[ v46 p1170 ]
46:1170(108)NG
The decision of the Authority follows:
46 FLRA No. 108
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
LOCAL 1974
(Union)
and
U.S. DEPARTMENT OF VETERANS AFFAIRS
REGIONAL OFFICE
PORTLAND, OREGON
(Agency)
0-NG-2056
_____
DECISION AND ORDER ON NEGOTIABILITY ISSUES
January 14, 1993
_____
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of seven proposals relating to the impact and implementation of performance standards.
For the reasons stated below, we make the following determinations. Proposal 1, which requires performance standards to make allowances for factors beyond employees' control, is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. Proposal 2, which requires that performance standards be reasonably attainable by every employee, is nonnegotiable because it directly interferes with the Agency's rights to direct employees and assign work under section 7106(a)(2)(A) and (B).
Proposal 3, which mandates that the Agency use certain statistical methods, is negotiable. The first sentence of Proposal 4, which requires that the sample size of work be the same for certain employees, is negotiable; the second and third sentences of Proposal 4, which provide for use of valid statistical methods, also are negotiable.
Proposal 5, which requires the Agency to evaluate employee performance on the basis of records which can be verified as accurate, is nonnegotiable because it directly interferes with the Agency's rights under section 7106(a)(2)(A) and (B) of the Statute. Proposal 6, which establishes an implementation date for new standards, is negotiable. The first sentence of Proposal 7, which requires the Agency to evaluate employees under the previous standards until new standards are implemented, is negotiable. The second sentence of Proposal 7, which entitles an employee who is rated under both new and old performance standards during a given year to the rating which is higher, is nonnegotiable because it directly interferes with the Agency's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.
II. Proposal 1
In applying the new performance standards, allowance shall be made for factors beyond the employee's control. Such factors include, but are not limited to, the use of annual, sick and administrative leave, additional work assignments, processing delays by others and understaffing of positions.
A. Positions of the Parties
The Agency argues that Proposal 1 directly interferes with its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute because, by requiring the Agency "to create exceptions to the standards[,]" the proposal "goes to the content" of performance standards. Statement of Position at 3.
The Union denies that Proposal 1 requires management to modify performance standards. The Union asserts that the proposal "merely requires that certain factors be considered in applying the standard." Reply Brief at 1. According to the Union, such factors include employee absences, "work assignments not measured under the standards, . . . processing delays by others and understaffing of positions on which the overall timeliness is dependent . . . ." Petition for Review at 2. Finally, the Union argues that, even if Proposal 1 "affects a management right[,] it is an appropriate arrangement." Reply Brief at 1.
B. Analysis and Conclusions
1. Direct Interference
According to the Union, Proposal 1 "merely requires that certain factors be considered in applying the standard." Reply Brief at 1. However, the plain wording of the proposal states that allowances "shall be made" for certain specified factors. By providing that allowances "shall" be made, the proposal does not require management to merely consider the specified factors. As such, the Union's statement of intent is inconsistent with the plain wording of the proposal. We do not base negotiability determinations on a statement of intent that is inconsistent with the plain wording of a proposal. American Federation of State, County and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412, 521 (1991).
We find that the proposal would require management to base its assessment of employee performance, at least in part, on the factors listed in Proposal 1. As such, we conclude that the proposal would require the Agency to change or adjust its performance expectations in light of the specific factors and, thereby, constitutes a substantive limitation on the Agency's ability to determine the content of the standards.
Proposals which restrict an agency's right to determine the content of performance standards and critical elements directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See, for example, National Treasury Employees Union and Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, 34 FLRA 1000, 1005-06 (1990). Compare 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, 1281-82 (1990) (SSA, Vallejo) (proposals which do not require management to make allowances for certain enumerated factors held negotiable). Accordingly, Proposal 1 directly interferes with management's rights to direct employees and assign work. See, for example, National Treasury Employees Union and U.S. Department of the Treasury, U.S. Customs Service, Washington, D.C., 40 FLRA 570, 581 (1991) (Customs Service).
2. Appropriate Arrangement
In determining whether a provision is an appropriate arrangement, we first ascertain whether the provision is intended to be an arrangement for employees adversely affected by the exercise of a management right. If the provision is determined to be an arrangement, we examine whether the arrangement is appropriate because it does not excessively interfere with the exercise of the management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986).
