48:0129(14)NG - - Patent Office Professional Association and Commerce, Patent and Trademark Office - - 1993 FLRAdec NG - - v48 p129



[ v48 p129 ]
48:0129(14)NG
The decision of the Authority follows:


48 FLRA No. 14

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

PATENT OFFICE PROFESSIONAL ASSOCIATION

(Union)

and

U.S. DEPARTMENT OF COMMERCE

PATENT AND TRADEMARK OFFICE

(Agency)

0-NG-2054

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

August 11, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.(1)

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of seven proposals.

Proposal 1 precludes management from holding employees accountable for work performance that is dependent on the action of other employees over whom they have no control. We find that Proposal 1 directly and excessively interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. Therefore, Proposal 1 is nonnegotiable. Proposal 2, which requires the Agency to provide employees with written notice of changes in procedures contained in reference manuals before holding employees accountable for errors in connection with the use of such manuals, is nonnegotiable. Proposal 3 prescribes how the Agency should express an error rate in evaluating employees' job performance. We are unable to determine which of two possible interpretations of Proposal 3 represents the Union's intent. Therefore, we dismiss the petition for review as to Proposal 3.

Proposal 4 requires the Agency to maintain a separate record of certain specific performance-related information. Proposals 5 and 6 require the Agency to provide the Union with detailed reports of major and minor errors of patent classifiers found by the Agency in the application of its performance plan. We find that Proposals 4, 5, and 6 are negotiable.

Proposal 7, which requires the Agency to provide employees written guidance as to what constitutes an error under the circumstances described in the proposal and allows employees, if such guidance is not provided in their performance plans, to assume that a patent assignment in the circumstances of the proposal is not an error for evaluation purposes, is nonnegotiable.

II. Background

The Agency is responsible for the issuance of patents and the registration of trademarks. The Agency employs approximately 65 patent classifiers and 1700 patent examiners. Patent examiners examine patent applications to ensure that the statutory requirements are met in order to grant a valid patent. Patent classifiers are technically trained professional employees who maintain an indexing system for classifying patents, called the Patent Classification System (PCS), and ensure that patent applications are assigned to the proper examiner for examination purposes. The PCS is designed to "enable the quick retrieval of patents dealing with a particular area of technology." Petition at 2.

In 1990, the Agency notified the Union of its intent to change the performance appraisal plan for patent classifiers. In response to the Agency's notice, the Union submitted proposals for negotiation concerning the proposed changes in the classifiers' performance appraisal plan. Only the proposals in this case remain in dispute.

III. Proposal 1

Section 23. Patent Classifiers

B. It shall be unreasonable to adversely evaluate a patent classifier for failure to meet a particular performance standard if meeting the performance standard is dependent upon the action of another employee over whom the classifier has no control.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 1 restricts its ability to rate employees under established performance standards. The Agency asserts, therefore, that the proposal directly interferes with its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

According to the Agency, patent classifiers' jobs involve two primary functions, project and post work. The Agency asserts that both functions require that the "employee manage the work and follow-up with other employees until the task is completed." Statement of Position (Statement) at 3. As to project work, the Agency contends that this function is reflected as project management in critical element 1 of the performance appraisal plan (the Plan). See Petition, Attachment 3. The Agency states that this function "requires the employee to perform as a team-leader or quasi-supervisor." Id. According to the Agency, "the classifier performing as team leader must direct a project, which includes having limited responsibility for the work of other employees and monitoring the overall progress of the project." Id. at 3-4. The Agency states that classifiers who act as team leaders are rated on their overall management of a project.

The Agency asserts that the other function of the patent classifier's job, post work, is reflected in critical elements III and IV of the Plan. The Agency states that this function requires a patent classifier to resolve problems as to where a patent application should properly be assigned. According to the Agency, a patent classifier cannot simply send an application to another employee for action, but must follow-up on the application to determine its status and resolve problems connected with that application in a timely manner. The Agency states that the "essence of the [classifier] job, as reflected in the [performance] standards themselves, is that the employee is responsible for monitoring the work of other employees and ensuring its accuracy, and checking applications which may have been sent to others to ensure that they are timely and accurately assigned." Id. at 5.

The Agency contends that Proposal 1 is intended to prevent the Agency from rating an employee on his or her efforts if the performance standard also includes the work of another employee over whom the employee has no control. The Agency states that, in negotiations over Proposal 1, "the Union made it clear that it objected to employees being responsible for 'hassling' other bargaining unit employees to follow-up on the work, and specifically objected to employees being rated on these efforts." Id. The Agency asserts that "this is the very nature of the classifier's job." Id.

The Agency argues, therefore, that "the Union's proposal attempts to alter the basic job requirements and performance standards as defined by management" and is nonnegotiable under section 7106(a)(2)(A) and (B) of the Statute. Id.

The Agency disputes the Union's claim that Proposal 1 is similar to a proposal found negotiable in Patent Office Professional Association and Patent and Trademark Office, 25 FLRA 384, 402 (1987) (POPA), aff'd mem. No. 87-1135 (D.C. Cir. Mar. 30, 1988) (per curiam). The Agency argues that the proposal in POPA, which "dealt exclusively with a timeliness standard[,]" is inapposite to this case because Proposal 1 goes beyond the application of a timeliness standard and instead concerns the content of the standards used to evaluate classifiers. Id. at 6.

The Agency also contends that Proposal 1 is not an appropriate arrangement under section 7106(b)(3) of the Statute "because there is no adverse [e]ffect from the exercise of management's right to evaluate employees on an aspect of their job responsibilities." Id. at 9. The Agency argues that even if Proposal 1 is intended to ameliorate some adverse affect, it excessively interferes with management's rights to evaluate employees on a critical element and to direct employees and assign work.

2. Union

The Union asserts that "[t]he [A]gency presents a description of the job of classifiers which, at least as to post classifiers, would be barely recognizable." Response at 4. The Union asserts that a post classifier's job "definitely would not involve any monitoring of the work of other employees, nor would it be characterized as checking [up on] the accuracy of the work of others." Id. at 5. According to the Union, "[p]ost classifiers are expected to relate to each other as peers. There is not even the hint of a team leader-subordinate relationship among them." Id.

The Union states that the situation is different for project classifiers because "at the higher grades, they are truly team leaders." Id. However, the Union argues that there is inequity in these classifiers' performance standards because of the "unequal human resources they are given." Id. The Union asserts that "[t]he differences in human resources affect the project classifier's ability to get a high rating under both the quality and quantity standards by which they are rated." Id. The Union states that the productivity of a project classifier is measured against a performance standard that takes into account the number of staff hours spent on original patents. According to the Union, "[t]he staff hours that count against a particular project are those of the classifier himself plus all the others working on the project." Id. at 4. The Union asserts that "[t]he proposed performance appraisal plan treats the staff hours used [on a project] by an expert the same as the staff hours used by novices." Id. The Union argues that, as a result of this practice, "the rating assigned to a project classifier may be grossly inaccurate." Id.

The Union asserts that "[t]he fundamental performance appraisal issue faced by classifiers is that their rating may be based more on the work of others than on their own work." Id. at 6. The Union contends that it is "inaccurate to evaluate the timeliness of a classifier's performance when the majority of the time counted against the classifier is consumed by other employees over whom the classifier has no control." Id. at 3.

The Union contends that Proposal 1 is similar to a proposal found negotiable in POPA. According to the Union, the proposal in POPA differs from the current proposal only "in that the earlier proposal applied to examiners and was limited to a standard of timeliness." Petition at 4. The Union asserts that, "[e]xcept for the broadening of the coverage of [Proposal 1], it is intended to have substantially the same meaning as the [proposal in POPA, 25 FLRA at 402]." Id.

The Union argues that Proposal 1 should be considered a procedure under section 7106(b)(2) of the Statute. The Union also asserts that because the negotiability of proposals like Proposal 1 was fully resolved in POPA, that case "should be treated as res judicata with respect to [Proposal 1]." Response at 7.

The Union further asserts that Proposal 1 is an appropriate arrangement for employees who are adversely affected by the exercise of management's rights to assign work and direct employees. The Union contends that post classifiers who perform their work assignments quickly are adversely affected because they "may be downrated as to timeliness even though the delays which form the basis of the rating were caused by other employees over whom [the post classifiers] have no control." Id. at 8. According to the Union, Proposal 1 "is intended to provide a remedy for an employee who has been adversely affected by an inaccurate rating resulting from management's measurement of the work of others, and not the work of the employee being rated." Id. at 4.

