25:0384(29)NG - POPA and Patent and Trademark Office, Commerce -- 1987 FLRAdec NG
[ v25 p384 ]
25:0384(29)NG
The decision of the Authority follows:
25 FLRA No. 29
PATENT OFFICE PROFESSIONAL
ASSOCIATION
Union
and
PATENT AND TRADEMARK
OFFICE, DEPARTMENT OF COMMERCE
Agency
Case Nos. 0-NG-589
0-NG-594
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Cases
These cases are before the Authority because of negotiability appeals
filed under section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute. Since both cases involve the same
parties, arise out of the same negotiations and present similar issues
concerning the negotiability of aspects of the Agency's performance
appraisal system, we have consolidated them for decision. The issue
before us is the negotiability of thirty-three Union proposals set forth
in Appendix A. /1/
II. Positions of the Parties
The Agency contends generally that the Union's proposals directly
interfere with management's rights to direct employees and assign work
under section 7106(a)(2)(A) and (b) of the Statute. /2/ The Union
contends generally that its proposals are negotiable as procedures under
section 7106(b)(2) and, in some instances, as appropriate arrangements
under section 7106(b)(3) of the Statute.
III. Analysis and Conclusions
A. Background
To place our consideration of the proposals in this case in context,
we will begin with a general review of the law governing the
negotiability of matters pertaining to performance appraisal systems.
As the Tight Circuit recently noted in American Federation of Government
Employees, Local 3748 v. FLRA, 797 F. 2d 612 (8th Cir. 1986), affirming
American Federation of Government Employees, Local 3748, AFL-CIO and
Agricultural Research Service, Northern States Area, 20 FLRA No. 55
(1985), "(t)he Authority has consistently drawn a line between language
concerning the application of performance standards and language
concerning the content of performance standards. The Authority has
established that language concerning application is negotiable and that
language concerning content is outside management's duty to bargain."
(Footnotes omitted.) Id. at 615.
This distinction was set forth in the first two Authority decisions
to address the negotiability of performance appraisal systems, National
Treasury Employees Union and Department of the Treasury, Bureau of the
Public Debt, 3 FLRA 769 (1980) ("Bureau of the Public Debt"), affirmed
sub nom. National Treasury Employees Union v. FLRA, 691 F. 2d 553 (D.C.
Cir. 1981) and American Federation of Government Employees, AFL-CIO,
Local 32 and Office of Personnel Management, Washington, D.C., 3 FLRA
784 (1980) ("Office of Personnel Management"). In Bureau of the Public
Debt, the Authority determined that management's rights to direct
employees and assign work under section 7106(a)(2)(A) and (B) of the
Statute include the right to establish performance standards and
identify critical elements. In particular, management has the right to
determine the quantity, quality, and timeliness of employees' work
products and to establish employees' work priorities. In upholding the
Authority's decision in Bureau of the Public Debt, the District of
Columbia Circuit described these determinations as being "at the very
core of the successful management of . . . the public service operations
of a federal agency." NTEU v. FLRA, 691 F 2d at 563. The proposal at
issue in Bureau of the Public Debt prescribed a specific quantitative
work requirement: processing 9 batches an hour.
Based on the rationale of Bureau of the Public Debt, the Authority
subsequently found nonnegotiable proposals which determined the quality
of work which management would require of employees (see, for example,
American Federation of Government Employees, Local 1760, AFL-CIO and
Department of Health and Human Services, Social Security Administration,
15 FLRA 909 (1984) (Union Proposals 1-6)) and the timeliness of employee
work (see, for example, National Federation of Federal Employees,
Council of Consolidated SSA Locals and Department of Health and Human
Services, Social Security Administration, 17 FLRA 657 (1985) (Union
Proposal 2), rev'd as to other matters sub nom. Department of Health and
Human Services, Social Security Administration v. FLRA, 791 F. 2d 324
(4th Cir. 1986)).
Moreover, it is not necessary that a proposal prescribe a specific
work requirement as in Bureau of the Public Debt in order to be found
nonnegotiable. General criteria governing the determination of the
content of a performance standard or a critical element are similarly
nonnegotiable. See American Federation of Government Employees,
AFL-CIO, Local 1603 and U.S. Naval Hospital, Patuxent River, Maryland,
22 FLRA No. 60 (1986); American Federation of Government Employees,
AFL-CIO, Local 32 and Office of Personnel Management, 17 FLRA 790 (1985)
(Union Proposal 3). As the Ninth Circuit stated, in affirming an
Authority decision which found such criteria nonnegotiable:
Although the Union is correct in observing that none of these
proposals dictates the precise content or contours of a critical
element or a performance standard, they nevertheless restrict
agency discretion by mandating some substantive criteria for the
establishment of critical elements (or . . . performance
standards) . . . . (A) given critical element or performance
standard may be the sum of a number of discrete criteria, and . .
. the statute reserves for management not simply specification of
the whole, but also determination of its constituent parts. Nor
is the reasonableness of these proposals the issue; to specify
any criterion, however reasonable, is to invade management's
exclusive statutory preserve. (Emphasis in original; footnote
omitted.)
National Treasury Employees Union v. FLRA, 767 F. 2d 1315, 1317 (9th
Cir. 1985), affirming National Treasury Employees Union and Department
of Health and Human Services, Region 10, 13 FLRA 732 (1983)
(Supplemental Decision on Remand). See also AFGE, Local 3748 v. FLRA,
797 F. 2d at 617-618.
As the Authority has consistently held, enforcement of a general,
substantive criterion would permit arbitrators to substitute their
judgments as to the performance standards or critical elements which
management should adopt. American Federation of Government Employees,
AFL-CIO, Local 1968 and Department of Transportation, Saint Lawrence
Seaway Development Corporation, Massena, New York, 5 FLRA 70, 77-82
(1981) ("Saint Lawrence Seaway") (Union Proposal 4), affirmed sub nom.
American Federation of Government Employees, Local 1968 v. FLRA, 691 F.
2d 565, 572 (D.C. Cir. 1982), cert. denied, 461 U.S. 926 (1983). It is
impermissible, therefore, for an arbitrator to review performance
standards and critical elements under a substantive criterion. On the
other hand, an arbitrator may review management's application of its
already established standards and elements, to an employee in a
performance appraisal. See Office of Personnel Management, 3 FLRA at
789-93; Saint Lawrence Seaway, 5 FLRA at 80-81. See also NTEU v. FLRA,
767 F. 2d at 1318 (9th Cir. 1985) wherein the court characterized the
Authority's decision in Office of Personnel Management as permitting
"purely procedural review of management's application of its own
critical elements." (Emphasis in original.)
The proposals in this case concern various aspects of the Agency's
performance appraisal system. Based on the foregoing, our task in
assessing the negotiability of these proposals is primarily one of
determining, based on the record, whether they concern substantive
matters, such as the content of performance standards and critical
elements, or whether they concern the application of those standards and
elements and other nonsubstantive matters such as procedures.
B. Proposal Concerning Definition of Terms
Section 1.F
Section 1.F defines the phrase "quality of patent examining" for
purposes of the Agency's performance appraisal system in terms of the
patentability of allowed claims. That is, in appraising the quality of
a patent examiner's performance, the Agency would evaluate whether an
examiner's determination that a given claim is patentable meets legal
and regulatory requirements upon substantive, higher-level review. The
proposal would require management to establish standards for evaluating
the quality of employee performance which measure the patentability of
all claims allowed by an examiner. Conversely, the proposal would
preclude management from evaluating any other qualitative aspect of
employee performance, since those aspects of performance would fall
outside the definition. The effect of the proposal, therefore, is to
determine the content of the qualitative performance standards
established by management. Under the principle established in Bureau of
the Public Debt, Section 1.F. directly interferes with management's
right to direct employees and assign work and is outside the Agency's
duty to bargain. See also, Bureau of Prisons, Department of Justice and
American Federation of Government Employees, Local 148, 21 FLRA No. 15
(1986), slip op. at 3-7.
