, that special examining time proposals do not affect management's rights, and that nonexamining time proposals do affect management's rights. In Section C, we analyze the Agency's additional arguments about individual special examining time proposals; and in Section D, we analyze the Agency's additional arguments about individual nonexamining time proposals. The text of each proposal is stated, and its meaning is described, in the section in which the proposal is individually analyzed.
The terms "special examining time" and "nonexamining time" are not expressly defined by the parties in this proceeding. However, the Authority has previously resolved disputes between these parties about the negotiability of proposals concerning nonexamining time and special examining time. See POPA VI, 53 FLRA at 643-47; POPA III, 47 FLRA at 52-53, 55-59; POPA I, 25 FLRA at 409-12.
This precedent, and the record in this case, reveal that there is a significant difference between proposals providing "nonexamining time" and proposals providing "special examining time." In this regard, it is undisputed that patent examiners are appraised, for productivity purposes, based on the amount of time they use to examine patents. See Petition for Review at 3 ("Unit members performance is measured by management based on the average number of hours to do a 'production unit.'"); Statement of Position at 3 n.3 ("In essence, examining time, which is a concept used in the [PAP], is the time during which the employee is doing the essential functions of his job. A record is kept of this time and the employee is rated . . . on his production according to the amount of work produced during that time."). That is, the number of patent examinations (or other production units) completed is measured against the total amount of time available in which to perform that work. See id. at 34-35 ("the performance standard for Production Goal/Achievement evaluates employees according to their 'production,' which is determined by the number of patents they examine during a particular rating period. The central element in the calculation of an employee's production is the concept of 'examining time[,]' the actual time spent by the employee performing the principal functions of his job --examining patents."). See also Petition for Review at 3 ("performance is tracked in 6-minute increments and a unit member can be rated unsatisfactory if his or her average hours per [production unit] falls below 95% of their assigned number").
"Nonexamining time" is excluded from the total amount of time used to measure productivity in examining patents and, as a result, is not "counted against" an employee's productivity. See, e.g., POPA I, 25 FLRA at 409 ("Under the first paragraph of [the proposal], patent examiners shall have three hours of nonexamining time, that is, time not subject to appraisal[.]")
"Special examining time," on the other hand, is included in the total amount of examining time used to determine productivity in examining patents. See, e.g., id. at 411 (proposal for special examining time "does not concern the amount of time within which the examiner will be required to complete work on a given application, that is, a production goal, but only the form in which management will record how long it actually took to finish that work."). Although "special examining time" is included in the total and, as a result, considered time spent examining patents, special examining time is accounted for separately from other examining time. [n6] See id.
The Agency asserts that these proposals would affect management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. [n7] Statement of Position at 35 (NG-2163), and Statement of Position at 4 (NG-2161). [n8] According to the Agency, the combined effect of the examining time proposals would alter the substance of the Agency's Performance Appraisal Plan (PAP) because "[t]he practical effect of subdividing examining time into nineteen additional categories . . . is that, under the current [PAP], the Agency will no longer be able to measure that portion of the employee's work which takes place within the new categories." Statement of Position at 36.
The Union states that use of CSIR will result in some examiners spending more time accomplishing certain searches than would have been necessary with the paper search system. The Union asserts that it is necessary to recognize the extra time examiners will use because examiners are appraised for their productivity in 6-minute intervals. The Union contends that even if a search requires only a small amount of additional time, that additional time could have a noticeable effect on an examiner's productivity. In response to the Agency's argument regarding the combined effect of the examining time proposals, the Union asserts that the Authority must consider proposals individually, not as a package. The Union also contends that the Agency already "recognizes 21 activities" that do not constitute examining time. Union Response at 17.
The Authority has consistently held that proposals requiring the Agency to provide "nonexamining time" affect management's rights to direct employees and assign work because such proposals prevent management from including this time, and any duties performed [ v56 p75 ] during this time, in the total amount of examining time that is subject to appraisal for productivity purposes. See, e.g., POPA I, 25 FLRA at 409-12. In contrast, the Authority has held that proposals requiring the Agency to provide "special examining time" for work assigned to be performed during duty time do not affect management's rights. See POPA III, 47 FLRA at 52-53; POPA I, 25 FLRA at 411-12. This holding is based on the fact that such proposals simply require management to permit employees to record the time spent performing various duties that the Agency has assigned in a separate category; they do not preclude the Agency from including the time in the total that is used to determine productivity and evaluate employee performance. [n9]
This body of precedent is not disputed by the parties. Applying this undisputed precedent here, we find that the proposals requiring the Agency to provide special examining time do not affect management's rights to direct employees and assign work, and that proposals requiring the Agency to provide nonexamining time affect these management rights.
In reaching this conclusion, we have considered the Agency's assertion that all the examining time proposals are outside the duty to bargain because the combined effect of the proposals would require the Agency to alter its PAP by creating 19 separate categories of time. [n10] We reject this argument for two reasons. First, the Agency neither explains how the creation of 19 categories of time would alter the substance of its PAP nor cites precedent supporting a conclusion that the aggregate effect of separate proposals is appropriately considered in determining whether the separate proposals are within the duty to bargain. [n11] Although the Agency states that the proposals would prevent it from "measur[ing] that portion of the employee's work which takes place within the new categories[,]" Statement of Position at 36, Authority precedent confirms that this would be the case only with respect to nonexamining time proposals. Second, nothing in the wording of these proposals or the Union's explanations of them, would prevent the Agency from specifying one category for all nonexamining time and one category for all special examining time.
Accordingly, we do not determine whether the proposals are within the duty to bargain based on their aggregate effect and, instead, address the proposals individually.
The U.S. Government guidelines recommend that the temperature in a building be maintain[ed] between a minimum of 65°F and a maximum of 80°F as a balance of comfort and energy efficiency. Hence, should the workstation area temperatures exceed 80°F or be below 65°F for a period exceeding 2 continuous hours, time spent when there is a disruption of normal workflow shall be recorded in a special examining time category that is distinct from the examining time category that is used to record production time when there is not a disruption of normal workflow. The 2 hour time period shall start when the Office is notified by unit member(s) that the temperature in the workstation area is outside the specified range.
The Agency asserts, in addition to the management's rights arguments described above, that the proposal is outside the duty to bargain because it is contrary to temperature guidelines in 41 C.F.R. § 101-20.116-3. According to the Agency, the "proposal[] attempt[s] to supplant those guidelines by establishing mandatory temperature ranges and tying the employees' performance standards to these ranges by use of non-examining time categories." Statement of Position at 4. The Agency also contends that the proposal attempts to expand rights contained in Article 16 of the parties' agreement. [n12]
The Union contends that the proposal would merely allow unit employees to separately account for [ v56 p76 ] any time in excess of 2 hours spent in too hot or too cold temperatures as special examining time. The Union argues that the proposal "is not intended to effect any variation from pertinent GSA regulations[.]" Union Response at 7. The Union also contends that the proposal is a procedure because it does not interfere with management's rights and that, even if the proposal "interferes with management's rights, [it] does not do so excessively and is, therefore, a[n] [appropriate] arrangement." Id. at 9. Finally, the Union denies that the proposal conflicts with Article 16 of the parties' collective bargaining agreement, asserting that the proposal is permitted under Article 27 of the agreement, which provides for bargaining in the event of a change in working conditions.
Consistent with the plain wording of the proposal and the Union's statement of intent, the proposal would require the Agency to permit patent examiners to record as special examining time the time spent in work conditions outside the specified temperature range under the terms of the proposal "when there is a disruption of normal workflow."
The regulation that is relied on by the Agency, 41 C.F.R. § 101-20.116-3, does not appear in the current Code of Federal Regulations. The current regulation, 41 C.F.R. § 101-20.107, requires agencies to comply with energy conservation guidelines set forth at 10 C.F.R. part 436. Accordingly, we apply those guidelines, which provide that agencies "shall consider . . . the measures identified in appendix C." 10 C.F.R. § 436.104. Appendix C, in turn, provides that agencies should heat their buildings to 65°, and cool their buildings to 78°.
