[ v03 p824 ]
03:0824(123)CA
The decision of the Authority follows:
3 FLRA No. 123
U.S. PATENT AND TRADEMARK OFFICE
Respondent
and
PATENT OFFICE PROFESSIONAL ASSOCIATION
Complainant
Assistant Secretary
Case No. 22-09584(CA)
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
ENGAGED IN CERTAIN UNILATERAL CONDUCT, PERTAINING TO A REDUCTION IN
TURNAROUND TIME FOR THE PROCESSING OF AMENDED CASES BY PATENT EXAMINERS
AND TO A CHANGE IN THE EXISTING POLICY OF NOTIFICATION TO SUPERVISORS
REGARDING UNIT EMPLOYEE ABSENCES FROM THEIR WORKPLACE, WHICH WAS
VIOLATIVE OF SECTION 19(A)(1) AND (6) OF THE EXECUTIVE ORDER 11491, AS
AMENDED, AND RECOMMENDING IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN
AFFIRMATIVE ACTIONS AS SET FORTH IN THE ATTACHED ADMINISTRATIVE LAW
JUDGE'S RECOMMENDED DECISION AND ORDER. THE ADMINISTRATIVE LAW JUDGE
FURTHER FOUND OTHER CONDUCT, PERTAINING TO THE RESPONDENT'S STATEMENT
THAT EMPLOYEES WERE EXPECTED TO ACHIEVE 100% OF THEIR ASSIGNED
PRODUCTION GOAL AND THE ACHIEVEMENT OF ANYTHING LESS WOULD BE CONSIDERED
DEFICIENT, WAS NOT VIOLATIVE OF SECTION 19(A)(1) AND (6) OF THE ORDER
AND RECOMMENDED DISMISSAL OF THAT PORTION OF THE COMPLAINT. BOTH
PARTIES FILED EXCEPTIONS TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED
DECISION AND ORDER.
THE FUNCTIONS OF THE ASSISTANT SECRETARY OF LABOR FOR
LABOR-MANAGEMENT RELATIONS, UNDER EXECUTIVE ORDER 11491, AS AMENDED,
WERE TRANSFERRED TO THE AUTHORITY UNDER SECTION 304 OF REORGANIZATION
PLAN NO. 2 OF 1978 (43 F.R. 36040),WHICH TRANSFER OF FUNCTIONS IS
IMPLEMENTED BY SECTION 2400.2 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2400.2). THE AUTHORITY CONTINUES TO BE RESPONSIBLE FOR THE
PERFORMANCE OF THESE FUNCTIONS AS PROVIDED IN SECTION 7135(B) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1215).
THEREFORE, PURSUANT TO SECTION 2400.2 OF THE AUTHORITY'S RULES AND
REGULATIONS AND SECTION 7135(B) OF THE STATUTE, THE AUTHORITY HAS
REVIEWED THE RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING
AND FINDS NO PREJUDICIAL ERROR WAS COMMITTED. THE RULINGS ARE HEREBY
AFFIRMED. UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE SUBJECT
CASE, INCLUDING THE EXCEPTIONS FILED BY THE PARTIES, THE AUTHORITY
HEREBY ADOPTS THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS. IN ADOPTING THE ADMINISTRATIVE LAW JUDGE'S FINDING
THAT TURNAROUND TIME OR "TIME TARGETS" IN THIS CASE IS A NEGOTIABLE
MATTER WITHIN THE MEANING OF SECTION 11(A) OF THE EXECUTIVE ORDER, THE
AUTHORITY DOES NOT CONSTRUE THE ADMINISTRATIVE LAW JUDGE'S FINDING TO
MEAN THAT ANY PROPOSAL CONCERNED WITH THE SUBJECT OF TURNAROUND TIME OR
TIME TARGETS WOULD BE WITHIN THE DUTY TO BARGAIN, I.E., CONSISTENT WITH
APPLICABLE LAW AND REGULATIONS. RATHER, NOTING THAT THE ADMINISTRATIVE
LAW JUDGE WAS NOT PRESENTED WITH NOR WAS HIS DETERMINATION BASED UPON A
SPECIFIC PROPOSAL WITH REGARD THERETO, IN OUR VIEW, THE ADMINISTRATIVE
LAW JUDGE MERELY RULED THAT SPECIFIC PROPOSALS PERTAINING TO THE MATTER
OF TURNAROUND TIME OR TIME TARGETS COULD BE DRAFTED WITHIN THE SCOPE OF
THE DUTY TO BARGAIN UNDER THE EXECUTIVE ORDER. ACCORDINGLY, IN THE
CIRCUMSTANCES OF THE INSTANT CASE, THE AUTHORITY FINDS, IN AGREEMENT
WITH THE ADMINISTRATIVE LAW JUDGE, THAT THE RESPONDENT VIOLATED SECTION
19(A)(1) AND (6) OF THE EXECUTIVE ORDER BY UNILATERALLY REDUCING THE
TURNAROUND TIME FOR THE PROCESSING OF AMENDED CASES BY PATENT EXAMINERS.
HOWEVER, IN SO FINDING, THE AUTHORITY MAKES NO JUDGMENT AS TO WHETHER
PROPOSALS RELATING TO THE MATTER OF TIME TARGETS FOR THE PERFORMANCE OF
VARIOUS DUTIES WOULD BE WITHIN THE DUTY TO BARGAIN UNDER THE STATUTE.
SUCH A DETERMINATION WOULD REQUIRE THE PRESENTATION OF PROPOSALS
SUFFICIENTLY SPECIFIC AND DELIMITED IN FORM AND CONTENT BY WHICH THE
AUTHORITY COULD ASCERTAIN WHETHER NEGOTIATIONS OVER SUCH PROPOSALS
WOULD
BE CONSISTENT WITH LAW, REGULATIONS AND THE STATUTE. /1A/
ORDER
PURSUANT TO SECTION 2400.2 OF THE RULES AND REGULATIONS OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7135 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, THE AUTHORITY HEREBY ORDERS
THAT THE U.S. PATENT AND TRADEMARK OFFICE SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING CHANGES IN THE LENGTH OF TURNAROUND TIME FOR THE
PROCESSING OF AMENDED CASES BY UNIT EMPLOYEES IN GROUP 310 WITHOUT FIRST
NOTIFYING THE PATENT OFFICE PROFESSIONAL ASSOCIATION, THE EXCLUSIVE
REPRESENTATIVE OF THE UNIT EMPLOYEES, AND AFFORDING SUCH REPRESENTATIVE
THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT CONSONANT WITH LAW AND
REGULATIONS, WITH REGARD TO ANY PROPOSED CHANGES IN TURNAROUND TIME.
(B) INSTITUTING CHANGES IN THE EXISTING POLICY OF NOTIFICATION TO
SUPERVISORS REGARDING UNIT EMPLOYEE ABSENCES FROM THEIR WORKPLACE
WITHOUT FIRST NOTIFYING THE PATENT OFFICE PROFESSIONAL ASSOCIATION, THE
EXCLUSIVE REPRESENTATIVE OF THE UNIT EMPLOYEES, AND AFFORDING SUCH
REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, ON SUCH CHANGES.
(C) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS:
(A) RESCIND THE CHANGE IN TURNAROUND TIME FOR THE PROCESSING OF
AMENDED CASES IN GROUP 310 AS ANNOUNCED BY GROUP DIRECTOR NEWMAN ON
OCTOBER 5, 1978.
(B) RESCIND THE CHANGE IN POLICY OF NOTIFYING SUPERVISORS REGARDING
UNIT EMPLOYEE ABSENCES FROM THEIR WORKPLACE AS ANNOUNCED BY GROUP
DIRECTOR NEWMAN ON OCTOBER 5, 1978.
(C) NOTIFY THE PATENT OFFICE PROFESSIONAL ASSOCIATION OF ANY INTENDED
CHANGE IN THE TURNAROUND TIME FOR THE PROCESSING OF AMENDED CASES AND OF
ANY INTENDED CHANGE IN THE POLICY OF NOTIFYING SUPERVISORS REGARDING
UNIT EMPLOYEE ABSENCES FROM THEIR WORKPLACE AND, UPON REQUEST, MEET AND
CONFER IN GOOD FAITH, TO THE EXTENT CONSONANT WITH LAW, REGULATIONS AND
THE STATUTE, ON SUCH INTENDED CHANGES.
(D) POST AT ITS FACILITIES IN CRYSTAL CITY, ARLINGTON, VIRGINIA,
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS,
THEY SHALL BE SIGNED BY THE DEPUTY ASSISTANT COMMISSIONER FOR PATENTS,
AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS
THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND
OTHER PLACES WHERE NOTICES TO EMPLOYEES CUSTOMARILY ARE POSTED. THE
DEPUTY ASSISTANT COMMISSIONER SHALL TAKE REASONABLE STEPS TO INSURE THAT
SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
(E) NOFITY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO
COMPLY HEREWITH.
IT IS HEREBY ORDERED THAT THE PORTION OF THE COMPLAINT FOUND NOT TO
BE VIOLATIVE OF THE EXECUTIVE ORDER BE, AND IT HEREBY IS, DISMISSED.
ISSUED, WASHINGTON, D.C., JULY 31, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
/1A/ IN CONFORMITY WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM
ACT OF 1978 (92 STAT. 1224), THE PRESENT CASE IS DECIDED SOLELY ON THE
BASIS OF E.O. 11491, AS AMENDED, AND AS IF THE NEW FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (92 STAT. 1191) HAD NOT BEEN ENACTED.
THE DECISION AND ORDER DOES NOT PREJUDGE IN ANY MANNER EITHER THE
MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
UNDER THE STATUTE RATHER THAN THE EXECUTIVE ORDER.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE
UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT INSTITUTE CHANGES IN THE LENGTH OF TURNAROUND TIME FOR
THE PROCESSING OF AMENDED CASES BY UNIT EMPLOYEES IN GROUP 310 WITHOUT
FIRST NOTIFYING THE PATENT OFFICE PROFESSIONAL ASSOCIATION, THE
EXCLUSIVE REPRESENTATIVE OF THE UNIT EMPLOYEES, AND AFFORDING SUCH
REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, WITH REGARD TO ANY PROPOSED CHANGES
IN TURNAROUND TIME.
WE WILL NOT INSTITUTE CHANGES IN THE EXISTING POLICY OF NOTIFICATION
TO SUPERVISORS REGARDING UNIT EMPLOYEE ABSENCES FROM THEIR WORKPLACE
WITHOUT FIRST NOTIFYING THE PATENT OFFICE PROFESSIONAL ASSOCIATION, THE
EXCLUSIVE REPRESENTATIVE OF THE UNIT EMPLOYEES, AND AFFORDING SUCH
REPRESENTATIVE THE OPPORTUNITY TO MEET AND CONFER, TO THE EXTENT
CONSONANT WITH LAW AND REGULATIONS, ON SUCH CHANGES.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
WE WILL RESCIND THE CHANGE IN TURNAROUND TIME FOR THE PROCESSING OF
AMENDED CASES IN GROUP 310 AS ANNOUNCED BY GROUP DIRECTOR NEWMAN ON
OCTOBER 5, 1978.
WE WILL RESCIND THE CHANGE IN POLICY OF NOTIFYING SUPERVISORS
REGARDING UNIT EMPLOYEE ABSENCES FROM THEIR WORKPLACE AS ANNOUNCED BY
GROUP DIRECTOR NEWMAN ON OCTOBER 5, 1978.
WE WILL NOTIFY THE PATENT OFFICE PROFESSIONAL ASSOCIATION OF ANY
INTENDED CHANGE IN THE TURNAROUND TIME FOR THE PROCESSING OF AMENDED
CASES AND OF ANY INTENDED CHANGE IN THE POLICY OF NOTIFYING SUPERVISORS
REGARDING UNIT EMPLOYEE ABSENCES FROM THEIR WORKPLACE AND, UPON REQUEST,
MEET AND CONFER IN GOOD FAITH, TO THE EXTENT CONSONANT WITH LAW,
REGULATIONS AND THE STATUTE, ON SUCH INTENDED CHANGES.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, WHOSE ADDRESS IS:
ROOM 300, 1133 15TH STREET, N.W., WASHINGTON, D.C. 20005, AND WHOSE
TELEPHONE NUMBER IS (202) 653-8452.