C. Proposals Concerning the Development and Implementation
of Performance Standards
1. Sections 3.E. and 3.F.
In general, Sections 3.E. and 3.F. provide criteria governing the
establishment of performance standards and rating levels. Section 3.E.
requires management, within a given job classification, to establish the
same performance standards and rating levels for employees performing
the same job functions. It also requires that where employees within a
job classification are performing similar job functions, any differences
in performance standards and rating levels shall be reasonably based on
differences in job functions. Section 3.F. likewise requires that where
employees in different job classifications are performing similar job
functions, the performance standards and rating levels for those
employees shall be comparable and any differences in standards and
levels shall be reasonably based on differences in job functions.
The part of Section 3.E. which requires management to establish the
same performance standards and rating levels for employees performing
the same job function is like the proposal found nonnegotiable in
National Federation of Federal Employees, Local 1497 and Headquarters,
Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado, 6
FLRA 9 (1981). The proposal in that case required that performance
standards be the same for employees having the same position
description. Relying on Bureau of the Public Debt, the Authority held
that the proposal in Lowry Technical Training Center directly interfered
with management's rights because it precluded management from
determining that the content of performance standards should be
different for employees having the same position description where, in
the judgment of management, such differences are warranted.
The Union, however, attempts to distinguish Lowry Technical Training
Center on the basis that Section 3.E. concerns job functions. This is
not a material distinction. The decisive factor in either case is the
restriction placed on management's exercise of its statutorily protected
discretion by the requirement that performance standards, or rating
levels, be the same. Therefore, for the reasons set forth in Bureau of
the Public Debt and Lowry Technical Training Center, this part of
Section 3.E. is outside the Agency's duty to bargain. /3/
The criteria governing the establishment of performance standards and
rating levels set forth in the remaining portion of Section 3.E. and
Section 3.F. would, standing alone, have the same effect as Union
Proposal 1 in Saint Lawrence Seaway. They would substantively restrict
the establishment of standards and levels and thus would directly
interfere with management's right to direct employees and assign work.
The Union argues that these Sections are negotiable because they
would permit management to vary those standards and levels from the
proposed criteria to the extent that management provides adequate
written justification. The question therefore is whether the
requirement of adequate written justification for variances also
directly interferes with management's right to establish performance
standards and rating levels.
The effect of this aspect of Sections 3.E. and 3.F. is to allow an
arbitrator to evaluate whether there is adequate justification for those
performance standards and rating levels which differ from the
requirements of the proposed criteria and to invalidate those for which
management does not provide such justification. As the Union
acknowledges, this part of the proposals is intended to provide a review
procedure for variances from the proposed criteria and a "basis (by
means of the term 'adequate') for negating unwarranted variances." Union
Petition for Review at 6. See generally id. at 6-7. The requirement
for "adequate written justification would have the effect of authorizing
an arbitrator to review the reasons given by management for establishing
its performance standards and rating levels and to preclude those which
do not, in the arbitrator's judgment, meet that requirement. In order
to determine whether there is "adequate justification" for standards and
levels alleged to vary from the proposed criteria, an arbitrator would
be required to assess management's explanation of its operating needs
and priorities and its determinations as to the levels of productivity
needed to meet those needs and priorities. Moreover, the arbitrator
would be required to judge whether those explanations and determinations
are sufficient to justify the standards and levels which management had
established. In making these determinations, an arbitrator would, in
effect, be required to substitute his judgment as to how the Agency
should be run for that of management. See AFGE, Local 3748 v. FLRA, 797
F. 2d at 617-18.
The Union argues, however, that the criteria set forth in these
proposals do not constitute a substantive limitation on management's
rights under the Statute. Rather, the Union contends that they
establish a general, nonquantitative standard of review, like the "fair
and equitable" standard of Union Proposal 5 in Office of Personnel
Management. The Authority specifically found in that case that the
proposed criterion for arbitral review concerned only the application of
performance standards to employees and did not affect management's
discretion to determine the content of those standards. The essence of
the Union's argument in this case is that these proposals do concern the
application of performance standards and rating levels, since such
standards and levels are applied to employees, and thus become subject
to being grieved under the proposed review criteria, as soon as they are
put into effect at the beginning of an appraisal period.
Even assuming that this contention is true, it is not dispositive.
The dispositive consideration is not when the standards and levels are
"applied," so as to be subject to review, but whether the proposals have
the effect of limiting management's determination of the content of
those standards and levels or whether they have the effect of limiting
how those standards and levels are used in the appraisal of employees.
The relevant distinction is between proposals, for example, which seek
to ensure that performance standards are the same for similarly situated
employees and proposals which require that all employees working under a
given standard have that standard applied to them in the same way. See
National Treasury Employees Union and Department of the Treasury, U.S.
Customs Service, 9 FLRA 983, 989 (1982). Proposals of the former type,
such as Sections 3.E. and 3.F., constitute substantive limitations on
management's right to establish performance standards and determine
rating levels and thus are outside the Agency's duty to bargain.
2. Section 3.G.
Section 3.G. provides that an employee may not be adversely evaluated
in the critical element of courtesy to the public unless there are at
least three complaints against that employee which have been
substantiated by investigation. Management would be precluded from
determining, for example, that two instances would be the minimum
necessary to constitute unacceptable performance. In effect, therefore,
this proposal establishes the minimum standard for unacceptable
performance in the area of courtesy. Because it restricts management's
discretion to determine the content of a performance standard, Section
3.G. has the same effect, and is outside the duty to bargain for the
same reason, as the proposal in Bureau of the Public Debt.
The Union argues that Section 3.G. establishes a procedure under
section 7106(b)(2) governing the implementation of the courtesy standard
and does not concern the content of that standard. It is intended,
accoridng to the Union, to insure that management's standard -- which is
very general and subject to differing interpretations -- is reasonably
and accurately applied. However, the Union fails to distinguish between
determining what the standard is to be, for example, defining the type
and amount of discourteous conduct which will be unacceptable, as in
Section 3.G., and prescribing how the standard is to be used in
evaluating employee performance, for example, providing that all
complaints must be investigated before being used as evidence. Compare
National Treasury Employees Union and Internal Revenue Service, 8 FLRA
30 (1982) (requirement to confirm statistical performance data by
personal observation is negotiable).
3. Sections 3.H. and 3.J.
Section 3.H. provides a test for determining, prior to the
implementation of a performance appraisal plan and after every third
year, the objectivity of the units of measurement used by management in
those performance standards which apply to employees' written work.
Specifically, the proposal establishes a process whereby a random sample
of employees' written work is reviewed by supervisory personnel and the
results of the review are checked to determine whether application of
the units of measurement produced uniform appraisal ratings. The
disputed portions of the proposal are those which require a specific
degree of uniformity (90%) in appraisal results in order to verify the
objectivity of the units of measurement, and those which require
management, where results are not uniform, to develop new units of
measurement that will meet the test or modify the existing units until
they do so. In short, Section 3.H. has the effect of preventing
management from using in its performance standards units of measurement
which do not meet these requirements.
The first paragraph of Section 3.J prescribes a process for
determining whether the Agency's performance standards permit the
accurate evaluation of employee performance to the maximum extent
feasible, as required by 5 U.S.C. Section 4302(b)(1). /4/ Specifically,
where the Union suggests a performance standard which is both feasible
and more accurate than the standard established by management, the
proposal requires management either to adopt that suggested by the Union
or to develop one which is at least as accurate. Disputes as to
accuracy and feasibility may be submitted to an arbitrator, who would
retain jurisdiction until the standard established by management permits
accurate evaluation of employee performance at least to the same extent
as that proposed by the Union. In any case, a performance standard
which does not meet that requirement, as interpreted by an arbitrator,
may not be applied in the evaluation of employee performance.
The second paragraph of Section 3.J. lists specific factors which, if
included in a performance standard, would prevent that standard from
permitting accurate evaluations as required by 5 U.S.C. Section 4302.