The Union also contends that the statutory requirement that performance standards "'permit the accurate evaluation of job performance on the basis of objective criteria[,]' . . . is violated when multiple employees are assigned to a particular work project, and the [A]gency fails to at least attempt to segregate the separate contributions of each employee when evaluating that employee." Id. (quoting 5 U.S.C. § 4302(b)(1)). According to the Union, "[e]mployees who do not receive the statutory benefit of an accurate evaluation are those who are adversely affected." Id. The Union states that it does not intend to "insulate [employees] from the requirement for meeting performance standards when unforeseen events occur . . . but rather [seeks] to insure that the work contributions of each employee will be separately evaluated, so that an employee will be more directly accountable and[,] consequently[,] rewarded for his or her own work." Id. at 8-9.

B. Analysis and Conclusions

Proposal 1 concerns patent classifiers in the Agency's classification operation. The parties describe patent classifiers' jobs in different ways. The Union explains that there are two types of classifiers, project and post classifiers. According to the Union, project and post classifiers perform different job responsibilities. On the other hand, the Agency explains that a classifier's job involves two primary functions, project and post work. Thus, the Union appears to claim that there are two job titles for classifiers, while the Agency appears to claim that there is only one job title for classifiers, with two primary functions.

In the Plan for classifiers, the critical performance elements include, among others, elements rating employees on project and post (system administration) work. See Petition, Attachment 3. The Plan shows that a classifier is responsible for performing both project and post work. In our view, the Plan's description of classifiers' job elements supports the Agency's explanation of their job. Because the Agency's description of a classifier's job is consistent with the Plan, we will adopt the Agency's explanation of a classifier's job for purposes of this decision. We conclude, therefore, that a classifier's job encompasses both project and post work. Because the classifier job does not involve two different job titles, but different functions of a position, we further find that the proposal concerns how the performance standards will be used to evaluate classifiers on the completion of the different functions of their position when they are assigned to those functions.

As to the performance standards applicable to patent classifiers, the Plan indicates that both functions of their jobs require them to coordinate the work of other Agency personnel. For example, under critical element I of the Plan concerning the project function, employees are evaluated on, among other things, their ability to "[p]lan[], manage[] and monitor[] the project[,]" and "[p]rovide[] technical supervision and check[] the work of others." Petition, Attachment 3. Under critical elements III and IV of the Plan, which relate to post work, employees are evaluated on, among other things, their ability to "[s]ettle [patent] application disputes[,]" and "[c]onsult/cooperate with examiners and other classifiers." Id. In short, the performance standards for patent classifiers in both functions of their jobs measure the ability of classifiers to coordinate the work of other employees.

Based on this interpretation of patent classifiers' performance standards, we find that Proposal 1 would limit management's ability to hold classifiers accountable for their performance in situations where the performance of a particular job requirement involves the coordination of the work of other employees. That is, the proposal would limit management's ability to evaluate patent classifiers' ability to coordinate the work of other employees by preventing management from assessing how well classifiers are able to facilitate and expedite the work of employees over whom they have no control. The proposal would, thus, constitute a substantive limitation on the Agency's ability to determine the content of patent classifiers' performance 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 Federation of Federal Employees, Local 1974 and U.S. Department of Veteran Affairs, Regional Office, Portland, Oregon, 46 FLRA 1170, 1172 (1993) (VA, Portland), petition for review filed, No. 93-1201 (D.C. Cir. Mar. 11, 1993); Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, Washington, D.C., 47 FLRA 10, 35 (1993) (PTO), petition for review filed, No. 93-1255 (D.C. Cir. Apr. 2, 1992). Because Proposal 1 would impose a substantive limitation on the Agency's ability to determine the content of its performance standards, we find, consistent with VA, Portland and PTO, that the proposal directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See also National Treasury Employees Union and U.S. Department of the Treasury, U.S. Customs Service, Washington, D.C., 40 FLRA 570, 580-81 (1991) (Customs Service) (provision requiring that "in the application of performance standards," management take into account certain mitigating factors held to directly interfere with management's rights to direct employees and assign work).

We reject the Union's contention that Proposal 1 constitutes a procedure under section 7106(b)(2) of the Statute. Proposals that directly interfere with the exercise of a management right are not negotiable as procedures under section 7106(b)(2). National Federation of Federal Employees, Local 1214 and Department of the Army, Health Services Command, Moncrief Army Community Hospital, Fort Jackson, South Carolina, 40 FLRA 1181, 1188 (1991); Department of Defense v. FLRA, 659 F.2d 1140, 1151-52 (D.C. Cir. 1981), cert. denied 455 U.S. 945 (1982). Because we have found that Proposal 1 directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute, we conclude that the proposal does not constitute a procedure under section 7106(b)(2). Consequently, unless Proposal 1 is an appropriate arrangement under section 7106(b)(3) of the Statute, as the Union argues, it is nonnegotiable.

To determine whether a proposal is an appropriate arrangement, we first decide whether the proposal is intended as an arrangement for employees adversely affected by the exercise of a management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986) (KANG). In deciding whether a proposal constitutes an arrangement, we examine whether it is reasonably foreseeable that some of the employees to whom the proposal applies would be adversely affected by management's exercise of its rights under the Statute. See United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1071 (D.C. Cir. 1992) (Office of the Chief Counsel, IRS). If we determine that the proposal is an arrangement, we examine whether the arrangement is appropriate. To make this determination, we examine the competing practical needs of employees and managers. KANG, 21 FLRA at 31-32.

Applying the analytical framework established by KANG, we find that the proposal does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute.

For purposes of this decision, we will assume, without deciding, that the proposal constitutes an arrangement. See, for example, American Federation of Government Employees, Local 1760 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Region II, 46 FLRA 1285, 1289 (1993). Consequently, we next consider whether the proposed arrangement is appropriate within the meaning of section 7106(b)(3) of the Statute. See Customs Service, 40 FLRA at 582; National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 841 (1990); West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1011-12 (1990). We must determine, therefore, whether the proposed arrangement excessively interferes with management's rights under the Statute. KANG, 21 FLRA at 31-32.

In balancing the competing interests of the employees and the Agency, we find that some of the patent classifiers to whom Proposal 1 applies may be adversely affected as a result of their performance appraisals in the area of their job responsibility that involves coordination and facilitation of the work of other employees. Proposal 1 would benefit classifiers who may be subject to adverse appraisals in that area by not allowing those classifiers to be adversely evaluated on their facilitation and expediting of the work of employees over whom they have no control. This benefit is significant for employees because performance appraisals are the basis for rewarding, reassigning, promoting, reducing in grade, retraining and removing employees. Thus, the rating that an employee receives in his or her performance appraisal has far-reaching consequences in the employee's employment relationship. Specifically, an employee whose performance is determined to be unacceptable on one or more critical elements is subject to reduction in grade or removal. See 5 C.F.R. § 432.106. An employee whose performance rating is less than fully successful is subject to having his or her within-grade increase withheld. See 5 C.F.R. § 531.404. Further, an employee's rating of record is one of the factors that determines an employee's retention standing when determining who will be affected by a reduction-in-force. See 5 C.F.R. §§ 351.501-504. Also, an employee's performance appraisal can determine the employee's success when competing with other employees for promotion and career enhancement opportunities. See, for example, American Federation of Government Employees, Local 3509 and U.S. Department of Health and Human Services, Social Security Administration, Greenwood, South Carolina District, 46 FLRA 1590, 1599-1602 (1993).

However, although Proposal 1 offers a significant benefit to employees, it also places a severe restriction on management's rights to direct employees and assign work. As we found above, the functions of patent classifiers' positions require them to coordinate the work of other Agency personnel in order to accomplish the work assigned. The proposal would limit the Agency's ability to evaluate how well classifiers are able to coordinate the work of other personnel because it would preclude the Agency from holding classifiers accountable if accomplishment of the task involved working with employees over whom the classifier has no control. The proposal would, therefore, severely hamper the Agency's ability to evaluate classifiers on that particular function of their position. We find that the burden imposed by the proposal on management's right to determine the content of the standards by which it will evaluate the performance of patent classifiers outweighs the benefit of the proposal to employees. We conclude, therefore, that the proposal excessively interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

In reaching this conclusion, we note that this case is distinguishable from VA, Portland, PTO, and Customs Service, where we held that proposals which required an agency to adjust or modify its performance standards to compensate for matters beyond employees' control constituted appropriate arrangements under section 7106(b)(3) of the Statute. The records in those cases, unlike the record in this case, did not show that the employees were required to coordinate the performance of their work with others. Consequently, we find that Proposal 1 is distinguishable from the proposals involved in VA, Portland, PTO, and Customs Service. Also, we find that this case is distinguishable from POPA. In that case, the Authority found, among other things, that a proposal which specified the circumstances under which unit employees would not be adversely affected for failure to meet timeliness standards did not concern the content of the timeliness standards, but rather concerned the application of such standards to the differing work situations of employees and, therefore, was negotiable. In this case, as discussed above, the proposal concerns the content of classifiers' performance standards. Because the proposal concerns the content of the employees' performance standards, we find that POPA is inapposite.