As 10 C.F.R. § 436.104 requires only that agencies "consider" the guidelines in Appendix C, the regulation does not mandate a temperature range that the Agency must maintain. Moreover, Proposal 4 does not mandate a temperature range; it merely establishes consequences if the temperature goes beyond the specified range. Accordingly, the proposal is not inconsistent with the regulation.
For the reasons explained above, Proposal 4 does not affect management's rights to direct employees and assign work. See supra Part VI.B. As such, it is not necessary to examine the Union's claims that Proposal 4 is bargainable under section 7106(b)(2) and (b)(3).
We construe the Agency's assertion that the proposal attempts to expand rights contained in Article 16 of the parties' agreement as an argument that the Agency has no obligation to bargain over the proposal because it is covered by the parties' agreement. Under the regulations that apply in this case, the Authority does not resolve questions of whether an agency is relieved of its bargaining obligation by virtue of a provision in a collective bargaining agreement. In National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) (VAMC, Lexington), the Authority explained that:
If the Union seeks to bargain over this proposal in the future, and the Agency refuses to bargain based on [the] assertion that [the collective bargaining agreement] foreclosed further bargaining, the Union could then file either an unfair labor practice charge or, provided the matter has not been excluded from its scope, a grievance under the parties' negotiated grievance procedure. In such a case, the issue could be resolved based on a full evidentiary record . . . .
Id. at 400.
Consistent with the foregoing, we decline to resolve in this proceeding the Agency's claim that it has no duty to bargain over Proposal 4 because the proposal is covered by the parties' agreement.
Accordingly, we conclude that Proposal 4 is within the Agency's duty to bargain. [ v56 p77 ]
Proposal 17
A reasonable amount of time spent filing problem reports, shall be accounted for separately. Such time may be accumulated so as to provide an accounting in whole hour increments.
Proposal 44
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:
(a) Time spent on each of the first 20 first-actions-on-the-merits using the automated system shall be recorded in a special examining time category that is distinct from the examining time category used to record the production time for first-actions-on-the-merits subsequent to the first 20 first actions-on-the-merits.
(b) Time spent on each of the first 20 amended applications using the automated system shall be recorded in a special examining time category that is distinct from the examining time category used to record the production time for amended applications subsequent to the first 20 update searches.
(c) Time spent when there are automated system delays which disrupt normal workflow will be accounted for separately.
(d) Time spent when there is a catastrophic failure of the automated system which results in a disruption of normal workflow, such a disruption would include the need to repeat work, shall be accounted for separately.
(e) Time spent when the unit member receives a NDD (No Document Display) or PNA (Page Not Available) and the unit member is approved to use alternate means and/or methods to retrieve those documents shall be accounted for separately. The time accounted for separately may be accumulated over one or more searches so as to provide an accounting in whole hour increments.
(f) Time spent where bad copies of documents are received from the printers, where the unit member is required to obtain correct copies of the documents, shall be accounted for separately.
Proposal 58
Time spent when the unit member is required to check the gene sequence filed in electronic form for correspondence with the filed application, when the application is not in compliance with the current rules and regulations, shall be accounted for separately.
The Agency's sole basis for asserting that these proposals are outside the duty to bargain is that they affect management's rights to direct employees and assign work because they "directly interfere with the substance of the Agency's Performance Appraisal Plan[.]" Statement of Position at 34.
The Union asserts that the proposals are appropriate arrangements under section 7106(b)(3) of the Statute, and that they are similar to a proposal that the Authority found to be an appropriate arrangement in American Federation of Government Employees, Local 3172 and U.S. Department of Health and Human Services, Social Security Administration, Vallejo District Office, 35 FLRA 1276, 1278-82 (1990).
Consistent with its plain wording and the Union's statement of intent, Proposal 17 would allow examiners to identify as special examining time the time spent reporting computer system problems; Proposal 44 would allow examiners to identify as special examining time the time spent working on "first-actions-on-the-merits," "amended applications," automated system delays that disrupt the normal workflow, catastrophic failures of the automated system, work projects where "the unit member receives a NDD (No Document Display) or PNA (Page Not Available)," and cases where a printer provides bad copies of documents [n13] ; and Proposal 58 would allow examiners to identify as special examining time the time spent checking a "gene sequence." [n14]
For the reasons explained above, Proposals 17, 44, and 58 do not affect management's rights to direct employees and assign work. See supra Part VI.B. [ v56 p78 ] Therefore, they are within the Agency's duty to bargain, and it is not necessary to examine the Union's claims that the proposals are bargainable under section 7106(b)(3).
The U.S. Government guidelines recommend that the temperature in a building be maintained between a minimum of 65°F and a maximum of 80°F as a balance of comfort and energy efficiency. Hence, should the workstation area temperatures exceed 80°F and be below 65°F for a period exceeding 2 continuous hours, the Office shall grant non-examining time, as an arrangement, for disruption of normal workflow. The 2 hour time period shall start when the Office is notified by unit member(s) that the temperature in the workstation area is outside the above specified range.
The Agency's arguments are the same it asserts concerning Proposal 4. See supra Part VI.C.1.a.
The Union's arguments are the same it asserts concerning Proposal 4, except that the Union does not argue that Proposal 3 is a procedure. See id.
Consistent with its plain wording and the Union's statement of intent, Proposal 3 would require the Agency to grant nonexamining time to patent examiners when the temperature in the computer workstation area is outside the specified range, between 65°F and 80°F, for more than 2 continuous hours.
For the reasons explained above in rejecting the Agency's same argument concerning Proposal 4, we find that Proposal 3 does not conflict with 41 C.F.R. § 101-20.116-3. See supra Part VI.B.1.c.1.
For the reasons explained above, we find that Proposal 3 would affect management's rights to direct employees and assign work. See supra Part VI.B.2. We note, in this regard, that we reached a contrary conclusion regarding Proposal 4; although Proposals 3 and 4 are similar, the different findings on this point are due to the fact that Proposal 3 would require the Agency to grant nonexamining time (not special examining time as is required by Proposal 4) and, as such, would preclude the Agency from including the time in the total used to determine productivity and evaluate employee performance.
In determining whether a proposal constitutes an appropriate arrangement, the Authority examines, among other things, whether the proposal excessively interferes with management's rights. In resolving this question, the Authority weighs the "competing practical needs of employees and managers." KANG, 21 FLRA at 31-32.
With respect to Proposal 3, it is reasonably foreseeable that examiners' productivity may be adversely affected while they are working in temperatures outside the specified range. It is undisputed that this reduced productivity could result in lowered performance appraisals. See Union Response at 6 ("Since the Agency calculates a unit member's production down to 6 minute intervals, even a small disruption can have a significant effect on the unit member's performance."). Proposal 3 would ameliorate these foreseeable adverse effects by providing employees with a 2-hour "grace period." Id. at 7. For employees who otherwise would be adversely affected, this is a significant benefit.
However, Proposal 3 would severely restrict the Agency's discretion to determine whether to grant nonexamining time. For example, Proposal 3 is not limited, by its plain wording or the Union's interpretation, to those examiners who are not able to take their work to an area where the temperatures are within the specified range, when the temperature is outside that range in the [ v56 p79 ] workstation area. Additionally, the proposal would apply at 64° or at 81°F, the same as it would apply at more extreme temperatures. Further, unlike Proposal 4, which applies only "when there is a disruption of normal workflow," see Proposal 4, supra Part VI.C.1. (emphasis added), Proposal 3 assumes that there is a disruption of normal workflow whenever temperatures are outside the specified range for 2 hours. Essentially, Proposal 3 would provide all examiners with the same amount of nonexamining time, without regard to whether it is needed to compensate for lowered productivity due to the temperature in the workstation area. Thus, Proposal 3 deprives the Agency of any discretion to determine an appropriate amount of examining time under individual circumstances.
Based on the foregoing, we find that, even assuming Proposal 3 constitutes an arrangement, the benefits it would provide employees are outweighed by its constraint on management's ability to assess employee productivity. As such, the proposal excessively interferes with the Agency's rights to direct employees and assign work. See American Federation of Government Employees, Local 3302 and U.S. Department of Health and Human Services, Social Security Administration, Dunbar Branch Office, Baltimore, Maryland, 37 FLRA 350, 360 (1990) (AFGE, Local 3302). Accordingly, Proposal 3 is outside the Agency's duty to bargain.