The significance of these factors in terms of the establishment of
performance standards is explained in connection with the procedure
outlined in the first paragraph of Section 3.J. Whenever the Union
develops a standard which excludes the cited factor, that standard
would, by definition, under the second paragraph, permit more accurate
evaluation of employee performance than a management standard which did
not exclude them. Consistent with the terms of the procedure,
therefore, management would be required to modify its standards, since
those standards would not be in compliance with law.
The Union essentially argues that Sections 3.H and 3.J. merely
implement the requirements of 5 U.S.C. Section 4302(b)(1). It cannot be
assumed, however, that in every instance 5 U.S.C. Section 4302 would
invalidate performance standards which failed to produce 90% uniformity
in appraisal results or have failed to make allowances for the
prescribed factors. Whether less than 90% uniformity in appraisal
results, or failing to take those factors into account, would make it
less feasible for performance standards to permit objective and accurate
evaluations of employee performance would depend on the facts of an
individual case and could not be determined beforehand. Under
appropriate circumstances, performance standards might be established by
management which do not achieve 90% uniformity in appraisal results or
do not make allowances for the factors set forth in Section 3.J. but
which nevertheless permit objective and accurate evaluation of employee
performance to the maximum extent feasible.
The Merit Systems Protection Board, with the concurrence of the
courts, has held that the requirements of 5 U.S.C. Section 4302 were
intended by Congress to provide agencies with a measure of flexibility
in establishing performance standards. Wilson v. Department of Health
and Human Services, 770 F. 2d 1048, 1052 (Fed. Cir. 1985). Those
requirements were not intended to produce rigid, mechanical standards
which attempt to absolutely eliminate any subjective judgment. Id.; De
Pauw v. U.S. International Trade Commission, 782 F. 2d 1564, 1566 (Fed.
Cir. 1986); Adkins v. Department of Housing and Urban Development, 781
F. 2d 891, 896 (Fed. Cir. 1986). In our view, consistent with the
foregoing, Section 3.H. and Section 2.J. require a precision in the
formulation of performance standards beyond that which is mandated in 5
U.S.C. Section 4302. That is, these proposals do not merely embody or
implement the requirements of law. To the extent that they do not,
these proposals would constitute separate, additional contractual
limitations on the establishment of performance standards. They would
thus preclude management from establishing performance standards which
it would legally be entitled to establish, that is, standards which
though failing to produce 90% uniformity of appraisal results, as
required by Section 3.H., or to make allowance for the factors specified
in Section 3.J., are nevertheless consistent with law. In thus
prescribing separate, additional contractual criteria which restrict the
establishment of performance standards, Sections 3.H. and 3.J. directly
interfere with management's rights and are outside the Agency's duty to
bargain. /5/ See American Federation of Government Employees, AFL-CIO,
Local 1603 and U.S. Naval Hospital, Patuxent River, Maryland, 22 FLRA
No.60 (1986).
Moreover, we agree with the Agency that arbitrators, for example, in
enforcing the provisions of the second paragraph of Section 3.J. through
the process outlined in the first paragraph of that proposal, would of
necessity be substituting their judgment as to the feasibility of a
performance standard for that of management. For the reasons stated
above, arbitrators functioning under the first paragraph of Section 3.J.
would not simply be determining whether a performance standard complied
with law. Contrary to the Union, therefore, we are not dealing with
proposals that are distinguishable from Saint Lawrence Seaway. That is,
we are not presented with a proposal which simply requires that
performance standards be established "in accordance with law" as provied
in section 7106(a)(2). Rather, the proposals here present precisely the
circumstances covered by Saint Lawrence Seaway and subsequent cases,
namely, they provide a contractual standard which authorized arbitral
review of the content of performance standards. See Social Security
Administration, Office of Hearings and Appeals, Region II and American
Federation of Government Employees, Local 1760, 21 FLRA No. 86 (1986);
Bureau of Engineering and Printing, U.S. Department of the Treasury and
Washington Plate Printers Union, Local No. 2, IPDEU, AFL-CIO, 20 FLRA
No. 39 (1985).
4. Section 3.K.
Based on the record in this case, we find that Section 3.K.
prescribes criteria for the establishment of performance standards and
rating levels rather than, as the Union contends, a general
nonquantitative standard of review for the application of those
standards and levels. Examination of the various subsections of the
proposal, which purport to define what is "fair, equitable, and
reasonable" within the meaning of the proposal, indicates that each one
restricts the establishment of rating levels. In particular, subsection
1 provides that any rating level for the granting of a within grade
increase which cannot be met by more than 5 percent of a statistically
normal population of employees is not "fair, equitable, and reasonable."
Subsection 2 precludes management from establishing any level based on
an average of employees' past performance which does not make allowances
for "reasonable deviation" from the average. Subsection 3 precludes
management from establishing any rating level which is based primarily
on the amount of work employees are physically able to perform without
taking into account the negative effects on employee morale of such a
level. By dictating what a rating level must be in order to be "fair,
equitable and reasonable," Section 3.K. has the same effect as Union
Proposal 3 in American Federation of Government Employees, AFL-CIO,
Local 32 and Office of Personnel Management, 17 FLRA 790, 792 (1985).
In that case, the Authority held that a proposal which required
performance standards themselves to be "fair, equitable and reasonable"
directly interfered with management's right to direct employees and
assign work. Because Section 3.K. similarly would restrict management's
determination of the content of rating levels, it is nonnegotiable under
section 7106(a)(2)(A) and (B).
The effect of those subsections as restrictions on management rights
demonstrates that the proposal establishes substantive criteria
governing the determination of rating levels and performance standards,
rather than a criterion governing review of the manner in which those
levels and standards are used to evaluate employees. The Union's
attempt to distinguish this proposal from the Authority's decision in
Bureau of the Public Debt by bringing it within the holding in American
Federation of Government Employees, AFL-CIO, Local 3804 and Federal
Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217
(1982) (Union Proposal 2) is therefore without support. The operative
effect of Section 3.K., like that of the proposal in Bureau of the
Public Debt, is to restrict management's decision as to the contend of
performance standards and rating levels, rather than, as was the case in
Office of Personnel Management and Federal Deposit Insurance
Corporation, to provide a basis for review of management's
implementation of those standards and levels.
We turn now to the question of whether Section 3.K., in spite of the
fact that it interferes with management's rights, is nevertheless
negotiable as an appropriate arrangement for employees adversely
affected by the exercise of those rights within the meaning of section
7106(b)(3). The threshold question is whether the proposal is an
"arrangement" for adversely affected employees. See National
Association of Government Employees, Local R14-87 and Kansas Army
National Guard, 21 FLRA No. 4 (1986). In our view, because Section 3.K.
concerns management's determination of the content of performance
standards it does not concern such an "arrangement" because the
establishment of performance standards does not by itself adversely
affect employees. See Department of Health and Human Services, Social
Security Administration v. FLRA, 791 F.2d 324 (4th Cir. 1986), reversing
National Federation of Federal Employees, Council of Consolidated SSA
Locals and Department of Health and Human Services, Social Security
Administration, 17 FLRA 657 (1985). To paraphrase the Court, employees
are not adversely affected because the requirements of their jobs are
changed. Any adverse effect will come when an action is taken against
an employee based upon the appliction of those job requirements to that
employee. Accord Alford v. Department of Health, Education and Welfare,
1 MSPB 305 (1980) (employees may not appeal from the Agency's
development of performance standards for their positions, but only from
actions taken against them on the basis of those standards). We need
not determine, therefore, whether Section 3.K. is an "appropriate"
arrangement since it does not qualify for consideration under section
7106(b)(3). Thus, for the reasons stated above, Section 3.K. is outside
the Agency's duty to bargain.