DECISION AND ORDER
COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
PARTIES LISTED BELOW:
ROBERT S. SHERMAN, CHIEF
EMPLOYEE RELATIONS DIVISION
PATENT AND TRADEMARK OFFICE
CP2 - 9C06
2011 JEFFERSON DAVIS HIGHWAY
ARLINGTON, VIRGINIA 22202
RONALD J. STERN
PATENT OFFICE PROFESSIONAL ASSOCIATION
P. O. BOX 2745
ARLINGTON, VIRGINIA 22202
MR. ALEXANDER T. GRAHAM
REGIONAL DIRECTOR
FEDERAL LABOR RELATIONS AUTHORITY
1133 15TH STREET, N.W., ROOM 300
WASHINGTON, D.C. 20005
RONALD J. STERN, ESQUIRE
PATENT OFFICE PROFESSIONAL ASSOCIATION
P.O. BOX 2745
ARLINGTON, VIRGINIA 22202
FOR THE COMPLAINANT
ROBERT S. SHERMAN, ESQUIRE
CHIEF, EMPLOYEES RELATIONS DIVISION
PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
WASHINGTON, D.C. 20231
FOR THE RESPONDENT
BEFORE: WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER EXECUTIVE ORDER 11491, AS AMENDED
(HEREINAFTER ALSO REFERRED TO AS THE "ORDER"). PURSUANT TO TRANSITION
RULES AND REGULATIONS, FEDERAL REGISTER, VOL 44, NO. 1, JANUARY 2, 1979,
P. 7-8 AND FEDERAL REGISTER, VOL 44, NO . . . , JULY . . .
SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS (5 C.F.R.
SECTION 2400.2)
THIS MATTER WAS INITIATED BY A CHARGE FILED ON, OR ABOUT, OCTOBER 13,
1978; A COMPLAINT FILED ON DECEMBER 29, 1978, WHICH ALLEGED VIOLATIONS
OF SECTIONS 19(A)(1), (5) AND (6) OF THE ORDER (ALJ EXH. 1); AND AN
AMENDED COMPLAINT FILED ON JUNE 11, 1979, WHICH ALLEGED VIOLATION OF
SECTIONS 19(A)(1) AND (6) OF THE ORDER (ALJ EXH. 2). NOTICE OF HEARING
ISSUED ON JUNE 26, 1979, FOR A HEARING ON JULY 25, 1979 (ALJ EXH. 3);
AND ON JULY 23, 1979, AT THE REQUEST OF RESPONDENT, WITH CONSENT OF
COMPLAINANT, AND FOR GOOD CAUSE SHOWN, NOTICE RESCHEDULING THE HEARING
FOR AUGUST 27, 1979, WAS ISSUED BY THE UNDERSIGNED (ALJ EXH. 5),
PURSUANT TO WHICH A HEARING WAS DULY HELD IN WASHINGTON, D.C. ON AUGUST
27 AND 29, 1979. ALL PARTIES WERE REPRESENTED BY COUNSEL, WERE AFFORDED
FULL OPPORTUNITY TO BE HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES,
AND TO INTRODUCE EVIDENCE BEARING ON THE ISSUES INVOLVED HEREIN. AT THE
CLOSE OF THE HEARING, OCTOBER 15, 1979, WAS FIXED AS THE DATE FOR THE
FILING OF BRIEFS AND EACH PARTY HAS TIMELY FILED AN EXCELLENT BRIEF
WHICH HAVE BEEN CAREFULLY CONSIDERED. UPON THE BASIS OF THE ENTIRE
RECORD, INCLUDING MY OBSERVATION OF THE WITNESSES AND THEIR DEMEANOR, I
MAKE THE FOLLOWING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS:
FINDINGS AND CONCLUSIONS
A. BACKGROUND. THE PATENT AND TRADEMARK OFFICE (PTO), A PRIMARY
OPERATING UNIT OF THE DEPARTMENT OF COMMERCE, IS HEADED BY THE
COMMISSIONER OF PATENTS AND TRADEMARKS. THERE ARE THREE MAJOR
SUBDIVISIONS WITHIN THE PTO, ONLY ONE OF WHICH IS INVOLVED HEREIN,
NAMELY, THE SUBDIVISION UNDER THE JURISDICTION OF THE ASSISTANT
COMMISSIONER FOR PATENTS, WHICH INCLUDES THE PATENT EXAMINING CORPS OF
ABOUT 1,000 PATENT EXAMINERS WHO ARE INDIVIDUALS TECHNICALLY TRAINED TO
EXAMINE PATENT APPLICATIONS RELATING TO INVENTIONS IN VARIOUS FIELDS.
THE PTO RECEIVES IN EXCESS OF 100,000 PATENT APPLICATIONS EACH YEAR.
EACH APPLICATION IS EXAMINED BY A PATENT EXAMINER FOR COMPLIANCE WITH
THE STATUTE, WITH CASE LAW AND WITH APPLICABLE REGULATIONS.
THE PATENT EXAMINING CORPS IS DIVIDED INTO 15 FUNCTIONAL GROUPS.
EACH GROUP IS HEADED BY A GROUP DIRECTOR. EACH GROUP IS FURTHER DIVIDED
INTO TECHNOLOGICAL SPECIALITY UNITS, KNOWN AS ART UNITS. ART UNITS ARE
SUPERVISED BY SUPERVISORY PRIMARY EXAMINERS. WITHIN EACH ART UNIT ARE
PATENT EXAMINERS RANGING IN GRADE FROM GS-5 TO GS-15.
THE INITIAL EXAMINATION OF A PATENT APPLICATION MAY, AND FREQUENTLY
DOES, REVEAL DEFICIENCIES IN WHICH CASE THE APPLICATION IS RETURNED TO
THE INVENTOR, OR REPRESENTATIVE, FOR CLARIFICATION OR CORRECTION. WHEN
RESUBMITTED, THE APPLICATION IS CONSIDERED AN AMENDED CASE AND THE TIME
IT TAKES AN EXAMINER TO ACT FURTHER ON AN AMENDED CASE IS KNOWN AS
TURNAROUND TIME.
MR. MARK NEWMAN HAS BEEN A GROUP DIRECTOR SINCE SEPTEMBER, 1971,
FIRST OF GROUP 340, THEN, FROM MAY, 1974, OF GROUP 350, AND FROM OCTOBER
1, 1978, OF GROUP 310. THE INCIDENTS INVOLVED IN THIS PROCEEDING RELATE
TO GROUP 310 FOLLOWING MR. NEWMAN'S ASSUMPTION OF DUTIES AS DIRECTOR OF
GROUP 310.
B. FACTS GIVING RISE TO THIS PROCEEDING. THERE IS NO DISPUTE AS TO
THE FACTS WHICH GAVE RISE TO THIS PROCEEDING. ON OCTOBER 5, 1978, MR.
NEWMAN MET WITH ALL PROFESSIONAL EMPLOYEES OF GROUP 310. MR. NEWMAN HAD
ASSUMED HIS NEW POSITION AS DIRECTOR OF GROUP 310 A FEW DAYS EARLIER AND
THE MEETING WAS HELD FOR THE PURPOSE OF INTRODUCING HIM TO THE
PROFESSIONAL EMPLOYEES OF GROUP 310 AND TO INSTRUCT THEM AS TO HOW HE
INTENDED TO OPERATE GROUP 310. MR. NEWMAN STATED THAT: A) THERE WOULD
BE A CHANGE FROM 60 TO 30 DAYS TURNAROUND TIME FOR AMENDED CASES.
RESPONDENT CONCEDES, IN ITS BRIEF AT PAGE 3, THAT THIS WAS A CHANGE IN
OPERATING PROCEDURES; B) THAT EMPLOYEES SHOULD KEEP THEIR SUPERVISORS
APPRISED OF THEIR WHEREABOUTS FOR ABSENCES IN EXCESS OF 10 MINUTES; AND
C) THAT, AS PROFESSIONAL EMPLOYEES, EXAMINERS WOULD BE EXPECTED TO
ACHIEVE 100 PER CENT OF THEIR INDIVIDUALLY ASSIGNED PRODUCTION GOALS;
THAT "ANYTHING LESS THAN 100% OF EXPECTANCY WAS CONSIDERED DEFICIENT"
(JT. EXH. 7, P. 3; TR. 101). COMPLAINANT CONTENDS THAT EACH OF THE
ABOVE ANNOUNCEMENTS BY MR. NEWMAN CONSTITUTED A CHANGE OF AN ESTABLISHED
CONDITION OF EMPLOYMENT AS TO WHICH COMPLAINANT WAS ENTITLED TO NOTICE
AND OPPORTUNITY TO BARGAIN PRIOR TO SUCH CHANGE BEING IMPLEMENTED; THAT
RESPONDENT WAS GIVEN NO ADVANCE NOTICE OF THE OCTOBER 5, 1978,
ANNOUNCEMENT, AND, OF COURSE, NO OPPORTUNITY TO BARGAIN PRIOR TO
ANNOUNCEMENT OF THE CHANGES IN PERSONNEL POLICIES AND WORKING
CONDITIONS. RESPONDENT, IN ITS BRIEF AT PAGES 13-14, "ADMITS A
VIOLATION OF SECTIONS 19(A)(1) AND (6) OF THE ORDER IN ITS FAILURE TO
PROVIDE TO POPA (RESPONDENT) ADVANCE NOTICE OF THE OCTOBER 5, 1978,
MEETING"; BUT DENIES THAT IT HAS OTHERWISE VIOLATED THE ORDER AND/OR
ASSERTS THAT COMPLAINANT "HAS FAILED TO SUSTAIN ITS BURDEN OF PROOF BY
EITHER A PREPONDERANCE OF THE EVIDENCE OR EVEN BY A LESSER STANDARD OF
SUBSTANTIAL EVIDENCE." (RESPONDENT'S BRIEF, P. 14).
C. THE ALLEGED VIOLATIONS.
1. TURNAROUND TIME. RESPONDENT CONTENDS THAT ITS CONCEDED
UNILATERAL CHANGE IN OPERATING PROCEDURE, WHEREBY TURNAROUND TIME WAS
CHANGED FROM 60 DAYS TO 30 DAYS, WAS, NEVERTHELESS, A RESERVED RIGHT OF
MANAGEMENT PROTECTED BY SECTION 12(B)(5) OF THE ORDER /1/ OR, AT MOST,
WAS A PERMISSIBLE AREA OF BARGAINING PURSUANT TO SECTION 11(B) OF THE
ORDER, BUT NOT, IN ANY EVENT, A REQUIRED MATTER FOR BARGAINING; AND,
MOREOVER, THAT, WHILE RESPONDENT DID NOT GIVE ADVANCE NOTICE OF THE
IMPENDING CHANGE IN TURNAROUND TIME, THE CHANGE WAS NOT TO BE EFFECTIVE
UNTIL THREE MONTHS AFTER MR. NEWMAN'S ANNOUNCEMENT ON OCTOBER 5, 1978,
AND COMPLAINANT, WITH AMPLE OPPORTUNITY TO REQUEST NEGOTIATIONS ON
IMPACT AND IMPLEMENTATION, FAILED TO DO SO.