As a threshold matter, we consider whether Proposal 1 is intended as an arrangement for employees adversely affected by the exercise of a management right. In this regard, the Union asserts that the proposal is an appropriate arrangement. Moreover, we have considered whether similar proposals constitute arrangements for adversely affected employees. See, for example, Customs Service, 40 FLRA at 582. In Customs Service, we noted that it is foreseeable that employees could be adversely affected by performance evaluations which are based, even in part, on performance which is affected by matters over which the employees have no control. We find no material difference between the obligation to "take into account" required by the proposal in Customs Service and the requirement that "allowance shall be made" established by Proposal 1. Accordingly, we conclude that Proposal 1 is an arrangement for those employees who would be adversely affected by management's exercise of its rights to assign work and direct employees by determining the content of performance standards and critical elements and who otherwise would receive lower appraisals if allowances were not made for matters over which they have no control.
In balancing the benefit to employees afforded by Proposal 1 against the burden on the exercise of management's rights, we find that employees would benefit by being evaluated on matters over which they have control, and to have allowances made for matters which are outside their control. Thus, the proposal would ensure that performance evaluations accurately reflect employees' actual performance as related to the elements and standards and would prevent the issuance of lower, or negative, appraisals to employees because of matters over which they have no control. On the other hand, we find that the burden placed on the exercise of the Agency's right to direct employees and assign work by the proposal is minimal. That is, although the proposal would require management to make allowances for, among other things, an employee's use of leave, management would retain the right to approve or deny leave, to assign additional work and to fill its positions. Moreover, Proposal 1 would benefit both management and employees by requiring that those elements of performance for which the employee is responsible be clearly defined.
On balance, we conclude that the benefits afforded employees by Proposal 1 outweigh the effect on management's rights to direct employees and assign work. Accordingly, we conclude that Proposal 1 does not excessively interfere with management's rights and is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. See Customs Service, 40 FLRA at 582-83.
III. Proposal 2
The new performance standards shall be administered and implemented in such a way that every employee can be reasonably expected to meet the new standards.
A. Positions of the Parties
The Agency asserts that Proposal 2 "is an attempt to modify the content of the [performance] standards to meet the employees' efforts and abilities." Statement of Position at 3. In the Agency's view, the proposal would "eliminate management's right to set the content of the standards" and, thereby, directly interferes with the Agency's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. Id. at 4.
The Union asserts that Proposal 2 is aimed at "giving every employee a fair opportunity to meet their performance standard." Reply Brief at 1. The Union argues that the proposal requires only that management implement its standards so as not to "deprive an employee of a reasonable opportunity to attain the standard . . . ." Id. The Union denies that the proposal requires management to establish a particular performance standard or to change any existing standard.
B. Analysis and Conclusions
Management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute include the rights to determine the quantity, quality, and timeliness of employees' work products and to establish employees' work priorities. See, for example, National Association of Government Employees, Local R14-52 and U.S. Department of Defense, Defense Finance and Accounting Service, Washington, D.C., 45 FLRA 910, 913 (1992) (Defense Finance and Accounting Service). "[A]n essential aspect of management's assignment of work and direction of employees is the establishment of job requirements for various levels of performance in order to achieve the quality and amount of work needed from employees to effectively and efficiently fulfill the agency's mission and functions." Id. at 914.
By requiring that performance standards be administered and implemented so that "every employee can be reasonably expected to meet the new standards[,]" Proposal 2 establishes a substantive criterion governing the content of performance standards. That is, although the proposal does not mandate the establishment of particular standards, it is clear that any standard management decides to establish must be reasonably attainable by every employee covered by that standard and that any existing standard must be revised to comply with that criterion. As the proposal limits management's discretion to establish standards based on its job requirements, it directly interferes with the Agency's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See Defense Finance and Accounting Service, 45 FLRA at 914; National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Baltimore, Maryland, 39 FLRA 346, 352-53 (1991).
The Union makes no claim that the proposal constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Accordingly, we find that Proposal 2 is nonnegotiable.
IV. Proposal 3
Where quality is expressed in the standard as a percentage error rate or percentage error free rate, valid statistical methods shall be used to determine if the true error rate is within the stated standard. A three standard deviation table shall be employed.
A. Positions of the Parties
The Agency claims that the "'[t]hree standard deviation table' is a complicated statistical concept [and that] [t]he Union has not met its burden of explaining the concept to enable the Authority to render a decision on the proposal." Statement of Position at 4. The Agency also claims that Proposal 3 excessively interferes with management's to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute because the use of a three standard deviation table would "dictate[] a complete change in the content of a critical element of the performance standard." Id. at 5. In particular, the Agency claims that use of a three standard deviation table would permit employees encumbering certain positions to commit more errors than are permitted under current standards. The Agency also claims that the proposal would not apply to certain other positions because the arithmetic error rate for them is based on a review of 100 percent of the work but that if the proposal were to apply to those position, then the proposal would directly and excessively interfere with its "right to determine the content of performance standards." Id.