D. Proposals Concerning the Development and Implementation
of Timeliness Standards
1. Section 4.A.
The first sentence of Section 4.A. requires management to take into
account in its timeliness standards the fact that employees must make
decisions as to the priorities to be given the differing requirements of
their work assignments. The second sentence concerns situations in
which employees are working under timeliness standards that have been
defined -- in accordance with the first sentence -- to take into account
the fact that employees must set their own priorities. This part of the
proposal provides that where employees encounter conflicts between
timeliness goals and other goals they should give priority to
qualitative work requirements over quantitative work requirements unless
management has explicity set different priorities. /6/
By requiring management to make allowance in its timeliness standards
for the fact that employees must make decisions among conflicting work
requirements, the first sentence of Section 4.A. has an effect similar
to a portion of the proposal at issue in International Federation of
Professional and Technical Engineers, Local 25 and Department of the
Navy, Mare Island Naval Shipyard, 13 FLRA 433, 437-438 (1983). The
final disputed sentence of that proposal required critical elements and
performance standards to recognize that professional work is such that
it cannot be standardized in relation to a given period of time. The
Authority found that proposal to be nonnegotiable because it interfered
with management's rights. Though that proposal specifically precluded
the establishment of quantitative elements and standards for
professional employees, that fact does not distinguish the Mare Island
decision from this case, where the restriction is more general. In
either instance, the effect of the proposal is to restrict management's
right to determine the content of performance standards. The degree of
specificity of the restriction is not dispositive. See our discussion
at section III. A. of this decision. For the reasons set forth in Mare
Island, therefore, the first sentence of Section 4.A., by requiring that
timeliness standards make allowance for employees' need to determine
their own work priorities, directly interferes with management's right
and is outside the Agency's duty to bargain. Compare American
Federation of Government Employees, AFL-CIO, General Committee of AFGE
for SSA Locals and Social Security Administration, 23 FLRA No. 43 (1986)
(Union Proposal 4) (proposal providng that errors involving judgmental
issues will be for information purposes only does not interfere with
management's right to determine content of performance standards).
Contrary to the Union's argument, moreover, because the first sentence
of Section 4.A. explicitly concerns the determination of the content of
management's timeliness standards, it cannot be found to be a negotiable
standard of review for the application of those standards to employees.
Finally, since the first sentence of section 4.A. is nonnegotiable
and the Union did not request a separate ruling on the second sentence
of that proposal, we will not consider the second sentence further here.
See American Federation of Government Employees, AFL-CIO, Local 1940
and Department of Agriculture, Plum Island Disease Center, 16 FLRA 816,
n. 2 (1984).
2. Section 4.C.
Under the terms of Section 4.C., evidence that at least 95% of the
employees working under a given timeliness standard in the preceding
fiscal year did not meet the standard would establish that the standard
is prima facie unreasonable and, absent the requisite justification,
would preclude management from putting the standard into effect. In
essence, therefore, the proposal establishes a criterion of
reasonableness for all timeliness standards, provides a test for
determining whether such standards meet the criterion, and, ultimately,
conditions management's ability to put those standards into effect on
the sufficiency of the justification offered for them.
Section 4.C. therefore has the same effect on management's right to
establish performance standards as Sections 3.E., 3.F., and 3.K.
considered above. As with those sections, management may, in the final
analysis, avoid the restrictions imposed on the establishment of
performance standards by the criterion and test contained in the
proposal if it provides a sufficient justification for the standards
which do not meet those requirements. However, as indicated in
connection with the disposition of those sections, the requirement that
management provide some justification for the performance standards
which it has established, rather than preserving management's right to
determine the content of those standards, is only a further restriction
of management's rights. Thus, for the reasons more fully set forth in
connection with Sections 3.E., 3.F. and 3.K., Section 4.C. is outside
the duty to bargain. See American Federation of Government Employees,
Local 3748, AFL-CIO and Agricultural Research Service, Northern States
Area and American Federation of Government Employees, AFL-CIO, Local
3365 and Department of Agriculture, Forest Service, Black Hills National
Forest, 20 FLRA No. 55 (1985), affirmed sub nom. American Federation of
Government Employees, Local 3748 v. FLRA, 797 F.2d 612 (8th Cir. 1986).
Moreover, contrary to the Union, Section 4.C. does not provide a
general, nonquantitative standard of review governing the application of
performance standards to employees. As the Union states, the purpose of
this proposal is to provide a "a baseline for judging the reasonableness
of a timeliness standard." Union Response to Agency Statement of
Position at 16. As discussed more fully in connection with Sections
3.E., 3.F. and 3.K. above, Section 4.C. is concerned with the content of
the performance standard itself and not with the manner in which it is
used to evaluate employee performance. For the reasons set forth in
connection with those Sections, therefore, Section 4.D. is
distinguishable from the proposals found negotiable in Office of
Personnel Management and American Federation of Government Employees,
AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago
Region, Illinois, 7 FLRA 217 (1981) (Union Proposal 2).
3. Section 4.D.
Section 4.D. provides that timeliness standards should be stated in
terms of working days on which an employee is present at work (that is,
as opposed to calendar days alone). The proposal thus concerns the
manner in which time spent performing a given element of a job is to be
counted under the timeliness standard for that element and has the same
effect as Union Proposals 1-5 in National Treasury Employees Union and
Department of the Treasury, Internal Revenue Service, 7 FLRA 235 (1981),
relating to the manner in which management would count specific items of
work in evaluating the quantitative aspects of employee performance.
The Authority held that those proposals constituted negotiable
procedures under section 7106 (b)(2) of the Statute. For the reasons
more fully set forth in the Internal Revenue Service decision,
therefore, Section 4.D. likewise establishes a negotiable procedure
under the Statute and is within the Agency's duty to bargain.
4. Section 4.E.
Section 4.E. concerns situations in which employees are required
simultaneously to meet timeliness standards for different aspects of
their jobs and, without being able to devote all their available work
time to any one aspect, must make decisions regarding the allocation of
their efforts. The proposal addresses such situations by permitting
employees to determine the timeliness standards which will apply in
their individual cases and by imposing on management an obligation to
act affirmatively to set different standards. In essence, the proposal
prevents management from enforcing the standards which it previously
established and requires that the substantive requirements of those
standards be changed. Moreover, the proposal would permit arbitrators
to limit the timeliness standards established by management by
subjecting those standards to review as to whether they conflict and
thus whether management should have permitted them to stand as
substantive performance requirements without modification. For these
reasons, we find that Section 4.E. directly interferes with management's
right to determine the content of performance standards and is outside
the Agency's duty to bargain. See National Treasury Employees Union and
Department of Health and Human Services, Region 10, 13 FLRA 732 (1983)
(Supplemental Decision on Remand), affirmed sub nom. National Treasury
Employees Union v. FLRA, 767 F.2d 1315 (9th Cir. 1985).
In our view, Section 4.E. is distinguishable from Union Proposal 4 in
American Federation of Government Employees, AFL-CIO, General Committee
of AFGE for SSA Locals and Social Security Administration, 23 FLRA No.
43 (1986). In that case, the proposal concerned employee choices of
actions previously authorized by management. Thus, unlike Section 4.E.,
employees under that proposal would not be permitted to establish their
own requirements nor would management be obligated to modify its
requirements. The proposal in that case, therefore, did not concern the
content of performance standards, as does Section 4.E.
Finally, because Section 4.E. concerns the content of performance
standards, it does not constitute an "arrangement" for employees
adversely affected by the exercise of management's rights within the
meaning of section 7106(b)(3). See the discussion of Section 3.K.
above.
5. Section 4.F.
Section 4.F. requires management to draft either timeliness standards
or productivity standards so as to take into account conflicts which may
develop between the requirements of those standards. The proposal is
intended to insure that management officials consider "the flexibility
of employees to be efficient when . . . exercising their authority to
establish performance standards." Union Response to Agency Statement of
Position at 18. Section 4.F., therefore, is designed to affect
management's decision as to the content of its timeliness or
productivity standards. That is Section 4.F. would deal with the
problem of possible conflicts in employee work requirements by requiring
management to take that fact into account in establishing the content of
the performance standards themselves. Because it would in this way
affect the establishment of performance standards, Section 4.F. directly
interferes with management's rights and is outside the Agency's duty to
bargain.