SECTION 12(B)(5) PROVIDES AS FOLLOWS:
SECTION 12(B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
ACCORDANCE WITH
APPLICABLE LAWS AND REGULATIONS--
* * * *
"(5) TO DETERMINE THE METHODS, MEANS, AND PERSONNEL BY WHICH SUCH
OPERATIONS ARE TO BE
CONDUCTED; . . . "
SECTION 11(B) OF THE ORDER PROVIDES AS FOLLOWS:
"(B) IN PRESCRIBING REGULATIONS RELATING TO PERSONNEL POLICIES AND
PRACTICES AND WORKING
CONDITIONS, AN AGENCY SHALL HAVE DUE REGARD FOR THE OBLIGATIONS
IMPOSED BY PARAGRAPH (A) OF
THIS SECTION, HOWEVER, THE OBLIGATION TO MEET AND CONFER DOES NOT
INCLUDE MATTERS WITH RESPECT
TO THE MISSION OF AN AGENCY; ITS BUDGET; ITS ORGANIZATION; THE
NUMBER OF EMPLOYEES; AND THE
NUMBERS, TYPES, AND GRADES OF POSITIONS OF EMPLOYEES ASSIGNED TO AN
ORGANIZATIONAL UNIT, WORK
PROJECT OR TOUR OF DUTY; THE TECHNOLOGY OF PERFORMING ITS WORK; OR
ITS INTERNAL SECURITY
PRACTICES. THIS DOES NOT PRECLUDE THE PARTIES FROM NEGOTIATING
AGREEMENTS PROVIDING
APPROPRIATE ARRANGEMENTS FOR EMPLOYEES ADVERSELY AFFECTED BY THE
IMPACT OF REALIGNMENT OF WORK
FORCES OR TECHNOLOGICAL CHANGE."
THERE IS NO DOUBT THAT THE TURNAROUND TIME FOR AMENDED CASES IN GROUP
310 HAD BEEN 60 DAYS PRIOR TO MR. NEWMAN'S ANNOUNCEMENT ON OCTOBER 5,
1978, THAT, EFFECTIVE JANUARY, 1979, IT WOULD BE 30 DAYS; NOR, THAT,
BEGINNING IMMEDIATELY, EXAMINERS WERE EXPECTED TO DISPOSE OF PENDING
AMENDED CASES SO THAT BEGINNING IN JANUARY 1979, THE 30 DAY TURNAROUND
TIME LIMIT WOULD BE ADHERED TO. INDEED, EXCEPT FOR GROUPS 340 AND 350,
WHEN SUPERVISED BY MR. NEWMAN, THE STANDARD FOR ALL GROUPS, AS SET FORTH
IN THE MEMORANDUM OF DEPUTY ASSISTANT COMMISSIONER FOR PATENTS, MR.
WILLIAM FELDMAN, TO DIRECTORS, PATENT EXAMINING GROUPS, DATED MARCH 5,
1973 (JT. EXH. 10) WAS, AND IS, " . . . TWO MONTHS OF RECEIPT OF THE
AMENDMENTS", WHICH MR. FELDMAN FURTHER EMPHASIZED IN HIS MEMORANDUM, TO
DIRECTORS, PATENT EXAMINING GROUPS, DATED JUNE 22, 1973 (JT. EXH. 11).
IT IS FURTHER NOTED, THAT MR. FELDMAN IN HIS MEMORANDUM OF JUNE 22,
1973, STATED, IN PART, AS FOLLOWS:
" . . . ONE OF THE PRIMARY ELEMENTS CONSTITUTING THE GOALS OF THE
PATENT EXAMINING GROUPS
IS TO ACT ON ALL AMENDED PATENT APPLICATIONS WITHIN TWO MONTHS OF
RECEIPT OF THE AMENDMENTS.
"TO OBVIATE ANY FURTHER MISUNDERSTANDING OF THIS MATTER, UNTIL
FURTHER NOTICE FROM THIS
OFFICE NO PATENT EXAMINER SHALL ACT ON ANY NEW CASE NOT ENJOYING
SPECIAL STATUS AS LONG AS HE
HAS AN AMENDED CASE OVER TWO MONTHS OLD . . . " (JR. EXH. 11).
WHILE IT IS OBVIOUS THAT THE PATENT OFFICE HAS LONG BEEN CONCERNED
WITH THE ORDERLY DISPOSITION OF AMENDED CASES, BOTH THE WRITTEN POLICY
AS TO THE TWO MONTH (60 DAY) TURNAROUND TIME FOR AMENDED CASES, AS SET
FORTH BY THE DEPUTY ASSISTANT COMMISSIONER FOR PATENTS, MR. FELDMAN, AND
THE PRACTICE WITHIN GROUP 310 ESTABLISH FIRMLY THAT, PRIOR TO OCTOBER 5,
1978, THE TURNAROUND TIME IN GROUP 310 HAD BEEN 60 DAYS AND THAT MR.
NEWMAN UNILATERALLY, ON OCTOBER 5, 1978, ANNOUNCED THAT TURNAROUND TIME
FOR GROUP 310 WOULD BE 30 DAYS. WHILE IT IS TRUE THAT THE 30 DAY
TURNAROUND TIME WAS NOT EFFECTIVE UNTIL JANUARY, 1979, THE RECORD SHOWS
THAT MR. NEWMAN'S ANNOUNCEMENT HAD AN IMMEDIATE EFFECT INASMUCH AS EACH
EXAMINER WAS EXPECTED TO DISPOSE OF ANY BACKLOG OF AMENDED CASES SO THAT
BEGINNING JANUARY, 1979, THE NEW TURNAROUND TIME STANDARD WOULD BE FULLY
EFFECTIVE, AND EACH SUPERVISOR WAS EXPECTED TO INSURE ACHIEVEMENT OF
THIS OBJECTIVE BY REASSIGNING, IF NECESSARY, AMENDED CASES. THE 60 DAY
TURNAROUND TIME FOR AMENDED CASES WAS AN ESTABLISHED CONDITION OF
EMPLOYMENT WHICH RESPONDENT WAS NOT FREE TO CHANGE WITHOUT PRIOR NOTICE
TO COMPLAINANT AND AN OPPORTUNITY TO NEGOTIATE PRIOR TO IMPLEMENTATION
UNLESS IT WAS A RESERVED RIGHT OF MANAGEMENT.
IS TURNAROUND TIME A "METHOD" WITHIN THE MEANING OF SECTION 12(B)(5)
OF THE ORDER? I HAVE GIVEN CAREFUL CONSIDERATION TO: TIDEWATER
VIRGINIA FEDERAL EMPLOYEES METAL TRADES COUNCIL AND NAVAL PUBLIC WORKS
CENTER, NORFOLK, VIRGINIA, FLRC NO. 71A-56, 1 FLRC 431(1973), CITED AND
RELIED UPON BY RESPONDENT, AS WELL AS TO: 78TH DIVISION (TRAINING),
KILMER USAR CENTER, EDISON NEW JERSEY AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL 2807, AFL-CIO, 1 FLRA NO. 97 (AUGUST 15,
1979) (FLRA REPORT NO. 14, SEPTEMBER 21, 1979), AND CONCLUDE THAT SUCH
ESTABLISHED "TIME TARGET" OR "GOAL" IS NOT A "METHOD" WITHIN THE MEANING
OF SECTION 12(B)(5) OF THE ORDER. THE AUTHORITY, IN ITS 78TH DIVISION,
DECISION, STATED, IN RELEVANT PART, AS FOLLOWS:
"AN EXAMINATION OF THE RECORD REVEALS THAT THE 'PERFORMANCE
STANDARDS' AS THEY ARE REFERRED
TO BY THE PARTIES AND THE ADMINISTRATIVE LAW JUDGE, ARE, IN
ACTUALITY, GUIDELINES FOR USE BY
UNIT EMPLOYEES IN PERFORMING THEIR ASSIGNED DUTIES. MORE
SPECIFICALLY, THE PERFORMANCE
STANDARDS' OUTLINED THE METHODS BY WHICH THE PARTICULAR JOB WAS TO BE
PERFORMED.
"IN THE AUTHORITY'S VIEW THESE STANDARDS' IN ISSUE HEREIN, CONSTITUTE
A 'METHOD' WITHIN THE
MEANING OF SECTION 12(B((5) OF THE ORDER RATHER THAN A MEASURE OF
INDIVIDUAL PRODUCTIVITY
ENCOMPASSED BY SECTION 11(A) OF THE ORDER. /4/ TIDEWATER VIRGINIA
FEDERAL EMPLOYEES METAL TRADES COUNCIL, SUPRA, HAD INVOLVED A UNION
PROPOSAL CONCERNING "WORK ASSIGNMENT" AND "CONTRACTING OUT OF BARGAINING
UNIT WORK"; AND, WHILE NEITHER THAT CASE NOR THE 78TH DIVISION DECISION
OF THE AUTHORITY, SUPRA, INVOLVED A "TIME TARGET" OR "GOAL", THE
AUTHORITY'S SPECIFIC RESERVATION THAT "A MEASURE OF INDIVIDUAL
PRODUCTIVITY" IS "ENCOMPASSED BY SECTION 11(A) OF THE ORDER", AND
THEREFORE NOT GOVERNED BY SECTION 12(B)(5) OF THE ORDER, AND THE
AUTHORITY'S REFERENCE TO THE COUNCIL'S PATENT OFFICE PROFESSIONAL
ASSOCIATION, DECISION, SUPRA, IN WHICH "PRODUCTIONS GOALS" WAS HELD
NEGOTIABLE UNDER SECTION 11(A) OF THE ORDER, TOGETHER WITH THE DECISION
OF THE ASSISTANT SECRETARY, IN NATIONAL LABOR RELATIONS BOARD, A/SLMR
NO. 246, 3 A/SLMR 88(1973), PERSUASIVELY DEMONSTRATE THAT TURNAROUND
TIME FOR PATENT EXAMINERS WAS A NEGOTIABLE MATTER WITHIN THE MEANING OF
SECTION 11(A) OF THE ORDER. IN NATIONAL LABOR RELATIONS BOARD, SUPRA,
THE ASSISTANT SECRETARY STATED, IN PART, AS FOLLOWS:
" . . . I FIND THAT . . . RESPONDENT'S INSTITUTION OF CHANGES IN TIME
SCHEDULES FOR THE
PROCESSING OF CASES . . . IS A MATTER AFFECTING WORKING CONDITIONS
WITHIN THE MEANING OF
SECTION 11(A) OF THE ORDER AND A PROPER SUBJECT FOR COLLECTIVE
BARGAINING. . . . IN MY VIEW,
THE RIGHT TO ENGAGE IN A DIALOGUE WITH RESPECT TO A CHANGE IN
EMPLOYEE WORKING CONDITIONS
BECOMES MEANINGFUL ONLY WHEN AGENCY MANAGEMENT HAS AFFORDED THE
EXCLUSIVE REPRESENTATIVE
REASONABLE NOTIFICATION AND AMPLE OPPORTUNITY TO EXPLORE FULLY THE
MATTER PRIOR TO THE
IMPLEMENTATION OF SUCH CHANGE. IF, AS HERE, A PARTY TO AN EXCLUSIVE
BARGAINING RELATIONSHIP
WERE FREE TO MAKE UNILATERAL CHANGES IN ESTABLISHED WORKING
CONDITIONS OF UNIT EMPLOYEES, THE
OBLIGATION ESTABLISHED UNDER SECTION 11(A) TO MEET AND CONFER ON SUCH
WORKING CONDITIONS WITH
AN EXCLUSIVE REPRESENTATIVE WOULD BECOME MEANINGLESS. IN ADDITION,
SUCH UNILATERAL CONTACT BY
AN AGENCY HAS THE EFFECT OF UNDERCUTTING THE EXCLUSIVE BARGAINING
REPRESENTATIVE, THEREBY
DESTROYING ITS EFFECTIVENESS IN THE EYES OF THOSE WHOM IT
REPRESENTS." (3 A/SLMR AT 90)
TURNAROUND TIME, OR A "TIME TARGET" FOR DISPOSITION OF AMENDED CASES,
IS A VERY DIRECT MEASURE OF INDIVIDUAL PRODUCTIVITY. IN ADDITION, THE
RECORD SHOWS THAT CHANGE IN TURNAROUND TIME MAY IMPACT ON PRODUCTION
GOALS IN VARIOUS WAYS.
FOR EXAMPLE, AN EXAMINER IN THE INITIAL EXAMINATION OF THE PATENT
APPLICATION GAINS A DEGREE OF FAMILIARIZATION WITH THE APPLICATION.