According to the Union, where an error rate is expressed as a percentage of a work sample, the number of errors will vary with the sample size, and the proposal would not affect the percentage of allowable errors. Further, the Union asserts that a three standard deviation table is not a complicated concept and that it merely "establishes with 99% certainty" that the error rate found in an employee's sampled work is correct. Reply Brief at 1.
B. Analysis and Conclusions
At the outset, we reject the Agency's claim that the Union has not met its burden of explaining the "complicated statistical concept" of a three standard deviation table. Statement of Position at 4. Both parties have submitted sufficient information concerning three standard deviation tables to enable us to reach a negotiability determination.
We also reject the Agency's argument that for certain positions, the proposal would require the Agency to change from an error rate based on a 100 percent work review to a percentage error rate based on a sample. The proposal applies, by its terms, to those performance standards "[w]here quality is expressed as a percentage error rate" and is intended, according to the Union, to ensure that an error rate determined from a sample of an employee's work accurately reflects the error rate of the employee's work as a whole. As the Union's statement is consistent with the plain wording of the proposal, we adopt it for the purposes of this decision and conclude that the proposal applies only in situations where less than 100 percent of an employee's work is reviewed. Indeed, the Agency acknowledges that a three standard deviation table has no application in situations where a "true error rate" is determined from a 100 percent review. Statement of Position at 5.
Proposal 3 requires the Agency to use "valid statistical methods" and a specified standard deviation table to determine an employee's error rate in those circumstances where the standards express the error rate as a percentage and where only a sample of an employee's work is reviewed. The proposal would not limit management's choice of sampling as a means of reviewing employees' work and would not in any manner affect management's discretion to establish or change the error-free rate of its standards. Rather, Proposal 3 would simply assure that an employee's error rate is accurately determined when only a portion of an employee's full output is selected for review.
Proposal 3 concerns only the evaluative methodology used to measure error rate. The Authority has held that proposals concerning the methodology used in measuring the quantity or quality of employees' work are negotiable procedures under section 7106(b)(2) of the Statute. National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 36 FLRA 606, 612 (1990) (Patent and Trademark Office); SSA, Vallejo, 35 FLRA at 1284 ; American Federation of Government Employees, Local 1760, AFL-CIO and Department of Health and Human Services, Social Security Administration, 23 FLRA 168, 174-75 (1986) (DHHS, SSA).
In addition, the proposal would not change the number of allowable errors per employee, as claimed by the Agency. Rather, as discussed earlier, the proposal applies only to those situations where management's standards are expressed as a percentage error rate. Proposal 3 would not change that percentage. Instead, it merely would require the Agency to measure the employee's errors with greater statistical certainty. Consequently, we find that Proposal 3 preserves the Agency's discretion to establish its performance standards and to determine its evaluative methodology. Accordingly, we find that Proposal 3 is a negotiable procedure under section 7106(b)(2) of the Statute.
V. Proposal 4
Where quality is expressed in terms of a number of allowable errors, the sample size shall be the same for each employee performing like duties. If an expanded sample is reviewed for an employee, valid stastistical [sic] methods shall be employed to determine if the true error rate is within the error rate expressed in the standard for the sample size in the normal review. A three standard deviation table shall be employed.
A. Positions of the Parties
The Agency argues, as it did with respect to Proposal 3, that the "'three standard deviation table' is a complicated statistical concept [and that] [t]he Union has not met its burden of explaining the concept to enable the Authority to render a decision on the proposal." Statement of Position at 4. The Agency also argues that the first sentence of Proposal 4 interferes with its right to determine its mission because it would require management to conduct an expanded review of work for every employee performing like duties if it conducted an expanded review for any one employee, thereby consuming all of management's resources and making it incapable of carrying out its mission.
With respect to the proposal's second sentence, the Agency claims that if the Union intends to use the phrase "true error rate" to invalidate the standards, the sentence would excessively interfere with its right to establish its standards. Further, the Agency asserts that the second and third sentences are nonnegotiable under section 7106(a)(2)(A) and (B) because they would require the Agency to adopt "a statistical predictive model" that permits a greater number of allowable errors than management has determined. Statement of Position at 6. The Agency claims that the "Union is not proposing a more accurate procedure for calculating performance within the confines of the standard [but] . . . is proposing a rewrite of the standard." Id. at 6-7.
