Patent Office Professional Association (Union) and U.S. Department of Commerce, Patent and Trademark Office, Washington, D.C. (Agency)

[ 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] 

I.     Statement of the Case

      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.

II.     Proposals

      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.

III.     Background

      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] 

IV.     Preliminary Matters

A.     Proposals Not in Dispute

      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.

B.     Framework for Resolving Claims under Section 7106(b)(3) of the Statute

      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.

V.     Proposals Concerning Bargaining During the Term of the Parties' Agreement: Proposals 66 - 77

A.     Proposals

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.

B.     Positions of the Parties

1.     Agency

      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.

2.     Union

      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 ]

C.     Meaning of the Proposals

      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.

D.     Analysis and Conclusions

      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.

VI.     Examining Time Proposals: 3, 4, 16, 17, 24, 43, 44, 45, 57, 58, and 78

A.     Introduction

      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.

B.     Arguments Applicable to All Examining Time Proposals

1.     Positions of the Parties

      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.

2.     Analysis and Conclusions

      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.

C.     Special Examining Time Proposals: 4, 17, 44, 58

1.     Proposal 4

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.

a.     Positions of the Parties

      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.

b.     Meaning of the Proposal

      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."

c.     Analysis and Conclusions

i.     The Proposal is not Contrary to Government-wide Regulation

      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.

ii.     The Proposal Does Not Affect Management's Rights

      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).

iii.     We Do not Examine whether a Proposal is Covered by A Collective Bargaining Agreement

      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 ]

2.     Proposals 17, 44 and 58

a.     Proposals

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.

b.     Positions of the Parties

      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).

c.     Meaning of the Proposals

      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] 

d.     Analysis and Conclusions

      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).

D.     Nonexamining Time Proposals: 3, 16, 24, 43, 45, 57, and 78  [n15] 

1.     Proposal 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.

a.     Positions of the Parties

      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.

b.     Meaning of the Proposal

      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.

c.     Analysis and Conclusions

i.     The Proposal is not Contrary to Government-wide Regulation

      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.

ii.     The Proposal Affects Management's Right to Assign Work and Does Not Constitute an Appropriate Arrangement

      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.

2.     Proposal 16

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.

a.     Positions of the Parties

      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.

b.     Meaning of the Proposal

      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 ]

c.     Analysis and Conclusions

      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.

3.     Proposal 24

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.          

a.     Positions of the Parties

      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).

b.     Meaning of the Proposal

      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.

c.     Analysis and Conclusions

      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.

4.     Proposal 43

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.

a.     Positions of the Parties

      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.

b.     Meaning of the Proposal

      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.

5.     Proposal 45

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 ]

a.     Positions of the Parties

      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)).

b.     Meaning of the Proposal

      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.

c.     Analysis and Conclusions

      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 ]

6.     Proposal 57

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.

a.     Positions of the Parties

      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).

b.     Meaning of the Proposal                              

      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.

c.     Analysis and Conclusions

      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 ]

7.     Proposal 78

The Office shall grant non-examining time for the training on how to fill out and file 'bug' reports.

a.     Positions of the Parties

      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.

b.     Meaning of the Proposal

      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.

c.     Analysis and Conclusions

      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 ]

VII.     Proposals Concerning (b)(1) Matters: 41, 52, 53, 55, 56, 59, 62, 63, and 65

A.     Introduction

      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.

B.     Proposal 41

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.

1.     Positions of the Parties

      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.

2.     Meaning of the Proposal

      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.

3.     Analysis and Conclusions

      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.

C.     Proposal 52

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.

1.     Positions of the Parties

      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.

2.     Meaning of the Proposal

      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.

3.     Analysis and Conclusions

      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.

D.     Proposal 53

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.

1.     Positions of the Parties

      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.

2.     Meaning of the Proposal

      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.

3.     Analysis and Conclusions

      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.

E.     Proposal 55

The Office where practicable, shall install and maintain at least one Patent Application Location and Monitoring system (PALM) terminal in the workstation area.

1.     Positions of the Parties

      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.

2.     Meaning of the Proposal

      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."

3.     Analysis and Conclusions

      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.

F.     Proposal 56

      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).

1.     Positions of the Parties

      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.

2.     Meaning of the Proposal

      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.

3.     Analysis and Conclusions

      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.

G.     Proposal 59

The Office shall continue to provide library support or equivalent for automated gene sequence searching.

1.     Positions of the Parties

      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.

2.     Meaning of the Proposal

      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.

3.     Analysis and Conclusions

      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] 

H.     Proposal 62

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.

1.     Positions of the Parties

      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.

2.     Meaning of the Proposal

      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."

3.     Analysis and Conclusions

      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.

I.     Proposal 63

The paper files shall continue to be maintained, as long as the paper files exist.

1.     Positions of the Parties

      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.

2.     Meaning of the Proposal

      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.

3.     Analysis and Conclusions

      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] 

J.      Proposal 65

Where there is a file integrity discrepancy between the text system, image system, and/or the paper system due to a discrepancy in the Master Classification between the systems, the Office shall ameliorate the discrepancy of the file integrity of the three systems, so that the three systems are in agreement with each other.

1.     Positions of the Parties

      The Agency asserts that Proposal 65 affects its right to determine the methods and means of performing work under section 7106(b)(1) of the Statute by requiring it to "'ameliorate' any discrepancies between the new and old systems[.]" Statement of Position at 27.

      The Union states that the proposal is intended to provide unit employees "with consistency of file integrity in all three systems." [n23]  Petition for Review at 31. According to the Union, the proposal is within the duty to bargain as a procedure or an appropriate arrangement because it:

addresses the reasonably foreseeable adverse effects on a unit member charged with an error because a newly found relevant reference was not in the text and/or automated system, since a unit member does not search all three systems for one application.

Union Response at 79. The Union asserts, in this connection, that "[a]greement between systems would avoid a unit member missing a relevant reference." Id.

2.     Meaning of the Proposal

      Consistent with its plain wording, and the Union's statement of intent, Proposal 65 would require the Agency to "ameliorate [a] discrepancy of the file integrity [ v56 p95 ] of the three systems, so that the three systems are in agreement with each other."

      As explained below, fully resolving the parties' claims requires us to understand what it means to "ameliorate [a] discrepancy of the file integrity of the three systems[.]" The record does not provide a basis for such understanding. In particular, there is no information in the record regarding the extent to which there are "discrepancies" between the "three systems" or what would be necessary to "ameliorate" the discrepancies.

3.     Analysis and Conclusions

      Proposal 65 would require the Agency to use a particular method and means of performing work -- systems that have no discrepancies -- to perform work. Consistent with Authority precedent, the proposal affects its right to determine the methods and means of performing work. See Overseas Education Association, 29 FLRA at 754-55.

      However, the general description of the terms in the proposal in the record does not provide sufficient information for the Authority to resolve the Union's claim that the proposal is within the Agency's duty to bargain. As described above, the record does not illuminate the extent to which there are "discrepancies" between the "three systems" or what would be necessary to "ameliorate" the discrepancies. Without this information, it is not possible to determine what circumstances would require action from the Agency or what action would be required in those circumstances. As a result, it is not possible to determine the extent to which the proposal affects the Agency's right to determine the methods and means of performing work or the extent to which the proposal would benefit employees. As noted above, the parties bear the burden of creating a record on which a negotiability determination can be made. See, e.g., Library of Congress, 53 FLRA at 1342.

      As 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. Proposal 65 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.

VIII.     Proposals Concerning Performance Appraisal: 20, 29, 30, 60, 61, and 64  [n24] 

A.     Introduction

      In this part of the decision, we address six proposals that concern performance appraisals. The Agency claims, and the Union does not dispute, that Proposals 20, 29, 30, 60, 61, and 64 affect the Agency's rights to direct employees and assign work. The Union also does not dispute that Proposals 29 and 30 also affect the Agency's right to discipline. Accordingly, we find, for the purposes of this decision, that the proposals affect these management rights. The Union disputes the Agency's claim that Proposal 20 affects the Agency's right to discipline, and the Union claims that all six proposals constitute appropriate arrangements under section 7106(b)(3) of the Statute. We address and resolve the parties' disputed claims in the sections that follow on each of the proposals.

B.     Proposal 20

Where the Office has failed to define a set of standards as to what the Office considers an automated system problem or equipment failure, which a unit member may encounter and report, no unit member will be adversely affected by not reporting such a problem or equipment failure.

1.     Positions of the Parties

      The Agency asserts that Proposal 20 affects its rights to discipline employees under section 7106(a)(2)(A) of the Statute, and to direct employees and assign work under section 7106(a)(2)(B). The Agency asserts that Proposal 20 would preclude the Agency from considering in an employee's performance appraisal, or from disciplining an employee for, the employee's "failure to report problems with the system, even if expressly directed to do so." Statement of Position at 7.