PRESUMABLY, THIS WOULD VARY DEPENDING ON THE NATURE OF THE DEFICIENCIES
ENCOUNTERED; BUT WOULD INVOLVE PERFORMANCE OF SOME PORTION OF THE WORK
REQUIRED FOR A FINAL DECISION ON THE APPLICATION. REASSIGNMENT OF AN
AMENDED CASE RESULTS IN THE LOSS OF THIS EXPERTISE, WHICH, I ASSUME,
WOULD RANGE FROM MODEST TO VERY SUBSTANTIAL, AND IMPOSE A GREATER BURDEN
ON THE EXAMINER TO WHOM THE AMENDED CASE IS ASSIGNED SINCE, TO HIM, THE
MATTER IS, ESSENTIALLY, A "NEW" CASE BUT WITH THE TIME LIMITATION OF AN
AMENDED CASE. OVERALL PRODUCTIVITY OF THE OFFICE IS AFFECTED WHEN
AMENDED CASES ARE REASSIGNED, INTER ALIA, TO THE EXTENT OF DUPLICATION
OF WORK. ACCORDINGLY, I CONCLUDE THAT TURNAROUND TIME FOR THE
DISPOSITION OF AMENDED CASES IN THE PATENT OFFICE IS A TIME SCHEDULE TO
THE SAME EXTENT AS THE TIME SCHEDULES INVOLVED IN NATIONAL LABOR
RELATIONS BOARD, SUPRA; THAT, FOR THE REASONS STATED BY THE ASSISTANT
SECRETARY IN NATIONAL LABOR RELATIONS BOARD, SUPRA, RESPONDENT'S
TURNAROUND TIME FOR AMENDED CASES IS A MATTER AFFECTING WORKING
CONDITIONS WITHIN THE MEANING OF SECTION 11(A) OF THE ORDER; THAT
RESPONDENT'S UNILATERAL CHANGE, IMPLEMENTED ON OCTOBER 5, 1978, OF THE
ESTABLISHED TURNAROUND TIME, OF 60 DAYS TO 30 DAYS, VIOLATED SECTIONS
19(A)(1) AND (6) OF THE ORDER; AND THAT, IN ADDITION, RESPONDENT'S
UNILATERAL CONDUCT HAD THE EFFECT OF UNDERCUTTING THE EXCLUSIVE
BARGAINING REPRESENTATIVE, THEREBY IMPAIRING ITS EFFECTIVENESS IN THE
EYES OF THOSE WHOM IT REPRESENTS, NATIONAL LABOR RELATIONS BOARD, SUPRA.
IN REACHING THE CONCLUSION THAT TURNAROUND TIME IS A MATTER AFFECTING
WORKING CONDITIONS WITHIN THE MEANING OF SECTION 11(A) OF THE ORDER I
HAVE CAREFULLY CONSIDERED RESPONDENT'S FURTHER CONTENTION THAT, IF NOT
GOVERNED BY THE PROVISIONS OF SECTION 12(B)(5) OF THE ORDER, TURNAROUND
TIME IS MERELY A PERMISSIBLE SUBJECT FOR BARGAINING, WITHIN THE MEANING
OF SECTION 11(B) OF THE ORDER, AS TO WHICH RESPONDENT HAD DETERMINED NOT
TO BARGAIN BY MR. NEWMAN'S ANNOUNCEMENT OF OCTOBER 5, 1978, INCLUDING
IMMIGRATION AND NATURALIZATION SERVICE AND AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, FLRC NO. 71A-13, 3 FLRC 380(1975); AND AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3488 AND FEDERAL DEPOSIT
INSURANCE CORPORATION, NEW YORK REGION, FLRC NO. 77A-76 (REPORT NO.
147, MARCH 13, 1978), CITED AND RELIED UPON BY RESPONDENT, AND FIND
RESPONDENT'S CONTENTIONS WITHOUT MERIT. FIRST, THE ASSISTANT SECRETARY
REJECTED ESSENTIALLY SIMILAR CONTENTIONS IN NATIONAL LABOR RELATIONS
BOARD, SUPRA, AND CONCLUDED THAT TIME SCHEDULES FOR THE PROCESSING OF
CASES IS GOVERNED BY SECTION 11(A) OF THE ORDER AND WERE NOT RENDERED
PRIVILEGED BY SECTION 11(B) OF THE ORDER. SECOND, THE CONSIDERATIONS
SET FORTH ABOVE, INCLUDING THE AUTHORITY'S DECISION IN 78TH DIVISION,
SUPRA, ARE PERSUASIVE THAT TIME SCHEDULES ARE NEGOTIABLE UNDER SECTION
11(A) OF THE ORDER AND, NECESSARILY, NOT RENDERED PRIVILEGED BY SECTION
11(B) OF THE ORDER. THIRD ANALYSIS OF THE ITEMS FOUND NEGOTIABLE UNDER
SECTION 11(A) IN BOTH IMMIGRATION AND NATURALIZATION SERVICE, AND SUPRA,
AND FEDERAL DEPOSIT INSURANCE CORPORATION, SUPRA, IN COMPARISON WITH THE
ITEMS FOUND SUBJECT TO SECTION 11(B) DOES NOT SUGGEST THAT A TIME
STANDARD FOR THE PROCESSING OF CASES IS SUBJECT TO SECTION 11(B); NOR
DOES SUCH TIME STANDARD INVOLVE "THE MISSION OF AN AGENCY"; "ITS
BUDGET"; "ITS ORGANIZATION"; "THE NUMBER OF EMPLOYEES"; OR "THE
NUMBERS, TYPES, AND GRADES OF POSITIONS OR EMPLOYEES ASSIGNED TO AN
ORGANIZATION UNIT, WORK PROJECT OR TOUR OF DUTY"; "THE TECHNOLOGY OF
PERFORMING ITS WORK"; OR "ITS INTERNAL SECURITY PRACTICES" WHICH IS, OF
COURSE, THE COVERAGE OF SECTION 11(B) OF THE ORDER. FOURTH, EVEN IF
RESPONDENT WERE RIGHT AND TURNAROUND TIME WERE ONLY A PERMISSIBLE
SUBJECT OF BARGAINING, THE 60 DAY TURNAROUND TIME FOR AMENDED CASES IN
GROUP 310 WAS AN ESTABLISHED CONDITION OF EMPLOYMENT WHICH RESPONDENT
COULD NOT UNILATERALLY CHANGE. U.S. DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE, NEW ORLEANS DISTRICT, NEW ORLEANS, LOUISIANA,
A/SLMR NO. 1034, 8 A/SLMR 497(1978); INTERNAL REVENUE SERVICE,
SOUTHWEST REGION, APPELLATE BRANCH OFFICE, NEW ORLEANS, LOUISIANA,
A/SLMR NO. 1153, 8 A/SLMR 1254(1978).
HAVING FOUND THAT TURNAROUND TIME WAS A MATTER AFFECTING WORKING
CONDITIONS WITHIN THE MEANING OF SECTION 11(A) OF THE ORDER AND/OR WAS
AN ESTABLISHED CONDITION OF EMPLOYMENT, RESPONDENT VIOLATED SECTIONS
19(A)(1) AND (6) OF THE ORDER BY ITS ANNOUNCEMENT ON OCTOBER 5, 1978,
WITHOUT ANY PRIOR NOTICE TO COMPLAINANT AND WITHOUT AFFORDING
COMPLAINANT ANY OPPORTUNITY TO NEGOTIATE PRIOR TO IMPLEMENTATION OF SUCH
CHANGE. IN ADDITION, RESPONDENT'S UNILATERAL ACTION HAD THE EFFECT OF
UNDERCUTTING COMPLAINANT, THE EXCLUSIVE REPRESENTATIVE, AND IMPAIRING
ITS EFFECTIVENESS IN THE EYES OF THOSE WHOM IT REPRESENTS IN FURTHER
VIOLATION OF SECTIONS 19(A)(1) AND (6) OF THE ORDER. RESPONDENT'S
ANNOUNCEMENT, BY GROUP DIRECTOR NEWMAN, OF THE CHANGE IN TURNAROUND TIME
WAS NOTIFICATION OF A FAIT ACCOMPLI AND PROVIDED COMPLAINANT WITH NO
NOTICE AND NO OPPORTUNITY TO NEGOTIATE PRIOR TO IMPLEMENTATION OF THE
CHANGE. AS THE VIOLATIONS OF SECTION 19(A)(1) AND (6) OCCURRED ON THE
DATE, OCTOBER 5, 1978, OF RESPONDENT'S UNILATERAL CHANGE OF TURNAROUND
TIME, I DO NOT FIND: U.S. DEPARTMENT OF AIR FORCE, NORTON AIR FORCE
BASE,A/SLMR NO. 261, 3 A/SLMR 176(1973). UNITED STATES DEPARTMENT OF
NAVY, BUREAU OF MEDICINE AND SURGERY, GREAT LAKES NAVAL HOSPITAL,
ILLINOIS, A/SLMR NO. 289, 3 A/SLMR 375(1973); OR SOUTHEAST EXCHANGE
REGION OF THE ARMY AND AIR FORCE EXCHANGE SERVICE, ROSEWOOD WAREHOUSE,
COLUMBIA, SOUTH CAROLINA, A/SLMR NO. 656, 6 A/SLMR 237(1976), CITED AND
RELIED UPON BY RESPONDENT, AUTHORITY FOR THE PROPOSITION THAT
RESPONDENT'S UNFAIR LABOR PRACTICE MAY NOT BE REMEDIED BECAUSE
COMPLAINANT, FOLLOWING MR. NEWMAN'S ANNOUNCEMENT OF THE CHANGE IN
TURNAROUND TIME ON OCTOBER 5, 1978, DID NOT THEREAFTER REQUEST
BARGAINING AND, IN RESPONDENT'S VIEW, THE CHANGE WAS NOT EFFECTIVE UNTIL
JANUARY, 1979. FIRST, THE PROPOSITION RELIED UPON BY RESPONDENT IS
APPLICABLE ONLY WHERE AN AGENCY TAKES UNILATERAL ACTION PURSUANT TO A
SERVED RIGHT OF MANAGEMENT PURSUANT TO SECTION 11(B) OR 12(B) BY THE
ORDER; THE BARGAINING OBLIGATION RELATES ONLY TO IMPACT AND
IMPLEMENTATION; AND THE BARGAINING REPRESENTATIVE HAS REASONABLE
OPPORTUNITY AFTER NOTICE TO REQUEST BARGAINING ON IMPACT AND
IMPLEMENTATION AND FAILS TO DO SO. HERE, OF COURSE, THE MATTER WAS A
SUBJECT FOR NEGOTIATION PURSUANT TO SECTION 11(A) OF THE ORDER, AND/OR
ESTABLISHED CONDITION OF EMPLOYMENT, AS TO WHICH RESPONDENT WAS REQUIRED
TO GIVE PRIOR NOTICE TO COMPLAINANT AND AMPLE OPPORTUNITY TO BARGAIN
PRIOR TO IMPLEMENTATION OF THE CHANGE. SECOND, RESPONDENT'S UNILATERAL
ACTION IN ANNOUNCING THE CHANGE IN TURNAROUND TIME, NECESSARILY HAD THE
EFFECT OF UNDERCUTTING THE EXCLUSIVE BARGAINING REPRESENTATIVE, THEREBY
DESTROYING ITS EFFECTIVENESS IN THE EYES OF THOSE WHOM IT REPRESENTS.