Accordingly, we conclude that Proposal 1 is nonnegotiable.

IV. Proposal 2

Section 23. Patent Classifiers

D. Any classification practice or procedure which is set forth in the Manual of Patent Examining Procedure (MPEP), the Development and Use of Patent Classification Systems (DUPAC), or the United States Patent Classification Practice and Procedure (USPCPP) shall not be considered an error unless the employee was given timely written notice of a change in the practice or procedure.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 2 directly interferes with the Agency's ability to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. According to the Agency, under Proposal 2, "if an employee follows a procedure found in one of three listed reference manuals, then the employee cannot be evaluated as having made an error unless the Agency gave specific written notice of a 'change' in that practice." Statement at 10. The Agency asserts that the proposal's plain language and the Union's stated intent demonstrate that Proposal 2 "improperly attempts to define 'error' as it is used in the performance standards." Id. at 10-11.

The Agency contends that there are also unwritten work rules and procedures and other manuals or documents which are known to employees. The Agency asserts that the proposal would effectively void all rules and procedures which, although well known to employees, conflict in some way with an outdated provision of a manual listed in the proposal, unless the Agency affirmatively gave a subsequent written disclaimer of requirements listed in the manual. The Agency further asserts that the proposal would allow employees to ignore clear work instructions from their supervisors which were inconsistent in any way with one of the cited manuals, unless the instruction was put in writing. The Agency argues that Proposal 2 would "preclude the Agency from considering certain mistakes in evaluating the accuracy of [an employee's] work[.]" Id. at 12. The Agency asserts that Proposal 2 is not an appropriate arrangement under section 7106(b)(3) of the Statute because "no adverse effect can be gleaned from management giving an employee verbal work instructions." Id.

2. Union

According to the Union, "the documents listed in [Proposal 2] contain the most basic, fundamental and important rules and procedures that classifiers are required to follow." Petition at 5. The Union states that when a classifier is cited as having made an error, "that error is defined as a violation of one of the statements in the listed documents." Id. The Union asserts that the Agency "has established the three listed manuals as the core documents that define what a patent classifier is expected to do." Response at 10. The Union states that Proposal 2 is intended "to provide definiteness in the instructions given to classifiers" and is not an "attempt at defining what is meant by 'error' under the performance standards." Id. at 9-10. The Union asserts that Proposal 2 merely provides for written notice of changes in the written rules contained in the basic manuals cited in the proposal.

The Union contends that Proposal 2 does not require that all Agency work rules be in writing, but "indirectly requires management to provide a written countermand only to the work rules set forth in these manuals." Id. The Union also states that Proposal 2 "does not apply to other written directives or any oral directives." Id. The Union states that the Authority has held that a proposal that required an agency "'to provide written guidance and reference materials necessary for the satisfactory performance of an employee's job'" was a negotiable procedure. Id. at 11 (quoting American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 28 FLRA 714, 720 (1987) (OPM) (the Authority held that part (a) of Proposal 4, which required the agency to provide its employees with guidance and reference materials necessary to perform their jobs in a satisfactory manner, would, in essence, have the effect of requiring an agency to comply with the legal requirement in 5 U.S.C. §4302 that performance standards be communicated to employees and, therefore, did not directly interfere with management's rights)). The Union argues that Proposal 2 is a procedure, under section 7106(b)(2) of the Statute, that requires written countermands to prior written instructions.

The Union also argues that Proposal 2 is an appropriate arrangement for employees who are adversely affected by the exercise of management's right to direct employees. The Union states that "[t]he adverse effect is the need to document and later prove that prior written instructions have been orally countermanded whenever the oral countermand is relevant to an evaluation, but is not known to the supervisor doing the evaluation." Id. at 11. The Union also asserts that the uncertainty experienced by employees when they receive such oral countermands "is itself a stressful adverse effect." Id. The Union argues that Proposal 2 overcomes the adverse effects and benefits an employee "by enhancing the degree of certainty and definiteness of the instructions the employee is expected to follow." Id. The Union asserts that Proposal 2 does not have any significant adverse consequences for management.

B. Analysis and Conclusions

According to the Union, the Agency "has established the three listed manuals as the core documents that define what a patent classifier is expected to do." Response at 10. According to the Agency, "[t]he cited manuals . . . are not the only resources for work practices and procedures. There are many unwritten work rules and procedures, and many found in other manuals or documents, which are well known to the employees." Statement of Position at 11. The Agency also states that at times employees are given "clear work instructions" by their supervisors that conflict in some way with the cited manuals. Id. The Agency asserts, and the Union denies, that this proposal would define what constitutes an error for evaluation purposes.

While the proposal does not specifically define what constitutes an error for purposes of performance evaluation, it does prevent the Agency from holding an employee accountable for his or her work performance in certain circumstances where the employee follows a practice or procedure prescribed in the three cited manuals notwithstanding the fact that a different practice or procedure is called for based on other authorities that are known to the employee. That is, under the proposal, the employee's action may not be considered an error unless the employee was given timely written notice of a change in the practice or procedure that was contained in the three cited manuals. The proposal is not limited to requiring that the employee be informed in writing that a procedure or practice contained in the three manuals has been countermanded but prohibits the Agency from holding employees accountable for their actions in the absence of a specific written countermand.

It is well established that management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute include the rights to supervise employees and 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); National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775-76 (1980) (Public Debt), aff'd 691 F.2d 553 (D.C. Cir. 1982). The establishment of critical elements and performance standards is among the ways that management supervises employees and determines the quantity, quality, and timeliness of work required of employees and constitutes an exercise of management's rights to direct employees and assign work. See, for example, Public Debt, 3 FLRA at 775-76; see also Defense Finance and Accounting Service, 45 FLRA at 913-14 (management's rights to direct employees and assign work extend to the establishment of job requirements in the form of productivity or performance standards that serve as the basis for encouraging and rewarding successful performance and discouraging and remedying performance that is unacceptable). The evaluation of employee performance is an exercise of management's rights to direct employees and assign work. See American Federation of Government Employees, AFL-CIO, Local 1760 and Department of Health and Human Services, Social Security Administration, 28 FLRA 160, 169 (1987). Proposals that prohibit management from holding employees accountable for work performance directly interfere with the rights to direct employees and assign work. See, for example, National Treasury Employees Union and U.S. Department of Health and Human Services, Office of Hearings and Appeals, 44 FLRA 293, 300 (1992).

Proposals that merely require that an agency provide employees with documentation and information relating to the exercise of a management right and do not place any substantive limitations on the exercise of those rights generally are negotiable. See, for example, National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Falls Church, Virginia, 47 FLRA 705, 718 (1993) (Provisions 2 and 3, which were limited to requiring that the agency maintain and provide to employees documentation supporting performance appraisals and ratings and were silent with respect to the consequences of any failure to comply with that requirement, were procedures negotiable under section 7106(b)(2) of the Statute.); National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696 (1992) (Provision 22, which, among other things, required that supervisors prepare narratives with examples of performance, did not interfere with management's right to direct employees and assign work); National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 43 FLRA 1279, 1292-93 (1992) (Proposal 2, which requires rating and ranking officials to prepare written evaluations of all applicants for a position, found to constitute a negotiable procedure); American Federation of Government Employees, AFL-CIO, Local 446 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, Asheville, North Carolina, 43 FLRA 836, 844-45 (1991) (Proposal requiring that a supervisor document the basis for his or her suspicions prior to deciding to have an employee tested for use of illegal drugs was procedural in nature.). However, proposals that bar an agency from taking an action that constitutes a protected exercise of its management rights based on a failure to comply with a procedural requirement directly interfere with the relevant rights. See, for example, American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, 44 FLRA 63 (1992) (Office of Thrift Supervision) (Proposal, which prohibited the agency from using information that had not been provided to an employee to adversely affect the employee's performance rating, directly interfered with the agency's rights to direct employees and assign work and to discipline employees.). Compare National Federation of Federal Employees, Local 1438 and U.S. Department of Commerce, Bureau of the Census, Jeffersonville, Indiana, 47 FLRA 812 (1993) (Provision, which established a standard of timeliness governing the agency's completion of the steps of the disciplinary process but did not bar the agency from taking disciplinary action if that standard was not met, did not directly interfere with the agency's right to discipline employees.). Proposal 2 is not limited to requiring that the Agency provide employees with documentation and information concerning performance matters but bars holding employees accountable for their performance if "timely written notice of a change in the practice or procedure" contained in the three specified manuals has not been provided.