6. Section 4.G.
Section 4.G. is concerned with the effect on the evaluation of
employee performance of the establishment of a particular performance
standard, in this instance, a possible standard of "production
constancy" for professional employees. Based on the record, such a
standard would be designed to measure the consistency with which
employees perform a given job function. The intent of the proposal is
to require management, when evaluating employees under the standard, to
take into account all the other job functions which are assigned to
those employees and to make allowances for the amount of time which such
additional functions take away from the time they are able to devote to
achieving "production constancy."
Section 4.G. therefore does not concern and would not restrict
management's decision as to what it will require with respect to
"production constancy," but rather is addressed to the the manner in
which the requirements management does impose are applied to employees
in evaluating them under the standard. The proposal attempts to
mitigate the effects of any possible rigid application of such a
standard to circumstances in which employees must meet a variety of
work-related responsibilities, over many of which, as the Union
maintains, employees themselves have no control, by requiring management
to make allowances for those circumstances in its appraisal of
employees' work under the standard. Like Union Proposal 2 in Federal
Deposit Insurance Corporation, Chicago Region, 7 FLRA at 223-25, Section
4.G. would apply only in the context of the application to an employee
of performance standards established by management. Like that proposal,
Section 4.G. constitutes a more specific statement of the "fair and
equitable" criterion to be utilized in the review of management's
application of its performance standards to an employee. For the
reasons set forth in Federal Deposit Insurance Corporation, Chicago
Region, Section 4.G. does not directly interfere with management's right
to establish performance standards and is within the Agency's duty to
bargain.
7. Sections 4.H. and 4.I.
Sections 4.H. and 4.I. specify circumstances under which examiner and
non-examiner unit employees, respectively, will not be adversely
evaluated for failure to meet timeliness standards. In essence, these
proposals require management to make allowances in its evaluations of
employees so as to not to rate them adversely on the performance of work
which, for the reasons stated, it is not possible to perform or which
would require more time to perform than is actually available under the
standard. These proposals do not concern the content of the timeliness
standards under which employees perform their work, therefore, but
rather the application of such standards to the differing work
situations of those employees. These proposals, like Section 4.G.,
establish criteria whereby the application of timeliness standards to an
employee may be reviewed in a grievance. For the reasons set forth in
the discussion of Section 4.G., Sections 4.H. and 4.I. likewise are
within the Agency's duty to bargain. Moreover, because these proposals
do not interfere with management's rights, we need not decide whether
they constitute "appropriate arrangements" under section 7106(b)(3).
We also note that Section 4.H. is identical to a portion of the
Agency's performance appraisal system for patent examiners under Element
II, "Docket Management." Other Union proposals at issue in this case,
for example, Sections 6.B., 7.B., and 9.B., are also identical to
portions of the Agency's performance appraisal system under Element I,
"Patent Examining." Exhibit D attached to Agency's Statement of Postion.
If a particular matter is otherwise negotiable, the fact that the
matter is a part of an Agency's appraisal system will not in and of
itself render it nonnegotiable. On the other hand, if a particular
subject matter contained in an Agency's performance appraisal system
constitutes an exercise of management's rights under section 7106(a) of
the Statute, the parties cannot bargain about including that portion of
the system in a collective bargaining agreement since management would
be bound by that provision for the life of the contract and would be
precluded from discontinuing or modifying it. See National Association
of Air Traffic Specialists and Department of Transporation, Federal
Aviation Administration, 6 FLRA 588 (1981) (Union Proposals I-III).
8. Section 4.J.
Section 4.J. requires management, in establishing timeliness
standards which subtract points from an employee's performance rating
for failure to meet the standards, to provide also in such standards for
the addition of points to an employee's rating where work is completed
in less than half the time required. By mandating standards which
contain provision for the addition of points the proposal has the same
effect as the proposal at issue in Bureau of the Public Debt: it
prescribes the content of a performance standard. Thus, for the reasons
set forth fully in Bureau of the Public Debt, Section 4.J. directly
interferes with management's right to direct employees and assign work.
9. Section 4.K.
Section 4.K. provides that, except for certain specified
circumstances, patent examiners will be required to comply with
applicable timeliness standards only once during each quarter of an
appraisal period. As explained by the Union, the proposal is intended
to preserve employee flexibility to manage time and plan work so as to
allow thorough examination of claims instead of concertrating on meeting
deadlines. According to the Union, patent examiners have no control
over the number of patent applications, and amendments thereto, filed in
a given period. Moreover, the complexity of the issues involved in each
application varies. Patent examiners therefore cannot always meet the
Agency's mission of issuing valid patents within the limited time
available under the constraints of the timeliness standards. Union
Response to Agency Statement of Position at 22. For these reasons, the
Union contends that Section 4.K. provides an appropriate arrangement,
under section 7106(b)(3), for employees adversely affected by the
establishment of timeliness standards.
The effect of Section 4.K. is to provide patent examiners with a
significant block of worktime which will not be counted against them in
an evaluation of their performance under applicable timeliness
standards. The proposal therefore has essentially the same effect as
Union Proposal 2 in American Federation of Government Employees,
AFL-CIO, Local 1923 and Department of Health and Human Services, Social
Security Administration, 12 FLRA 17 (1983), which afforded certain "time
allowances" for employees in the performance of specific job
requirements. The Authority held that the proposal required the agency
to negotiate on the content of performance standards and thus directly
interfered with management's rights. For the reasons set forth in the
Social Security Administration decision, Section 4.K., by prescribing a
similar "time allowance," is nonnegotiable under section 7106(a)(2)(A)
and (B). See also, American Federation of Government Employees,
AFL-CIO, Local 32 and Office of Personnel Management, 18 FLRA No. 37
(1985).
Moreover, for the reasons discussed in connection with Section 3.K.
above, we need not determine whether Section 4.K. is an "appropriate
arrangement," since, like that proposal, it does not qualify for
consideration under section 7106(b)(3).
E. Proposal Concerning Patent Examiner Authority Levels
Section 5
Section 5 establishes a criterion -- inverse proportionality based on
signatory authority -- for determining the level of performance (that
is, the number of errors) needed to justify the denial of a within-grade
increase or an unacceptable rating in patentability determination and
action taking. The proposal effectively precludes management from
setting levels of performance in those standards which do not conform to
the required proportionality. Therefore, Section 5 has the same effect
on management's right to determine the content of the standard for a
given level of performance as the proposals in National Treasury
Employees Union and Internal Revenue Service, 13 FLRA 329 (1983). In
that case, the Authority, relying on National Treasury Employees Union
and U.S. Nuclear Regulatory Commission, 13 FLRA 325 (1983), held that a
proposal which establishes levels of performance in specific critical
elements according to a formula based upon certain averages directly
interfered with management's rights. For the reasons set forth more
fully in Nuclear Regulatory Commission, therefore, Section 5, by
restricting management's discretion to determine the levels of
performance sufficient for certain ratings, directly interferes with
management's rights to direct employees and assign work and is outside
the Agency's duty to bargain. See also American Federation of
Government Employees, AFL-CIO, Local 32 and Office of Personnel
Management, Washington, D.C., 14 FLRA 6, 12-14 (1984) (Union Proposal 6)
(nonnegotiability of performance levels for within-grade increases),
enforced sub nom. FLRA v. OPM, Washington, D.C., 778 F. 2d 844 (D.C.
Cir. 1985).
F. Proposals Concerning the Implementation of the
Performance Standards of Patentability Determination for
Patent Examiners
1. Section 6.B.
Section 6.B. concerns the Agency's standard for "Patentability
Determination", which has been established in the Agency's performance
appraisal system. See Exhibit D attached to the Agency's Statement of
Position. The Agency's standard is stated as whether there has been any
"clear error" in the allowance of a patent claim. The proposal would
further define what constitutes "clear error" by reference to whether a
"reasonable" Supervisory Primary Examiner would have allowed the claim.