THIRD, THE RECORD PLAINLY SHOWS, AND I HAVE SO FOUND, THAT THE ANNOUNCED
CHANGE IN TURNAROUND TIME HAD IMMEDIATE EFFECT INASMUCH AS THE EXAMINERS
WERE INFORMED THAT THEY MUST, DURING THE PERIOD FROM OCTOBER 5, 1978, TO
JANUARY, 1979 DISPOSE OF THEIR BACKLOG OF AMENDED CASES AND THAT,
BEGINNING JANUARY, 1979, THE 30 DAY TURNAROUND TIME WOULD BE FULLY
EFFECTIVE. FOURTH, IF A REQUEST TO NEGOTIATE WERE DEEMED NECESSARY, I
AGREE WITH COMPLAINANT THAT INCLUSION OF PRECISELY SUCH A REQUEST IN THE
PRE-COMPLAINT CHARGE, FILED ON OCTOBER 13, 1978, CONSTITUTED A FULLY
SUFFICIENT REQUEST FOR BARGAINING. IN ADDITION, MR. ALAN P. DOUGLAS,
PRESIDENT OF COMPLAINANT, TESTIFIED THAT HE MET WITH MR. NEWMAN ON
NOVEMBER 16, 1978, /2/ AND THAT MR. NEWMAN REFUSED TO NEGOTIATE, I.E.,
MR. NEWMAN TOLD MR. DOUGLAS, " . . . HIS POLICIES WERE NOT SUBJECT TO
NEGOTIATIONS" OR, "OH, BY THE WAY, MY POLICIES ARE NOT NEGOTIABLE IN
THESE MATTERS . . . " /3/ NOR DID THE COMMISSIONER OF PATENTS AND
TRADEMARKS, MR. DONALD W. BANNER, TO WHOM THE CHARGE (JT. EXH. 1) WAS
ADDRESSED, DIRECTLY, OR THROUGH ANY REPRESENTATIVE, AGREE TO NEGOTIATE
IN RESPONSE TO THE REQUEST MADE IN THE PRE-COMPLAINT CHARGE (TR. 85,
86). /4/
2. APPRISING OFFICE OF WHEREABOUTS. THE COMPLAINT ALLEGES THAT "MR.
NEWMAN REQUIRED UNIT MEMBERS TO GIVE A WRITTEN INDICATION OF THEIR
LOCATION WHEN THEY WERE ABSENT FROM THEIR DESKS MORE THAN TEN MINUTES;
THERE WAS NO SUCH POLICY OR PRACTICE PREVIOUSLY." (BASIS OF THE
COMPLAINT, ALJ EXH. 1.)
THE RECORD SHOWS THAT, ON OCTOBER 5, 1978, MR. NEWMAN TOLD EMPLOYEES
THAT THERE WERE OCCASIONS WHEN THEY HAD TO BE LOCATED PROMPTLY AND THAT
IN ORDER TO DO SO IT WAS NECESSARY TO KNOW WHERE THEY ARE WHEN THEY ARE
AWAY FROM THEIR DESKS.
ACCORDINGLY, HE SAID THAT THEY SHOULD, OR THAT HE WANTED THEM TO
LEAVE A NOTE ON THEIR DESK, OR TO TELL THEIR SUPERVISOR ANY TIME THEY
WERE GOING TO BE AWAY FOR MORE THAN 10 MINUTES. THERE CAN BE NO DOUBT
THAT THE POLICY IN GROUP 310, LONG PRIOR TO OCTOBER, 1978, HAD BEEN THAT
SUPERVISORS WERE TO KNOW WHERE THE EMPLOYEES WERE. MR. STOCKING, THE
PRIOR DIRECTOR OF GROUP 310, SO TESTIFIED AND STATED:
"A. THERE WAS A POLICY THAT THE SUPERVISORS WERE TO KNOW WHERE THE
EMPLOYEES WERE. HOW
THAT POLICY WAS IMPLEMENTED WAS LEFT IN THE SUPERVISOR'S HANDS, AND
IT IS MY UNDERSTANDING
THAT IT WAS DONE BY WAY OF NOTES, CARDS, OR ORAL COMMUNICATION.
* * * *
"A. TO THE BEST OF MY KNOWLEDGE, IT WAS COMPLIED WITH." (TR. 281)
SUPERVISORS SPAR AND BLIX LIKEWISE TESTIFIED TO THE EXISTENCE OF THIS
POLICY AND THAT EXAMINERS WERE ENCOURAGED TO COMPLY, LONG BEFORE MR.
NEWMAN BECAME DIRECTOR OF GROUP 310. INDEED, THE RECORD SHOWS THAT, IN
GROUP 310, COMPLIANCE WITH THIS POLICY WAS SPECIFICALLY GIVEN
CONSIDERATION IN AWARD RECOMMENDATION (SEE RESP. EXHS. 8, 9, 10 AND 11).
THE STATEMENTS ON RESPONDENT EXHIBITS 9, 10, AND 11, ARE THAT THE
EXAMINER "ALWAYS LEAVES AN INDICATION ON HIS DESK AS TO HIS WHEREABOUTS
WHEN DUTY REQUIRES HIM TO BE ELSEWHERE" (RESP. EXH. 9, 10 AND 11).
RESPONDENT'S EXHIBIT 8 STATES THAT THE EXAMINER "INDICATES BY NOTE WHERE
HE WILL BE IF HE HAS TO BE AWAY FROM HIS DESK FOR AN EXTENDED PERIOD OF
TIME." THESE STATEMENTS, EACH BY SUPERVISORY PATENT EXAMINER TRYGVE M.
BLIX, SHED LIGHT ON THE POLICY AS IT EXISTED PRIOR TO OCTOBER, 1978,
WHEN CONSIDERED IN CONJUNCTION WITH THE TESTIMONY OF MR. STOCKING AND
MR. ROBERT J. SPAR, ALSO A SUPERVISORY PATENT EXAMINER UNDER BOTH GROUP
DIRECTOR STOCKING AND GROUP DIRECTOR NEWMAN IN GROUP 310. MR. SPAR
TESTIFIED THAT, ALTHOUGH HE ADVISED THE EXAMINERS IN HIS UNIT IN
WRITING, THEY MUST LEAVE A NOTE FOR ABSENCES OF TEN MINUTES OR MORE,
SUCH NOTIFICATION DID NOT APPLY AT ALL TO ABSENCES TO SEARCH THE PRIOR
ART OR ANY OTHER ACTIVITY FOR WHICH EXAMINING TIME WAS CHARGEABLE.
(SEE, TR. 244). FROM MR. STOCKING'S TESTIMONY THERE IS A STRONG
INFERENCE THAT MR. STOCKING'S POLICY WAS, IN FACT, ALSO DIRECTED TO
"OTHER-TIME" ACTIVITIES DESCRIBED BY MR. SPAR, AND NOT TO EXAMINING
DUTIES. THUS, MR. STOCKING TESTIFIED,
"A. WELL, IF THEY ARE OFF THE FLOOR FOR A SIGNIFICANT LENGTH OF
TIME-- TEN MINUTES, TO ME,
IS ENOUGH TIME TO GO GET A CUP OF COFFEE AND COME BACK. I DON'T WANT
TO HEAR ABOUT THOSE
VISITS, BUT IF THEY ARE GOING TO BE GONE TO A MEETING FOR A HALF HOUR
OR AN HOUR, I WANT TO
KNOW, AND THAT'S NORMALLY THE TIME THAT THEY LET ME KNOW." (TR.
278).
MR. RAYMON B. JOHNSON, A PATENT EXAMINER IN GROUP 310 (ART UNIT 314),
TESTIFIED THAT PRIOR TO OCTOBER 5, 1978, HE WAS NEVER REQUIRED TO LEAVE
A NOTE WHEN ABSENT FROM THE ROOM ON EXAMINING DUTIES BUT THAT THEY WERE
REQUIRED TO DO SO FOR UNION ACTIVITIES AND EEO ACTIVITIES (TR. 136-137).
FROM ALL THE EVIDENCE AND TESTIMONY, I CONCLUDE THAT, PRIOR TO
OCTOBER 5, 1978, THERE HAD BEEN A POLICY IN GROUP 310 THAT EXAMINERS
SHOULD ADVISE THEIR SUPERVISORS WHEN ABSENT FOR ACTIVITIES, OTHER THAN
REASONABLE COFFEE BREAKS, ETC., FOR WHICH EXAMINING TIME WAS NOT
CHARGEABLE, SUCH AS ANY UNION ACTIVITY, ANY EEO ACTIVITIES, ANY PATENT
OFFICE SOCIETY ACTIVITIES; AND THAT THIS POLICY MAY EVEN HAVE BEEN
INTENDED BY MR. STOCKING TO EXTEND TO OTHER ABSENCES "OFF THE FLOOR FOR
A SIGNIFICANT LENGTH OF TIME", WHICH, SUBSTANTIALLY IN AGREEMENT WITH
COMPLAINANT, I FIND MEANT LEAVING THE UNIT (SEE, ALSO, THE COMMENTS
NOTED ABOVE IS RESPONDENT'S EXHIBIT 9, 10 AND 11 AND MR. BLIX' TESTIMONY
AT PAGE 284 THAT "THEY ARE ENCOURAGED TO LEAVE NOTES AS TO THEIR
WHEREABOUTS WHEN THEY ARE ELSEWHERE.") FOR A SIGNIFICANT LENGTH OF TIME
WHICH, FROM MR. STOCKING'S TESTIMONY, I INFER, IN TURN, MEANT
APPROXIMATELY 30 MINUTES; AND THAT MR. SPAR HAD FURTHER REQUIRED
NOTIFICATION FOR ABSENCES FROM THE ART UNIT, FOR WHICH EXAMINING TIME
WAS CHARGEABLE.
MR. NEWMAN'S ANNOUNCEMENT ON OCTOBER 5, 1978, THAT EXAMINERS SHOULD
LEAVE A NOTE OR ADVISE THEIR SUPERVISORS DID, INDEED, CHANGE POLICY IN
AT LEAST TWO REGARDS. FIRST, SUCH NOTIFICATION WAS THEREAFTER TO BE
GIVEN FOR ANY ABSENCE OF MORE THAN 10 MINUTES; AND SECOND, SUCH
NOTIFICAITON WAS TO BE GIVEN FOR ABSENCE FROM THEIR DESKS, RATHER THAN
"OFF THE FLOOR". MOREOVER, THIS WAS AN ANNOUNCEMENT BY THE DIRECTOR OF
GROUP 310 OF HIS POLICY, WHEREAS, PRIOR IMPLEMENTATION OF POLICY HAD
BEEN LEFT BY MR. STOCKING TO EACH SUPERVISOR. THAT MR. NEWMAN INTENDED
TO IMPRESS THE EXAMINERS THAT HIS "WISHES" WERE TO BE COMPLIED WITH MAY
REASONABLY BE INFERRED FROM THE TONE OF THE MEETING AND HIS EXPRESS
REFERENCE TO HIS SIZE 12 SHOE. NOT ONLY WAS THERE TESTIMONY BY VARIOUS
EXAMINERS THAT MR. NEWMAN "REQUIRED" SUCH NOTIFICATION BUT MR. SPAR
TESTIFIED,
"A. MR. NEWMAN ANNOUNCED THAT HE WOULD REQUIRE-- THAT HE WANTED ALL
EXAMINERS-- HE WOULD
REQUIRE ALL EXAMINERS TO LEAVE NOTES . . . HE IMPLIED THAT IT WAS
MANDATORY FOR ALL EXAMINERS
. . . " (TR. 232)
WHILE I AM AWARE THAT MR. NEWMAN STATED, "IT'S AN ENCOURAGED POLICY.
THERE IS NO ABSOLUTE REQUIREMENT FOR ANYTHING" (TR. 129), I CONCLUDE, AS
MR. SPAR TESTIFIED, "HE IMPLIED THAT IT WAS A MANDATORY POLICY FOR ALL
EXAMINERS". FINALLY, ANY POSSIBLE DOUBT THAT MR. NEWMAN INTENDED TO
INSTITUTE A NEW POLICY WITH REGARD TO REPORTING ABSENCES IS FIRMLY LAID
TO REST BY MR. NEWMAN'S OWN REPORT TO THE DEPUTY ASSISTANT COMMISSIONER
FOR PATENTS, MR. FELDMAN, IN WHICH HE STATED,
" . . . WE INSTITUTED A PROGRAM OF INFORMING SUPERVISORS (IN PERSON
OR BY A NOTE LEFT ON
THE DESK) WHEN ABSENCE OF MORE THAN 10 MINUTES OCCUR . . . " (COMP.