      According to the Union, the Agency "has failed to define a set of standards as to what it considers automated system problems warranting the expenditure of a unit members production time to report." Union Response at 20. The Union claims, in this regard, that the "only written standard as to what the Agency considers an automated system problem or equipment failure, consists of the Automated Bug Report[.]" [n25]  Id. at [ v56 p96 ] 21. The Union asserts that, because the Bug Report has not been modified since it was first introduced, it "lists many problems [that] do not deserve the unit members productive time to report." Id. The Union also asserts that the Bug Report includes "'other'" as a category of system problems to be reported, and that a unit employee "cannot be expected to know what this means . . . ." Id. According to the Union, the proposal is an appropriate arrangement for examiners who may be adversely affected by "not reporting a problem which the unit member . . . does not perceive as a system problem or failure because he/she was not properly trained or informed to recognize such a problem." Id. at 20. The Union denies that the proposal would preclude the Agency from holding unit employees accountable for failing to report a problem they had been "expressly directed" to report. Id. at 21.

2.     Meaning of the Proposal

      Consistent with its plain wording and the Union's statement of intent, Proposal 20 would prevent the Agency from adversely affecting a unit member who does not report a computer system problem that the Agency has "failed to define" through "a set of standards." The proposal neither restricts the Agency's discretion as to the content of the required standard, nor precludes the Agency from holding employees accountable for reporting problems they are expressly directed to report. The Union does not define the "adverse effects" that the proposal would preclude. Based on the record as a whole, we construe the proposal as precluding the Agency from considering an employee's failure to report problems that the Agency has not identified or defined, either specifically or through standards set by the Agency, in a performance appraisal and from basing a disciplinary action on such failure.

3.     Analysis and Conclusion

      As the Union does not dispute that Proposal 20 affects the Agency's rights to direct employees and assign work, we find, for the purposes of this decision, that it affects those rights. In addition, while the Union claims that the proposal does not affect the Agency's right to discipline "if unit members fail to report problems if expressly directed to do so," the proposal would preclude the Agency from disciplining employees for failing to report problems that the Agency had not defined through a set of standards. In so doing, the proposal affects the Agency's right to discipline. See Association of Civilian Technicians, Inc., Rhode Island Chapter and U.S. Department of Defense, Rhode Island National Guard, Providence, Rhode Island and Association of Civilian Technicians, First Coast and Hurricane Chapters and U.S. Department of Defense, Florida National Guard, Office of the Adjutant General, St. Augustine, Florida, 55 FLRA 420, 425-26 (1999) (Association of Civilian Technicians).

      Proposal 20 would prevent the Agency from adversely affecting a unit employee for failing to report system problems or equipment failures where the Office has failed to define a set of standards as to what the Office considers a problem or failure. As the proposal applies only to those employees who otherwise would be adversely affected by the exercise of management's rights to discipline, direct employees, and assign work, we conclude that it constitutes an arrangement that is sufficiently tailored. See INS, 51 FLRA at 1319.

      It is clear that the proposal would afford unit employees significant benefits in that it would bar discipline or consideration in a performance appraisal of a failure to report any problem that the Agency had not defined through a set of standards. This would reduce the number of such failures for which employees could be held accountable through a disciplinary action or in a performance appraisal.

      On the other hand, we conclude that the burdens that would be imposed on the exercise of management's rights to discipline, direct employees, and assign work by Proposal 20 are not significant. In order to hold employees accountable for reporting problems, the Agency would be required only to define the problems to be reported through a set of standards. While the Union intends the proposal to preclude the use of the generic "other" category in the existing Bug Report, there is no dispute that the Agency never set a standard for determining what problems would be encompassed by this wide-open term. There are no limitations in the proposal on the standards the Agency could promulgate to satisfy the requirements of Proposal 20.

      In these circumstances, we conclude that, on balance, the proposal does not excessively interfere with the Agency's rights to discipline, direct employees, and assign work. [n26]  See National Federation of Federal Employees, Local 1214 and U.S. Department of the Army, Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, South Carolina, 51 FLRA 1362, 1367 (1996) (Fort Jackson). Accordingly, Proposal 20 is within the Agency's duty to bargain as an appropriate arrangement under section 7106(b)(3) of the Statute. [ v56 p97 ]

C.     Proposal 29

The Office shall not adversely affect a[] unit member because of the number of pages the unit member has printed from the automated system, where the unit member has a legitimate need or use for the documents printed.

1.     Positions of the Parties

      The Agency asserts that Proposal 29 affects the Agency's rights to discipline employees under section 7106(a)(2)(A) of the Statute, and to direct employees and assign work under section 7106(a)(2)(B). According to the Agency, the proposal would preclude the Agency from considering an employee's "abuse of the printing facilities, even if the employee's action was contrary to the Agency's policy or instructions." Statement of Position at 11. The Agency claims, in this regard, that "the system is not designed to allow employees to print documents for review but requires employees to review patents on the screen."  [n27]  Id. n.7.

      The Union maintains that the proposal is an appropriate arrangement "[that] would merely give unit members the right not to be held accountable for printing more than an arbitrary number of pages as long as there is a legitimate need or use." [n28]  Union Response at 32. According to the Union, "'legitimate need' or 'use' is the Agency's determination of what is required to qualitatively examine a patent application with regard to an application's complexity and subject matter." Id. As such, the Union claims that Proposal 29 "would not preclude the Agency from adversely affecting a unit member who abused the automated system since such an act would be contrary to the Agency defined 'legitimate need' or 'use.'" Id. at 33.

2.     Meaning of the Proposal

      Consistent with its plain wording and the Union's statement of intent, Proposal 29 would prevent the Agency from adversely affecting an examiner based on exceeding an arbitrary number of pages established by the Agency that an examiner may print from the computer system, if the examiner has a legitimate need or use for the pages. Also consistent with the Union's statement, the proposal provides the Agency discretion to determine what constitutes "legitimate need or use," within the meaning of the proposal. The Union does not define the "adverse effects" that the proposal would preclude. Based on the record as a whole, we construe the proposal as precluding the Agency from considering an employee's printing a number of pages exceeding an arbitrary limit (if the examiner has a legitimate need or use for the pages) in a performance appraisal and from basing a disciplinary action on such action. [ v56 p98 ]

3.     Analysis and Conclusions

      As the Union does not dispute that Proposal 29 affects the Agency's rights to discipline and direct employees, and to assign work, we find, for the purposes of this decision, that it affects those rights. Proposal 29 would preclude the Agency from adversely affecting, through discipline or performance appraisal, examiners who have a "legitimate need or use" for printed pages from the automated system. Although the Agency claims that the system is "not designed to allow employees to print[,]" Statement of Position at 11 n.7 (emphasis added), the Agency does not claim that the system does not permit printing or that there is never a need for an employee to print documents from the system. As the proposal applies only to those employees who otherwise would be adversely affected by the exercise of management's rights to discipline, direct employees, and assign work, we conclude that it constitutes an arrangement that is sufficiently tailored. See American Federation of Government Employees, National Border Patrol, Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1319 (1996) (INS) (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 management rights.)

      The proposal would preclude the Agency from adversely affecting only certain employees -- those who print more than an arbitrary number of pages of documents, as established by the Agency -- and only in certain circumstances -- when the employees have a legitimate need or use for the documents, as defined by the Agency. This is not a significant burden on the exercise of the Agency's rights to discipline, direct employees, and assign work. On the other hand, assuring employees that, in these circumstances, they will not be adversely affected is a significant benefit. The proposal also would not restrict either the Agency's ability to determine appropriate remedial actions for employees who do not have a legitimate need to print large numbers of pages, or the evidence available to the Agency when determining whether to discipline. Accordingly, we find that the benefits afforded employees by Proposal 29 outweigh the effect of the proposal on management's rights, and that it is within the duty to bargain as an appropriate arrangement under section 7106(b)(3) of the Statute.

D.     Proposal 30

Where the Office has failed to define a set of standards which the Office considers an abuse of the automated system and/or has not notified the unit member(s) of the standards, no unit member will be adversely affected by any statistics, reports, or any other related documents whether they be in paper or electronic form.

1.     Positions of the Parties

      The Agency asserts that Proposal 30 affects the Agency's rights to discipline employees under section 7106(a)(2)(A) of the Statute, and to direct employees and assign work under section 7106(a)(2)(B). According to the Agency, the proposal would preclude the Agency from either "considering in an employee's performance appraisal any statistics, reports or documents produced by the system" or "relying on any statistics, reports or documents produced by any system in any disciplinary action." Statement of Position at 11, 12.

      The Union asserts that the proposal is an appropriate arrangement because it "assures that if the Agency sets a standard considered an abuse of the computerized system, they inform unit members of this standard so that unit members can refrain from violating the standard." [n29]  Union Response at 34. The Union maintains that the proposal "does not constrict the Agency in defining standards but rather prevents retroactive implementation of standards." Id.

2.     Meaning of the Proposal

      Consistent with its plain wording and the Union's statement of intent, Proposal 30 would preclude the Agency from adversely affecting a unit employee based on alleged abuse of the automated system, through statistics, reports or other documents generated through the automated system, when the Agency has failed to "define a set of standards" describing the alleged abuse. The proposal does not restrict the Agency's discretion as to the content of the required standard. The Union does not define the "adverse effects" that the proposal would preclude. Based on the record as a whole, we construe the proposal as precluding the Agency from considering an employee's alleged abuse of the automated system [ v56 p99 ] (through statistics, reports or other documents generated through the automated system) in a performance appraisal and from basing a disciplinary action on such alleged abuse.