The exercise of management's rights under section 7106(a)(2) is subject to applicable laws. See, for example, United Power Trades Organization and U.S. Department of the Army, Corps of Engineers, Walla Walla, Washington, 44 FLRA 1145, 1158-60 (1992) (Corps of Engineers, Walla Walla). Thus, if Proposal 2 merely incorporated into the contract a requirement imposed by the laws that govern performance appraisal, 5 U.S.C. §§ 4301-4305, it would be negotiable. See id. (Proposal 3 was negotiable because it incorporated permissible statutory limitations on the establishment of performance standards.). Based on the reasons that follow, we find that Proposal 2 is not confined to incorporating applicable statutory limitations into the contract.

Under 5 U.S.C. § 4302 performance standards and critical elements for an employee's position must be communicated to employees. However, that section does not prohibit an error from being treated as such simply because an employee has not been informed ahead of time that a particular action would constitute an error. In this regard, in the context of actions that are based on unacceptable performance taken pursuant to 5 U.S.C. § 4303, section 4302 requires that employees be informed of deficiencies in their performance during the appraisal period and given an opportunity to improve. That is, a performance standard may be "fleshed out and implemented in detail" during an improvement period undertaken to provide an employee whose performance has been determined as unsatisfactory with an opportunity to demonstrate acceptable performance prior to instituting a performance-based action. Rogers v. Department of Defense Dependents Schools, 814 F.2d 1549, 1553 (Fed. Cir. 1987) (Rogers v. DODDS); DePauw v. U.S. International Trade Commission, 782 F.2d 1564, 1566 (Fed. Cir. 1986) (DePauw v. ITC); Wilson v. Department of Health and Human Services, 770 F.2d 1048, 1056 (Fed. Cir. 1985) (Wilson v. DHHS). See also Chaggaris v. General Services Administration, 49 MSPR 249, 254 (1991) (Chaggaris v. GSA); Williams v. Department of Health and Human Services, 30 MSPR 217, 220 (1986) (Williams v. DHHS) ("It is true that an agency may give content to an employee's written performance standards, thereby correcting certain deficiencies in the standards, by informing the employee of the specific requirements and application of the standards to her work situation through oral counselings, performance improvement plans, and the evaluation process."); Donaldson v. Department of Labor, 27 MSPR 293, 298 (1985) (Donaldson v. Labor) ("[A]n agency may satisfy the employee's rights under 5 U.S.C. § 4302(b)(1), (2), and (6), by communicating to the employee the standards he must meet in order to be evaluated as demonstrating performance at a level [that] is sufficient for retention. . . . [Those standards] must be sufficiently specific to provide a firm benchmark toward which the employee must aim his performance, and not an elusive goal [that] the agency may find the employee met or failed to meet at its pleasure. Such communication may occur in the PIP [performance improvement plan], in counseling sessions, in written instructions, or in any manner calculated to apprise the employee of the requirements against which he is to be measured."). However, fleshing out a standard may not amount to rewriting or changing the standard. See Thompson v. Farm Credit Administration, 51 MSPR 569, 577-78 (1991); Williams v. DHHS, 30 MSPR at 219-20.

Proposal 2 places a general prohibition on considering any classification practice or procedure an error if it is set forth in the three specified manuals. By its terms, the performance appraisal plan that the proposal addresses, which was submitted by the Union, does not explicitly require compliance with those manuals as a general matter. Petition, Attachment 3. A review of that plan shows that it consists of seven critical elements, several of which require evaluation of the quality of the employee's work. Only one of those critical elements, Element IV, explicitly refers to the DUPACS, MPEP and the U.S. Patent Classification Practice and Procedure--the three manuals specified in the proposal.(2) Also submitted with the petition were "Guidelines" for rating each of the seven elements. Id. The Guidelines for some of the elements make reference to the DUPACS. However, the Guidelines are not incorporated into the performance appraisal plan itself; rather, their express purpose is to assist "SPCs" in rating Classifiers on the element to which they apply.(3) In view of the fact that the scope of the proposal is broader than Element IV, we find that it is not limited to circumstances that would amount to the Agency effecting a change in the written performance standards.

In view of the fact that Proposal 2 is not limited to requiring that the Agency exercise its management rights in accordance with the requirements of 5 U.S.C. § 4302, we conclude that it directly interferes with management's rights to direct employees and assign work.(4) In reaching this conclusion, we note that Proposal 2 is distinguishable from Proposal 4 in American Federation of Government Employees, AFL-CIO, General Committee of AFGE for SSA Locals and Social Security Administration, 23 FLRA 329, 333-34 (1986) enforced sub nom. FLRA v. Social Security Administration, No. 87-1118 (D.C. Cir. Sept. 22, 1988). The Authority found that Proposal 4, which provided that errors involving judgmental or discretionary issues were for informational purposes only, was negotiable because it was limited to circumstances in which the employee was free to choose among alternative courses of action that had been identified as acceptable by management. Proposal 2 is not so limited. Additionally, we find that Proposal 2 is distinguishable from part (a) of Proposal 4 in OPM, 28 FLRA at 720, on which the Union relies. Part (a) was limited to requiring that the agency provide employees with written guidance and reference materials necessary to perform their jobs in a satisfactory manner and did not bar holding employees accountable for their performance in the event of a failure to provide such guidance and materials.

Now we turn to the Union's assertion that Proposal 2 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. To do this, we apply the analytical framework established in KANG, 21 FLRA at 31-33.

In this case we will assume without deciding that Proposal 2 is an arrangement. However, for the reasons that follow we find that it excessively interferes with management's rights to direct employees and assign work. This proposal would offer significant benefits to employees who are confronted with conflicting work rules. The proposal would shield them from having their choice of action considered an error as long as they chose a practice or procedure that accorded with the three cited manuals absent a written countermand to those practices or procedures and would protect them from any negative effects that errors could have on their performance appraisals. Thus, the proposal would eliminate the risk that employees incur when they act in the face of conflicting work rules and would afford them more security and certainty in their work environment.

However, the proposal imposes a burden on management by preventing it from holding employees accountable for their work performance in all instances when they applied a classification practice or procedure set forth in the cited manuals regardless of the circumstances involved. For example, it does not permit consideration of the extent to which a reasonably competent professional should recognize that a different choice of practice or procedure is called for. Moreover, even when an employee has been advised orally of a change in procedures, an employee cannot be held accountable for following the procedure that has been countermanded. It might be argued that the Agency can easily escape the burden by providing written countermands to the policies and practices contained in the three manuals. However, this does not take into consideration instances where employees have been given specific oral instructions or where the Agency is dependent on employees to bring to its attention the fact that a circumstance has arisen in which existing work rules conflict or an exception to the practices and procedures in the three manuals is called for.(5) Thus, while the Agency bears the major burden for providing employees with comprehensive and nonconflicting guidelines and instructions regarding work practices and procedures, it is unreasonable to expect the total elimination of conflicts and deficiencies. Moreover, it is reasonable to expect employees to bear some responsibility for recognizing the existence of conflicts and the need for augmentation or clarification and seeking guidance and instructions to resolve such problems.

Because Proposal 2 would immunize employees from accountability for their work performance without regard to the circumstances involved, we find that it imposes a significant burden on management's right to direct employees and assign work. We further find that the burden imposed on management's rights outweighs the benefit afforded employees and that this proposal excessively interferes with management's rights to direct employees and assign work. Consequently, we conclude that Proposal 2 is not an appropriate arrangement within the meaning of section 7106(b)(3). Compare Corps of Engineers, Walla Walla, 44 FLRA at 1172-73 (Proposal that would immunize employees from discipline for following the second of two conflicting orders, without regard to the circumstances involved, excessively interfered with management's right to discipline employees.).

In concluding that Proposal 2 excessively interferes with management's rights to direct employees and assign work, we find that this proposal is distinguishable from Provision 11 in PTO. In concluding that Provision 11 constituted an appropriate arrangement, we found that the burden placed on the agency to avoid appraising employees on matters outside their control was slight in view of the fact that the agency retained the discretion to establish performance elements and standards reflecting the work for which employees are responsible. 47 FLRA at 36. We find that Proposal 2 imposes a more significant burden on management. In particular, Proposal 2 would require the Agency, as a condition to holding employees accountable for their work performance, to assume responsibility for providing employees with written instructions resolving any conflicts with the work practices and procedures set forth in the three cited manuals. This responsibility would exist even in circumstances where the Agency had specifically instructed employees orally as to the preferred practice or where the Agency was dependent upon employees to alert it to the existence of a conflict in their individual work situations regardless of whether the employee had done so.

Accordingly, we conclude that Proposal 2 is nonnegotiable.

V. Proposal 3

Section 23. Patent Classifiers

F. Error rates for a Classifier shall be expressed as a fraction in which the denominator is the total number of applications worked on or the total number of markings required and the numerator is the actual number of applications or markings found to have an error, respectively.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 3 directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. Citing Authority precedent, the Agency asserts that these rights encompass the right to determine the quantity, quality, and timeliness of employees' work.