EXH. 6, P. 8; TR. 100).
MR. NEWMAN'S UNILATERAL INSTITUTION OF HIS PROGRAM OF INFORMING
SUPERVISORS WHEN ABSENCES OF MORE THAN 10 MINUTES OCCUR ON OCTOBER 5,
1978, CHANGED AN EXISTING CONDITION OF EMPLOYMENT; INVOLVED PERSONNEL
POLICIES AND PRACTICES AND MATTERS AFFECTING WORKING CONDITIONS, WITHIN
THE MEANING OF SECTION 11(A) OF THE ORDER; WAS EFFECTIVE IMMEDIATELY;
AND COMPLAINANT WAS AFFORDED NO PRIOR NOTICE OR OPPORTUNITY TO BARGAIN
PRIOR TO IMPLEMENTATION OF THE "PROGRAM". RESPONDENT THEREBY VIOLATED
SECTIONS 19(A)(1) AND (6) OF THE ORDER IN THE MANNER AND FOR THE REASONS
MORE FULLY SET FORTH HEREINABOVE IN SUB-SECTION 1 OF THIS PARAGRAPH WITH
REGARD TO ITS UNILATERAL CHANGE, ON THE SAME DATE, OF TURNAROUND TIME.
3. PRODUCTIVITY STANDARD. AS NOTED HEREINABOVE, THERE IS NO DISPUTE
THAT ON OCTOBER 5, 1978, MR. NEWMAN ADVISED ALL EXAMINERS OF GROUP 310
THAT, AS PROFESSIONAL EMPLOYEES, EXAMINERS WOULD BE EXPECTED TO ACHIEVE
100 PER CENT OF THEIR INDIVIDUALLY ASSIGNED PRODUCTION GOALS; THAT
"ANYTHING LESS THAN 100% OF EXPECTANCY WAS CONSIDERED DEFICIENT" (JT.
EXH. 7, P. 3; TR. 101, 107-108). /5/ IN ITS COMPLAINT, COMPLAINANT
ASSERTS THAT THIS " . . . REPRESENTS A TWENTY-FIVE PERCENT INCREASE
OVER THE PREVIOUS QUANTITATIVE PERFORMANCE STANDARD." MORE SPECIFICALLY,
COMPLAINANT ASSERTS THAT AS THE AMENDMENT TO THE AGREEMENT OF DECEMBER
13, 1972 (JT. EXH. 2A), AS EXTENDED BY THE EXTENSION AGREEMENT OF
OCTOBER 24, 1975 (JT. EXH. 2B) PROVIDES, IN PART, THAT:
". . .
"4. AN ACHIEVEMENT OF AT LEAST 75% OF AN ASSIGNED GOAL SHALL BE
DEEMED PRIMA FACIE
EVIDENCE OF AN ACCEPTABLE LEVEL OF COMPETENCE ON THE FACTOR OF
PRODUCTION FOR PURPOSES OF
GRANTING A WITHIN-GRADE INCREASE UNLESS ADEQUATE WRITTEN
JUSTIFICATION IS GIVEN TO THE
EMPLOYEE THAT THE ACHIEVEMENT LEVEL ON THE FACTOR OF PRODUCTION IS
INSUFFICIENT. AN
ACHIEVEMENT BELOW 75% OF AN ASSIGNED GOAL SHALL BE DEEMED PRIMA FACIE
EVIDENCE THAT THE LEVEL
OF COMPETENCE ON THE FACTOR OF PRODUCTION IS NOT ACCEPTABLE FOR
PURPOSES OF GRANTING A
WITHIN-GRADE INCREASE UNLESS THERE ARE EXTENUATING CIRCUMSTANCES
WHICH JUSTIFY THE ACHIEVED
PRODUCTION LEVEL . . ." (JT. EXH. 2C, DATED JULY 7, 1976),
MR. NEWMAN'S STATEMENT THAT "ANYTHING LESS THAN 100% OF EXPECTANCY
WAS CONSIDERED DEFICIENT" EFFECTIVELY MODIFIED THE NEGOTIATED PROVISION,
SET FORTH ABOVE. IN EFFECT, COMPLAINANT ASSERTS THAT AN EXAMINER WHO
ACHIEVES 75% OF AN ASSIGNED GOAL IS NOT DEFICIENT BY VIRTUE OF THE
NEGOTIATED PROVISION; AND, IN PARTICULAR THAT, IN VIEW OF THE
NEGOTIATED PROVISION, DENOMINATION OF ACHIEVEMENT OF ANY LEVEL BELOW
100% AS A "BARE MINIMUM", MODIFIES THE NEGOTIATED AGREEMENT.
RESPONDENT, OF COURSE, DENIES THAT MR. NEWMAN'S STATEMENT WAS IMPROPER.
INDEED, RESPONDENT ASSERTS, INTER ALIA, THAT THE STATEMENT WAS NOT
DIRECTED TO INGRADE INCREASES, BUT, IN ANY EVENT, CONSTITUTED NO CHANGE
IN PARAGRAPH 4, SET FORTH ABOVE, SINCE THE AGREEMENT SPECIFICALLY
PROVIDED THAT ACHIEVEMENT OF 75% OF AN ASSIGNED GOAL WAS ONLY PRIMA
FACIE EVIDENCE OF AN ACCEPTABLE LEVEL OF COMPETENCE ON THE FACTOR OF
PRODUCTION FOR GRANTING A WITHIN-GRADE INCREASE AND THAT THE AGREEMENT
RECOGNIZED THAT 75%, WHILE CONSTITUTING PRIMA FACIE EVIDENCE OF AN
ACCEPTABLE LEVEL OF PRODUCTION FOR AN INGRADE INCREASE, WAS,
NEVERTHELESS, A DEFICIENCY IN ATTAINING THE ASSIGNED GOAL AND THAT EVEN
THE PRESUMPTION FOR GRANTING OF A WITHIN-GRADE INCREASE WAS REBUTTABLE
BY "ADEQUATE WRITTEN JUSTIFICATION". MOREOVER, RESPONDENT FURTHER
ASSERTS THAT FAILURE TO ACHIEVE AN ASSIGNED GOAL, WHOLLY APART FROM
WITHIN-GRADE INCREASES, IS A DEFICIENCY NECESSARILY CONSIDERED IN OTHER
DETERMINATIONS, INCLUDING, FOR EXAMPLE, EVALUATIONS OF PERFORMANCE AND
THAT THIS IS DEMONSTRATED BY ITS CONSISTENT PRACTICE, AND IN PARTICULAR
ITS PRACTICE SINCE THE DATE OF THE ABOVE AMENDMENT, JULY 7, 1976.
A THRESHOLD QUESTION IS WHETHER DETERMINATION OF THIS ISSUE IS, IN
ESSENCE, A DISAGREEMENT OVER THE INTERPRETATION OF AN EXISTING
COLLECTIVE BARGAINING AGREEMENT, WHICH PROVIDES A PROCEDURE FOR
RESOLUTION OF SUCH DISAGREEMENT, WHICH SHOULD BE LEFT FOR RESOLUTION
UNDER REMEDIES PROVIDED UNDER THE PARTIES' COLLECTIVE BARGAINING
AGREEMENT. SEE, FOR EXAMPLE, REPORT ON A RULING OF THE ASSISTANT
SECRETARY PURSUANT TO SECTION 6 OF EXECUTIVE ORDER 11491, REPORT NO.
49, 2 A/SLMR 639(1972); DEPARTMENT OF ARMY, WATERVLIET ARSENAL,
WATERVLIET, N.Y., A/SLMR NO. 624, 6 A/SLMR 127(1976); AEROSPACE
GUIDANCE AND METROLOGY CENTER, NEWARK AIR FORCE STATION, NEWARK, OHIO,
A/SLMR NO. 677, 6 A/SLMR 361(1976). THE TOUCHSTONE, AS STATED BY THE
ASSISTANT SECRETARY IS WHETHER THERE ARE:
" . . . ALLEGED VIOLATIONS OF A NEGOTIATED AGREEMENT WHICH CONCERN
DIFFERING AND ARGUABLE
INTERPRETATION OF SUCH AGREEMENT, AS DISTINGUISHED FROM ALLEGED
ACTIONS WHICH WOULD CONSTITUTE
CLEAR, UNILATERAL BREACHES OF THE AGREEMENT. . . " (6 A/SLMR AT 129;
6/ALMR AT 362-363).
IF THE ALLEGED VIOLATION OF A NEGOTIATED AGREEMENT CONCERN DIFFERING
AND ARGUABLE INTERPRETATIONS OF THE AGREEMENT, SUCH ALLEGED VIOLATION IS
NOT DEEMED TO BE VIOLATIVE OF THE ORDER. DEPARTMENT OF ARMY,
WATERVILIET ARSENAL, SUPRA; AEROSPACE GUIDANCE AND METROLOGY CENTER,
SUPRA; WARNER ROBBINS AIR LOGISTICS CENTER, ROBBINS AIR FORCE BASE,
GEORGIA, A/SLMR NO. 912, 7 A/SLMR 859(1977); GENERAL SERVICES
ADMINISTRATION, NATIONAL ARCHIVES AND RECORDS SERVICE, A/SLMR NO. 1055,
8 A/SLMR 629(1978); GENERAL SERVICES ADMINISTRATION, REGION 5, PUBLIC
BUILDINGS SERVICE, CHICAGO FIELD OFFICE, A/SLMR NO. 528; 5 A/SLMR
424(1975); FEDERAL AVIATION ADMINISTRATION, MUSKEGON AIR TRAFFIC
CONTROL TOWER, A/SLMR NO. 543, 5 A/SLMR 457(1975). FOR REASONS SET
FORTH HEREINAFTER, I CONCLUDE THAT THE ALLEGED VIOLATION HEREIN CONCERNS
DIFFERING AND ARGUABLE INTERPRETATIONS OF THE PARTIES COLLECTIVE
BARGAINING AGREEMENT AND THAT MR. NEWMAN'S STATEMENT ON OCTOBER 5, 1978,
DID NOT CONSTITUTE A CLEAR, UNILATERAL BREACH OF THAT AGREEMENT.
IN THEORY, CERTAINLY, ONCE A PRODUCTION GOAL IS ESTABLISHED FOR AN
INDIVIDUAL, ANY FAILURE TO ACHIEVE THAT GOAL IS A DEFICIENCY VIS-A-VIS
THAT GOAL. HERE, THE AGREEMENT OF THE PARTIES MAKES SPECIFIC PROVISION
FOR VARIOUS CIRCUMSTANCES. THUS, PARAGRAPH 1, PROVIDES, SUBJECT TO
CERTAIN LIMITATIONS, THAT ACHIEVEMENT OF 110% OF A GOAL, OVER A STATED
PERIOD, IS PRIMA FACIE EVIDENCE OF SUFFICIENTLY OUTSTANDING PERFORMANCE
ON THE FACTOR OF PRODUCTION TO WARRANT GRANT OF A QUALITY STEP INCREASE;
PARAGRAPH 2, RELATES TO GRANT OF A SPECIAL ACHIEVEMENT AWARD FOR
ACHIEVEMENT OF 110% OF A GOAL OVER A PERIOD OF SIX CONSECUTIVE MONTHS,
SUBJECT TO STATED CONDITIONS; PARAGRAPH 3, RELATES TO QUALIFICATION FOR
A PROMOTION IN ACCORDANCE WITH ARTICLE IX, SECTION 8 OF THE AGREEMENT;
AND, OF COURSE, PARAGRAPH 4 RELATES TO THE GRANTING OF A WITHIN-GRADE
INCREASE.