3.     Analysis and Conclusions

      As the Union does not dispute that Proposal 30 affects the Agency's rights to discipline and direct employees, and to assign work, we find, for the purposes of this decision, that it affects those rights. Proposal 30 would prevent the Agency from using certain evidence -- statistics, reports, and other related documents generated by the automated system -- to adversely affect an employee based on alleged abuse of the automated system when the Agency has not established standards identifying the alleged abuse as improper. As the proposal applies only to those employees who otherwise would be adversely affected by the exercise of management's rights to discipline, direct employees, and assign work, we conclude that it constitutes an arrangement that is sufficiently tailored. See INS, 51 FLRA at 1319.

      Like Proposal 20, Proposal 30 would require the Agency to anticipate and inform employees of the standards by which it would consider an employee to have abused the automated system. If the Agency did not establish standards describing the alleged abuse, then Proposal 30 would bar the Agency from holding examiners accountable based on information from the system.

      It is clear that the proposal would afford unit employees significant benefits. In particular, it would bar the Agency from supporting an allegation of abuse of the automated system with statistics, reports, and other information generated by the automated system unless the Agency had previously established standards defining the alleged abuse. This would inform employees as to what the Agency considers an abuse of the automated system and would reduce the number of instances of alleged abuse, for which employees could be held accountable.

      On the other hand, the proposal imposes an insignificant burden on the exercise of management's rights to discipline, direct employees, and assign work. Specifically, in order to use information generated by the automated system to support allegations of abuse of the system, the Agency would be required to establish standards defining abuse. Like Proposal 20, this proposal places no constraints on the standards the Agency could adopt. The content of the standards would be totally within the Agency's discretion. In these circumstances, we conclude that, on balance, the proposal does not excessively interfere with the Agency's rights to discipline, direct employees, and assign work. [n30]  See Fort Jackson, 51 FLRA at 1367. Accordingly, Proposal 30 is within the Agency's duty to bargain.

E.     Proposals 60, 61 and 64

Proposal 60
Consistent with the Performance Appraisal Plan (PAP) with respect to the paper equivalent of No Document Display (NDD) or Page Not Available (PNA), unit members shall not be charged with a performance error based on documents for which an NDD, PNA, or equivalent was displayed during the search.
Proposal 61
If the file integrity of the automated system is at issue, the accuracy of either of the following statements will constitute evidence that a newly found document was available and the inaccuracy of both the following statements will constitute evidence that the document was not available on the automated system:
(a)     There were no PNAs, NDDs, or equivalent during the search.
(b)     A listing of all PNAs, NDDs, or equivalents during the search session did not include the document.
Proposal 64
A unit member shall not be charged with an error under the Performance Appraisal Plan (PAP) when a mandatory and proper classified search is performed on the image system when a newly found reference was not in the Master Classification of the image system for the mandatory and proper classified search area. [ v56 p100 ]

1.     Positions of the Parties

      The Agency maintains that Proposals 60, 61, and 64 affect its rights to direct employees and assign work under section 7106(a)(2)(B) of the Statute because they would prevent the Agency from considering aspects of the employee's work for purposes of performance appraisal. Specifically, the Agency claims that the proposals would preclude the Agency "from charging errors to employees as to certain aspects of their work." Statement of Position at 25.

      The Union asserts that the three proposals are appropriate arrangements. The Union claims that Proposal 60 would preclude the Agency from holding examiners accountable for "missing documents in the automated system[,] which is beyond their control." Union Response at 72. Proposal 61, according to the Union, "provides an evidence rule" for determining whether an examiner should be charged with an error in connection with a missing document. Id. at 74. The Union claims, in this regard, that the "current evidence rule" is based on use of paper files and does not apply to the automated system. [n31]  Id. With respect to Proposal 64, the Union states that it intends "that a unit member not be penalized for a defect with regard to the Master Classification in the automated system beyond the unit member's control, as is status quo under the paper files."  [n32]  Id. at 76. The Union claims, with regard to all three proposals, that the burden placed on the Agency to avoid appraising unit employees on matters outside their control is slight.

2.     Meaning of the Proposals

      Consistent with their plain wording, and the Union's statement of intent: Proposal 60 would preclude the Agency from charging unit employees with a performance error "based on documents for which an NDD, PNA, or equivalent was displayed during the search"; Proposal 61 establishes a method for determining whether "a newly found document" was available during a search; and Proposal 64 precludes the Agency from charging a examiner with a performance error in connection with a "mandatory and proper classified search" when a "newly found reference was not in the Master Classification of the image system[.]"

      As noted in connection with Proposal 62, Part VII, supra, it is clear that "No Document Display" and "Page Not Available," used in Proposals 60 and 61, refer in some way to information that is not available in the automated system. However, the record does not disclose the relationship between a "performance error based on documents" and an "NDD, PNA, or equivalent", and contains no information with regard to the frequency with which an NDD, PNA, or equivalent "is displayed."

3.     Analysis and Conclusions

      As the Union does not dispute that these proposals affect the Agency's rights to direct employees and assign work, we find, for the purposes of this decision, that the proposals affect those rights.

      However, the record does not provide sufficient information for the Authority to determine whether these three proposals are appropriate arrangements under section 7106(b)(3) of the Statute. For example, with regard to Proposal 60, the record does not disclose the relationship between an "NDD, PNA, or equivalent" and a "performance error based on documents." With regard to Proposal 61, the record does not reveal what it means for "the file integrity of the automated system" to be "at issue." Further, the Union claims that Proposal 61 is necessary to establish an "evidence rule" for the automated system because the "current evidence rule" does not apply to that system. Union Response at 73-74. However, the Union's description of the current system, see supra note 21, does not assist our understanding of the benefits that would flow to employees under the proposal or the practical effect of the proposal on management's rights to direct employees and assign work. Similarly, with regard to Proposal 64, while the Union defines, generally, the term "Master Classification, see supra id., there is no information in the record regarding the frequency with which a reference is not [ v56 p101 ] listed in a Master Classification, or the effect of charging an employee with a performance error.

      Consistent with the foregoing, it is not possible on the record before us to determine whether Proposals 60, 61, and 64 are appropriate arrangements under section 7106(b)(3) of the Statute. As noted above, the parties bear the burden of creating a record on which a negotiability determination can be made. See, e.g., Library of Congress, 53 FLRA at 1342. Accordingly, we dismiss the petition for review as to these proposals without prejudice.

IX.     Other Proposals: 12, 13, 21, 31, 32, 35, 36, and 37  [n33] 

A.     Proposals 12 and 13

Proposal 12
The Office will promote the health of unit members by providing on-site annual eye examinations and prescriptions by a certified optometrist or ophthalmologist.
Proposal 13
To promote the efficient use of the automated system by unit members, the Office shall provide special glasses for use with computers to unit members, where the purchase of such glasses would constitute an additional cost to the unit member which the unit member would not otherwise incur.

1.     Positions of the Parties

a.     Agency

      The Agency asserts that these proposals are inconsistent with law and Government-wide regulation. First, the Agency claims that the proposals would require it to provide medical examinations and eye glasses and, as such, "have the effect of requiring the government to provide 'employer-paid' medical and dental insurance." Statement of Position at 5. As such, according to the Agency, the proposals are inconsistent with 5 U.S.C. § 8906 and 5 C.F.R. § 890.501. [n34]  The Agency also argues, in this regard, that "insurance and health care" matters are "specifically provided for by federal statute" and are, therefore, excluded from bargaining pursuant to 5 U.S.C. § 7103(a)(14)(c). Id. at 6.

      Second, the Agency contends that the proposals are inconsistent with 5 U.S.C. § 7901. [n35]  Specifically, the Agency claims its authority to provide health services under that section does not extend "to treatment beyond that involving on-the-job illness and dental conditions of a minor nature or requiring emergency attention." Statement of Position at 5 (citing National Federation of Federal Employees, Local 1827 and Defense Mapping Agency, Aerospace Center, 26 FLRA 785, 787 (1987) (Defense Mapping Agency)). The Agency also claims that the legislative history of section 7901 demonstrates that Congress "did not intend to create a system which would compete with private physicians[,]" and that these proposals would place the Agency "in the position of directly competing with private physicians[.]" Id. at 5, 6.

b.     Union  [n36] 

      The Union contends that, under Proposal 12, the Agency "would not pay for the on-site examination, but rather would provide space and arrange for the health service program as authorized under 5 U.S.C. § 7901." Union Response at 13 (emphasis in original). [ v56 p102 ]

      The Union asserts that Proposal 13 is intended "to accommodate unit members who need glasses with a focal length that is only good for use with the workstation." Id. at 14. Because the proposal would provide employees with glasses only for use with the automated system, the Union contends that the government, not the individual employees, would receive the primary benefit and, as a result, purchase of the glasses by the Agency is authorized by Comptroller General decisions. The Union relies, in this connection, on Defense Mapping Agency, 26 FLRA 785.