A reasonable amount of non-examining time, as an arrangement, shall be provided for the filing of problem reports. Such time may be accumulated so as to provide an accounting in whole hour increments.
The Agency's argument is the same previously set forth in connection with Proposals 17, 44, and 58. See supra Part VI.C.2.a. The Agency makes no specific arguments regarding Proposal 16.
The Union argues that Proposal 16 is an appropriate arrangement for examiners who use their examining time reporting computer system problems rather than examining patents. The Union maintains that "[t]he Authority has found that providing non-measured work-time for employees when they cannot be engaged in producing the final products by which their performance is measured is an appropriate arrangement." Union Response at 18 (citing American Federation of Government Employees, Local 32 and Office of Personnel Management, 26 FLRA 612 (1987) (AFGE, Local 32 I)). The Union also maintains that providing nonexamining time for "filling out Bug Reports" would be consistent with the Agency's practice of providing nonexamining time in other situations where examiners are performing activities unrelated to examining patents. [n16] Union Response at 17.
Consistent with its plain wording and the Union's statement of intent, Proposal 16 would require the Agency to grant nonexamining time to examiners to file reports of problems with the computer system. Thus, this time would not be included in the total amount of time used to measure productivity. As the proposal specifically refers to "filing" reports, and as the Union argues that the proposal would permit examiners "to record time spent filling out Bug Reports" as nonexamining time, we construe the proposal as encompassing only time filling out the Automated Bug Report, not the time spent reporting computer problems to I.S. representatives over the telephone. [ v56 p80 ]
For the reasons explained above, we find that Proposal 16 affects management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See supra Part VI.B.2.
It is reasonably foreseeable that examiners' productivity may be adversely affected if the time they spend filling out the Automated Bug Report is included in the total amount of examining time used to measure productivity. As noted in connection with Proposal 3, it is undisputed that reduced productivity could result in lowered performance appraisals. Proposal 16 would ameliorate these foreseeable adverse effects, which result from management's exercise of its right to assign work through the requirement that employees file the Automated Bug Report, by providing employees with nonexamining time equal to the amount of time necessary to file the Automated Bug Report. Only those employees who file Bug Reports would be provided the nonexamining time. Accordingly, we conclude that Proposal 16 constitutes an arrangement.
For employees who otherwise would be adversely affected by the Agency's inclusion of the time spent filing Automated Bug Reports in the total examining time subject to appraisal for productivity, Proposal 16 would provide a significant benefit. By ensuring that the appraisal of examiners' productivity did not include "Bug Report time," the proposal also would provide the Agency with a more accurate measure of employees' productivity in examining patent applications. In this regard, the Agency does not dispute that the time spent filing the Automated Bug Report is not time spent examining patent applications.
As noted above, the Agency also does not dispute that the Automated Bug Report was created by the Agency. Thus, the time spent filing the Bug Report is time spent by examiners notifying the Agency of matters that the Agency has identified as problems. That is, under the terms of the proposal, an examiner would receive nonexamining time for accomplishing a task that the Agency has identified as necessary and desirable. Moreover, the amount of time is limited by the term "reasonable." As such, the proposal not only provides the Agency the discretion to deny requests for unreasonable amounts of nonexamining time, the proposal also does not affect the Agency's discretion to revise the Automated Bug Report itself, so as to limit the problems examiners are asked to report.
In these circumstances, we conclude that the benefits provided to examiners by Proposal 16 outweigh the burden on the Agency's rights to direct employees and assign work. Therefore, Proposal 16 does not excessively interfere with management's rights, and it is within the Agency's duty to bargain under section 7106(b)(3) of the Statute as an appropriate arrangement.
1. Should a unit member request printouts of the documents he/she has retrieved or viewed on the automated system, the Office shall provide:
(a) the delivery, to the unit member who request[s] the printouts, of the printed documents with the documents being complete, fastened and in proper page order; or
(b) time spent by the unit member sorting and assembling the documents will be accounted for separately; or
(c) as an arrangement, the unit member will be given non-examining time for sorting and assembling of documents.
The Agency's argument is the same previously set forth in connection with Proposals 17, 44, and 58. See supra Part VI.C.2.a. The Agency makes no specific arguments regarding Proposal 24.
The Union asserts that section 1(a) of Proposal 24 is a procedure, and that section 1(c) is an appropriate arrangement. According to the Union, section 1(b) is both a procedure and an appropriate arrangement. The Union contends that sections 1(a) and (b) are procedures because they do not "directly interfere with the mission related purpose for which the technology, method or means was adopted by the Agency." Union Response at 27. Although the Union does not explain why it views subsection (b) as an appropriate arrangement, the Union asserts that subsection (c) is an appropriate arrangement because it would provide employees nonexamining time "when they cannot be engaged in producing the final products by which their progress is measured . . . ." Id. (citation omitted).
Consistent with its plain wording and the Union's statement of intent, Proposal 24 provides the Agency with three alternatives when, in performing a search, an examiner requests printouts of documents, and the printouts need to be collated: section (a) provides that the documents would be delivered to the examiner already collated; section (b) provides that the examiner would receive separate examining time for the time spent collating the documents; and section (c) provides that the examiner would receive nonexamining time for the time spent collating the documents. [n17] As plainly worded [ v56 p81 ] ("the Office shall"), the proposal permits the Agency to determine which of the three alternatives to adopt.
The Agency does not address section (a) of Proposal 24, which provides as an alternative that collated documents would be delivered to examiners. The record does not provide a basis for concluding that this section is outside the Agency's duty to bargain.
For the reasons explained above, we conclude that section (b), which provides examiners with special examining time for the time spent sorting and assembling uncollated documents, does not affect the Agency's rights to direct employees and assign work.
For the reasons also explained above, section (c) of the proposal, which provides nonexamining time for the time spent sorting and assembling uncollated documents, would, standing alone, affect management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. However, section (c) merely sets forth one of three distinct alternatives for the Agency to use in the event an examiner requests printouts of documents that must be collated. The Agency could -- but need not -- choose to provide nonexamining time in this instance. The Agency does not assert, and the record does not provide a basis for concluding, that permitting, but not requiring, it to grant nonexamining time affects the rights to direct employees and assign work. There is no assertion, or other basis on which to conclude, that Proposal 24 is designed such that it would effectively require the Agency to choose the alternative set forth in section (c). Accordingly, we conclude that Proposal 24 does not affect the Agency's rights and is within the duty to bargain.
To allow time for the unit member to initially become familiar with the operation of the workstation when examining applications, each unit member will continue to be given non-examining time for searches using the workstations in the following manner:
(a) For the first 10 first-actions-on-the-merits, the unit member shall be given at least 3 hours of non-examining time per first-action-on-the-merits and for the second 10 first-actions-on-the-merits, the unit member shall be given at least 2 hours of non-examining time per first-action-on-the-merits; and
(b) For the first 10 update searches, the unit member shall be given at least 1 hour of non-examining time and for the second 10 update searches, the unit member shall be given at least ½ hour of non-examining time.
The Agency's argument is the same previously set forth in connection with Proposals 17, 44, and 58. See supra Part VI.C.2.a. The Agency makes no specific arguments regarding Proposal 43.
The Union asserts that Proposal 43 is an appropriate arrangement under section 7106(b)(3) of the Statute. The Union contends that Proposal 43 "mitigates against the reasonably foreseeable adverse effect upon a unit member being evaluated on the performance of work as if still done using the paper files." Union Response at 47. According to the Union, the proposal "benefits unit members by allowing a unit member time to become familiar with new means for performing the work on the automated system." Id.