The Union argues that the first sentence of Proposal 4 applies to cases where management has set a numerical error rate, but has not stated the size of the sample of work which it intends to review. According to the Union, management would be required to use the same size sample for each employee in order to be "fair and equitable." Reply Brief at 2. The Union maintains that the proposal would "not change the number of errors permitted nor dictate the size of the sample to be reviewed[.]" Id. With respect to the remaining portion of Proposal 4, the Union maintains that because management has not indicated "what method [it] plan[s] to use to determine if the error rate in the expanded sample exceeds the standard[,]" the use of a three standard deviation table would assure accuracy. Id.
B. Analysis and Conclusions
Initially, for the same reasons discussed in Proposal 3, we reject the Agency's claim that the Union has not met its burden of explaining the use of a three standard deviation table. We also reject the Agency's claim that the first sentence of the proposal interferes with the Agency's right to determine its mission by requiring the Agency to conduct an expanded review of work for every employee performing like duties if the Agency decides to conduct an expanded review for any employee. In our view, nothing in the plain reading of the first sentence of the proposal concerns expanded size samples. Moreover, the second sentence, which establishes the performance evaluation methodology to be used when a work sample size is expanded, expressly refers to expanding the sample size for "an employee[.]" In other words, although the first sentence of the proposal requires the Agency to use the same sample size for employees performing like duties, the balance of the proposal clearly contemplates that there will be circumstances in which an expanded work sample size will be utilized for a particular employee. Consequently, we find no support for the Agency's claim that the first sentence interferes with the Agency's ability to determine its mission.
We also find no support for the Agency's arguments that the proposal would require management to establish a percentage error rate and, by using a statistically predictive model, to allow a greater number of errors than permitted under the standards. Nothing in Proposal 4 requires a percentage error rate. In addition, nothing in the proposal indicates that a greater number of errors would be allowed than the standards permit. Instead, the proposal requires only that the number of errors allowed for an expanded sample be "within" the allowable numerical error rate which the standards prescribe for a normal sample. As the standards are expressed in terms of normal size samples, the proposal requires that valid statistical methods, including the use of a three standard deviation table, be used to determine the standard's error rate for expanded size samples.
Proposal 4 provides only that the Agency ensure the accuracy and validity of its selected evaluation methodology when it reviews an expanded sample of an employee's work under its standards. Management remains free to determine the size of the expanded or unexpanded sample and to determine the error rate permitted by its quality standards. We conclude that Proposal 4 fully preserves the Agency's discretion to determine or alter its performance standards. Accordingly, we find that as Proposal 4 does not directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(a) and (B) of the Statute and is negotiable. See Patent and Trademark Office, 36 FLRA at 612; SSA, Vallejo, 35 FLRA at 1284; DHHS, SSA, 23 FLRA at 174-75.
VI. Proposal 5
Only records which can be verified as accurate shall be used to evaluate performance.
A. Positions of the Parties
The Agency states that it will negotiate over Proposal 5 if it requires only that management "consider" an error in its records when an employee brings the error to its attention. Allegation of Nonnegotiability at 2, Attachment to Petition for Review. However, the Agency argues, that if the Union's intent is "to invalidate a performance standard" because it uses data entered in certain computer records, the proposal would excessively interfere with management's right to select the methods and means of tracking and evaluating work. Statement of Position at 7. Further, the Agency claims that the proposal "suggests an absolute standard of accuracy of records that goes beyond the statutory burden of proof" in adverse action cases. Id.
The Union argues that Proposal 5 is intended to prevent management from using "records which are not accurate and cannot be verified as accurate." Petition for Review at 2.
B. Analysis and Conclusions
Management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute encompass the right to evaluate employee performance. Proposals preventing management from using particular data or information in evaluating employee performance directly interfere with that right. See Overseas Education Association, Inc. v. FLRA, 872 F.2d 1032, 1034-35 (D.C. Cir. 1988); Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783,
798-99 (1991) (POPA); National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27, 56-57 (1991) (NTEU), enforced in part, vacated and remanded as to other matters sub nom. U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068 (D.C. Cir. 1992).
Proposal 5 prohibits management from using records that cannot be "verified as accurate" to evaluate employees' performance. Because the proposal precludes the Agency from using certain information in evaluating employee performance, it directly interferes with the Agency's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See POPA, 39 FLRA at 799. As the Union has not claimed that the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, we find that Proposal 5 is nonnegotiable.
VII. Proposal 6
The new standards shall become effective on the first day of the month following the date this agreement is signed.
A. Positions of the Parties
The Agency contends that Proposal 6 is nonnegotiable because it interferes with management's rights to direct employees and assign work by establishing performance standards. The Agency maintains that "[b]y dictating what standards apply to work being performed . . . at particular times, the Union would be dictating the assignment of work." Statement of Position at 8.