2.     Meaning of the Proposals

      The plain wording of Proposal 12 requires the Agency to provide unit employees "on-site annual eye examinations and prescriptions[.]" The Union states that this means that the Agency is only required to "provide space and arrange for the health service program[,]" and that the proposal would not require the Agency to actually pay for the service. Union Response at 13. The Union's statement is difficult to reconcile with the plain wording of the proposal in that the most natural reading of "providing . . . examination and prescriptions" is that the Agency would pay for the service itself. Nevertheless, because the proposal is silent regarding what is being "provided," it is possible to read the proposal, consistent with the Union's statement, as requiring the Agency to provide only space and arrangements. As this is a proposal, the wording of which is drafted solely by the Union, for the purposes of this decision we construe it to have the meaning ascribed by the Union. See National Federation of Federal Employees, Local 2148 and U.S. Department of the Interior, Office of Surface Mining, Reclamation and Enforcement, Albuquerque, New Mexico, 53 FLRA 427, 435 (1997) (where references in a proposal were "vague" and subject to "differing interpretations," the Authority adopted the Union's explanation because it comported with the proposal's wording.)

      Consistent with the plain wording of the proposal and the Union's statement of intent, Proposal 13 would require the Agency to purchase eyeglasses for unit members who require the glasses only while using the computer system.

3.     Analysis and Conclusions

a.     Proposal 12 is Not Contrary to Law

      The Agency's arguments that Proposal 12 conflicts with 5 U.S.C. §§ 7901 and 8906, and 5 C.F.R. § 890.501, are based on its interpretation of the proposal as requiring the Agency to furnish and pay for eye examinations and prescriptions for unit employees. Construed above, consistent with the Union's clear statement, the proposal would not require the Agency to furnish and pay for those services; the proposal would require the Agency only to provide space, and make arrangements, for eye examinations. Nothing in the record provides a basis for concluding that providing such space and making such arrangements constitute the establishment of a health service program, within the meaning of 5 U.S.C. § 7901, or an insurance program, as addressed in 5 U.S.C. § 8906 or 5 C.F.R. § 890.501. No argument is presented that the proposal, as construed herein consistent with the Union's statement, is outside the Agency's duty to bargain. Accordingly, we conclude that Proposal 12 is within the Agency's duty to bargain.

b.     Proposal 13 is Contrary to Law

      Both parties rely on the Authority's decision in Defense Mapping Agency, 26 FLRA at 787-92, as support for their positions regarding Proposal 13. In Defense Mapping Agency, the Authority found, as relevant here, that a proposal requiring the agency to provide employees with "safety glasses" was within the duty to bargain. See id. at 790.

      In a case decided after the Petition for Review, Statement of Position, and Union Reply in this case were filed, the Authority addressed Defense Mapping Agency in the context of a proposal virtually identical to Proposal 13. See National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C., 49 FLRA 973 (1994) (IRS). In IRS, the Authority found that a proposal for an agency to cover the cost of corrective lenses for employees who only need eyeglasses to use the agency's video display terminals was not intended to protect the safety of employees and, thus, was distinguishable from the proposal in Defense Mapping Agency. See IRS, 49 FLRA at 979. The Authority explained, in this regard, that although, under 5 U.S.C. § 7903 and 29 U.S.C. § 668, an agency may provide safety-related equipment "to be used for the employees' protection in the performance of their jobs[,]" the record in IRS did not establish that the proposed eyeglasses were "safety-related equipment . . . ." IRS, 49 FLRA at 977. The Authority stated that its conclusion that the proposal in IRS was [ v56 p103 ] "inconsistent with law" was consistent with Comptroller General decisions regarding expenditure of appropriated funds for the purchase of "items which could be considered personal equipment." Id. at 978.

      The record does not provide a basis for reaching a different conclusion regarding Proposal 13 than the Authority reached regarding the disputed proposal in IRS. In particular, there is no basis to conclude that the eyeglasses that would be furnished by the Agency under Proposal 13 are safety-related equipment. As such, this is unlike American Federation of Government Employees, Local 1547 and U.S. Department of the Air Force, 56th Fighter Wing, Luke Air Force Base, Arizona, 55 FLRA 684, 685-86 (1999) (Luke AFB), where the Authority addressed the negotiability of a proposal requiring agency to reimburse employees for purchase of required motorcycle safety equipment. [n37]  Further, contrary to the Union's contention, the Agency's purchase of the eyeglasses required by Proposal 13 is not authorized by Comptroller General decisions. In fact, the Comptroller General has ruled specifically that appropriated funds could not be used by an agency to purchase eyeglasses used with video display terminals. See 63 Comp. Gen. 278 (1984).

      Based on the foregoing, we conclude that Proposal 13 is inconsistent with law and, therefore, is outside the Agency's duty to bargain.

B.     Proposal 21

Proposal 21
The automated system may not be available to the same extent as the paper files[.] [T]herefore, in order to approximate the availability of the paper files, the Office shall endeavor to make the automated system available for the unit member to use during the time the unit member may be in an in-pay status.

1.     Positions of the Parties

      The Agency asserts that the proposal would determine the hours in which the CSIR system would be in operation. According to the Agency, this affects the Agency's right under section 7106(a)(1) of the Statute to determine its mission. [n38]  The Agency relies, in this regard, on National Labor Relations Board Union, Local 21 and National Labor Relations Board, Washington, D.C., 36 FLRA 853 (1990) (NLRB)).

      The Union asserts that Proposal 21 is intended to "provide system access whenever a unit member may be in an in-pay status such as during regular work hours and overtime hours." Petition for Review at 13. The Union asserts that the proposal "does not [a]ffect the Agency's mission nor [a]ffect the determination of the office hours of the Agency." Union Response at 23. In this connection, the Union claims that "[t]he relationship between office hours and the employee's hours is that a unit member's work schedule must include the hours of 9:30 a.m. to 3:00 p.m." Id. at 22-23. According to the Union, the proposal "would merely maintain the current practice of 24 hour a day, 7 days a week access to a unit members' work area . . . ." Id. at 23. Also according to the Union, because the proposal would replicate the 24-hour-a-day availability of the paper search files, it is an appropriate arrangement for examiners adversely affected by the Agency's decision to eliminate paper search files.

2.     Meaning of the Proposal

      Consistent with the plain wording of the proposal and the Union's statement of intent, Proposal 21 would require the Agency to endeavor to make the automated system available to examiners whenever they are in "in-pay status." The Union states that "in-pay status" [ v56 p104 ] includes "regular work hours and overtime hours." Petition for Review at 13. According to the Union, unit employees' hours must include the hours of 9:30 a.m. to 3 p.m. However, the Union also states that the proposal "would merely maintain the current practice of 24 hour a day, 7 days a week access to a unit members' work area . . . ." Id. It is not clear that, with core hours of 9:30 a.m. to 3 p.m., examiners are in an "in-pay status" around the clock. Nevertheless, it is possible for such examiners to work overtime at any time of day. Accordingly, we construe the proposal as requiring the Agency to make the automated system available to examiners 24 hours a day, 7 days a week.

3.     Analysis and Conclusions

      The Authority has consistently found that a proposal concerning an agency's office hours affects management's right to determine its mission to the extent that the proposal determines when an agency will provide services to the public. See NLRB, 36 FLRA at 857. See also Fort Bragg Association of Educators, NEA and Department of the Army, Fort Bragg Schools, 30 FLRA 508, 517 (1987) ("specific office hours to provide services to the public [are] mission related[.]"). However, Proposal 21 does not address the hours the Agency is open to the public; it concerns only the hours that the automated system is available to examiners. Therefore, the basis for finding the NLRB proposal outside the duty to bargain does not apply to this proposal.

      The Agency asserts no relationship between the hours the automated system is available to examiners and the hours its services are available to the public. The Agency also asserts no other basis on which to find that Proposal 21 affects its right to determine its mission. Accordingly, we conclude that Proposal 21 does not affect the Agency's right to determine its mission, and that it is within the duty to bargain.

C.     Proposal 31

Proposal 31
The Office shall notify the unit members, in writing, of all electronic monitoring which directly or indirectly identifies the unit member. This notification shall provide specific information as to the scope of the data that is being collected, who has access to the data, how the data is formatted and the intended use of the data.

1.     Positions of the Parties

      The Agency asserts that Proposal 31 affects the Agency's rights to discipline employees and to determine its internal security practices. The Agency contends that the proposal affects its right to discipline because it would limit its right to "investigate misconduct" and affects its right to determine its internal security practices because it would require the Agency "to disclose to employees all electronic data collection or monitoring, even if part of an investigation into fraud, misconduct, or criminal activity." Statement of Position at 13.

      The Union asserts that Proposal 31 is a procedure under section 7106(b)(2) and an appropriate arrangement under section 7106(b)(3). The Union states that the proposal would "provide unit members information about available reports which list information by unit member name" and would "afford each unit member . . . the opportunity to identify and correct errors." Petition for Review at 17. The Union claims that the proposal would not affect the Agency's right to determine its internal security practices because it is only applicable to the automated system and, according to the Union, the automated system "is a public system having no sensitive information." Union Response at 35. According to the Union, the Agency has not shown a "link of how the Agency's disclosure of the activities it monitors will convey information that will directly interfere with the internal security practices of the automated system." Id.