Consistent with its plain wording and the Union's statement of intent, Proposal 43 would provide a specific minimum amount of nonexamining time for particular "first" work tasks performed by examiners. Specifically, it would require the Agency to provide at least 3 hours of nonexamining time for the first 10 "first-actions-on-the-merits," and at least 2 hours of non-examining time for the second 10 "first-actions-on-the-merits." Additionally, Proposal 43 would provide the unit member with at least 1 hour of nonexamining time for the first 10 "update searches," and at least ½ hour of nonexamining time for the second 10 "update searches." The Union explains that a "first action on the merits" [ v56 p82 ] occurs "when the unit member takes up a new patent application for the first time and performs the search." Petition for Review at 3. The Union does not explain the meanings of the term "update searches." However, we assume that it also refers to a particular type of patent search.
c. Analysis and Conclusions
For the reasons explained above, we find that Proposal 43 affects management's rights to direct employees and assign work under section 7106(a)(2)((a) and (B) of the Statute. See supra Part VI.B.2.
Proposal 43 would require the Agency to provide all unit members with a specified amount of nonexamining time in order to become familiar with the operation of the automated system. The Authority found in POPA I, 25 FLRA at 410, that a proposal providing examiners with nonexamining time, on a one-time-only basis, in order to become familiar with new procedures did not excessively interfere with management's rights, and therefore, was an appropriate arrangement. The Authority concluded that the nonexamining time would provide significant assistance to employees while, at the same time, constituting an insubstantial burden on management. The Authority reached the same conclusion in POPA III, where the proposal, like the proposal in POPA I, provided examiners with a one-time grant of nonexamining time to allow them to "become familiar with the reexamination procedures." 47 FLRA at 55-56
As with other proposals providing nonexamining time to patent examiners, Proposal 43 would afford unit employees significant benefits. In particular, it would ensure that portions of time spent performing 20 "first-actions-on-the-merits" and 20 "update searches" would not be included in the total amount of time subject to appraisal for productivity purposes. In the event that the productivity of individual examiners was reduced for these forty searches, Proposal 43 would minimize examiners' exposure to the adverse effects on their performance appraisals that flow from lowered productivity.
On the other hand, Proposal 43 severely restricts the Agency's discretion to determine whether to grant nonexamining time and, if granted, what amount of nonexamining time is appropriate. In this regard, the proposal would require the Agency to provide specified amounts of nonexamining time on specified occasions: subsection (a) would require the Agency to provide examiners nonexamining time on 20 separate occasions, while subsection (b) would require the Agency to provide examiners additional hours of nonexamining time on 20 additional occasions. The proposal would deprive the Agency of the discretion to determine that particular examiners do not need the full amount of nonexamining time to become familiar with the automated system. Unlike the proposals in POPA I and POPA III, which provided one-time-only grants of nonexamining time, Proposal 43 would provide recurring grants of nonexamining time, whether or not the Agency determined that such time was appropriate.
We conclude that the proposal's effect on management's rights would be disproportionate to the benefits that employees would derive from it. Accordingly, even assuming that Proposal 43 constitutes an arrangement, as asserted by the Union, we find that the proposal is not within the Agency's duty to bargain because it excessively interferes with the Agency's rights to direct employees and assign work.
In order to implement the performance standard of production goal achievement in an accurate, equitable, and reasonable manner, as an arrangement:
(a) Unit members, who use the automated system, will continue to be given non-examining time for each first- action-on-the-merits in the amount of at least one hour,
(b) Unit members, who use the automated system, will be given non-examining time when there are automated system delays which disrupt normal workflow.
(c) Unit members, who use the automated system, will continue to be given non-examining time when there is a catastrophic failure of the automated system which results in a disruption of normal workflow[.] [S]uch a disruption would include the need to repeat work.
(d) Unit members, who use the automated system, will be given non-examining time, where the unit member receives a NDD (No Document Display) or PNA (Page Not Available) and the unit member is approved to use alternate means and/or methods to retrieve those documents. This non-examining time may be accumulated over one or more searches so as to provide an accounting in whole hour increments.
(e) Unit members, who use the automated system, will be given non-examining time, where bad copies of documents are received from printers, where the unit member is required to obtain correct copies of the documents. [ v56 p83 ]
The Agency's argument is the same previously set forth in connection with Proposals 17, 44, and 58. See supra Part VI.C.2.a. The Agency makes no specific arguments regarding Proposal 45.
The Union contends that Proposal 45 is an appropriate arrangement because: "the burden placed on the Agency to avoid appraising unit members on matters outside their control is slight, and is negotiable." Union Response at 52 (citing POPA III, 47 FLRA at 34-37)).
Consistent with its plain wording and the Union's statement of intent, Proposal 45 would provide a specific minimum amount of nonexamining time for particular tasks and in particular situations. Specifically, Proposal 45 would provide nonexamining time under the following circumstances: for every first-actions-on-the-merits; automated system delays that disrupt the normal workflow; for every catastrophic failure of the automated system disrupting the normal workflow; when a unit member receives a "NDD (No Document Display) or PNA (Page Not Available)"; and when a unit member receives bad copies from the printers, and is required to obtain correct copies of the documents. [n18] A "first-action-on-the-merits," according to the Union, "occurs when [an examiner] takes up a new patent application for the first time and performs the search." Petition for Review at 3. Also according to the Union, bargaining unit employees "examine more than 100,000 applications for patents . . . each year." Id. at 2.
For the reasons explained above, we find that Proposal 45 affects management's right to direct employees and assign work under section 7106(a)(2) (A) and (B). See supra Part VI.B.2.
As with other proposals providing nonexamining time to patent examiners, Proposal 45 would afford unit employees significant benefits. In particular, it would ensure that portions of time spent performing all "first-actions-on-the-merits" as well as time spent as the result of computer problems, including system delays and catastrophic failures, would not be included in the total amount of time subject to appraisal for productivity purposes. Like Proposal 43, Proposal 45 would guard against lowered productivity and minimize examiners' exposure to the adverse effects that flow from lowered productivity.
Also like Proposal 43, however, Proposal 45 severely restricts the Agency's discretion to determine whether to grant nonexamining time and, if granted, what amount of nonexamining time for carrying out specified examining tasks is appropriate. In particular, section (a) requires the Agency to grant 1 hour of nonexamining time for every first-action-on-the-merits performed by every examiner. Consistent with the Union's definition of "first-action-on-the merits," and its description of examiners' yearly workloads, 1 hour of nonexamining time would be provided for the first search involving each of the 100,000 applications for patents examined every year. See Petition for Review at 2. The proposal would deprive the Agency of the discretion to determine that particular examiners do not need this amount of nonexamining time every time they perform a first-action-on-the-merits. In addition, it is clear that a first-action-on-the-merits is itself a part of a patent examination, and the record does not provide a basis for concluding that, as such, the time spent performing an examination should appropriately be counted as nonexamining time.
Based on the foregoing, we find that, even assuming that Proposal 45 constitutes an arrangement, the burden on the Agency's rights to direct employees and assign work under section (a) outweighs the benefits provided to employees. Thus, Proposal 45 is outside the Agency's duty to bargain because it excessively interferes with the Agency's rights to direct employees and assign work. [n19] See, e.g., Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 815 (1991) (Commerce) a proposal to exclude certain of an examiner's regular duties from performance appraisal held to excessively interfere with the Agency's rights to direct employees and assign work). [ v56 p84 ]
The Office shall provide unit members with non-examining time, as an arrangement, where the unit member is required to check the gene sequence filed in electronic form, for correspondence with the filed application, when the application is not in compliance with the current rules and regulations.
The Agency's argument is the same previously set forth in connection with Proposals 17, 44, and 58. See supra Part VI.C.2.a. The Agency makes no specific arguments regarding Proposal 57.
The Union asserts that Proposal 57 is an arrangement for examiners who may be adversely affected by the "new duty of checking gene sequences [that is] not addressed by the unit member's present performance appraisal plan." [n20] Union Response at 67. According to the Union:
The electronic form of gene sequencing listing duplicates what is already in the application. The [p]roposal addresses the foreseeable adverse [e]ffect on a unit member, if the unit member is required to check many gene sequences filed in electronic form, each of which are several hundred nucleotides long, for correspondence with the filed paper application. A unit member cannot examine [patents] while checking the gene sequences filed in electronic form. The time spent will add up to an appreciable amount over the course of a year.