The Agency states that its performance standards establish error rates to measure employees' performance. The Agency notes that the error rates are applicable to the performance standards in three critical elements of the Plan. The Agency asserts that "[t]he total number of documents on which an employee might work in these three critical elements would average between 10,000 [and] 15,000." Statement at 13 (footnote omitted). According to the Agency, management evaluates employees' performance based on a sample of that work. Thus, under the Plan, the Agency determines an employee's error rate by evaluating only a sample of the employee's total work product.

The Agency contends that Proposal 3 directly interferes with management's rights under section 7106(a)(2)(A) and (B) to determine the quantity, quality, and timeliness of work "because it attempts to define the error rate by which performance will be evaluated under the performance standards." Id. at 12-13. The Agency states that Proposal 3 makes the denominator in the error rate the total number of documents worked on by a classifier and "thus requires that the error rate be based on a 100 [percent] sample of the [classifier's] work." Id. at 13. The Agency notes that "[a]lternatively, if the Agency does not choose to review 15,000 documents per employee per year, the standard would no longer be an error rate but rather a number count of errors." Id. at 14 (footnote omitted). The Agency acknowledges that under Proposal 3, "[t]he Agency would be free to set the number of permissible errors[.]" Id. at 14. However, the Agency argues that because Proposal 3 only allows the Agency to set the number of permissible errors, instead of the error rate, in all instances where the Agency samples less than 100 percent of a classifier's total work, Proposal 3 "would re-define the performance standard different from what the Agency desired or established" and, thereby, would directly interfere with management's rights under section 7106(a)(2)(A) and (B) of the Statute. Id.

2. Union

The Union states that Proposal 3 is intended to provide the methodology for making performance evaluations. The Union asserts that:

[t]here are two basic ways in which the error rates of the classifier can be expressed: first, an error rate can be expressed as a number of errors divided by the number of work samples reviewed or second, an error rate can be expressed as a number of errors divided by the total number of units of work credited to the employee. The difference between these two ways is the difference in the denominator.

Response at 12 (emphases in original).

The Union asserts that "the first error rate expression, which is based on the number of work samples reviewed by supervisors, can lead to seriously inaccurate results." Id. According to the Union, the essence of the inaccuracy is that errors made with respect to one subclass of an employee's work are not representative of the employee's work for the entire year, which performance ratings are intended to reflect. The Union notes that under the error rate expression in Proposal 3, "management, knowing the measurement unit to be used, is free to specify any particular value as the performance standard." Id.

The Union contends that the Agency's contention that Proposal 3 requires management to review 100 percent of the work done by a classifier in order to rate that employee is incorrect. The Union states that "[t]he requirements of [Proposal 3] can be met through the use of sampling techniques; however, those sampling techniques would have to meet the requirements, well established in the statistical community, that make a sample truly representative of the whole." Id. at 13. The Union asserts that "the risk of an adverse rating based upon the use of an unrepresentative sample is a significant adverse effect of management's exercise of its right to establish performance standards." Id.

Citing 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 (1990) (Vallejo District), the Union argues that the Authority has held that proposals, like Proposal 3, which concern the methodology used in compiling statistical data about the performance of an employee, are negotiable procedures under section 7106(b)(2) of the Statute because they do not concern the establishment or content of the performance standards themselves. The Union asserts that Proposal 3 "leaves management completely free to choose the specific error rate it wishes to use as a performance standard and . . . leaves management with a wide choice of sampling techniques constrained only by the requirement that they result in [an] error rate that is representative of all the employee's work." Id.

B. Analysis and Conclusions

For the following reasons, we are unable to determine the intended meaning of the proposal based on the record before us and, therefore, must dismiss the petition as to Proposal 3.

Proposal 3 would require the Agency to express error rates in the form of a fraction. The denominator of the fraction would be the total number of patent applications worked on by a classifier or the total number of markings required of a classifier during a rating period. The numerator of the fraction would be the "actual number of errors" found in a review of the classifier's work product.

It is not clear to us what the Union means by the phrase "actual number of errors." From an example used by the Union, it appears that it intends the phrase "actual number of errors" to mean the number of errors found in a statistically valid sample. See Response at 12. Under this interpretation, if an employee worked on 4000 patents during an appraisal year and a review of a statistically valid sample of 120 of those patents showed 12 errors, the numerator of the fraction would be 12.

However, the Union also describes the effect of the proposal as requiring the use of techniques similar to polling techniques, by which it is possible to determine, based on a statistically valid sample of a portion of the whole, the presence of a given factor in the whole. See Response at 13. The Union's statements in this regard suggest that the numerator is not intended to be the number of errors found in the sample, but rather is intended to be the number that results from multiplying the error rate found in the sample times the total number of patents worked on during the appraisal year. Under this interpretation, using the example set forth above, the error rate for that sample would be 10 percent (12 errors out of a sample of 120 patents) and, multiplying that percentage times the total number of patents worked on (4000), the numerator would be 400.

Under the first interpretation, the proposal would not produce a statistically valid representation of the actual number of errors in the total number of patents worked on during an appraisal year (unless the Agency sampled the employee's entire work product for the year). Thus, the proposal would not result in an accurate evaluation of employee performance as required by 5 U.S.C. § 4302. Interpreted in this manner, the proposal would be inconsistent with law and nonnegotiable.

However, under the second interpretation, the proposal would produce a statistically valid representation of the actual number of errors in the total number of patents worked on during an appraisal year and, as a result, would produce an accurate evaluation of employee performance as required by 5 U.S.C. § 4302. Interpreted in this manner, the proposal would be consistent with law and would constitute a negotiable methodology for measuring the quality of classifiers' work under section 7106(b)(2) of the Statute. See, for example, VA, Portland; Vallejo District.

We are unable to determine which interpretation of the proposal represents the Union's intent. Because we are unable to determine the intended meaning of the proposal, we are unable to determine whether the proposal would permit an accurate evaluation of employee performance consistent with the requirements of 5 U.S.C. § 4302. We conclude, therefore, that the record in this case is not sufficient for us to rule on the negotiability of the proposal. It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982), aff'g National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). A party failing to meet this burden acts at its peril. Consequently, we will dismiss the Union's petition for review as to Proposal 3. See International Association of Machinists and Aerospace Workers, Local Lodge 830 and U.S. Department of the Navy, Naval Ordnance Station, Louisville, Kentucky, 40 FLRA 354, 357 (1991).

VI. Proposal 4

Section 24. Patent Classifiers, Project Work

K. Any time used to redo work that was otherwise correctly done as a result of a management directed change in the requirements for a classification order shall be accounted for separately from the time originally assigned to the project.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 4 directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute "because it forces the Agency to credit the employee with non-production time in violation of the performance standards." Statement at 14. The Agency states that:

[w]hen employees lead a project, they are assigned a total number of hours in which it must be completed. Employees are specifically rated on their ability to overall manage the project by satisfactorily completing the project within this time. Time is either charged to the project (and counted against the total time) or it is not counted as production time.

Id.

The Agency interprets Proposal 4 as requiring it to "credit employees working on a project with time to 'redo' certain work 'separately from the time originally assigned to the project.'" Id. at 15. The Agency asserts that "[t]his separate accounting [of time] can only mean that the time is not counted against the total assigned to the project and is thus non-production time." Id. The Agency argues that "such non-production time is nonnegotiable." Id. (citing National Treasury Employees Union and U.S. Department of Health and Human Services, Office of Hearings and Appeals, 44 FLRA 293 (1992) (Office of Hearings and Appeals)).

The Agency also contends that Proposal 4 "is not an appropriate arrangement for the reasons discussed in relation to [Proposal 1]." Id. According to the Agency, "there is no adverse [e]ffect from the exercise of management's right to evaluate employees on an aspect of their job responsibilities." Id. at 9. The Agency also argues that even if Proposal 4 is intended to ameliorate some adverse effect, it excessively interferes with management's rights under section 7106(a)(2)(A) and (B) of the Statute.

2. Union

The Union states that Proposal 4 "is designed to generate information about an employee's performance that management may consider in the performance evaluation process." Response at 14 and Petition at 7. According to the Union, when management changes rules that classifiers must follow, management expects employees to redo work that was in progress prior to the rule change and no credit is given to the employee for the work done before the change. The Union asserts that "the principal reason why employees have not been credited with extra work required to accommodate . . . management changes is that no reliable information was available to quantify the actual amount of time spent on this extra work." Id. The Union states that Proposal 4 "is designed to create the required information." Id.