2.     Meaning of the Proposal

      Consistent with its plain wording and the Union's statement of intent, Proposal 31 would require the Agency to notify unit members of "all electronic monitoring" undertaken through use of the automated system that identifies unit employees by name, including specific information as to the "scope" of the data, who has access to it, and how the Agency intends to use it. [ v56 p105 ]

3.     Analysis and Conclusions

(a)     Proposal 31 Affects the Agency's Right to Determine its Internal Security Practices

      We find that the proposal affects the Agency's right to determine its internal security practices. The right to determine internal security practices includes the authority to determine the policies and practices that are part of an agency's plan to secure or safeguard its personnel, physical property or operations against internal and external risks. See, e.g., American Federation of Government Employees, Federal Prison Council 33 and U.S. Department of Justice, Federal Bureau of Prisons, 51 FLRA 1112, 1115 (1996). Where management shows a link, or reasonable connection, between its objective of safeguarding its personnel, property, or operations and the investigative technique designed to implement that objective, a proposal that conflicts with the technique affects management's right under section 7106(a)(1). The right includes the authority to determine the investigative techniques management will employ to attain its internal security objectives. See National Association of Government Employees, Locals R14-22 and R14-89 and U.S. Department of the Army, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, 45 FLRA 949, 960 (1992).

      Proposal 31 would require management to disclose to unit employees all electronic monitoring undertaken through use of the automated system. The Agency asserts, and the Union does not dispute, that such disclosure would be required even if the information were being collected or monitored in connection with "an investigation into fraud, misconduct, or criminal activity." Statement of Position at 13. According to the Agency, "disclosure of this information could clearly compromise the Agency's internal security procedures." Id. at 14 (citations omitted). Although the Union asserts that the automated system does not contain sensitive information, the Union does not deny that the system could be used to generate information regarding individual employee wrongdoing. In addition, common sense dictates that disclosing to an employee that he/she is being monitored may affect reliability of the information collected through that monitoring.

      In these circumstances, we find that the Agency has demonstrated a sufficient link to establish that the proposal affects the Agency's right to determine its internal security practices. In so doing, we emphasize the breadth of the proposal and the fact that it includes within the scope of information that must be disclosed electronic monitoring undertaken in connection with investigations into employee misconduct. We do not address whether we would reach the same conclusion regarding the link to the Agency's internal security practices if the proposal were limited to, for example, providing information concerning non-investigatory monitoring.

(b)     Proposal 31 Is Not Within the Duty to Bargain under Section 7106(b)(2) or (3) of the Statute                                   

      The Union asserts that Proposal 31 is a procedure under section 7106(b)(2) of the Statute. In support, the Union cites only decisions holding negotiable under section 7106(b)(2) proposals requiring that studies undertaken in developing performance appraisals systems be conducted in a particular way. See Union Reply at 35-36. As Proposal 31 involves electronic monitoring undertaken in connection with investigations into employee misconduct, not development of performance appraisal systems, the Union's reliance on this precedent is misplaced. The Union cites no other precedent supporting, and the record does not otherwise support, a conclusion that requiring the Agency to reveal electronic monitoring conducted in connection with investigations into employee misconduct constitutes a negotiable procedure. Accordingly, we reject this claim.                         

      As for whether the proposal is an appropriate arrangement under section 7106(b)(3), Proposal 31 would require the Agency to disclose all monitoring to each and every employee being monitored. Assuming that the proposal constitutes an arrangement, we conclude that, in balancing the effects of the proposal on the Agency's right to determine its internal security practices and the benefits the proposal would afford unit employees, the proposal excessively interferes with the Agency's right.

      With respect to the effects on the Agency, we conclude that, as a result of the breadth of the proposal, it would result in a significant burden on the Agency's right to determine its internal security practices. In this connection, the Agency would be required to disclose the scope of all monitoring, who has access to the monitoring, and the intended use of data collected through the monitoring. Disclosure would be required whether or not the data ever is used to affect unit employees or whether there is any likelihood that it will be used. Put simply, the proposal would broadly require disclosure in all circumstances to all employees.

      On the other side of the balance, employees clearly have an interest in determining whether erroneous information about them has been collected. However, the [ v56 p106 ] record does not show that or how the information that would be provided under the proposal -- about scope, format, and intended use of information -- would permit employees to identify or correct errors. However, even if such information could be useful to employees in some circumstances, the proposal would, as noted, require disclosure of a vast array of information that would be of little, if any, value to unit employees.

      In these circumstances, we conclude that the burden on the Agency's right resulting from the proposal outweighs the benefit to employees. Therefore, it excessively interferes with the Agency's right to determine its internal security practices and is not an appropriate arrangement. Accordingly, it is outside the Agency's duty to bargain. [n39] 

D.     Proposal 32

Proposal 32
The Office shall not use data obtained by electronic monitoring as the exclusive basis for individual unit member performance evaluation or disciplinary action, unless the unit member is provided with an opportunity to review the data within a reasonable time after such data is obtained.

1.     Positions of the Parties

      The Agency claims, and the Union does not dispute, that Proposal 32 affects the Agency's right to discipline. In addition to arguing that the proposal affects the Agency's right to discipline, the Agency contends that the proposal would affect the Agency's right to determine its internal security practices by preventing the Agency from "taking any action against employees" based on "electronic data collection or monitoring, even if part of an investigation into fraud, misconduct, or criminal activity." Statement of Position at 13.

      The Union asserts that the proposal requires the Agency to provide unit employees "with electronic based information that will be used to adversely affect the unit member so as to give the unit member the opportunity to review the information." Union Response at 36. According to the Union, the proposal would not affect the Agency's right to determine its internal security practices because the Agency has not "shown a link of how the Agency's disclosure of the activities it monitors will convey information that will directly interfere with the internal security practices of the automated system." Id. According to the Union:

The Agency can take action against unit members, even when the information is solely electronic based, as long as the Agency provides a precursory step of providing the unit member with the electronic based information . . . .

Id. at 37.

2.     Meaning of the Proposal

      Consistent with its plain wording and the Union's statement of intent, Proposal 32 would preclude the Agency from basing a performance evaluation or disciplinary action exclusively on information from the automated system unless the Agency has provided the affected employee the opportunity to review the information within a reasonable period of time after the information was obtained. [ v56 p107 ]

3.     Analysis and Conclusions

      As the Union does not dispute that Proposal 32 affects the Agency's right to discipline employees, we find, for the purposes of this decision, that the proposal affects that right.

      The Union relies on the Authority's decision in National Treasury Employees Union and U.S. Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service, 39 FLRA 27, 54-59 (1991)(Office of the Chief Counsel), in asserting that Proposal 32 constitutes an appropriate arrangement. In Office of the Chief Counsel, the Authority held that a provision prohibiting the Agency from considering an "evaluative recordation" unless it was furnished to employees within 45 days of "its development or receipt by a supervisor" was an appropriate arrangement. Id. at 56. In finding that the provision did not excessively interfere with the Agency's rights to direct employees and assign work, the Authority found that it would afford unit employees a significant benefit by ensuring them an opportunity to review and comment on documents to be used in performance evaluations. The Authority also found that the provision had a negative impact on management's rights, but found that impact outweighed by benefit to employees. In reaching its conclusion, the Authority stated:

In finding that the provision constitutes an appropriate arrangement, we note particularly that the proposed time limit begins to run only after the evaluation documents have been created or come into the hands of "a supervisor." Thus, the provision requires only that employees be provided with documents that management has already decided will be considered in assessing the employees' performance.

Id. at 58-59.

      Like the provision in Office of the Chief Counsel, Proposal 32 also would afford unit employees benefits. In particular, it would make unit employees aware of information collected through electronic monitoring and would ensure that they would not be adversely affected -- through performance appraisal or disciplinary action -- by that information unless it had been provided to them within a reasonable time after it was obtained.

      Unlike the provision in Office of the Chief Counsel, however, Proposal 32 does not apply only to data "that management has already decided will be considered in assessing the employees' performance." Id. at 59. Instead, all information collected through electronic monitoring would be furnished to each and every employee monitored in order to ensure that such information could be used to support a performance appraisal or disciplinary action. [n40]  Also unlike the provision in Office of the Chief Counsel, the Union concedes that Proposal 32 affects the Agency's right to discipline. See Union Response at 37 ("The proposal does interfere but does not excessively interfere . . . .").

      We note that Proposal 32 precludes only use of information not previously disclosed as the "exclusive" basis for performance evaluations or disciplinary actions. Although neither party specifically addresses this aspect of the proposal, we conclude that the fact that the proposal's preclusion extends only to use of the information as the "exclusive" basis for disciplinary action lessens the burden on management's right to discipline. However, in at least some situations, it is foreseeable that information developed through electronic monitoring would constitute the only support for such action. In those situations, precluding use of such information would effectively preclude discipline itself. In these circumstances, the burden on management's rights to discipline is greater than in Office of the Chief Counsel.