Id. at 68. The Union claims that the Authority has found that "[p]roviding non-measured work time for employees when they can not be engaged in producing the final products by which . . . performance is measured is an appropriate arrangement." Id. at 68 (citing AFGE, Local 32 I, 26 FLRA at 612-15).
Consistent with its plain wording and the Union's statement of intent, the proposal would treat as nonexamining time the time that examiners are required to spend checking a gene sequence in electronic form. Thus, this time would not be included in the total amount of time used to measure productivity. The parties do not address the meaning of the phrase "when the application is not in compliance with the current rules and regulations" in the proposal.
For the reasons explained above, we find that Proposal 57 affects management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See supra Part VI.B.2. We note, in this regard, that we reached a contrary conclusion regarding Proposal 58; although Proposals 57 and 58 are similar, the different findings on this point are due to the fact that Proposal 57 would require the Agency to grant nonexamining time (not special examining time as is required by Proposal 58) and, as such, would preclude the Agency from including the time in the total used to determine productivity and evaluate employee performance.
As with other proposals providing nonexamining time to patent examiners, Proposal 57 would afford unit employees significant benefits. In particular, it would ensure that, in the circumstances of the proposal, the time spent checking gene sequences filed in electronic form would not be included in the total amount of time subject to appraisal for productivity purposes. Proposal 57 would guard against lowered productivity and minimize examiners' exposure to the adverse effects that flow from lowered productivity.
Like the "first-actions-on-the-merits" for which nonexamining time would be provided under Proposal 45, however, the Union does not dispute that checking an electronically recorded gene sequence against a hard copy of the gene sequence is itself a regular -- albeit "new" -- part of a patent examination. See Union Response at 67 (Union states that Proposal 57 provides an "arrangement for those unit members assigned a new duty in Group 180."). As such, the effect of Proposal 57 would be to exclude from the total time used to measure productivity in performing examinations that time spent performing a part of the examination. Even assuming, as the Union states, that an examiner cannot simultaneously check a gene sequence electronically and examine a patent, the record indicates that checking gene sequences has been assigned by the Agency as a duty to be performed in connection with examining patents.
In these circumstances, we conclude that preventing the Agency from including the time spent checking gene sequences in the total time used to measure productivity is an interference with the Agency's rights to direct employees and assign work that outweighs the benefits afforded employees. As such, Proposal 57 excessively interferes with the Agency's rights to direct employees and assign work. See, e.g., Commerce, 41 FLRA at 815. Thus, even assuming that Proposal 57 constitutes an arrangement, it does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute, and is outside the Agency's duty to bargain. [ v56 p85 ]
The Office shall grant non-examining time for the training on how to fill out and file 'bug' reports.
The Agency's argument is the same previously set forth in connection with Proposals 17, 44, and 58. See supra Part VI.C.2.a. Additionally, with respect to this requirement in Proposal 78 for training, the Agency asserts that the proposal would prevent
the Agency from considering as "examining time" in an employee's performance appraisal the time the employee spends receiving on the job training related to performance on the job. As a result the proposal effectively prevents the Agency from rating the employees for a part of their duties, and directly interferes with management's rights to direct employees and assign work under [section] 7106(a)(2)(A) and (B).
Statement of Position at 3 (NG-2161).
The Union make the same arguments it asserts in connection with Proposal 16. See supra Part VI.C.2.a. Additionally, the Union asserts that the proposal does not require the Agency to provide training. According to the Union, the proposal would apply only "if the Agency chooses to train unit members[.]" Union Response at 2 (NG-2161). The Union also asserts that the proposal is an appropriate arrangement because "[t]he Authority has found that to relieve an employee of other job demands while attending training is an appropriate arrangement." Id. at 3.
Consistent with its plain wording and the Union's statement of intent, the proposal would grant nonexamining time to unit members who attend training on filling out "bug" reports, in the event that the Agency decides to train examiners. As the proposal does not specify the type of training, and as the Union does not address the matter, we construe the proposal as permitting the Agency to provide whatever kind and amount of training it deems appropriate.
For the reasons explained above, we find that Proposal 78 affects management's right to direct employees and assign work under section 7106(a)(2)(A) and (B). See supra Part VI.B.2.
With respect to whether the Proposal 78 is an appropriate arrangement, it is intended to address the adverse effects on employees flowing from the exercise of management's right to assign work. Specifically, it is clear that an employee who attends training cannot, during that same time, examine patents or perform other related work. However, unless the time spent in training is excluded from the total time used to measure productivity, that employee's productivity would be negatively affected, with the potential result of a lower performance appraisal. Because the proposal would apply only to those examiners who receive training, and only for the period of time that they are unable to examine patents or perform other work because they are in training, we find that the proposal is sufficiently tailored and, as a result, constitutes an arrangement.
As for whether the proposal excessively interferes with management's rights, the proposal would afford employees who attend training significant benefits. As with other nonexamining time proposals, Proposal 78 would guard against lowered productivity and the adverse effects resulting therefrom. By ensuring that the appraisal of examiners' productivity did not include time spent in training, the proposal also would provide the Agency with a more accurate measure of employees' productivity in examining patent applications. In this regard, the Agency does not dispute that the time spent in training is not time spent examining patent applications.
On the other hand, the burden of Proposal 78 on the Agency's rights to direct employees and assign work is minimal. In this regard, the proposal would apply only if the Agency decides to train examiners. Moreover, the proposal does not specify the type of training to be provided (e.g., formal classes or on the job training), does not dictate the training's scheduling or duration, and does not specify who is to provide the training. These matters are left to the discretion of the Agency.
Because the proposal allows the Agency to determine whether to provide training, how much training to provide, and what type of training to provide, the benefit to employees in not using examining time for training outweighs the cost to the Agency. As such, we find that Proposal 78 does not excessively interfere with the Agency's rights to direct employees and assign work. Cf. Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 837-38 (1991) (POPA II) (proposal requiring "adequate" training did not excessively interfere with management's right to assign work because it left pertinent decisions to the discretion of the Agency). We conclude that Proposal 78 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute and is within the Agency's duty to bargain. [ v56 p86 ]
The Agency asserts that each of the nine proposals addressed in this part of the decision affects its right to determine the methods and means of performing work under section 7106(b)(1) of the Statute, and that Proposal 59 also affects its right to assign work under section 7106(a). The Union asserts that these proposals are procedures, under 7106(b)(2) of the Statute, and/or appropriate arrangements under section 7106(b)(3). On this basis, the Union claims that these proposals are within the Agency's duty to bargain.
In the sections that follow, we analyze these arguments. In doing so, we note that Authority precedent specifically provides that a proposal may constitute an appropriate arrangement for the exercise of a management right under section 7106(a) or 7106(b)(1). See KANG, 21 FLRA at 31. See also Association of Civilian Technicians, Montana Air Chapter and Federal Labor Relations Authority, 756 F.2d 172, 180 (D.C. Cir. 1985) (ACT, Montana Air Chapter) ("we hold that, under sections 7106(b)(2) and (b)(3), an agency is required to bargain over 'procedures' and 'arrangements' with respect to the exercise of any of the management rights enumerated in section 7106, whether contained in subsection (a) or in subsection (b)(1)."). The Agency has not questioned this precedent, on which the Union relies, and we apply it here. Additionally, no reason has been asserted why the Authority should treat section 7106(b)(2) differently from section 7106(b)(3) in this respect. See id.
In order to advantageously aid in the understanding of patents in future searches, the Office shall allow the unit member to add notations to documents on the automated system. The automated system shall allow the unit member to view the notations at the same time the document is displayed.
The Agency asserts that Proposal 41 affects the Agency's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. In particular, the Agency claims that, "by effectively allowing employees to modify the content of the CSIR data base, this proposal clearly interferes with the means by which the new system operates[.]" Statement of Position at 18.
The Union maintains that Proposal 41 is an appropriate arrangement that would mitigate the adverse effect that results from the fact that examiners currently are permitted to make notations only in paper -- and not computerized --files. According to the Union, the proposal would "level the workplace environment" and would promote effective searches. Petition for Review at 21. The Union explains that the proposal "does not require that the . . . database be capable of being alterable but rather that notations can be made in relation to a stored document . . . ." Response at 44.