The Union asserts that Proposal 4 "does not require that management either change the relevant performance standard or the evaluation given to the employee as a result of doing the extra work." Id. The Union states that Proposal 4 "does not even require management to credit the employee with the extra work done, although it obviously allows management to give the employee such credit." Id. Further, the Union states that "[t]here is nothing in either the language or the explanation of the meaning of [Proposal 4] that requires anything more than generating information about an employee's performance that management may consider in the performance evaluation process." Response at 15. Relying on Chula Vista District, 38 FLRA at 254, the Union argues that proposals requiring management to maintain a record of specific performance-related information are negotiable.

B. Analysis and Conclusions

By its plain wording, Proposal 4 requires the Agency to maintain a separate record of the time employees spend redoing, as a result of a management-directed change in the requirements for a patent classification, work that was otherwise correctly done. We find, consistent with the Union's statements, that Proposal 4 does not require the Agency to change the applicable performance standard, credit the employee with the work accounted for under Proposal 4, or evaluate an employee differently based on the accounting of work specified in the proposal. Rather, the proposal merely requires the Agency to maintain a separate record of specific performance-related information. The proposal does not specify the manner in which management must use the recorded information.

Proposals that require management to maintain a record of specific performance-related information, but do not dictate how management will use that information, do not directly interfere with management's rights under section 7106(a)(2)(A) and (B) of the Statute. Rather, such proposals constitute negotiable procedures under section 7106(b)(2) of the Statute. See, for example, Chula Vista District, 38 FLRA at 254; POPA, 25 FLRA at 411-12. Accordingly, we conclude that Proposal 4, by only requiring the Agency to maintain a separate record of specific performance-related information, does not directly interfere with management's rights under section 7106(a)(2)(A) and (B). Rather, Proposal 4 constitutes a negotiable procedure. See PTO, 47 FLRA at 52-53.

In so concluding, we note that this case is distinguishable from Office of Hearings and Appeals. In Office of Hearings and Appeals, we found that two provisions that sought to exclude the travel time used in connection with an office relocation from the time considered available for employees to perform their work and a provision which sought to preclude management from holding employees accountable for delays in case processing related to the relocation were nonnegotiable because they directly interfered with management's rights to direct employees and assign work. We found that the provisions were nonnegotiable because the first two provisions required management to take into account specific factors in assessing employees' work performance, and the third provision prohibited the agency from holding employees accountable for their work performance in the situations described in the provision. In this case, as discussed above, the proposal does not dictate how management will use the recorded information described in the proposal. Therefore, we find that the proposal in this case is distinguishable from the provisions in Office of Hearings and Appeals.

VII. Proposals 5 and 6

Proposal 5

Section 24. Patent Classifiers, Project Work

N. Within two months of the end of the fiscal year management shall report to the Association a description of each major error found under Element II, Project Documentation, for any Patent Classifier. Management shall also report any major errors it has excused and the basis of the excuse. The reports, including a description of why a particular action is considered to be an error, shall be at a level of detail such that they can be used as precedents for future cases.

Proposal 6

Section 24. Patent Classifiers, Project Work

O. Within two months of the end of the fiscal year management shall report to the Association representative samples of each type of minor errors found under Element II, Project Documentation, for any Patent Classifier. Management shall also report any minor errors it has excused and the basis for the excuse. The reports shall be at a level of detail such that they can be used as precedents for future cases.

[Only the underlined portions are in dispute.]

A. Positions of the Parties

1. Agency

The Agency states that the new performance appraisal plan for classifiers characterizes errors "for the first time[]" as "major" and "minor." Statement at 16. According to the Agency, Proposals 5 and 6 "require the Agency to report to the Union descriptions of all major and minor errors found or excused in Critical Element II." Id. The Agency states that it "does not object to the negotiability of the reporting aspects of these proposals." Id. However, the Agency "strongly objects . . . that these proposals must be in such detail to be used as precedents for future cases." Id. The Agency interprets Proposals 5 and 6 as "creating a right of an employee to rely upon these reports as justification for [his or her] actions so that the Agency could not find either a major or minor error in rating the employee's performance as long as the employee found some 'precedent' to support his or her action." Id. at 17.

The Agency states that because the Union has explained that it intends to use the reports as precedents when evaluating grievances and presenting grievances to arbitrators, the Agency does not accept the Union's statement that the proposals "'merely specif[y] the level of detail that is to be included in the reports'" and do not "'require that one decision be used as precedent for another.'" Id. at 17 (quoting Petition at 9). The Agency asserts that the proposals "attempt[] to create a body of past work products which will dictate whether employees may be found to have committed an error--regardless of whether regulations, policies or work instructions exist which are different." Id. at 17-18. The Agency asserts that because all employees will rely upon the same precedents, the proposals, in effect, "establish a uniform performance standard for all employees performing the same job." Id. at 18. The Agency argues, therefore, that Proposals 5 and 6 would have the same effect as a proposal found nonnegotiable in POPA, 25 FLRA at 388, because it established a uniform performance standard for employees.

2. Union

The Union states that Proposal 5 "is intended to generate information on what management considers to be a 'major error' in the work of project classifiers." Petition at 8. The Union states that Proposal 6 is intended to generate information on "'representative samples' of each type of 'minor' error found by management." Id. at 9. According to the Union, "[t]he formalized concept of 'major' and 'minor' errors is brand new and has not previously been used in the evaluation of patent classifiers." Id. at 8. The Union asserts that the performance appraisal plan does not define what is meant by the terms "major error" and "minor error."

The Union states that it recognizes that in applying the concepts of major and minor errors, when measuring the quality of a professional's work product, the Agency has "an inherent need to exercise some judgment and a limited amount of subjectivity." Id. The Union further states that "[t]o accommodate management's need while at the same time accommodating the employee's need for a clear exposition of what is required and to accommodate employee desires for equal treatment, the [Union] has proposed . . . that the [Union] is to be given a report of how these standards are actually applied." Id. The Union asserts that the proposals "do[] not require that one decision be used as precedent for another." Id. at 9. The Union also asserts that the proposals "merely specif[y] the level of detail that is to be included in the reports." Id. The Union states that Proposals 5 and 6 only require management to provide a report of errors found and excuses accepted under the newly created categories of major and minor errors and "do[] not dictate how management will use the information" in the reports. Response at 17. The Union argues that the Authority has held that proposals which require management to maintain a record of specific performance-related information, but do not dictate how management will use that information are negotiable. In support of this position, the Union cites Chula Vista District, 38 FLRA at 244 and American Federation of Government Employees, Local 3272 and Department of Health and Human Services, Social Security Administration, Chicago Regional Office, 34 FLRA 675 (1990).

B. Analysis and Conclusions

As the Agency acknowledges, the plain wording of Proposals 5 and 6 "require[s] the Agency to report to the Union descriptions of all major and minor errors found or excused." Statement at 16. The Agency "does not object to the negotiability of the reporting aspects of these proposals." Id. However, the Agency claims that, in addition to the reporting requirement, Proposals 5 and 6 would allow employees to rely upon the reports as justification for their actions and would preclude the Agency from finding either a major or minor error in rating employees' performance if employees identified some precedent to support their action.

To the extent that the Agency interprets Proposals 5 and 6 as limiting the Agency's discretion to find either a major or minor error in rating an employee's performance under its new performance appraisal plan, we find that such an interpretation is not consistent with the plain wording of the proposals and is not supported by the record. The Union specifically states that Proposals 5 and 6 "merely specif[y] the level of detail that is to be included in the reports" and do not "require that one decision be used as precedent for another." Petition at 9. The Union's explanation of Proposals 5 and 6 is consistent with the plain wording of those proposals and we adopt it for the purposes of this decision.

Consistent with the Union's statement of intent, Proposals 5 and 6 merely require the Agency to provide the Union with detailed reports of the major and minor errors found by the Agency under the new Plan which the Union and employees may use to determine what constitutes errors in the performance of patent classification duties. In this regard, we interpret the term "precedent" consistent with our interpretation of that term in PTO, 47 FLRA at 50-51. In PTO, we found that the term "precedent" means "'[a] course of conduct once followed which may serve as [a] guide for future conduct[,]'" or "'a preceding instance or case that may serve as an example for or a justification in subsequent cases.'" Id. at 51 (brackets in original, citations omitted).

In sum, we find that Proposals 5 and 6 only require that the Agency provide guidance for unit employees and do not limit the Agency's discretion to find either a major or minor error in rating an employee's performance under its new Plan or require the Agency to incorporate into its performance standards such guidance. See id. Consequently, Proposals 5 and 6 do not directly interfere with the Agency's rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and assign work. Further, inasmuch as the Agency does not object to the negotiability of the requirement that the Agency provide reports of the errors found by the Agency, we conclude that Proposals 5 and 6 are negotiable.