      On balance, we conclude that, even assuming that Proposal 32 constitutes an arrangement, the burden on management's right to discipline outweighs the benefits Proposal 32 would provide unit employees. In so doing, we note, as we did in connection with Proposal 31, that no ground is presented why the Union could not adequately protect the interests of unit employees without requiring disclosure of all information to every employee in advance of an adverse effect. As the burden on management's right outweighs the benefits to employees, Proposal 32 excessively interferes with the Agency's right to discipline and, as a result, it is not an appropriate arrangement under section 7106(b)(3) of the Statute. Accordingly, the proposal is not within the Agency's duty to bargain. [n41]  [ v56 p108 ]

E.     Proposals 35, 36, and 37

Proposal 35
The Office shall continue to provide a minimum of 12 hours of formal classroom training to unit members on the automated system.
Proposal 36
Since on-the-job training promotes the efficient use of tools of the job, the Office shall continue to provide adequate practice time to the unit members, associated with the classroom training.
Proposal 37
From time to time, to promote efficient use of the automated system, updated or refresher training may be necessary, therefore, subject to the needs of the Office, the Office shall provide appropriate updated or refresher training to unit members.

1.     Positions of the Parties

      The Agency claims that these three proposals affect its right to assign work under section 7106(a)(2)(B) of the Statute because they mandate that the Agency provide training to unit employees. The Agency points out that Proposal 35 requires both a specific number of training hours and a specific manner of training, and that Proposal 36 requires a specific type of training. With regard to Proposal 37, the Agency contends that the phrases "where appropriate," "insofar as possible," and "normally" impose "conditions on management's exercise of its reserved right to assign work." Statement of Position at 16 (citing Illinois Nurses Association and Veterans Administration Medical Center, North Chicago, 27 FLRA 714 (1987).

      The Union contends that all three proposals constitute appropriate arrangements under section 7106(b)(3) of the Statute because they address foreseeable adverse effects on employees that would result if the employees were required to use the automated system without adequate training. The Union claims that Proposals 35 and 36 are consistent with the amount and type of training the Agency already provides employees concerning the automated system, and that Proposal 37 would provide refresher training to ensure that unit employees continue to operate the automated system efficiently. The Union also claims, without elaboration, that Proposal 37 is a negotiable procedure under section 7106(b)(2) of the Statute.

2.     Meaning of the Proposals

      Consistent with the plain wording of the proposals and the Union's statements of intent: Proposal 35 would require that the Agency provide unit members with a minimum of 12 hours of formal classroom training on the automated system; Proposal 36 would require that the Agency provide unit members with adequate practice time on the automated system in association with the formal classroom training provided to unit members; and Proposal 37 would require that the Agency provide unit members with appropriate refresher training on the automated system. Because Proposal 35 concerns "formal classroom training," and Proposal 36 concerns practice time "associated with the classroom training," we construe the classroom training referenced in Proposal 36 as that required by Proposal 35.

3.     Analysis and Conclusions

      As the Union does not dispute that Proposals 35 and 36 affect the Agency's right to assign work, we find, for the purposes of this decision, that the proposals affect that right. In addition, consistent with Authority precedent, by requiring the Agency to provide examiners with appropriate refresher training on the automated system, Proposal 37 also affects the Agency's right to assign work. See National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 539, 587 (1997).

      With regard to the Union's claims that the proposals constitute appropriate arrangements, it is reasonably foreseeable that examiners using the automated system will work less efficiently and, as a result, their productivity will be affected, if they have not had sufficient training on use of the system. As set forth previously, it is undisputed that reduced productivity could result in lowered performance appraisals. All three proposals would mitigate these reasonably foreseeable adverse effects flowing from management's right to assign work on the automated system without providing training. While it is reasonable to conclude that not all examiners would suffer adverse effects without the training required by the proposals, we are unable to discern how the proposals could be limited to apply only to employees who would be adversely affected. Therefore, we conclude that the proposals are sufficiently tailored. See NTEU, Chapter 243, 49 FLRA at 191.

      All three proposals would provide significant benefits to unit employees. Specifically, the proposals would provide employees with training in use of the [ v56 p109 ] automated system that would enhance their ability to use the system efficiently.

      With respect to the degree to which the proposals burden the exercise of management's right to assign work, the proposals differ in two significant respects. First, Proposal 35 requires the Agency to provide all unit employees with a particular minimum amount (12 hours) of classroom training, while Proposals 36 and 37 permit the Agency to determine the amount of training it deems necessary. That is, unlike Proposals 36 and 37, Proposal 35 constitutes a "one size fits all" approach requiring that all employees receive the same 12 hours of training and depriving the Agency of discretion to determine that particular examiners do not need this specified length of formal classroom training. Second, both Proposals 35 and 36 dictate a particular type of training to be provided: Proposal 35 requires "classroom training," and Proposal 36 requires "on-the-job training." Proposal 37, on the other hand, does not require a particular type of training. As such, unlike Proposal 37, Proposals 35 and 36 remove the Agency's discretion to determine that a different type of training would be better for individual examiners or groups of examiners.

      A requirement that the Agency provide examiners with a minimum of 12 hours of classroom training does not appear excessive, particularly when measured against the potential adverse effects on examiners from inefficient use of the automated system. However, the blanket nature of the proposal would deprive the Agency of any discretion to deviate from a specified minimum number of hours. Moreover, Proposal 35 would constrain the Agency not only with regard to the duration of the training, but also with regard to the type of the training. In these circumstances, we conclude that Proposal 35's effect on management's right to assign work would be disproportionate to the benefits that employees would derive from it. Accordingly, Proposal 35 is not within the Agency's duty to bargain because it excessively interferes with management's right to assign work.

      As the training required by Proposal 36 is expressly "associated with the classroom training" in Proposal 35, it also is outside the duty to bargain. See International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 813, 821 (1996) (proposals held outside the duty to bargain because they "assumed the existence" of matters established in a different proposal that was outside the duty to bargain).

      Unlike Proposals 35 and 36, Proposals 37 would merely require the Agency to provide "adequate" or "appropriate" training. The proposal provides the Agency discretion to determine when to provide training and how much training to provide. The Authority has previously held that proposals providing an agency with discretion to determine the extent to which training is required, and the amount and type of that training, do not excessively interfere with management's right to assign work. See POPA II, 39 FLRA at 837; American Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia, 29 FLRA 1587, 1605 (1987). Consistent with this precedent, we find that the benefits examiners would derive from Proposal 37 outweigh the minimal interference Proposal 37 would have on the Agency's right to assign work. Accordingly, Proposal 37 is within the duty to bargain as an appropriate arrangement under section 7106(b)(3) of the Statute. [n42] 

X.     Order

      The petition for review as to Proposals 3, 13, 22, 31, 32, 33, 34, 35, 36, 43, 45, 47, 54, 56, 57, and 65 is dismissed. The petition for review as to 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, 51, 60, 61, and 64 is dismissed without prejudice. The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate over 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. [n43] 


File 1: Authority's Decision in 56 FLRA No. 10
File 2: Opinion of Member Cabaniss
File 3: Opinion of Chairman Wasserman


Footnote # 1 for 56 FLRA No. 10 - Authority's Decision

   The opinions of Member Cabaniss and Chairman Wasserman, dissenting in part, are set forth at the end of this decision. The proposals on which Member Cabaniss and Chairman Wasserman dissent are noted in the relevant sections of the text. Member Cabaniss dissents as to Proposals 20, 24, 29, and 30. Chairman Wasserman dissents as to Proposals 3, 13, 32, 35, 36, and 43.


Footnote # 2 for 56 FLRA No. 10 - Authority's Decision

   The petition in 0-NG-2161 concerns one proposal, identified as Proposal 78 herein. All remaining proposals are from O-NG- 2163.


Footnote # 3 for 56 FLRA No. 10 - Authority's Decision

   The Authority's regulations governing negotiability appeals were revised effective April 1, 1999. See 63 Fed. Reg. 66,413 (1998). The revised regulations apply to petitions filed after April 1, 1999. As these petitions were filed before that date, we apply the prior regulations.


Footnote # 4 for 56 FLRA No. 10 - Authority's Decision

   Although the record does not establish that these proposals are moot, we recognize that the extended passage of time since they were presented for bargaining makes it unlikely that this 109-page decision will be relevant to implementation of the new computer system. It is disappointing that, despite repeated attempts over the course of several years, the parties were unable to reach their own resolution about whether to bargain over any of these 78 proposals, insisting instead that a decision was needed as to each and every one of them -- even those proposals that had already been resolved by the Panel; others that had never been asserted by the Agency to be outside the duty to bargain; and others that presented issues close to ones on which the Authority ruled in prior litigation involving these same parties.