Consistent with its plain wording and the Union's statement of intent, Proposal 41 would permit unit members to make notations in computerized search files similar to notations that can be made in paper search documents. The proposal would not require the Agency to alter the database itself.
There is no dispute that Proposal 41 affects the Agency's right to determine the methods and means of performing work. In addition, the Agency does not dispute the Union's claim that examiners are encouraged to make notations in paper files to assist future searches and that, without Proposal 41, examiners "would be at a disadvantage relative to members employing a paper file." Petition for Review at 21. Accordingly, we find that Proposal 41 would mitigate adverse effects flowing from the exercise of the Agency's right to determine the methods and means of performing work. [ v56 p87 ]
The Authority has found that proposals "intended to eliminate the possibility of an adverse effect, may constitute appropriate arrangements negotiable under section 7106(b)(3)[.]" NTEU, Chapter 243, 49 FLRA at 191. In particular, prophylactic proposals will be found sufficiently tailored in situations where it is not possible to "determine reliably which employees" will be adversely affected by an agency action, or failure to act, so as to draft a proposal to apply only to those employees. Id. Proposal 41 is prophylactic in that it would eliminate the possibility that examiners will be adversely affected by having to work with unannotated files. It is reasonable to anticipate that some examiners would not be adversely affected if notations connected to automated search files were not permitted. However, we are unable to discern how the proposal could identify those employees so as to narrow its application to them. Therefore, we conclude that this proposal is sufficiently tailored. See id.
With regard to whether the proposal excessively interferes with management's rights, the Agency's sole assertion -- that the proposal would permit employees to modify the CSIR database -- is based on a misinterpretation of the proposal. As construed above consistent with its wording and the Union's statement of intent, the proposal would permit examiners only to make notations regarding patent searches. The notations could be separate from the CSIR database itself. The Agency has not asserted that it would be unable to implement Proposal 41 without altering the CSIR database.
There is no basis in the record before us on which to find that Proposal 41 would substantially burden the exercise of the Agency's right to determine the methods and means of performing work. On the other hand, there is no dispute that Proposal 41 would provide significant assistance to examiners by allowing them to rely on notations made by other examiners, rather than repeating the work previously performed by those examiners. As such, we find that the benefits to employees outweigh the burden on management's right, and that the proposal does not excessively interfere with the Agency's right to determine the methods and means of performing work. Therefore, Proposal 41 is within the duty to bargain as an appropriate arrangement under section 7106(b)(3) of the Statute.
When the unit member is required to do an automated search, and also required to do a search in the paper files, then, the Office, where practicable, shall place the foreign patents and literature in the same location as the U.S. patents which are classified in the same subclass or equivalent. The location within each Group shall be readily accessible to the unit member.
The Agency claims that Proposal 52 affects its right to determine the methods and means of performing work under section 7106(b)(1) of the Statute by "attemp[ing] to determine where equipment associated with the new system will be located." Statement of Position at 21.
The Union asserts that this proposal is an appropriate arrangement because requiring the Agency to keep foreign literature in the same location as pertinent U.S. literature will permit examiners to work more efficiently. According to the Union, the Agency already co-locates this material and, as a result, the proposal would merely maintain the status quo.
Consistent with its plain wording and the Union's statement of intent, Proposal 52 would require the Agency, "where practicable," to keep foreign literature in the same place as U.S. literature of the same type for examiners required to do searches in the paper files as well as on the automatic system.
There is no dispute that Proposal 52 affects the Agency's right to determine the methods and means of performing work. In addition, the Agency does not dispute the Union's claim that, without Proposal 52, examiners who are required to perform searches using both the automated system and paper files would be adversely affected because they would work less efficiently. It is reasonably foreseeable that examiners will work less efficiently if they must look in multiple places for related patent information. As set forth previously, it is undisputed that reduced productivity could result in lowered performance appraisals. Accordingly, we find that Proposal 52 would mitigate adverse effects flowing from the exercise of the Agency's right to determine the methods and means of performing work by determining the location of its search materials. [ v56 p88 ]
Proposal 52 is designed to eliminate the possibility that examiners will be adversely affected by the inconvenient arrangement of search materials. It is reasonable to conclude that some examiners would not be adversely affected if foreign and U.S. literature were not co-located because, for example, they were not required to perform searches involving both. However, we are unable to discern how Proposal 52 could be limited to apply only to examiners who would be adversely affected. In addition, as files are located in the same way for all examiners who use them, we also are unable to discern how the co-location of foreign and U.S. literature could be practically limited to employees who would be adversely affected. Therefore, we conclude that this proposal is sufficiently tailored. See NTEU, Chapter 243, 49 FLRA at 191.
Proposal 52 would afford significant benefits to examiners who otherwise would be adversely affected by being required to perform searches using materials that were located in multiple places. On the other hand, there is no basis in the record before us on which to find that Proposal 52 would substantially burden the exercise of the Agency's right to determine the methods and means of performing work. In this connection, there is no dispute that the Agency has exercised its discretion to co-locate the materials, and the Agency indicates no interest in, or reason for, changing this. Moreover, the Agency retains the discretion to change the location of these materials in situations where it is not "practicable" to continue to co-locate them. In these circumstances, we conclude that the benefits to employees outweigh the burden on the exercise of management's right under section 7106(b)(1), and, as a result, that Proposal 52 does not excessively interfere with that right. Accordingly, Proposal 52 is within the Agency's duty to bargain as an appropriate arrangement under section 7106(b)(3) of the Statute.
Since the unofficial digests are important tools which are used by the unit members to perform their duties more efficiently, unit members shall be permitted to maintain, use and store unofficial paper digests.
The Agency claims that Proposal 53 affects its right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. In particular, the Agency claims that Proposal 53 would make "the use of the new CSIR system voluntary for employees, and allow[] them to continue to use the prior system of paper files[.]" Statement of Position at 20.
The Union asserts that the proposal is an appropriate arrangement that benefits examiners by allowing them "to efficiently perform their duties by not having to perform repetitive work[.]" Union Response at 61. According to the Union, the proposal would not make use of CSIR voluntary and, instead, would merely permit use of digests as "an augmentation to the paper files." Id. The Union claims that currently, "digests are allowed" and that the proposal "maintains the status quo insofar as maintaining the unit members' benefit of being able to work more efficiently through the keeping of digests." Id. The Union defines "unofficial digests" as "collection references relating to a specific concept or subject matter." Petition for Review at 27.
Consistent with its plain wording and the Union's statement of intent, Proposal 53 would allow unit members to "maintain, use, and store" unofficial digests. The digests would augment -- not replace -- use of CSIR. Thus, Proposal 53 would not render use of the CSIR voluntary on the part of examiners.
There is no dispute that Proposal 53 affects the Agency's right to determine the methods and means of performing work. In addition, the Agency does not dispute the Union's claim that, without Proposal 53, examiners would be adversely affected because they would work less efficiently. In this regard, it is reasonably foreseeable that examiners will work less efficiently if they are not permitted to maintain and use their personal unofficial digests. As set forth previously, it is undisputed that reduced productivity could result in lowered performance appraisals. Accordingly, we find that Proposal 53 would mitigate adverse effects flowing from the exercise of the Agency's right to determine the methods and means of performing work.
Proposal 53 is designed to eliminate the possibility that examiners will be adversely affected by their inability to maintain and use unofficial digests. It is reasonable to conclude that some examiners would not be adversely affected if maintenance and use of such digests were not permitted. However, as with Proposals 41 and 52, we are unable to discern how the proposal could be limited to apply only to examiners who would be adversely affected. Therefore, we conclude that this proposal is sufficiently tailored. See NTEU, Chapter 243, 49 FLRA at 191.
Proposal 53 would afford significant benefits to examiners who otherwise would be adversely affected if they were not permitted to maintain and use unofficial digests. On the other hand, there is no basis in the record before us on which to find that Proposal 53 would substantially burden the exercise of the Agency's right to determine the methods and means of performing work. In this connection, the Agency retains complete discretion to determine how examiners perform searches and to require examiners to use the automated system to do so.