The proposal therefore prescribes the quality of claim allowance to be
expected of patent examiners and how their performance under the
standard for "Patentability Determination" will be evaluated.
In prescribing the content of the standard for patentability
determination, that is, the kind of care required of examiners in
allowing claims, Section 6.B. has the same effect as the proposal at
issue in Bureau of the Public Debt, 3 FLRA 769 (1980). While Section
6.B. does not prescribe a specific standard for a particular personnel
action, as did that in Bureau of the Public Debt, it nevertheless
establishes the overall standard of quality in claims allowance which
employees will be required to achieve and against which their
performance will be measured. In determining a qualitative requirement
of employees' jobs, Section 6.B., for the reasons set forth more fully
in Bureau of the Public Debt, directly interferes with management's
rights and is outside the duty to bargain.
The Union argues that the proposal concerns the implementation of a
standard already established by management and, thus, that it is to the
same effect as American Federation of Government Employees, AFL-CIO,
Local 32 and Office of Personnel Management, Washington, D.C., 3 FLRA
784, 789 (1980) (Union Proposal 5) and American Federation of Government
Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance
Corporation, Chicago Region, Illinois, 7 FLRA 217, 223 (1981) (Union
Proposal 2). To the contrary, while those proposals establish standards
of review governing the application of performance standards, that
portion of Section 6.B. which pertains to the definition of "clear
error" is clearly substantive. The proposal does not concern how the
"clear error" standard should be applied but what "clear error" means,
that is, what kind of performance constitutes "clear error." See Saint
Lawrence Seaway Development Corporation, 5 FLRA at 70 (Union Proposal
1). Moreover, contrary to the Union, the fact that the proposal does
not specify a particular amount of work to be done, for example 9
batches per hour, as in Bureau of the Public Debt, is irrelevant. See
Saint Lawrence Seaway Development Corporation (Union Proposal 1).
Finally, for the reasons discussed in connection with Section 3.K.
above, we need not determine whether Section 6.B. is an "appropriate
arrangement," since, like that proposal, it does not qualify for
consideration under 7106(b)(3).
The Union also indicates that the matters set forth in Section 6.B.
have been adopted by management for inclusion in its performance
appraisal system pursuant to negotiations between the parties. However,
there is a crucial difference between management, as an exercise of its
statutory rights under section 7106(a), unilaterally adopting matters
proposed by the Union and, on the other hand, requiring management to
negotiate with the Union over the inclusion of those same matters in a
collective bargaining agreement. See the discussion of Section 4.H. and
4.I. above. The fact that the matters set forth in this Union proposal
are also set forth in the Agency's performance appraisal system
therefore is not dispositive as to negotiability of Section 6.B.
2. Section 6.C.
Section 6.C. prescribes a formula by which management must determine
the level of performance required to achieve a given rating in the area
of patentability determination. In essence, this formula requires that
the level of errors in patentability determination which is sufficient
for a given level of achievement or rating be established in terms of
the Patent Office-wide average for such errors as determined through
certain specified quality review procedures. Under the proposal, the
resultant average error rate is used to define, for example, the middle
range of performance constituting satisfactory performance.
By determining in this manner the content of the standard for
achieving various levels of performance, Section 6.C. has the same
effect as the proposals in National Treasury Employees Union and
Internal Revenue Service, 13 FLRA 329 (1983), which established the
levels of performance sufficient for various ratings based upon certain
specified averages. The Authority held, based on Nuclear Regulatory
Commission, 13 FLRA 325 (1983), that those proposals, by restricting
management's discretion to determine the levels of performance which it
would require of employees, directly interfered with management's
rights. For the reasons more fully set forth in Nuclear Regulatory
Commission, therefore, Section 6.C. directly interferes with
management's rights and is outside the Agency's duty to bargain.
G. Proposals Concerning the Implementation of the
Performance Standard for Action Taking for Patent
Examiners
1. Section 7.B.
Section 7.B., which has been established by the Agency as a part of
its performance appraisal system, concerns the standard for "Action
Taking," namely, whether there is "clear error" in the actions taken by
patent examiners in various areas, for example, the unreasonable
rejection of a patent claim. The proposal further defines the meaning
of "clear error," first, by prescribing the kind of care required of
patent examiners, that is, an action which would not have been allowed
by a reasonable Supervisory Primary Examiner, and, second, by
prescribing with specific examples what shall and what shall not be a
"reasonable action" by a patent examiner.
By prescribing the kind of care which patent examiners must exercise
with regard to actions taken in processing patent claims, Section 7.B.,
like Section 6.B., has the same effect as the proposal in Bureau of the
Public Debt, 3 FLRA 769 (1980). It prescribes the content of a
qualitative performance standard in the same manner as the proposal in
that case determined the content of a quantitative performance standard.
For the reasons set forth in Bureau of the Public Debt, Section 7.B.
directly interferes with those rights and is outside the duty to
bargain.
2. Section 7.C.
Section 7.C., which is virtually identical to a part of the Agency's
performance appraisal system, prescribes the levels of performance an
employee must achieve in order to receive a given rating in the area of
action taking. See Exhibit D attached to the Agency's Statement of
Position. For example, under the proposal, an employee will not be
rated less than satisfactory unless that employee has made serious and
repetitive errors in any one of the five areas set forth in the "Action
Taking" standard. The proposal therefore has the same effect as Union
Proposal 2 in Nuclear Regulatory Commission, and is outside the duty to
bargain for the reasons stated in that decision.
H. Proposals Concerning the Implementation of the
Performance Standard of Production Goal Achievement For
Patent Examiners
1. Section 9.B.
As to Section 9.B., under the Agency's performance appraisal system
the performance standard pertaining to "Production Goal Achievement" is
stated in terms of the degree to which an employee is able to accomplish
such goals. See Exhibit D attached to the Agency's Statement of
Position. The Agency's performance appraisal system contains a formula
for determining the degree to which a patent examiner has achieved a
particular production goal and a "schedule" for assigning a rating based
upon the degree of achievement. However, there is no equivalent formula
in the record for determining the goal itself, nor is there a "table"
correlating an employee's grade and examining authority with the
complexity of the "art" or area in which the employee works so as to
establish a particular production goal. On the other hand, though the
record contains no information as to how such goals were established, it
does indicate that the goals are stated in terms of the average amount
of examining time it is estimated should be used by a patent examiner to
process an application and varies according to the grade and examining
complexity of the area in which the examiner works. In essence, under
the Agency's appraisal system, the establishment of a particular
production goal for the processing of a given application determines the
standard by which employee performance will be measured, that is, the
length of time it should take the examiner to process a patent
application.
Turning to the proposal itself, where management assigns to a patent
examiner for processing an application in an area with which that
examiner is unfamiliar, Section 9.B. requires management to adjust the
production goal which it would normally establish for the application,
that is, afford the examiner more "examining time." In addition, where
the task of processing an application takes more time than was estimated
when the goal was initially decided upon, Section 9.B. requires
management to establish the actural amount of time used as the
production goal, unless such an amount of time is unreasonable. In
either case, therefore, the proposal requires management to change the
production goal which it had established for the type of work involved
and to adopt a different standard. By preventing management from
determining the content of the standard, Section 9.B. is therefore
outside the duty to bargain for the reasons stated in Bureau of the
Public Debt.
The Union contends that the proposal is an appropriate arrangement
under section 7106(b)(3) for employees adversely affected by the
assignment of unfamiliar "art." However, because Section 9.B. concerns
the content of performance standards it does not constitute an
"arrangement" for employees adversely affected by the exercise of
management's rights within the meaning of section 7106(b)(3). See the
discussion of Section 3.K. above. As to the Union's additional
contention that the subject matter of the proposal is already contained
in the Agency's performance appraisal system pursuant to discussions
with the Union, see the discussion of Section 6.B. above.