THE INTRODUCTORY SENTENCE, WHICH APPLIES EQUALLY TO PARAGRAPHS 1-4,
STATES:
"INSOFAR AS PURELY QUANTITIVE CRITERIA ARE CONCERNED, AN INDIVIDUAL'S
GOAL SHALL HAVE THE
FOLLOWING MEANING AND EFFECT:
* * * *
"4. AN ACHIEVEMENT OF AT LEAST 75% OF AN ASSIGNED GOAL SHALL BE
DEEMED PRIMA FACIE
EVIDENCE OF AN ACCEPTABLE LEVEL OF COMPETENCE ON THE FACTOR OF
PRODUCTION FOR PURPOSES OF
GRANTING A WITHIN GRADE INCREASE UNLESS ADEQUATE WRITTEN
JUSTIFICATION IS GIVEN TO THE
EMPLOYEE THAT THE ACHIEVEMENT LEVEL ON THE FACTOR OF PRODUCTION IS
INSUFFICIENT
. . . " (JT. EXH. 2C)
THE ABOVE PROVISION DOES RELATE TO THE ACCEPTABLE LEVEL OF COMPETENCE
BUT DOES NOT ESTABLISH THIS LEVEL AS ACHIEVEMENT AS, SIMPLY, 75% OF AN
ASSIGNED GOAL. TO THE CONTRARY, THE AGREEMENT PROVIDES THAT, " . . . AS
PURELY QUANTITIVE CRITERIA ARE CONCERNED . . . ACHIEVEMENT OF AT LEAST
75% OF AN ASSIGNED GOAL SHALL BE DEEMED PRIMA FACIE EVIDENCE OF AN
ACCEPTABLE LEVEL OF COMPETENCE FOR PURPOSES OF GRANTING A WITHIN-GRADE
INCREASE UNLESS ADEQUATE WRITTEN JUSTIFICATION IS GIVEN . . . THE
ACHIEVEMENT LEVEL ON THE FACTOR OF PRODUCTION IS INSUFFICIENT . . . "
COMPLAINANT'S INTERPRETATION OF ITS AGREEMENT IS AN ARGUABLE
CONSTRUCTION; BUT RESPONDENT'S INTERPRETATION, WHILE DIFFERING, IS NO
LESS AN ARGUABLE INTERPRETATION, IN VIEW OF THE SPECIFIC PROVISION OF
RESPONDENT'S OWN ADMINISTRATIVE ORDER, AO 202-531 (JT. EXH. 8( WHICH
PROVIDES, IN PART, THAT:
" . . . AN EMPLOYEE'S PERFORMANCE SHALL NOT BE DEEMED TO MEET THIS
STANDARD (AN ACCEPTABLE
LEVEL OF COMPETENCE) UNLESS . . . (2) IT . . . MEETS . . . ALL . . .
STANDARDS . . . FOR A
SATISFACTORY PERFORMANCE RATING." (SECTION 7.02 B.1.(B)
COMPLAINANT'S ASSERTION IN ITS BRIEF THAT,
"RESPONDENT HAS TAKEN THE OUTRAGEOUS POSITION THAT WHILE 75% MAY BE
SUFFICIENT FOR A
WITHIN-GRADE, 100% IS THE BARE MINIMUM LEVEL FOR SATISFACTORY
PERFORMANCE . . . "(P. 7),
IS, IN ANY EVENT, LAID TO REST BY THE ABOVE PROVISION OF
ADMINISTRATIVE ORDER AO 202-531. THAT IS, WITH FULL RECOGNITION THAT A
PERFORMANCE RATING AND AN INGRADE INCREASE ARE ENTIRELY SEPARATE (SEE,
TR. 224, 225) AND MAY COVER VERY DIFFERENT PERIODS (TR. 254), IT NOT
ONLY WOULD SEEM INCONSISTENT, AS MR. SPAR TESTIFIED (TR. 254) TO GRANT
AN INGRADE INCREASE FOR EXCEEDING 75% AND SIMULTANEOUSLY ISSUE A 90-DAY
LETTER FOR UNSATISFACTORY PERFORMANCE; BUT IT WOULD BE IMPROPER UNDER
AO 202-531 TO GRANT AN INGRADE INCREASE UNLESS THE EMPLOYEES'
PERFORMANCE HAS MET ALL STANDARDS FOR A SATISFACTORY PERFORMANCE RATING.
ACCORDINGLY, MR. NEWMAN'S TESTIMONY THAT:
"Q. THE QUESTION WAS, ARE YOU GOING TO GRANT A WITHIN-GRADE TO
SOMEONE WHOSE PERFORMANCE
YOU CONSIDER TO BE UNSATISFACTORY.
"A. DEFICIENT, NOT FULLY SATISFACTORY, I WOULD HAVE TO. YOU CAN
DENY A WITHIN-GRADE IF A
PERSON'S PERFORMANCE IS BELOW MARGINAL." (TR. 107), IF INTENDED TO
MEAN THAT ACCEPTABLE LEVEL OF PERFORMANCE HAS A DIFFERENT MEANING FOR
THE PURPOSE OF AN EXAMINER'S RATING THAN FOR GRANT OF AN INGRADE
INCREASE WOULD NOT COMPORT WITH ADMINISTRATIVE ORDER AO 202-531.
NEVERTHELESS, RESPONDENT'S EXHIBITS 2-7 SHOW A CONSISTENT POLICY OF
EXHORTING ACHIEVEMENT OF EACH EXAMINER'S GOAL. FOR EXAMPLE, "PRODUCTION
ACHIEVEMENT IS WAY TOO LOW AND AT AN UNSATISFACTORY LEVEL. BRING IT UP
TO YOUR EXPECTANCY OF 100%" (RESP. EXH. 2); "MORE WORK EFFORT IS
NEEDED TO BRING PRODUCTION UP TO MEET 100% OF YOUR GOALS" (RESP. EXH.
4); "TRY TO ACHIEVE YOUR PRODUCTION EXPECTANCY EACH PAY PERIOD . . . "
(RESP. EXH. 5); "NEW CASE EFFORTS SHOULD BE SUBSTANTIALLY INCREASED TO
BRING PERFORMANCE UP TO AT LEAST 100%" (RESP. EXH. 6). MR. STOCKING
TESTIFIED,
"A. I EXPECTED THEM TO PRODUCE AT 100 PERCENT OF THEIR EXPECTANCY.
(TR. 273)
"Q. WHEN EXAMINERS PERFORMED BETWEEN 75 TO 100 PERCENT OF THEIR
EXPECTANCY WERE THEY
CONSIDERED DEFICIENT IN ANY WAY?
"A. THEY WOULD BE CONSIDERED DEFICIENT FROM THE STANDPOINT OF
ACHIEVING THEIR EXPECTANCY,
BUT WE WOULD LOOK BEHIND TO SEE WHICH REASONS THERE MIGHT BE.
* * * *
"A. IN MY UNDERSTANDING, IT'S AN OFFICE POLICY THAT EVERYBODY IS TO
DO 100 PERCENT OF
THEIR EXPECTANCY.
* * * *
"A. EVALUATION OF PERFORMANCE HAS ALWAYS BEEN, AT LEAST UNDER MY
DIRECTION, A CONTINUING
THING. THE EMPLOYEES ARE INFORMED OF THEIR FAILURE TO ACHIEVE WHAT
IS EXPECTED OF THEM ON A
REGULAR BASIS; IT MIGHT BE A MONTHLY BASIS, OR IT MIGHT BE A
QUARTERLY BASIS. . . " (TR. 273).
SUPERVISORS SPAR AND BLIX FURTHER TESTIFIED THAT EXAMINERS WERE
REGULARLY COUNSELED CONCERNING ANY FAILURE TO MEET THEIR GOALS.
ACCORDINGLY, I CAN NOT CONCLUDE THAT MR. NEWMAN'S STATEMENT THAT
"ANYTHING LESS THAN 100% OF EXPECTANCY WAS CONSIDERED DEFICIENT"
CONSTITUTED A CLEAR, UNILATERAL BREACH OF THE PARTIES' AGREEMENT. THE
AGREEMENT OF THE PARTIES, WHILE MAKING ACHIEVEMENT OF AT LEAST 75% OF AN
ASSIGNED GOAL PRIMA FACIE EVIDENCE OF ACCEPTABLE LEVEL OF PERFORMANCE,
SPECIFICALLY PROVIDES THAT "ADEQUATE WRITTEN JUSTIFICATION . . . THAT
THE ACHIEVEMENT LEVEL ON THE FACTOR OF PRODUCTION IS INSUFFICIENT" MAY
BE GIVEN. WHAT CONSTITUTES AN ACCEPTABLE LEVEL OF PERFORMANCE IN ANY
GIVEN INSTANCE, WHAT CONSTITUTES ADEQUATE WRITTEN JUSTIFICATION IN ANY
INSTANCE, OR WHETHER ANY PARTICULAR RATING IS PROPER IN ANY GIVEN
INSTANCE ARE NOT ISSUES BEFORE ME. I DO NOT HOLD THAT RESPONDENT MAY
APPLY A DIFFERENT STANDARD, UNDER PARAGRAPH 4 OF ITS AGREEMENT AND
ADMINISTRATIVE ORDER 202-531, FOR AN IN-GRADE INCREASE THAN IT APPLIES
IN AN EXAMINER'S RATING, BASED SOLELY ON THE FACTOR OF PRODUCTION. I
HAVE DECIDED ONLY THAT MR. NEWMAN'S STATEMENT OF OCTOBER 5, 1978, DID
NOT CONSTITUTE A CLEAR, UNILATERAL BREACH OF THE NEGOTIATED AGREEMENT.
INDEED, THE RECORD AFFIRMATIVELY SHOWS THAT MR. NEWMAN'S STATEMENT
REFLECTED A REAFFIRMATION OF RESPONDENT'S CONSISTENT PRIOR POLICY. ALL
OTHER ALLEGED VIOLATIONS OF THE NEGOTIATED AGREEMENT CONCERN DIFFERING
AND ARGUABLE INTERPRETATIONS OF THE AGREEMENT AND SAID ALLEGED
VIOLATIONS ARE NOT DEEMED VIOLATIVE OF THE ORDER. THEREFORE, THIS
PORTION OF THE COMPLAINT IS HEREBY DISMISSED. DEPARTMENT OF ARMY,
WATERVLIET ARSENAL, SUPRA; AEROSPACE GUIDANCE AND METROLOGY CENTER,
SUPRA.
RECOMMENDED ORDER
HAVING FOUND THAT RESPONDENT VIOLATED SECTIONS 19(A)(1) AND (6) OF
THE ORDER BY VIRTUE OF CERTAIN UNILATERAL CHANGES WITH RESPECT TO
TURNAROUND TIME AND WITH RESPECT TO REPORTING ABSENCES, AN APPROPRIATE
ORDER, DESIGNED TO REMEDY THE UNFAIR LABOR PRACTICES FOUND, IS SET FORTH
HEREINAFTER. HAVING FOUND THAT RESPONDENT DID NOT OTHERWISE VIOLATE
SECTIONS 19(A)(1) AND (6) OF THE ORDER, AND SPECIFICALLY THAT MR.
NEWMAN'S STATEMENT THAT "ANYTHING LESS THAN 100% OF EXPECTANCY WAS
CONSIDERED DEFICIENT" DID NOT CONSTITUTE A CLEAR, UNILATERAL BREACH OF
THE PARTIES' NEGOTIATED AGREEMENT, THE REMAINING ALLEGATIONS OF THE
COMPLAINT ARE HEREBY DISMISSED.