In these circumstances, we conclude that the benefits to employees outweigh the burden on the exercise of management's right to determine the methods and means of performing work under section 7106(b)(1), and, as a result, that Proposal 53 does not excessively interfere with that right. Accordingly, Proposal 53 is within the Agency's duty to bargain as an appropriate arrangement under section 7106(b)(3) of the Statute.
The Office where practicable, shall install and maintain at least one Patent Application Location and Monitoring system (PALM) terminal in the workstation area.
The Agency claims that, by attempting "to determine where equipment . . . will be located," Proposal 55 affects the Agency's right to determine the technology, methods, and means of performing work under section 7106(b)(1) of the Statute. Statement of Position at 21.
The Union argues that Proposal 55 is an appropriate arrangement for employees who are required to use PALM terminals, which are located in supervisor's rooms and clerical areas. According to the Union, patent applications sometimes reference other, pending patent applications, which are accessible through PALM terminals. The Union maintains that employees who use CSIR and are required to research a pending patent application are disadvantaged by the location of the PALM terminals because, unlike employees who use paper files, they are unable to bring their work files with them to the PALM terminals. The Union asserts that placing PALM terminals near the automated system workstations would benefit unit members "by providing similar PALM terminal access to what they now have under the paper system." Union Response at 64.
Consistent with its plain wording and the Union's statement of intent, Proposal 55 would require the Agency, "where practicable," to make at least one PALM terminal available "in the workstation area."
There is no dispute that Proposal 55 affects the Agency's right to determine the methods and means of performing work. It is reasonably foreseeable that examiners's productivity may be reduced if they are working on the automated system and need to use a PALM terminal that is not located in the area of their workstations. As set forth previously, it is undisputed that reduced productivity could result in lowered performance appraisals. Proposal 55 would mitigate these adverse effects, which flow from the exercise of management's right to determine the methods and means of performing work by determining the location of PALM terminals.
Proposal 55 is designed to eliminate the possibility that examiners will be adversely affected by the location [ v56 p90 ] of PALM terminals. While it is reasonable to conclude that some examiners would not be adversely affected by the location of PALM terminals because, for example, they were not required to perform searches using such terminals, we are unable to discern how the proposal could be limited to apply only to employees who would be adversely affected. Therefore, we conclude that this proposal is sufficiently tailored. See NTEU, Chapter 243, 49 FLRA at 191.
Proposal 55 would afford significant benefits to examiners who otherwise would be adversely affected by being required to perform searches using PALM terminals that were not located conveniently. On the other hand, there is no basis in the record before us on which to find that Proposal 55 would substantially burden the exercise of the Agency's right to determine the methods and means of performing work. In this connection, the Agency indicates no interest in, or reason for, any particular location of PALM terminals. Moreover, the Agency retains the discretion to change the location of PALM terminals in situations where it is not "practicable" to locate them in the area of examiners' workstations. In these circumstances, we conclude that the benefits to employees outweigh the burden on the exercise of management's right to determine the methods and means of performing work under section 7106(b)(1), and, as a result, that Proposal 55 does not excessively interfere with that right. Accordingly, Proposal 55 is within the Agency's duty to bargain as an appropriate arrangement under section 7106(b)(3) of the Statute.
Text searching and Named Document Collection (NDC) additions or equivalent shall be performed at the professional discretion of the unit member except where the unit member performs a coded search, consistent with the Performance Appraisal Plan (PAP).
The Agency asserts that Proposal 56 affects it right to determine the method and means of performing work under section 7106(b)(1) of the Statute. According to the Agency, the proposal "would allow the employee to forego the use of the new technology for performing work and instead continue to use the prior system." Statement of Position at 23.
The Union contends that Proposal 56 is an appropriate arrangement. According to the Union, the proposal would not "render use of the automated system voluntary" and, instead, would "allow[] unit members to use the automated system . . . in the same manner as it is used in the paper files . . . ." Union Response at 66. The Union states, in this connection, that:
Text searching . . . consists simply of a word searchable data base of all U.S. patents back to 1971. . . . A NDC addition is a search technique available only to unit members using the [a]utomated system. The difference between text searching and NDC addition is that unit members using the automated system can view the images of the patent documents while examiners using the text search must physically retrieve the documents.
Union Response at 64.
Consistent with the wording of the proposal and the Union's statement of intent, Proposal 56 would provide examiners discretion to determine whether to perform two search techniques -- "[t]ext searching and Named Document Collection (NDC) additions or equivalent" -- except where the examiner "performs a coded search[.]"
As explained below, fully resolving the parties' claims requires us to understand the meaning of these distinct techniques, in the context of the coded search system within which the proposal would operate. The record does not provide a basis for such understanding. For example, there is no information in the record as to how often it is necessary to conduct a "text" or "NDC" search as part of a patent examination. It also is unclear whether, as the Agency claims, the proposal renders use [ v56 p91 ] of the automated system voluntary with examiners. The Union claims, in this regard, that "the proposal does not render use of the automated system voluntary." Union Response at 66. However, Proposal 56 clearly provides, as relevant here, that "(NDC) additions or equivalent shall be performed at the professional discretion of the unit member[,]" and the Union states that an "NDC addition is a search technique available only to unit members using the [a]utomated system." Id. at 64. If a particular search that can be performed only on the automated system is discretionary with an examiner under the proposal, then it is not clear how, as the Union claims, the proposal does not render use of the automated system voluntary, at least as to that type of search.
There is no dispute that Proposal 56 affects the Agency's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute.
With respect to the Union's claim that the proposal constitutes an appropriate arrangement under section 7106(b)(3), the general description in the record of the terms in the proposal does not provide sufficient information for the Authority to determine whether the proposal would afford benefits to employees or to determine the amount of interference with management's right under section 7106(b)(1). Among other things, as described above, the record does not permit the Authority to determine whether the proposal would render use of the automated system voluntary with employees, at least as to NDC searches. As such, we are unable on this record to determine whether Proposal 56 is an appropriate arrangement under section 7106(b)(3) of the Statute. We note, in this regard, that the parties bear the burden of creating a record on which a negotiability determination can be made. See, e.g., American Federation of State, County, & Municipal Employees, Local 2910 and Library of Congress, 53 FLRA 1334, 1342 (1998) (Library of Congress).
Although we are unable to determine whether Proposal 56 is within the Agency's duty to bargain as an appropriate arrangement, there is no dispute between the parties that the proposal concerns the methods and means of performing work within the meaning of section 7106(b)(1) of the Statute. Accordingly, Proposal 56 is negotiable at the Agency's election under section 7106(b)(1). In this situation, we dismiss the petition as to the proposal without prejudice.
The Office shall continue to provide library support or equivalent for automated gene sequence searching.
The Agency claims that Proposal 59 affects its right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. The Agency also asserts that the proposal affects its right to assign work.
The Union asserts that the proposal is a procedure, under section 7106(b)(2) of the Statute and an appropriate arrangement, under section 7106(b)(3), because it "addresses the reasonably foreseeable disadvantages [that] some unit members have with respect to others who are familiar with computers." Union Response at 71. According to the Union, the proposal would merely "continue the status quo library support," Petition for Review at 29, in that the Agency "now provides personnel, who are particularly skilled in the use of computerized search for gene sequences, to assist unit members." Union Response at 71. The Union defines "library support" as "any personnel that management designates to provide assistance to a unit member." Petition at 29.
Consistent with its plain wording and the Union's statement of intent, Proposal 59 would require the Agency to provide "support" to examiners performing gene sequence searching on the automated system by designating personnel to provide assistance to examiners or providing "equivalent" assistance. The Agency has full discretion under the proposal to determine the personnel to provide the library support.