VIII. Proposal 7

Section 25. Patent Classifiers, Post Work

E(2). Management shall identify in the classifiers' performance appraisal plan the circumstances under which it will consider that a Post Classifier has committed an error in the assignment of an application even though (1) an examiner has, or would have, accepted the application for examination purposes from the Post Classifier, or (2) the Post Classifier relied on an informal understanding between patent examiners which was contrary to written definitions or classification rules. If the Performance Appraisal Plan fails to explicitly set forth such circumstances, then classifiers shall be entitled to assume that the two identified situations are not errors for evaluation purposes.

A. Positions of the Parties

1. Agency

The Agency claims that Proposal 7 "forces the Agency to amend the performance appraisal plan to consider certain factors in its evaluation of employees[,]" and by doing so, the proposal directly interferes with management's right to evaluate employees. Statement at 19. The Agency asserts, therefore, that the proposal directly interferes with its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

According to the Agency, "post classification work" involves resolving disputes or confusion concerning the proper classification of a patent application. The Agency states that under that process:

Classifiers initially review the patent application and classification definitions to determine the proper technological area to which the application should be assigned. If the classifier is not satisfied, he or she will use other resources, such as seeking the advice of fellow classifiers. The evaluation of the final assignment made by the classifier is based upon the area of technology to which the case is assigned and the clarity and completeness of the reason(s) presented for the assignment.

Id.

The Agency asserts that Proposal 7 "specifies two particular circumstances that the Agency must consider in evaluating the employee's performance of this function." Id. According to the Agency, "the two circumstances identified by the Union are possible intermediate actions by the classifier which may or may not be relevant in assessing the reasonableness of a particular assignment." Id. at 20. The Agency states that Proposal 7 "is objectionable because it mandates that the Agency will consider these two circumstances." Id. (emphasis in original). The Agency argues that the proposal "would require that the Agency modify its performance expectations in light of factors specified in the proposals." Id. The Agency asserts that the proposal "is not saved by the fact that it allows the Agency to prescribe the exact circumstances when those factors will apply" because "the Agency is required to specifically amend the critical elements in the [Plan] or the Agency may not find that the employee committed an error." Id.

2. Union

The Union states that Proposal 7 "is intended to elicit specific direction from management in two particular situations in which there is known controversy regarding the proper action to be taken by an employee." Petition at 10. According to the Union, at present, "no employee can be assured that the supervisor who will rate him will be the same supervisor who authorized the performance when it occurred[.]" Id. The Union states that, for this reason, it "desires to have management direction be written in the performance appraisal plan." Id.

Responding to the Agency's objection that Proposal 7 requires management to consider the circumstances specified in the proposal, the Union argues that National Federation of Federal Employees, Local 2096 and U.S. Department of Navy, Naval Facilities Engineering Command Western Division, 36 FLRA 834, 835 (1990) (Naval Facilities), supports the Union's position. The Union asserts that Proposal 7 is like the proposal found negotiable in Naval Facilities because Proposal 7 "does not obligate the [A]gency to change any of its existing performance standards, nor would it inhibit the [A]gency in promulgating new standards." Response at 19. The Union asserts, further, that the proposal does not require the Agency to revise any performance evaluations based upon the specified circumstances. The Union states that "the sole objective of [Proposal 7] is to discover what performance management is seeking, so that employees may conform their performance to management's desires." Id. The Union states that in OPM, 28 FLRA at 720, the Authority "held negotiable proposals which require management to provide written guidance and reference materials necessary for the satisfactory performance of a job." Id.

The Union also argues that Proposal 7 is an appropriate arrangement for employees adversely affected by management's right to direct employees under section 7106(b)(3) of the Statute. The Union contends that "[t]he uncertainty resulting from the failure of management to provide clear and unambiguous instruction on how to handle the identified situations is an adverse effect upon the employees." Id. The Union asserts that Proposal 7 "overcomes the adverse effect by providing an employee with appropriate guidance." Id. According to the Union, management will benefit from the proposal because "employees are aware of how management expects a particular situation to be handled." Id. The Union states that it does not perceive any impact that Proposal 7 would have on management's exercise of its rights. Therefore, the Union argues that Proposal 7 does not excessively interfere with management's rights.

B. Analysis and Conclusions

Initially, we find that the Union's assertion that "[t]he sole objective of [Proposal 7] is to discover what performance management is seeking, so that employees may conform their performance to management's desires" is not consistent with the wording of the proposal. Response at 19. Proposal 7 is not as limited as the Union suggests. Rather, as worded, this proposal places a restriction on the Agency's ability to consider that a classifier has committed an error in the assignment of an application. That is, where either of the two conditions that are specified in the proposal is present, the Agency may not consider an assignment that meets either of the conditions to be an error on the part of a classifier unless the Agency has specified in the classifiers' performance appraisal plan the circumstances in which actions meeting either of the two conditions will be considered as errors.

As we set forth in detail in our discussion of Proposal 2, proposals that prohibit management from holding employees accountable for work performance directly interfere with the rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. By restricting the Agency's ability to consider a classifier's work performance in error, Proposal 7 prohibits the Agency from holding employees accountable for that work performance. Thus, Proposal 7 has the same effect as Proposal 2.

However, if Proposal 7 merely incorporated into the contract a requirement imposed by the laws governing performance appraisal, it would be negotiable. While 5 U.S.C. § 4302 requires that performance standards and elements for an employee's position be communicated to the employee, that section does not require that all potential errors and deficiencies be set forth in the employee's performance appraisal plan itself. Rather, performance standards may be fleshed out and implemented in detail, or, expressed another way, given content during the appraisal period. See, for example, Rogers v. DODDS; DePauw v. ITC; Wilson v. DHHS. See also, for example, Chaggaris v. GSA; Williams v. DHHS; Donaldson v. Labor. Proposal 7 requires more specificity in the performance standards themselves than is required by section 4302 and, consequently, it cannot be said to require merely that the Agency exercise its rights to direct employees and assign work in accordance with applicable law. Moreover, similar to Proposal 2, Proposal 7 exceeds the legal requirements imposed by section 4302 by prohibiting the Agency from treating an employee's action as an error unless the performance standards themselves explicitly provide that such an action constitutes an error. That is, immunizing employees from accountability for errors is not a requirement of section 4302. Rather, as we discussed in conjunction with Proposal 2, section 4302 requires that employees be informed of deficiencies in their performance during the appraisal period and given an opportunity to improve. We find that Proposal 7, like Proposal 2, directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

We now turn to the question of whether Proposal 7 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute notwithstanding the fact that it directly interferes with management's rights to direct employees and assign work. As we discussed in conjunction with Proposals 1 and 2, to make this determination we apply the analytical framework established in KANG, 21 FLRA at 31-33.

As to the issue of whether Proposal 7 constitutes an arrangement, we will assume, without deciding, that it does. However, we find that it excessively interferes with management's rights to direct employees and assign work. In this regard, we find that the proposal offers significant benefits to employees. Specifically, it would limit the Agency's ability to hold them responsible for errors that are not explicitly defined in their performance standards and by extension would limit the potential for negative effects on their performance evaluations.

The proposal imposes a significant burden on management. Under the proposal, the Agency would be required to anticipate at the time that it prepares the performance plan all possible circumstances in which a classifier's assignment of an application would be erroneous notwithstanding the presence of either of the two conditions specified in the proposal. Although many such circumstances would be reasonably foreseeable, requiring the Agency to predict all such circumstances in advance imposes a significant burden on it. Under Proposal 7, absent the ability to anticipate in advance all possible scenarios in which actions coming within the scope of the proposal would be erroneous, the Agency would be foreclosed from holding employees accountable for their actions without regard to the particular circumstances involved. We find that the burden placed on the Agency's ability to hold employees accountable for their performance outweighs the benefits that the proposal affords to employees and that the proposal excessively interferes with management's rights to direct employees and assign work. Consequently, we conclude that Proposal 7 does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Compare Corps of Engineers, Walla Walla, 44 FLRA at 1173.(6)

In reaching this conclusion, we find that Proposal 7 is distinguishable from Provision 11 in PTO, 47 FLRA at 34-37. As we stated in our discussion of Proposal 2, above, the burden on the Agency from the requirement imposed by Provision 11 was slight because the Agency retained the discretion to establish performance standards and elements reflecting the work for which employees are responsible. Proposal 7 would require the Agency to develop a comprehensive statement of possible errors that a classifier could commit in the assignment of applications, a task that we find more burdensome than the task of ensuring that performance elements and standards reflect the work for which employees are responsible that was imposed by Provision 11.

Accordingly, we conclude that Proposal 7 is nonnegotiable.

IX. Order

The Agency must negotiate on request, or as otherwise agreed to by the parties, concerning Proposals 4, 5, and 6.(7) We dismiss the petition for review as to Proposals 1, 2, 3, and 7.