2. Section 9.C.
Under the first paragraph of Section 9.C., patent examiners shall
have three hours of nonexamining time, that is, time not subject to
appraisal, to familiarize themselves with the procedures for processing
reexamination applications when they are assigned such an application
for the first time. The record indicates that Congress has newly
provided for this type of application and, thus, such applications have
not previously been among examiners' regularly assigned duties. The
effect of the proposal, therefore, is to provide examiners an
opportunity to prepare themselves to perform this duty, when it is
assigned for the first time, before starting to do the work under a
production goal.
Contrary to the Agency, the proposal does not affect management's
right to establish production goals for work done on a reexamination
application, since it concerns merely a one-time-only period of
preparation to do that work. However, by providing for such a period of
preparation, the first paragraph of Section 9.C. has the same effect as
the proposal at issue in National Treasury Employees Union and
Department of the Treasury, Internal Revenue Service, 23 FLRA No. 36
(1986). In that case, we held that a proposal providing employees who
returned to their regular positions from a detail reasonable time to
familiarize themselves with relevant Agency instructions directly
interfered with management's right to assign work under section
7106(a)(2)(B) by establishing a priority for a particular work
assignment. The proposal here has a similar effect.
The Authority also held that the proposal in that case was a
negotiable appropriate arrangement under section 7106(b)(3). For the
Authority to consider whether a proposal is an appropriate arrangement,
a union must first demonstrate that employees have been or will be
adversely affected by management's exercise of its rights and that the
Union's proposal is intended to mitigate those adverse effects.
National Association of Government Employees, Local 14-87 and Kansas
Army National Guard, 21 FLRA No. 4, slip op. at 8 (1986). In cases
filed before our decision in Kansas Army National Guard, such as this
one, we will examine the record to determine whether any adverse effects
have been identified or whether such effects are reasonably foreseeable
based upon the nature of the matter in dispute.
The first paragraph of Section 9.C., like the proposal in Internal
Revenue Service, 23 FLRA No. 36, constitutes an "arrangement" for
employees adversely affected by the exercise of management's rights.
Like the proposal in that case, the first paragraph of Section 9.C.
would mitigate against the reasonably foreseeable adverse effect upon
employees of being evaluated on the performance of work which had not
previously been assigned to them. It would alleviate that burden by
permitting employees who need to become acquainted with new procedures
in order to perform new work assignments a period of time to do so. It
is, moreover, an "appropriate" arrangement within the meaning of section
7106(b)(3). Like the proposal in the Internal Revenue Service case, the
burden imposed on management's right to assign work by the three hours
of preparation afforded employees under the first paragraph of Section
9.C. is insubstantial compared to the benefit to employees, and to
management, of that preparation in terms of quality of work product.
For the reasons set forth in the Internal Revenue Service case,
therefore, we find the first paragraph of Section 9.C. to be a
negotiable appropriate arrangement under section 7106(b)(3). See also
American Federation of Government Employees, Local 3231 and Social
Security Administration, 22 FLRA No. 92 (1986) (Union Proposal 3).
In contrast, the second part of Section 9.C. concerns management's
determination of the production goal for work done in disposing of a
reexamination application. By requiring management to afford patent
examiners a reasonable amount of non-examining time in which to decide
whether to grant a reexamination application, the proposal precludes
management from establishing performance standards or production goals
which make the amount of time spent on that part of the process a
requirement of the job. The second part of Section 9.C. therefore has
the same effect as Union proposals 6 and 7 in American Federation of
Government Employees, National Council of Social Security Payment Center
Locals and Social Security Administration, Office of Program Service
Centers, Baltimore, Maryland, 7 FLRA 818, 820 (1982). Those proposals,
in essence, precluded management from establishing job requirements
pertaining to the size of work inventory. The Authority held, based
upon its decision in Bureau of the Public Debt, 3 FLRA 769, that by in
effect eliminating the size of inventories as an aspect of performance
appraisal, Union Proposals 6 and 7 directly interfered with management's
rights. Similarly, the second part of Section 9.C. directly interferes
with management's rights and is outside the Agency's duty to bargain.
The third part of Section 9.C. provides that where the actual amount
of time taken to process a reexamination application differs from the
production goal, the goal will be adjusted to reflect the actual time
used, unless it is unreasonable. This part has the same effect as
Section 9.B. By requiring management to modify the content of its
previously established standard and, in effect, adopt a different
standard, namely, the actual time used, Section 9.B. prescribes the
content of a performance standard and, thus, as did the proposal in
Bureau of the Public Debt, directly interferes with management's rights.
For the reasons set forth in Bureau of the Public Debt, therefore, the
third part of Section 9.C., which likewise prescribes the content of a
performance standard, directly interferes with management's rights and
is outside the Agency's duty to bargain.
3. Section 9.D.
Section 9.D. requires management to record in a special category the
amount of time spent by a patent examiner on a reexamination application
or an application from an unfamiliar area. The proposal does not
concern the amount of time within which the examiner will be required to
complete work on a given application, that is, a production goal, but
only the form in which management will record how long it actually took
to finish that work. Contrary to the Agency, therefore, the proposal
does not concern the manner in which patent examining will be done, nor
the tools and technical devices which will be used, so as to constitute
the "methods, means, and technology" utilized in performing the Agency's
work. See, for example, National Federation of Federal Employees, Local
541 and Veterans Administration Hospital, Long Beach, California, 12
FLRA 270 (1983). Rather, as the Union contends, Section 9.D. is a
procedure for implementing the record-keeping requirements of
management's production goal standard and would not prevent management
from determining the content of that standard. Therefore, Section 9.D.
constitutes a negotiable procedure under section 7106(b)(2) of the
Statute and is within the Agency's duty to bargain.
4. Section 9.E.
Section 9.E. would require the Agency to increase annually the time
limits which constitute the production goals for patent examiners in
proportion to the increase in the size of the search file. The proposal
establishes a formula, namely, proportionality, for determining on a
yearly basis the goals for patent examiners. Section 9.E. thus
prescribes, through the imposition of the criterion of proportionality,
the amount of time which will be afforded patent examiners to complete
review of a given application. This proposal, like the one in Bureau of
the Public Debt, determines the amount of work which could be required
of employees, and therefore directly interferes with management's rights
and is outside the duty to bargain. See also Veterans Administration
Local 1151, American Federation of Government Employees, AFL-CIO, and
Veterans Administration, 19 FLRA No. 84 (1985) (proposal requiring
adjustments to performance standards nonnegotiable). Moreover, for the
reasons discussed in connection with Section 3.K. above, we need not
determine whether Section 9.E. is an "appropriate arrangement," since,
like that proposal, it does not qualify for consideration under section
7106(b)(3).
5. Section 9.F.
Generally speaking, Section 9.F. has the effect of determining the
nature and the content of the job requirements as to production goals
which the Agency will include in its performance appraisal system. By
defining "production goals" as approximations of the amount of time
which will be required to process a patent claim and, consequently,
providing that they should not be considered job "expectancies or
quotas," the first paragraph precludes management from formulating
performance standards that are strict, precisely defined job
requirements. The second paragraph sets forth specific circumstances
which would be sufficient to rebut the prima facie levels contained in
Article VII, Section 2, of the parties' existing agreement. /7/
Considered solely as to that aspect which provides for the standards to
be prima facie, the proposal in effect determines the content of those
standards by obligating management to modify its job requirements. By
providing that employees who achieve a level of performance less than
that specified in the standard may nevertheleess, based upon a showing
that any of the stated circumstances apply, receive, for example, a
within-grade salary increase, the second paragraph of the proposal
effectively reduces the amount of work which management can require of
employees for that purpose. By requiring management in this manner to
adjust its production goals under the specified circumstances (as
opposed to modifying the results of the performance appraisal) and
restricting the effect of the production goal by excluding certain work
time therefrom, the third and fourth paragraphs of Section 9.F.
similarly preclude management from determining the content of its
performance standards.
