File 3: Opinion of Chairman Wasserman
[ v56 p111 ]
Dissenting Opinion of Chairman Wasserman
I agree with all of the conclusions reached in this case except for Proposals 3 and 43 (discussed in Part VI of the decision) and Proposals 13, 32, 35 and 36 (discussed in Part IX of the decision). As explained below, I would find that these proposals are within the Agency's duty to bargain.
Proposal 3 requires the Agency to provide employees with nonexamining time when the temperature in the computer workstation area is outside the range of 65 degrees Farenheit to 80 degrees Farenheit for more than 2 continuous hours. This proposal is part of the contract article governing "Health and Safety." See Statement of Position at 3. According to the Union, the Agency installed "chillers" in the buildings housing the automated search system in order to provide sufficient cooling for the equipment. The Union also states, and it is undisputed, that the chillers have created temperature fluctuations in the workstation "so great that many unit members required to use the equipment have taken on occasion to wearing parkas and wool hats when using the automated system." Union Response at 6. In view of the fact that the Agency measures employee performance in 6-minute increments, the Union's contention that "even a small disruption can have a significant effect on the unit member's performance[,]" seems rather obvious. Id.
Nonetheless, my colleagues find that the proposal is outside the duty to bargain because it would excessively interfere with management's rights. While acknowledging the benefits to employees of the proposal, the majority finds that those benefits are outweighed by the constraints on management's ability to assess employee productivity. They point to the fact that the Agency would be required to treat all employees the same, without regard to individual levels of lowered productivity, and that the Agency would be deprived of any discretion to determine the appropriate amount of time to be given under individual circumstances.
I do not believe that the record, or a reasonable application of the proposal, supports the majority's outcome. The proposal is consistent with Government guidelines, under which agencies are expected to heat their building to 65 degrees and cool their buildings to 78 degrees. See 10 C.F.R. part 436, Appendix C. I do not see how it would be impossible to identify, in advance, which employees would likely suffer reduced productivity as a result of working in temperatures that fall outside the range specified in the proposal. Rather than constraining management, a system that accounts [ v56 p112 ] for likely reductions in productivity based on temperature deviations as they occur would obviate the need for management to recreate, at the end of an appraisal period, the conditions that existed in the prior year.
In addition, the nonexamining time would not commence until 2 hours have elapsed from the time the problem is reported. The Agency does not argue that it would be unable to make any necessary adjustments or repairs promptly, within 2-hours from the time of the report, to correct the problem that is causing the temperature to fall outside the range which the Agency is otherwise expected to maintain. See Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 53 FLRA 625, 646-47 (1997) (burden placed on agency that it "'should' already be shouldering" was outweighed by benefits to employees of particular proposal). Furthermore, the Agency makes no claim that the amount of nonexamining time would be substantial or that it would be unable to make other arrangements for employees to perform their work, such as locating a work area for them to perform their duties that is consistent with the temperature guidelines. Finally, I do not see the intrusion on management's rights as being any more substantial under Proposal 3 as they are under Proposal 16, which would grant nonexamining time to employees to report problems with the computer system, and which my colleagues readily find constitutes an appropriate arrangement. Consequently, on balance, I would find that Proposal 3 does not excessively interfere with management's rights.
I also disagree with the majority's conclusion that Proposal 43 excessively interferes with management's rights. That proposal would require the Agency to provide employees with some amount of nonexamining time in order to become familiar with 10 "first-actions-on-the-merits" and 10 "update searches." As I read the proposal, it would give each employee about 65 hours of nonexamining time to become familiar with the new automated system. While that amount is greater than the one-time-only grants of nonexamining time found within the duty to bargain in the precedent cited in the majority opinion, it is nonetheless insignificant when compared with the number of work hours that is subject to annual performance appraisals (2080 hours) and the number of patent applications that are examined each year (more than 100,000; see discussion of Proposal 45, decision at 36. In my view, the affect of the proposal on management's rights is not disproportionate to the acknowledged benefits to employees. Consequently, I would find that Proposal 43 is negotiable as an appropriate arrangement. [n1]
Next, I believe that Proposal 13 is within the duty to bargain. Under that proposal, the Agency would be required to provide special glasses for unit members while using the automated computer system. This proposal comes into play only because the Agency has chosen to implement the automated patent search system and has required employees to use the system. This fact, coupled with the proposal's explicit statement that the purchase of glasses is a cost that unit members would not otherwise incur, leads me to conclude that the purchase and use of the glasses would be for the primary benefit of the Agency's work.