The Union asserts that the intent of Proposal 6 is to prevent management from "retroactively apply[ing] standards to a period of time when an employee was not aware he or she was being evaluated under the new standards." Petition for Review at 2.
B. Analysis and Conclusions
Retroactive application of a performance standard is inconsistent with the statutory requirement that standards be communicated to employees at or before the beginning of the appraisal period for which they apply. U.S. Department of Veterans Affairs and American Federation of Government Employees, Local 1765, 43 FLRA 216, 222 (1991). Insofar as Proposal 6 is intended to prevent management from implementing the new standards retroactively, we find it to be consistent with that requirement.
Proposal 6 establishes a date on which the new standards are to become effective. Setting an effective date is a purely procedural step necessary to implement the parties' performance standards agreement. See International Organization of Masters, Mates and Pilots and Panama Canal Commission, 36 FLRA 555, 560 (1990). As such, the proposal does not interfere with the Agency's rights to direct employees or assign work in that it affects its discretion to establish performance standards. As the Agency makes no claim that the proposal is inconsistent with its right to review the agreement under section 7114(c) of the Statute, and as we do not find the express language of the proposal to contravene that right, we find that Proposal 6 is negotiable.
VIII. Proposal 7
Employees shall be separately rated under the previous standards from April 1, 1992 through the last day of the month in which this agreement is signed and under the new standards from the first of the following month through March 31, 1993. The annual rating for the period April 1, 1992 through March 31, 1993 shall be the higher of the above two ratings.
A. Positions of the Parties
The Agency states that the first sentence of Proposal 7 is negotiable if the proposal is restricted to providing that "employees performance will be considered under the previous standards until the date of implementation of the new standards." Allegation of Nonnegotiability at 2, Attachment to Petition for Review. The Agency argues that the second sentence of Proposal 7 interferes with its rights to direct employees and assign work because the proposal "dictat[es] what standards apply to work being performed . . . at particular times[.]" Statement of Position at 8.
The Union asserts that Proposal 7 is intended to apply to the implementation of standards "which are not effective at the beginning of an evaluation period." Petition for Review at 2. The Union claims that the Agency has previously found negotiable a proposal with essentially the same wording.
B. Analysis and Conclusions
With regard to the first sentence of Proposal 7, we conclude that to the extent that we have found Proposal 6 negotiable, we also find this sentence negotiable. Moreover, we note that the Agency has stated that it agrees that "employees' performance will be considered under the previous standards until the date of implementation of the new standards." Allegation of Nonnegotiability at 2, Attachment to Petition for Review.
Proposal 7 applies when an employee's performance is rated at two different levels during a year when different standards were in effect. In this situation, the proposal would require management to select the higher of the two ratings, regardless of the amount of time spent or the amount of work performed by an employee to achieve that rating.
The Authority has held that proposals which establish rating levels and criteria for performance evaluations directly interfere with management's rights to direct employees and assign work. For example, Philadelphia Metal Trades Council and U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania, 38 FLRA 59, 61-62 (1990) (Philadelphia Naval Shipyard); American Federation of State County and Municipal Employees, AFL-CIO, Council 26 and U.S. Department of Justice, 13 FLRA 578 (1984) (Department of Justice). As the Authority noted in Department of Justice, the determination of performance levels for both individual job elements and overall performance are essential aspects of management's rights to assign work and direct employees.
The proposal's second sentence establishes substantive criteria for computing or weighing two ratings when determining the level of an employee's annual rating. Like the proposal in Philadelphia Naval Shipyard, Proposal 7 would limit the Agency's discretion to establish criteria for annual performance ratings, and, therefore, the proposal directly interferes with the Agency's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.
As the Union has not claimed that the proposal's second sentence constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, we find the second sentence of Proposal 7 to be nonnegotiable. Even if, as the Union contends, the second sentence is similar to a provision in a previous agreement between the parties, such fact does not render negotiable a proposal that is nonnegotiable under section 7106(a) of the Statute. Philadelphia Naval Shipyard, 38 FLRA at 62.
In conclusion, we find the first sentence of Proposal 7 to be negotiable. The second sentence of Proposal 7, however, is nonnegotiable because it directly interferes with the Agency's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.
IX. Order
The Agency shall upon request, or as otherwise agreed to by the parties, negotiate over Proposals 1, 3, 4, 6 and the first sentence of Proposal 7.(*) The petition for review of Proposals 2, 5 and the second sentence of Proposal 7 is dismissed.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
*/ In finding Proposals 1, 3, 4, 6 and the first sentence of Proposal 7 to be negotiable, we make no findings as to their merits.