ORDER
PURSUANT TO SECTION 6(B) OF EXECUTIVE ORDER 11491, AS AMENDED, AND
SECTION 203.26(B) OF THE REGULATION THEREUNDER, 29 C.F.R. SECTION
203.26(B); AND SECTION 2400.2 OF THE TRANSITION RULES AND REGULATIONS,
5 C.F.R. CHAPTER XIV, SUBCHAPTER A, FED. REG. VOL. 44, NO. 147, JULY 30,
1979, P. 44741, THE AUTHORITY HEREBY ORDERS THAT THE U.S. PATENT AND
TRADEMARK OFFICE, WASHINGTON, D.C. SHALL:
1. CEASE AND DESIST FROM:
A) INSTITUTING CHANGES IN THE 60 DAY TURNAROUND TIME FOR THE
PROCESSING OF AMENDED CASES BY UNIT EMPLOYEES IN GROUP 310, AS IT
EXISTED PRIOR TO OCTOBER 5, 1978, WITHOUT REASONABLE PRIOR NOTICE TO
PATENT OFFICE PROFESSIONAL ASSOCIATION, THE EXCLUSIVE REPRESENTATIVE OF
THE UNIT EMPLOYEES;
B) INSTITUTING CHANGES IN THE REPORTING OF ABSENCES OFF THE FLOOR FOR
A SIGNIFICANT LENGTH OF TIME, AS SUCH POLICY EXISTED PRIOR TO OCTOBER 5,
1978, IN GROUP 310, WITHOUT REASONABLE PRIOR NOTICE TO PATENT OFFICE
PROFESSIONAL EMPLOYEES, THE EXCLUSIVE REPRESENTATIVE OF ITS UNIT
EMPLOYEES.
C) IN ANY LIKE OR RELATED MANNER INTERFERRING WITH, RESTRAINING, OR
COERCING ITS EMPLOYES IN THE EXERCISES OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF EXECUTIVE ORDER 11491, AS AMENDED.
A) RESCIND THE CHANGE IN TURNAROUND TIME FOR THE PROCESSING OF
AMENDED CASES IN GROUP 310, ANNOUNCED BY GROUP DIRECTOR NEWMAN ON
OCTOBER 5, 1978, AND FORTHWITH REINSTATE A 60 DAY TURNAROUND TIME FOR
THE PROCESSING OF AMENDED CASES IN GROUP 310,WHICH WAS THE POLICY IN
GROUP 310 PRIOR TO OCTOBER 5, 1978.
B) RESCIND THE CHANGE IN REPORTING ABSENCES IN GROUP 310, AS
ANNOUNCED BY GROUP DIRECTOR NEWMAN ON OCTOBER 5, 1978, AND FORTHWITH
REINSTATE IN GROUP 310 THE POLICY OF REPORTING ABSENCES OFF THE FLOOR
FOR A SIGNIFICANT LENGTH OF TIME IN THE MANNER AND TO THE EXTENT THAT
SUCH ABSENCES WERE REPORTED PRIOR TO OCTOBER 5, 1978.
C) UPON REQUEST, NEGOTIATE WITH THE PATENT OFFICE PROFESSIONAL
ASSOCIATION WITH RESPECT TO CHANGES IN TURNAROUND TIME FOR THE
PROCESSING OF AMENDED CASES BY UNIT EMPLOYEES AND/OR CHANGES IN
REPORTING ABSENCES BY UNIT EMPLOYEES OFF THE FLOOR.
D) POST AT ITS FACILITIES IN CRYSTAL CITY, ARLINGTON, VIRGINIA,
COPIES OF THE ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED
BY THE AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY
THE DEPUTY ASSISTANT COMMISSIONER FOR PATENTS, AND SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER IN CONSPICUOUS
PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICE TO
EMPLOYEES ARE CUSTOMARILY POSTED, INCLUDING, BUT NOT LIMITED TO, SUCH
BULLETIN BOARDS AND OTHER PLACES IN GROUP 310. THE DEPUTY ASSISTANT
COMMISSIONER FOR PATENTS SHALL TAKE REASONABLE STEPS TO INSURE THAT SAID
NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
E) PURSUANT TO SECTION 203.27 OF THE REGULATIONS, NOTIFY THE
AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER AS TO
WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
WILLIAM B. DEVANEY
ADMINISTRATIVE LAW JUDGE
DATED: DECEMBER 18, 1979
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO
A DECISION AND ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
AND IN ORDER TO EFFECTUATE THE POLICIES OF
EXECUTIVE ORDER 11491, AS AMENDED
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT CHANGE THE 60 DAY TURNAROUND TIME FOR THE PROCESSING OF
AMENDED CASES BY UNIT EMPLOYEES IN GROUP 310, AS IT EXISTED PRIOR TO
OCTOBER 5, 1978, WITHOUT FIRST GIVING REASONABLE PRIOR NOTICE TO THE
PATENT OFFICE PROFESSIONAL ASSOCIATION, THE EXCLUSIVE REPRESENTATIVE OF
OUR EMPLOYEES, AND, UPON REQUEST, BARGAINING IN GOOD FAITH WITH THE
PATENT OFFICE PROFESSIONAL ASSOCIATION, OR ANY OTHER EXCLUSIVE
REPRESENTATIVE.
WE WILL NOT CHANGE THE REPORTING OF ABSENCES OFF THE FLOOR FOR A
SIGNIFICANT LENGTH OF TIME IN GROUP 310, AS IT EXISTED PRIOR TO OCTOBER
5, 1978, WITHOUT FIRST GIVING REASONABLE PRIOR NOTICE TO THE PATENT
OFFICE PROFESSIONAL ASSOCIATION, THE EXCLUSIVE REPRESENTATIVE OF OUR
EMPLOYEES, AND, UPON REQUEST, BARGAIN IN GOOD FAITH WITH THE PATENT
OFFICE PROFESSIONAL ASSOCIATION, OR OTHER EXCLUSIVE REPRESENTATIVE.
WE WILL FORTHWITH RESCIND IN GROUP 310 THE CHANGE IN TURNAROUND TIME
FOR AMENDED CASES, ANNOUNCED BY GROUP DIRECTOR NEWMAN ON OCTOBER 5,
1978, AND, FORTHWITH REINSTATE IN GROUP 310 THE 60 DAY TURNAROUND TIME
FOR THE PROCESSING OF AMENDED CASES.
WE WILL FORTHWITH, RESCIND THE CHANGE IN REPORTING ABSENCES, AS
ANNOUNCED BY GROUP DIRECTOR NEWMAN ON OCTOBER 5, 1978, AND; FORTHWITH
REINSTATE IN GROUP 310 THE POLICY OF REPORTING ABSENCES OFF THE FLOOR
FOR A SIGNIFICANT LENGTH OF TIME IN THE MANNER, AND TO THE EXTENT, THAT
SUCH ABSENCES WERE REPORTED PRIOR TO OCTOBER 5, 1978.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY
EXECUTIVE ORDER 11491, AS AMENDED.
(AGENCY OR ACTIVITY)
DATED: BY:
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION 3, WHOSE
ADDRESS IS: 1730 K STREET, N.W., WASHINGTON, D.C. 20006
/1/ AT THE HEARING, RESPONDENT STATED THAT THIS ACTION WAS ALSO A
RESERVED RIGHT OF MANAGEMENT UNDER 12(B)(1) AND (2) OF THE ORDER. AS
RESPONDENT DOES NOT MAKE SUCH ASSERTION IN ITS BRIEF, NO FURTHER
CONSIDERATION WILL BE GIVEN TO APPLICABILITY OF SECTIONS 12(B)(1) OR (2)
TO THE CHANGE IN TURNAROUND TIME.
/4/ THE TERM 'METHODS' AS IT APPEARS IN SECTION 12(B)(5) OF THE ORDER
HAS BEEN DEFINED BY THE COUNCIL TO MEAN 'THE PROCEDURES, PROCESSES,
WAYS, TECHNIQUES, MODES, MANNERS AND SYSTEMS BY WHICH OPERATIONS ARE TO
BE CONDUCTED-- IN SHORT, HOW OPERATIONS ARE TO BE CONDUCTED.' SEE
TIDEWATER VIRGINIA FEDERAL EMPLOYEE METAL TRADES COUNCIL AND NAVAL
PUBLIC WORKS CENTER, NORFOLK, VIRGINIA, 1 FLRC 431, AT PAGE 436, FLRC
NO. 71-A-56 (JUNE 29, 1973). CF. PATENT OFFICE PROFESSIONAL ASSOCIATION
AND U.S. PATENT OFFICE, WASHINGTON, D.C., 3 FLRC 635, FLRC NO. 75A-13
(OCTOBER 3, 1975), IN WHICH THE FEDERAL LABOR RELATIONS COUNCIL FOUND
NEGOTIABLE UNDER SECTION 11(A) OF THE ORDER A PROPOSAL RELATING TO
'PRODUCTION GOALS,' WHICH WERE USED TO MEASURE INDIVIDUAL PRODUCTIVITY
FOR THE PURPOSE OF ASSESSING EMPLOYEE PERFORMANCE."
/2/ TR. 81; HOWEVER THE "SUMMARY OF INVESTIGATIVE INTERVIEW AND
ATTEMPTED RESOLUTION", ATTACHMENT TO COMPLAINT, ALJ EXH. 1, SHOWS THE
DATE AS OCTOBER 16, 1978; SEE, ALSO, MR. NEWMAN'S TESTIMONY, TR. 121,
WHICH PLACES THE MEETING IN OCTOBER, 1978. FOR PRESENT PURPOSES,
WHETHER THE MEETING TOOK PLACE ON OCTOBER 16 OR NOVEMBER 16, 1978, IS
NOT SIGNIFICANT.
/3/ I AM AWARE THAT MR. NEWMAN TESTIFIED:
"I HAVE NEVER RECEIVED A REQUEST; I HAVE NEVER HAD ANY ENQUIRY IN
THAT REGARD; NEVER EVEN
HAD IT DISCUSSED WHETHER IT WAS NEGOTIABLE UNTIL 10 OR 15 MINUTES
AGO." (TR. 128)
HOWEVER, MR. NEWMAN ADMITTED THAT HE MET WITH MR. DOUGLAS IN OCTOBER,
1978; TESTIFIED THAT HE DID NOT CONSIDER TURNAROUND TIME OR THE LEAVING
OF NOTES NEGOTIABLE, AND THAT HE THOUGHT HE COMMUNICATED HIS FEELING ON
THESE MATTERS TO MR. DOUGLAS WHEN THEY MET IN OCTOBER, 1978 (TR. 121).
ACCORDINGLY, I DO NOT CREDIT MR. NEWMAN'S TESTIMONY AND FIND, AS MR.
DOUGLAS CREDIBLY TESTIFIED, THAT MR. NEWMAN STATED ON OCTOBER 16, 1978,
OR ON NOVEMBER 16, 1978, THAT HIS POLICIES WERE NOT NEGOTIABLE.
/4/ RESPONDENT, IN EFFECT, CONCEDES THAT COMPLAINANT REQUESTED
NEGOTIATIONS AND THAT RESPONDENT REFUSED TO NEGOTIATE, ALBEIT FOR THE
REASON THAT RESPONDENT ASSERTED THE MATTERS WERE NOT NEGOTIABLE
(RESPONDENT'S BRIEF, P. 9). OF COURSE, RESPONDENT'S REASON FOR REFUSING
TO BARGAIN IS IMMATERIAL UNDER THE CIRCUMSTANCES. PURSUANT TO SECTION
6(A)(4) OF THE ORDER, WHERE, AS HERE, CONDITIONS OF EMPLOYMENT HAVE BEEN
CHANGED UNILATERALLY AND AN INITIAL NEGOTIABILITY DETERMINATION IS
REQUIRED TO DECIDE THE UNFAIR LABOR PRACTICE, SAID DETERMINATION SHALL
BE MADE IN THE UNFAIR LABOR PRACTICE PROCEEDING.
/5/ COMPLAINANT WOULD CHARACTERIZE MR. NEWMAN'S STATEMENT AS HAVING
BEEN, "100 PER CENT ACHIEVEMENT OF A GOAL IS THE BARE MINIMUM" (TR.
107). MR. NEWMAN STATED,
"A. I DON'T RECALL EVER SAYING THE WORDS 'BARE MINIMUM.' I BELIEVE
WHEN I TALKED TO THE
EMPLOYEES WHAT I SAID WAS THAT ANYBODY WHO IS BELOW 100 PERCENT IS
DEFICIENT. I COULD HAVE
SAID 'BARE MINIMUM', I DON'T KNOW." (TR. 107-108).