      The Agency's and Union's determination nevertheless to proceed on all 78 proposals in this adversarial process, filing voluminous briefs, along with the frequency with which the Agency and Union are parties to other multi-proposal cases, reveals serious difficulties in this labor-management relationship that are quite apart from any legal issues that require resolution. See, e.g., Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 625 (1997) (POPA VI) (25 proposals); Patent Office Professional Association and Patent and Trademark Office, 47 FLRA 10 (1993) petition for review denied as to other matters sub nom. Patent Office Professional Association v. FLRA, 26 F.3d 1148 (D.C. Cir. 1994) (POPA III) (48 proposals); Patent Office Professional Association and Patent and Trademark Office, U.S. Department of Commerce, 25 FLRA 384 (1987), aff'd Patent Office Professional Association v. FLRA, 868 F.2d 458 (D.C. Cir. 1988) (POPA I) (33 proposals). In addition, we note that the large number of disputed proposals in this case arose during impact and implementation -- not term -- bargaining, and that many proposals present alternative approaches to the same issue. Given these facts, it is reasonable to question the extent to which the parties engaged in good-faith bargaining at all. Clearly, negotiability proceedings are not an appropriate forum for conducting such bargaining.

      We have no illusion that this, or any, litigated decision will assist these parties in building a constructive labor-management relationship. We are hopeful, however, that, with or without third-party assistance, the Agency and Union will succeed in avoiding costly disputes like this in the future, thereby making unnecessary the diversion of resources -- theirs and the Authority's -- from more meaningful matters.


Footnote # 5 for 56 FLRA No. 10 - Authority's Decision

   The factual statements in Proposals 66, 67, 68, 72, 76, and 77 -- that "implementation" of the subjects in the proposals "has not been clearly defined" -- may or may not be true. As there is no contention that the negotiability of the proposals depends on the veracity of these statements, we do not address them further.


Footnote # 6 for 56 FLRA No. 10 - Authority's Decision

   The approach applied by the Authority in resolving disputes over "special examining time" proposals has also been applied to proposals that specifically refer to "separate examining time." POPA III, 47 FLRA at 52.


Footnote # 7 for 56 FLRA No. 10 - Authority's Decision

   The Agency actually asserts that the proposals would affect the Agency's "right to direct work and assign employees, in violation of 5 U.S.C. § 7106(a)(2)(A)." Statement of Position at 35. However, as section 7106(a) does not include a right to "direct work," and as the case cited by the Agency in support of its argument, American Federation of Government Employees, AFL-CIO, Local 1923 and Department of Health and Human Services, Social Security Administration, 12 FLRA 17 (1983), concerned management's rights to assign work and direct employees, we construe the Agency's argument as raising its rights to direct employees and assign work.


Footnote # 8 for 56 FLRA No. 10 - Authority's Decision

   Except as noted, subsequent citations to the Agency's Statement of Position refer to its submission in 0-NG-2163.


Footnote # 9 for 56 FLRA No. 10 - Authority's Decision

   We note that, in POPA VI, 53 FLRA at 645-47, the Authority held that a proposal requiring the Agency to grant "separate examining time" for the filling out of financial disclosure forms affected management's right to assign work because it would have required management to assign a particular task to be performed during duty time. Unlike the proposal in POPA VI, the "special examining time" proposals in the cases cited in the text, like the those in the case now under review, would not require the Agency to assign a particular task to be performed during duty time; they would merely permit employees to record separately the time spent performing duties that the Agency has already decided to assign to be performed during duty time. As such, POPA VI does not affect our determination, infra, to follow prior precedent holding that "special examining time" proposals similar to those involved in this case do not affect the Agency's management rights.


Footnote # 10 for 56 FLRA No. 10 - Authority's Decision

   The Agency has not identified the 19 categories to which it refers. We note that there are only 11 examining time proposals. However, for the purposes of this decision, we will assume that there are 19 categories.


Footnote # 11 for 56 FLRA No. 10 - Authority's Decision

   POPA I, 25 FLRA at 411, relied on by the Agency, does not concern such an aggregate effect. The proposals reviewed in POPA I specifically required the Agency to revise its Performance Appraisal Plan and/or to grant nonexamining time.


Footnote # 12 for 56 FLRA No. 10 - Authority's Decision

   According to the Agency, Article 16 provides in part that:

In the event of failure of the air conditioning system, heating or lighting facilities, the Office agrees that those employees present may be excused from duty with no loss of leave or salary. (Failure of the air conditioning system will be defined as any continuous period greater than four hours in which the employee's office temperature is greater than 87°F. Failure of the heating facilities will be defined as any continuous four hour period in which the employee's office temperature is below 60°F.)

Statement of Position at 3-4.


Footnote # 13 for 56 FLRA No. 10 - Authority's Decision

   The Union has not explained the meanings of the quoted terms in Proposal 44. However, in view of precedent holding that special examining time proposals do not affect management's rights to direct employees and assign work, it is not necessary to know the meaning of the terms to resolve the petition as to the proposals.


Footnote # 14 for 56 FLRA No. 10 - Authority's Decision

   A "gene sequence," also referenced in Proposal 58, determines how protein molecules will be made within living organisms. The U.S. Court of Appeals for the Federal Circuit explained this process in In re O'Farrell, 853 F.2d 894, 896-97 (Fed. Cir. 1988):

To make a protein molecule, a cell needs information about the sequence in which the amino acids must be assembled. . . . The region of DNA on the chromosome that codes for the sequence of a single [protein] is called a gene.

Footnote # 15 for 56 FLRA No. 10 - Authority's Decision

   Member Cabaniss's dissenting opinion on Proposal 24, and Chairman Wasserman's dissenting opinion on Proposal 3 and 43, are set forth at the end of this document.


Footnote # 16 for 56 FLRA No. 10 - Authority's Decision

   The Union states, and the Agency does not dispute, that there are two methods of reporting computer problems: "use of the Automated Bug Report, which is accessible through the workstation, or through telephone contact with an Information System (I.S.) representative." Petition for Review at 10. The Agency also does not dispute the Union's statement that:

The Automated Bug Report recognizes ten categories of systems problems. Under these ten categories, 52 different system problems are specifically mentioned . . . . In nine of these categories there exists a system problem identified by "other/explain below)". . . .

Id.


Footnote # 17 for 56 FLRA No. 10 - Authority's Decision

   We note that the Agency asserts with respect to Proposal 29 (see Part IX.B.1.a., infra), that the automated search system "is not designed to allow employees to print documents for review but requires employees to review patents on the screen." Statement of Position at 11 n.7. With respect to Proposal 24, however, the Agency has not raised this as a concern and does not dispute the Union's contention that printing materials will require additional time for sorting and assembling.


Footnote # 18 for 56 FLRA No. 10 - Authority's Decision

   The Union has not explained the meaning of the quoted terms. However, in view of precedent holding that nonexamining time proposals affect management's rights to direct employees and assign work, it is not necessary to know the meaning of the terms to resolve the petition as to these proposals.


Footnote # 19 for 56 FLRA No. 10 - Authority's Decision

   The Authority will, under certain circumstances, sever parts of a proposal where requested. See Association of Civilian Technicians, Evergreen Chapter and U.S. Department of Defense, National Guard Bureau, Military Department, State of Washington, Camp Murray, Washington, 55 FLRA 591, 594 (1999). In this case, the Union did not request that the proposal be severed. Accordingly, we do not sever and separately examine sections (b) through (e) of the proposal.


Footnote # 20 for 56 FLRA No. 10 - Authority's Decision

   As described more fully in note 14, supra, a gene sequence determines how protein molecules will be made within living organisms.


Footnote # 21 for 56 FLRA No. 10 - Authority's Decision

   Because we find that the proposal is within the Agency's duty to bargain as an appropriate arrangement, we do not address the Union's procedure argument.


Footnote # 22 for 56 FLRA No. 10 - Authority's Decision

   Because we find that the proposal is within the Agency's duty to bargain as an appropriate arrangement, we do not address the Union's procedure argument.


Footnote # 23 for 56 FLRA No. 10 - Authority's Decision

   The Union defines the terms in the proposal as follows:

Image system - Is the electronic database of U.S. Patent images of both figures and text which can be access via the automated system.
Text system - Is the electronic database of U.S. Patents which can be accessed via a key word search.
Paper system - Where hard paper copies of U.S. and foreign patents and literature are stored in a file cabinet (called shoes). These documents are retrieved by manual work. The aggregate of the paper system is the paper files.
Master Classification - Is the list of all U.S. and foreign patents and literature contained in the image system, text system, or paper system.

Attachment to Petition for Review.


Footnote # 24 for 56 FLRA No. 10 - Authority's Decision

   Member Cabaniss's dissenting opinion on Proposals 20, 29, and 30 is set forth at the end of this decision.


Footnote # 25 for 56 FLRA No. 10 - Authority's Decision

   See supra note 16 for a description of the Bug Report.