Dissenting Opinion of Member Armendariz

For the following reasons, I disagree with my colleagues' conclusions that Proposals 2 and 7 are nonnegotiable.

Proposal 2

According to the Union, the Agency "has established the [Manual of Patent Examining Procedure (MPEP), the Development and Use of Patent Classification Systems (DUPACS), and the United States Patent Classification Practice and Procedure (USPCPP)] as the core documents that define what a patent classifier is expected to do." Response at 10. Because the Agency does not dispute the Union's description of the MPEP, DUPACS, and USPCPP, I adopt that description in my analysis of Proposal 2. The listed manuals set forth basic requirements that govern classifiers' performance of their jobs. These manuals are referenced in Critical Element IV of the classifiers' performance standards. See Petition, Attachment 3, the Plan at 5. Additionally, I note that the guidelines developed by management "to assist [supervisors] in rating [c]lassifiers" instruct supervisors on the use of DUPACS in evaluating classifiers. Id., Attachment 3, the Guidelines at 1.

The plain wording of Proposal 2 provides that any classification practice or procedure set forth in the listed manuals will not be considered an error unless employees have been given prior notice that the practices or procedures in the manuals have been changed. The Union states that Proposal 2 "requires management to provide a written countermand only to the work rules set forth in these manuals" and "does not apply to other written directives or any oral directives." Response at 10. Based on the plain wording of the proposal and the Union's explanation, I find that Proposal 2 concerns the practices and procedures in the three manuals set forth in Critical Element IV and referred to in the Guidelines. I interpret Proposal 2 as precluding the Agency from holding classifiers accountable for work performed consistent with the performance standards in the manuals only when the Agency changes the substantive requirements of the performance standards in the manuals without notifying classifiers of the new requirements. I disagree with my colleagues' interpretation that Proposal 2 prevents the Agency from holding an employee accountable for work performance where the employee fails to follow practices or procedures that are not in the manuals but are called for under different authorities that are known to the classifier.

In my view, Proposal 2, in essence, incorporates the requirements of 5 U.S.C. § 4302(b), namely, that the Agency communicate to patent classifiers the performance standards and critical elements that are necessary for them to perform their jobs in a satisfactory manner and that the Agency ensure that employees are aware in advance of the performance standards and critical elements of their positions before they are held accountable under those standards and elements. See Melnic v. Housing and Urban Development, 42 MSPR 93 (1989), aff'd mem., 899 F.2d 1228 (Fed. Cir. 1990); Williams v. Department of Health and Human Services, 30 MSPR 217 (1986) (Williams); Baker v. Defense Logistics Agency, 25 MSPR 614 (1985), aff'd, 782 F.2d 1579, 1583 (Fed. Cir. 1986); Cross v. Department of the Air Force, 25 MSPR 353, 357 (1984) (Cross), aff'd mem., 785 F.2d 320 (Fed. Cir. 1985). See also U.S. Department of Veterans Affairs and American Federation of Government Employees, Local 1765, 43 FLRA 216, 222 (1991) (under 5 U.S.C. § 4302(b)(2) and 5 C.F.R. § 430.204(d)(1), each performance appraisal system shall provide performance plans to employees at the beginning of each appraisal period and retroactive application of a standard is inconsistent with the statutory requirement that standards be communicated to the employees at or before the beginning of the appraisal period for which they apply); U.S. Department of Health and Human Services, Social Security Administration, Chicago, Illinois and American Federation of Government Employees, Local 1346, 35 FLRA 1180, 1185-86 (1990) (under 5 U.S.C. § 4302(b)(2) an agency must apprise employees of the requirements against which they are to be measured for purposes of performance appraisal).

The majority states that a performance standard need not be fully communicated to employees at the beginning of an appraisal period but may be "fleshed out and implemented in detail" later in the appraisal process. However, as the majority notes, "fleshing out" a standard may not amount to rewriting or changing the standard. See Williams, 30 MSPR at 219-20. See also Eibel v. Department of the Navy, 857 F.2d 1439, 1443-44 (Fed. Cir. 1988). In my view, Proposal 2 does not apply where the Agency is merely "fleshing out" a standard during an employee's appraisal period by clarifying or more fully explaining the performance requirements in the manuals. Rather, Proposal 2 applies in circumstances where the Agency attempts to hold classifiers accountable under a standard that substantively rewrites or changes the performance requirements in the manuals without first communicating the standard to classifiers.

Although Proposal 2 precludes the Agency from holding classifiers accountable under a standard which substantively rewrites or changes the performance requirements in the manuals unless the Agency has communicated that standard to the classifiers, I find that, in essence, it incorporates the requirement in 5 U.S.C. § 4302(b)(2) that the Agency communicate to patent classifiers the performance standards and critical elements that are necessary for them to perform their jobs in a satisfactory manner before they are held accountable under those standards and elements.

The exercise of management's rights under section 7106(a)(2) is subject to "applicable laws." See United Power Trades Organization and U.S. Department of the Army, Corps of Engineers, Walla Walla, Washington, 44 FLRA 1145, 1158-60 (1992). Because, in my view, Proposal 2 essentially incorporates a statutory limitation on the exercise of management's rights to direct employees and assign work, I would find that Proposal 2 does not directly interfere with those rights and is negotiable. See id.

Further, as I have concluded that Proposal 2 does not directly interfere with management's rights to assign work and direct employees under section 7106(a)(2)(B), I find that it is unnecessary to address the parties' arguments as to whether Proposal 2 constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

Proposal 7

Under Critical Element IV of the Plan, classifiers are required to "[a]ssign applications . . . ." Petition, Attachment 3, the Plan at 5. In the Guidelines for rating Critical Element IV, supervisors are instructed that "[t]he evaluation of this element is based on the number of alterations or reversals of a post classifier's assignments." Id., the Guidelines at 14. I find, based on the record, that Proposal 7 concerns which assignments will be altered or reversed, and thus considered errors, under Critical Element IV of the classifiers' performance standards.

Based on the record, I interpret Proposal 7 to preclude the Agency from holding employees accountable under a standard which substantively changes the accepted practices for assigning applications in the circumstances identified in the proposal, unless the Agency has notified classifiers that the practice is no longer acceptable.

Based on that interpretation, I find that Proposal 7, like Proposal 2, incorporates the limitation on employee evaluations provided by 5 U.S.C. § 4302(b), namely, that an agency cannot substantively rewrite or change the standards and elements by which employees are evaluated without prior notice to the employees of such a change. See Cross, 25 MSPR at 358 n.3. I also find, consistent with my disposition of Proposal 2, that 5 U.S.C. § 4302(b) constitutes an applicable law within the meaning of section 7106(a)(2) of the Statute and, thus, is a permissible limitation on the exercise of management's right to direct employees and assign work. Because Proposal 7 effectively incorporates a statutory limitation on management's rights, I would find, consistent with my disposition of Proposal 2 above, that Proposal 7 does not directly interfere with the exercise of management's rights to direct employees and assign work and is, therefore, negotiable.

In view of my conclusion that Proposal 7 does not directly interfere with management's rights, I find that it is unnecessary to address the parties' arguments as to whether Proposal 7 constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.




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

1. The separate opinion of Member Armendariz, dissenting as to Proposals 2 and 7, appears at the end of this decision.

2. Specifically, Element IV, which concerns "Application Assignment," lists as one of three "major activities" "Write reasons for assignment on form PTO-447 as set forth in DUPACS, the MPEP or the U.S. Patent Classification Practice and Procedure." Petition, Attachment 3.

3. The Guidelines do not define the acronym "SPC"; however, it appears from the context that it refers to a supervisor.

4. With respect to this conclusion, we reiterate and emphasize that in our view: (1) the performance plan to which this proposal is addressed does not as a whole require compliance with the specified manuals in all circumstances, and (2) the proposal is not limited to the particular performance element in that plan that specifically references those manuals.

5. In this regard, Proposal 2 is distinguishable from the proposal that we concluded was an appropriate arrangement in Office of Thrift Supervision, 44 FLRA at 71-73. That is, the burden imposed by Proposal 2 is not as readily avoidable as that involved in Office of Thrift Supervision. Also, we note that unlike the situation in Office of Thrift Supervision, the Agency here has not already agreed to the obligation of providing written countermands that underlies the limitation on holding employees accountable for their work.

6. In its petition and response, the Union has requested that where sections involve "multiple concepts," the Authority "segregate the concepts" and address the negotiability of each concept independently. Petition at 2; Response at 1. The Union does not elaborate on what constitutes a concept. As to this particular proposal, the Union's arguments address the proposal as a whole and do not separately discuss individual portions of the proposal. Absent guidance from the Union regarding what it might intend to constitute separate concepts within this proposal, we will not attempt to parse the proposal but will treat it as a whole.

7. In finding that these proposals are negotiable, we make no judgment as to their merits