Proposal 59 would require the Agency to provide particular support (library support or equivalent) for examiners performing particular work (searching gene sequences). We conclude, for the purposes of this decision, that, by requiring the Agency to facilitate examiners' performance of work through particular support mechanisms, the proposal affects the Agency's right to determine the methods and means of performing work. Cf. Overseas Education Association, Inc. and Department of Defense, Dependents Schools, 29 FLRA 734, 754-55 (1987) (Overseas Education Association). However, Authority precedent does not support the Agency's claim that the proposal also affects its right to assign work. Unlike the case relied on by the Agency, American [ v56 p92 ] Federation of Government Employees, Local 1409 and U.S. Department of the Army, Aberdeen Proving Ground Support Activity, Aberdeen Proving Ground, Maryland, 38 FLRA 747 (1990), the proposal in this case does not designate a particular employee to perform a particular function. The record provides no other basis on which to find that the proposal affects the Agency's right to assign work.
The Union claims, and it is reasonably foreseeable, that examiners who are not familiar with the automated system would be adversely affected if they were not provided assistance in performing gene sequence searches. In particular, failure to provide such assistance would likely affect those examiners' productivity. As set forth previously, it is undisputed that reduced productivity could result in lowered performance appraisals. Proposal 59 would mitigate these adverse effects, which flow from the Agency's determination as to the methods and means of performing gene sequence searches.
Proposal 59 is designed to eliminate the possibility that examiners will be adversely affected if the Agency does not provide assistance in performing gene sequence searches. While it is reasonable to conclude that not all examiners would need such assistance, we are unable to discern how the proposal could be limited to apply only to employees who would be adversely affected. Therefore, we conclude that this proposal is sufficiently tailored. See NTEU, Chapter 243, 49 FLRA at 191.
Proposal 59 would afford significant benefits to examiners who otherwise would be adversely affected if the Agency did not provide assistance. On the other hand, there is no basis in the record before us on which to find that Proposal 59 would substantially burden the exercise of the Agency's right to determine the methods and means of performing work. In this connection, the proposal requires the Agency to provide library support "or equivalent." As such, the Agency has discretion to determine that support should be provided in an alternative way. The Agency also retains discretion under the proposal to determine the personnel to provide support. The Union contends, and the Agency does not dispute, that library staff are currently assigned to perform this function, and the Agency indicates no interest in, or reason for, changing this assignment.
In these circumstances, we conclude that the benefits to employees outweigh the burden on the exercise of management's right to determine the methods and means of performing work, and, as a result, that Proposal 59 does not excessively interfere with those rights. Accordingly, Proposal 59 is within the Agency's duty to bargain as an appropriate arrangement under section 7106(b)(3) of the Statute. [n21]
The Office may permit unit members to use the paper files, as long as they exist, where a NDD [No Document Display], PNA [Page Not Available], or equivalent has been received, to retrieve these documents at the unit member's discretion.
The Agency asserts that Proposal 62 affects its right to determine the method and means of performing work under section 7106(b)(1) of the Statute. According to the Agency, the proposal would require the Agency to "continue to maintain the prior system of performing work through paper files," and would permit employees "to forego the use of the new technology [of] performing work and instead continue to use the prior system." Statement of Position at 27.
According to the Union, Proposal 62 is intended to permit examiners "at the discretion of the Agency, to use the paper files when a document is missing from the automated system." Petition for Review at 30. The Union claims, in this connection, that, "under the proposal, the Agency may, or may not, permit unit members to use the paper files, which is thereby at the discretion of the Agency." Union Response at 74. The Union asserts that the proposal is a procedure, under section 7106(b)(2), and an appropriate arrangement, under section 7106(b)(3), that "addresses the reasonably foreseeable adverse effect on a unit member if a relevant reference to an examination is unavailable on the automated system." Id. at 75.
Proposal 62 provides that the Agency "may permit" examiners to use paper files when an "NDD, PNA, or equivalent has been received[.]" While the terms are not precisely defined, it is clear that "No Document Display" and "Page Not Available" refer to information that is not available in the automated system. See Petition for Review at 30 (Union states that proposal is intended to address situation "when a document is missing from the automated system."). As the Union's assertion that the Agency "may, or may not" permit examiners to use paper files under Proposal 62 comports with the plain wording of the proposal, we construe the proposal as providing that the Agency has discretion to permit examiners to use paper files when the examiners are unable to locate documents on the automated system. [ v56 p92 ] The proposal would not, consistent with this construction, require the Agency to grant permission to examiners to use the paper files. The proposal would also not require the Agency to continue to maintain paper files; the proposal expressly applies only "as long as" paper files "exist."
As construed above consistent with its plain wording and the Union's statement of intent, Proposal 62 merely recognizes the Agency's discretion to permit examiners to use paper files in certain situations. The proposal neither requires the Agency to continue to maintain paper files nor requires the Agency to permit examiners to use those files in the situations stated in the proposal. As such, the Agency's claims are based on a misinterpretation of the proposal and there is no basis on which to conclude that, properly construed, Proposal 62 affects the Agency's right to determine the methods and means of performing work. Accordingly, as no other grounds for finding the proposal outside the duty to bargain are asserted by the Agency, we conclude that Proposal 62 is within the duty to bargain.
The paper files shall continue to be maintained, as long as the paper files exist.
The Agency claims that Proposal 63 affects the Agency's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. According to the Agency, Proposal 63 "would not only make the use of the new CSIR system voluntary for employees, but would require the Agency to maintain the prior system of paper files for employee's use[.]" Statement of Position at 28.
The Union asserts that Proposal 63 would provide employees the benefit of "orderly and complete paper files as long as the paper files exist." Petition for Review at 30. The Union claims that the proposal is a procedure, under section 7106(b)(2) of the Statute, and an appropriate arrangement, under section 7106(b)(3), because it "addresses the reasonably foreseeable adverse impact on unit members if the paper files [are] not orderly and complete." Union Response at 76.
Consistent with its plain wording and the Union's statement of intent, the proposal would require the Agency to "maintain" the paper files for as long as the Agency keeps the paper files. As the Union's statement comports with the plain wording of the proposal, we construe the word "maintain" as requiring the Agency to keep the files in an "orderly and complete" fashion. The proposal does not affect the Agency's discretion to determine to no longer keep paper files; however, for as long as the Agency determines to keep them, the Agency would be required to maintain them in an orderly and complete fashion.
Proposal 63 would require the Agency to maintain paper files in a particular way. Consistent with Authority precedent, the proposal affects the Agency's right to determine the methods and means of performing work. See Overseas Education Association, 29 FLRA at 754-55.
The Union claims, and it is reasonably foreseeable, that examiners who use paper files would be adversely affected if the files were not maintained in an orderly and complete fashion. In particular, failure to maintain files relied on by examiners would likely affect those examiners' productivity. As set forth previously, it is undisputed that reduced productivity could result in [ v56 p94 ] lowered performance appraisals. Proposal 63 would mitigate these adverse effects, which flow from the Agency's determination as to the methods and means of performing work.
Proposal 63 is designed to eliminate the possibility that examiners will be adversely affected if the Agency did not keep its paper files in an orderly and complete fashion. It is reasonable to conclude that not all examiners would be adversely affected if orderly and complete files were not maintained. For example, some examiners may never be required, or choose, to use the paper files. However, where files are used by many examiners, it does not appear possible to keep them in order for some examiners but not for others. In addition, we do not discern how the proposal could be limited to apply only to examiners who would be adversely affected. Therefore, we conclude that this proposal is sufficiently tailored. See NTEU, Chapter 243, 49 FLRA at 191.
Proposal 63 would afford significant benefits to examiners who otherwise would be adversely affected if the Agency did not maintain orderly and complete paper files. On the other hand, there is no basis in the record before us on which to find that Proposal 63 would substantially burden the exercise of the Agency's right to determine the methods and means of performing work. In this connection, the Agency retains complete discretion under the proposal to determine how to maintain orderly and complete files. The Agency also retains complete discretion to determine not to keep paper files at all.
In these circumstances, we conclude that the benefits to employees outweigh the minimal burden on the exercise of management's right to determine the methods and means of performing work, and, as a result, that Proposal 63 does not excessively interfere with that right. Accordingly, the proposal is within the Agency's duty to bargain as an appropriate arrangement under section 7106(b)(3) of the Statute. [n22]
Where there is a file integrity discrepancy between the text system, image system, and/or the paper system due