Footnote # 26 for 56 FLRA No. 10 - Authority's Decision

   The MSPB precedent relied on in the dissent does not support a conclusion to the contrary. We note, in this regard, that we are clearly in agreement with the dissent that the proposal affects the Agency's rights to assign work and discipline employees. As such, we do not understand the dissent's emphasis on the numerous decisions supporting this mutual conclusion. With respect to the Authority decisions relied on to support the dissent's conclusion that the proposal is not an appropriate arrangement, the proposals at issue in those cases are distinguishable from Proposal 20. See Dissent at 2, citing International Federation of Professional and Technical Engineers, Local 89 and U.S. Department of the Interior, Bureau of Reclamation, Grand Coulee Project Office, 48 FLRA 516, 536 (1993) (proposal precluding agency from initiating discipline for any reason during period when employee is completing rehabilitation program); Association of Civilian Technicians, Wisconsin Chapter and Wisconsin Army National Guard, 26 FLRA 682, 689 (1987) (proposal precluding agency from charging technicians under military rules of conduct for alleged improper wear of military uniform); United States Customs Service, Washington, D.C. and United States Customs Service, Pacific Region and National Treasury Employees Union, 25 FLRA 248, 255 (1987), set aside as to other matters sub nom. 854 F.2d 1414 (D.C. Cir. 1988) (proposal precluding agency from disciplining employees for errors in implementing certain program). Unlike the disputed proposals in the cited cases, in order to hold employees accountable for reporting problems under Proposal 20, the Agency would be required only to define the problems to be reported through a set of standards, the content of which is not limited by the proposal. In any event, determining whether a proposal constitutes an appropriate arrangement under section 7106(b)(3) involves case-by-case analysis. See KANG, 21 FLRA at 33 (Authority stated that, in making determinations under section 7106(b)(3), it did not intend a "ritualistic or mechanistic approach" and expected parties to "considerations"). See also National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 539, 583 (1997) (Commerce) ("The negotiability of each provision must be assessed based on the record presented to the Authority.").


Footnote # 27 for 56 FLRA No. 10 - Authority's Decision

   Our dissenting colleague asserts that the reason the CSIR system is not designed to print documents is to "prevent damage/disruption" to the system. Dissent at 3. As there is absolutely no assertion to this effect in the record, we do not address it further.


Footnote # 28 for 56 FLRA No. 10 - Authority's Decision

   The Union also uses the word "procedure" in describing Proposal 29. See Union Response at 32. However, unlike other proposals where the Union not only uses the word "procedure" but also references section 7106(b)(2) of the Statute and/or provides other authority in support, the Union argues only that Proposal 29 is an appropriate arrangement. Compare Union Response at 32- 33 with Union Response at 7 (Proposal 4), 13 (Proposal 12), 18 (Proposal 17), 27 (Proposal 24), 34 (Proposal 31), 41 (Proposal 37), 48 (Proposal 44), 69 (Proposal 58), 70 (Proposal 59), 74 (Proposal 62), 76 (Proposal 63), and 78 (Proposal 65). Read in context, we do not construe the Union's argument regarding Proposal 29 as raising a claim under section 7106(b)(2). See American Federation of Government Employees, Local 1985 and U.S. Department of Veterans Affairs, Medical Center, Dublin, Georgia, 55 FLRA 1145, 1147 n.5 (1999) (VAMC, Dublin).


Footnote # 29 for 56 FLRA No. 10 - Authority's Decision

   The Union also uses the word "procedure" in describing Proposal 30. See Union Response at 34. However, unlike other proposals where the Union references section 7106(b)(2) of the Statute, the Union argues only that Proposal 30 is an appropriate arrangement. See supra note 28. Read in context, we do not construe the Union's argument regarding Proposal 30 as raising a claim under section 7106(b)(2). See VAMC, Dublin, 55 FLRA at 1147 n.5.


Footnote # 30 for 56 FLRA No. 10 - Authority's Decision

   The provisions addressed in the two decisions relied on by the dissent are distinguishable from Proposal 30. See Dissent at 5, citing American Federation of Government Employees, Local 1603 and U.S. Department of the Navy, Naval Air Warfare Center, Patuxent River, Maryland, 47 FLRA 311, 315 (1993) (provision precluding agency from using supervisor's notes to support disciplinary action if notes are more than 3 years old); and American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1048-50 (1988) (provisions precluding agency from using oral statements, unsigned reports, anonymous information, confidential and similar statements to support disciplinary action at any stage in disciplinary process). In addition, as explained above, determinations under 7106(b)(3) are case-by- case. See note 26, supra.


Footnote # 31 for 56 FLRA No. 10 - Authority's Decision

   The Union states:

A unit member now is not charged with a performance error if a newly found relevant reference was not in its subclass when the unit member searched the application. If the file integrity of a subclass is at issue, the fact that the newly found reference was in another subclass, searched by the unit member, now constitutes evidence that the reference was available, whereas the fact that the newly found reference was not in another subclass . . . now constitutes evidence that the reference was not available. The basis for this evidence rule is separate copies in paper files subclasses. Even if there would be a 7% chance of the newly found reference being missing in one subclass, the chance of that document being missing in both of 2 subclasses would be only 0.5%. However, the above evidence rule used by the Agency for the paper files search, makes no sense for the automated system, because a "not available" patent (i.e., a PNA or NDD) is simply unavailable to any subclass list. There is no separate 'copy' in the automated system.

Union Response at 73 (emphasis in original).


Footnote # 32 for 56 FLRA No. 10 - Authority's Decision

   As set forth supra note 23, the Union defines "Master Classification" as "the list of all U.S. and foreign patents and literature contained in the image system, text system, or paper system." Attachment to Petition for Review.


Footnote # 33 for 56 FLRA No. 10 - Authority's Decision

   Chairman Wasserman's dissenting opinion on Proposals 13, 32, 35, and 36 is set forth at the end of this decision.


Footnote # 34 for 56 FLRA No. 10 - Authority's Decision

   5 U.S.C. § 8906 provides in pertinent part, that "The Office of Personnel Management shall determine the average of the subscription charges. . . with respect to self alone or self and family enrollments under this chapter. . . ."

5 C.F.R. § 890.501 provides in pertinent part, that "The Government contribution . . . is the amount provided in section 8906 of title 5, United States Code, plus 4 percent of that amount. . . ."


Footnote # 35 for 56 FLRA No. 10 - Authority's Decision

   5 U.S.C. § 7901 provides in pertinent part:

(a)     The head of each agency of the Government . . . may establish . . . a health service program to promote and maintain the physical and mental fitness of employees under his jurisdiction.
. . . .
(c)     A health service program is limited to--
(1)     treatment of on-the-job illness and dental conditions requiring emergency attention;
(2)     preemployment and other examinations;
(3)     referral of employees to private physicians and dentists; and
(4)     preventive programs relating to health. . . .

Footnote # 36 for 56 FLRA No. 10 - Authority's Decision

   In addition to the argument described above, the Union also asserts that both proposals are appropriate arrangements under section 7106(b)(3) of the Statute and that Proposal 12 is a procedure under section 7106(b)(2). However, as the Agency does not claim that either proposal affects its management rights under section 7106(a), we do not address the Union's procedure and appropriate arrangement arguments further. See, e.g., National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 52 FLRA 1265, 1272 (1997).


Footnote # 37 for 56 FLRA No. 10 - Authority's Decision

   As noted in Luke AFB, 55 FLRA at 686 n.4, the Authority has not expressly addressed whether, under the broad mandate of 29 U.S.C. § 668, and independent of 5 U.S.C. § 7903, an agency is authorized to provide "safety equipment, personal protective equipment, and devices reasonably necessary to protect employees[,]" where the equipment may be unrelated to the transaction of official business but use of the equipment is required by an agency. 29 U.S.C. § 668(a)(2). See also 29 U.S.C. § 651 (setting forth congressional policy obligating agencies to provide safe and healthful working conditions); 57 Comp. Gen. 379, 382 (1978) ("if the head of an Executive agency or department, or an official designated by him, determines that certain items of equipment or clothing are required to protect employees from . . . hazards, the agency or department may expend its appropriated funds to procure such items"). Contrary to the suggestion of our dissenting colleague, there is no contention or evidence in this case that the eyeglasses that would be furnished by the Agency under Proposal 13 are "special glasses" that are "mandated by the Agency," Dissent at 3, 4, or that their purchase is otherwise authorized under 29 U.S.C. § 668(a)(2). Accordingly, we do not address those matters here.


Footnote # 38 for 56 FLRA No. 10 - Authority's Decision

   The Agency initially argued that Proposal 21 affected its right to determine the methods and means of performing work within the meaning of section 7106(b)(1) of the Statute. However, the Agency subsequently abandoned this argument. See Reply to Order to Show Cause at 12-13. As such, we do not address it further.


Footnote # 39 for 56 FLRA No. 10 - Authority's Decision

   In view of our determination, we do not address whether Proposal 31 affects the Agency's right to discipline employees.


Footnote # 40 for 56 FLRA No. 10 - Authority's Decision

   The dissent posits that the Union intends the proposal to require disclosure "only of the information that the Agency intends to use in connection with performance evaluations and disciplinary actions." Dissent at 4. We agree; clearly, the Union's interest is in precluding use of information to adversely affect employees. See Union Response at 36. However, the dissent makes too much of this. Unlike the provision in Office of the Chief Counsel, which required disclosure only after an agency official determined to use the information in connection with a performance appraisal, Proposal 32 prohibits the Agency from using information to adversely affect a unit employee unless the information was disclosed within a reasonable time after it was obtained. As such, as drafted by the Union, the proposal plainly requires the disclosure of all information that potentially could adversely affect an employee.


Footnote # 41 for 56 FLRA No. 10 - Authority's Decision

   In view of our determination, we need not determine whether the proposal also affects the Agency's right to determine its internal security practices.


Footnote