In holding otherwise, my colleagues rely on Authority precedent and Comptroller General rulings that, in my view, do not fully assess whether an agency may expend monies for health and safety related equipment where, as here, the use of that equipment is necessitated by the Agency's work requirements. Consequently, I do not believe that the cases on which the majority relies compel the conclusion reached. To the contrary, the Comptroller General has held that "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." 57 Comp. Gen. 379, 382 (1978). I would find, consistent with that ruling, that the purchase of special glasses in this case is not contrary to law, as the Agency claims. [n2]
I would also find that Proposal 32 is negotiable as an appropriate arrangement. This proposal would [ v56 p113 ] require the Agency to provide employees with an opportunity to review data obtained by electronic monitoring when that data is the exclusive basis for performance evaluations and disciplinary actions. The majority interprets the proposal as requiring the Agency to furnish "all information collected through electronic monitoring . . . to each and every employee monitored . . . ." See slip op. at 93 (emphasis omitted). I believe my colleagues have misinterpreted the proposal. I think that a more reasonable interpretation of the proposal, and one that comports with its wording and the Union's intent, is to require disclosure only of the information that the Agency intends to use in connection with performance evaluations and disciplinary actions. For example, the Agency may collect data for use in budget preparation and staffing decisions. I do not see where the proposal would require the Agency to furnish such information to employees even though the information is obtained through electronic monitoring. As for my colleagues' concern that the proposal "plainly requires the disclosure of all information that potentially could adversely affect an employee[,]" see slip op. at 93 n.40, I do not see where the Agency makes this argument. In any event, the Agency maintains the right to determine what data it will use in performance evaluations and disciplinary actions and when that data will be obtained. The Agency does not argue, and the proposal does not require, the Agency to furnish the data at the time it is generated, that is, when it is first brought into existence. Instead, the Agency can call up the data when it is ready to use it. It is at this point that the proposal becomes operative.
I also disagree with the majority's balancing of interests under section 7106(b)(3). In this connection, the majority finds that in "some situations," it is "foreseeable" that information developed through electronic monitoring would constitute the only support for disciplinary action and, consequently, that the proposal's prohibition on the use of such information "would effectively preclude discipline itself." See slip op. at 94. In my view, it is equally foreseeable that these situations would occur infrequently. Apparently, not all data is generated through electronic monitoring. Rather, as demonstrated by Proposal 30 and the Agency's arguments in connection with that proposal, statistics, reports and documents that may be used in performance evaluations and disciplinary actions are also generated in paper form.
However, even if the only data obtained was through electronic monitoring, I would still find that Proposal 32 does not excessively interfere with management's rights. The Agency would not be barred from using the information to support disciplinary actions for two reasons. First, the Agency could use the information as the exclusive basis as long as it gives a unit member an opportunity to review the data. Second, if the unit member is not given that opportunity, the information could still be used as long as it is conjunction with other information. As noted above, other information can exist in paper form.
Finally, I would find that Proposals 35 and 36 are within the duty to bargain because they do not excessively interfere with management's rights. These proposals are part of a set of proposals providing employees with training on the new automated system implemented by the Agency. While I agree, for the reasons expressed by my colleagues, that Proposals 35 and 36 affect the Agency's right to assign work, I do not believe that the degree of interference is excessive.
Proposal 35 simply provides for a continuation of a minimum of 12 hours of formal classroom training; Proposal 36 provides for a continuation of practice time connected with the classroom training. Other than specifying "classroom" training, the proposals are silent as to the specific courses that employees must take, the content of those courses or where the courses are held. The Agency is free to make those determinations. The Agency is also free to determine whether some or all employees need additional training and the specifics concerning that additional training, including the amount of training. In this respect, I disagree with the majority's assessment that Proposals 35 and 36 would "remove the Agency's discretion to determine that a different type of training would be better for individual examiners or groups of examiners." See slip op. at 97. I also find no support for their view that Proposal 35 constitutes a "one size fits all approach" to training. Id. The Agency does not claim that it makes individual decisions for all employees for all training needs. Indeed, it would be unreasonable to expect an agency with a large workforce to individually tailor all employee training. Instead, it is far likelier that the Agency in this case provides the same type of training to large groups of employees. If that is called a "one size fits all approach," so be it. However, that nomenclature does not prevent the Agency from making the specific decisions I have noted above or from deciding that particular employees need more or a different type of training.
In sum, since the benefits to employees afforded by the proposals are significant, in terms of their ability to use the automated system more efficiently and to be appraised on that enhanced ability, I would find that the benefits to employees outweigh the burden on management. Therefore, in my view, Proposals 35 and 36 are within the duty to bargain.
Footnote # 1 for 56 FLRA No. 10 - Opinion of Chairman Wasserman
I reach the opposite conclusion with respect to Proposal 45 because the latter, among other things, would authorize nonexamining time for each first-action-on-the-merits. The record shows that more than 100,000 patent applications are examined by employees each year. To allow 1-hour of nonexamining time for that many applications is far in excess of the roughly 65 hours of nonexamining time provided for in Proposal 43 and tilts the balance toward excessive interference. I agree with my colleagues that Proposal 45 is not an appropriate arrangement.
Footnote # 2 for 56 FLRA No. 10 - Opinion of Chairman Wasserman
In reaching this result, I would distinguish this case from 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 (1999), in which the union proposed that the agency supply or reimburse employees for any motorcycle safety equipment that was required by the agency and not by the state of Arizona. In finding that the proposal was contrary to law, the Authority determined that the union had not established that the equipment would be used in the performance of agency work or was essential to the transaction of the agency's official business. Rather, the record indicated that the equipment was used by the employees commuting to and from work and, as such, was not for the primary benefit of the Government.