By establishing criteria which have the purpose and effect of
requiring management to adjust its job requirements, Section 9.F. is
similar to the proposal in Veterans Administration Local 1151, American
Federation of Government Employees, AFL-CIO and Veterans Administration,
19 FLRA No. 84 (1985). That proposal required management to adjust the
content of performance standards in specified circumstances and the
Authority held it to be nonnegotiable under section 7106(a)(2)(A) and
(B). Section 9.F. likewise prescribes circumstances in which management
would be required to modify job requirements, and for that reason is
outside the Agency's duty to bargain. See also American Federation of
Government Employees, AFL-CIO, Local 12 and Department of Labor, 21 FLRA
No. 129 (1986) (Union Proposals 17 and 20). Moreover, for the reasons
discussed in connection with Section 3.K. above, we need not consider
whether Section 9.F. is an "appropriate arrangement," since, like that
proposal, it does not qualify for consideration under section
7106(b)(3).
6. Section 9.G.
Section 9.G. provides that time spent performing certain tasks will
be considered nonexamining time and excluded from the amount of time for
which employees are held accountable under the production goals. In
effect, the proposal requires management to change the significance of
the production goal as a measure of employee productivity and thereby
modifies the content of the performance standard of production goal
achievement. In a manner similar to Section 9.F. above, therefore,
Section 9.G. restricts management's right to determine the content of
performance standards and is outside the Agency's duty to bargain.
Moreover, for the reasons discussed in connection with Scetion 3.K.
above, we need not determine whether Section 9.G. is an "appropriate
arrangement," since, like that proposal, it does not qualify for
consideration under section 7106(b)(3).
7. Section 9.H.
Section 9.H. provides that performance ratings for patent examiners
will be assigned in accordance with Article VII, Section 2 of the
parties' existing agreement, /8/ in particular, that portion pertaining
to the granting or denying of within-grade pay increase. /9/ Under the
proposal, achievement of 75% of the assigned production goal is
sufficient performance to constitute an "acceptable level of competence"
on the factor of quantity warranting the granting of a within-grade
increase, /10/ unless management can provide adequate justification that
this level of productivity is insufficient. That is, in the absence of
any such justification management must grant a within-grade increase for
performance at that level. Management is thereby precluded from
determining that a higher level of performance on the factor of quantity
would be sufficient, absent the requisite justification. /11/
In prescribing the level of performance needed for an "acceptable
level of competence" on the factor of quantity warranting the granting
of a within-grade increase, Section 9.H. has the same effect as Union
Proposal 6 in American Federation of Government Employees, AFL-CIO,
Local 32 and Office of Personnel Management, Washington, D.C., 14 FLRA
6, 12-14 (1984). In that case, the proposal prescribed the quality of
performance which would evidence an "acceptable level of competence"
qualifying an employee for a within-grade salary increase. The
Authority held, relying on American Federation of State, County and
Municipal Employees, AFL-CIO, Council 26 and U.S. Department of Justice,
13 FLRA 578 (1984), that the proposal directly interfered with
management's rights. For the reasons more fully set forth in the Office
of Personnel Management and Department of Justice decisions, Section
9.H. likewise directly interferes with management's rights and is
outside the Agency's duty to bargain.
The Union argues that Section 9.H. does not bind management to a
particular quantitative level of productivity, since the proposal is
stated in terms of a percentage of the production goal and therefore
management can change the production goal if it determines that a higher
level of output is necessary for purposes of a within-grade increase.
Preserving management's discretion as to the production goal aspect of
the standard, while limiting that discretion as to the percentage aspect
of the standard, nevertheless precludes management from changing the
standard as to that aspect whereby it is limited. Consistent with its
rights under section 7106(a)(2)(A) and (B) of the Statute, however,
management cannot be restricted to determining the content of the
performance standards only through the establishment of the production
goal.
I. Proposal Concerning Performance Appraisals
1. Section 11.B.
Section 11.B. establishes four rating categories or levels for
evaluating employees' overall performance. It therefore is like the
proposal in Department of Justice, 13 FLRA 578 (1984), which required
management to establish five rating levels for individual critical
elements and three for overall performance. The Authority held that
that proposal directly interfered with management's rights through the
establishment of job requirements for various levels of performance.
For the reasons more fully set forth in the Department of Justice
decision, Section 11.B. is similarly outside the Agency's duty to
bargain. See also Department of the Air Force, Lowry Air Force Base,
Denver Colorado and American Federation of Government Employees,
AFL-CIO, Local 1974, 22 FLRA No. 47 (1986). /12/
Furthermore, Section 11.B. also prescribes the level of achievement
which will warrant a given overall rating, for example, outstanding
performance in one of the performance standards for the critical element
of patent examining. In this manner, the proposal would preclude
management from requiring, for instance, outstanding performance in at
least two standards for the critical element in order to warrant an
overall rating of outstanding. Section 11.B. therefore has the same
effect as Union Proposal 2 in Nuclear Regulatory Commission, 13 FLRA 325
(1983), which required negotiation on the standards for various rating
levels. The Authority held that an integral part of management's rights
to direct employees and assign work is the establishment of standards
for each performance level within an Agency's performance appraisal
system. For the reasons set forth in the Nuclear Regulatory Commission
decision, the proposal in this case also directly interferes with
management's rights and is outside the Agency's duty to bargain.
2. Section 11.D.
The portion of Section 11.D. which remains in dispute provides that,
for all evaluations, an employee will not be adversely evaluated for any
error which the employee has corrected prior to the evaluation. /13/ In
effect, therefore, Section 11.D. requires management to substantively
modify those performance standards which are formulated in terms of
errors in patent examining, for example, patentability determination and
action taking, so as to exclude as error under those standards any
actions which have been corrected by the employee prior to evaluation of
that employee's performance. In this manner, the proposal redefines
what constitutes an error in performance, effectively reducing the level
of performance which can be required of employees, and thus has the same
effect as Union Proposals 1-6 in American Federation of Government
Employees, Local 1760, AFL-CIO and Department of Health and Human
Services, Social Security Administration, 15 FLRA 909, 912-16 (1984).
Those proposals defined what constituted an error, prescribed the extent
to which management would consider certain mistakes in evaluating the
accuracy of work, and assigned varying degrees of importance to the
enumerated categories of errors. The Authority found those proposals
nonnegotiable, citing Bureau of the Public Debt, 3 FLRA 769 (1980), and
Nuclear Regulatory Commission, 13 FLRA 325 (1983), because they
determined the level of performance in terms of accuracy which is to be
deemed unacceptable and the degree to which it is unacceptable. Section
11.D. likewise affects management's determination of acceptable levels
of error and, for the reasons set forth in the Social Security
Administration decision, is outside the Agency's duty to bargain.
Moreover, by precluding errors which have been corrected from being
held against an employee in a performance appraisal, Section 11.D.
precludes management from holding employees accountable for those
errors. While the proposal would not necessarily prevent management
from disciplining employees for unacceptable performance, assuming an
employee had made enough uncorrected errors to warrant an unacceptable
rating under applicable performance standards, it would effectively
limit management's right to take disciplinary action by reducing the
number of errors which management could count toward a finding of
unacceptable performance. In short, the proposal restricts the basis
upon which management may take disciplinary action. Section 11.D.,
therefore, has the same effect as the proposal in American Federation of
Government Employees, Local 1822, AFL-CIO and Veterans Administration
Medical Center, Waco, Texas, 9 FLRA 709 (1982), where the Authority held
that by eliminating certain medication errors as possible grounds for
disciplinary action the proposal directly interfered with management's
right under section 7106(a)(2)(A) to discipline employees in the agency.
For the reasons set forth in the Veterans Administration Medical
Center, Waco, Texas decision, Section 11.D., by reducing the number of
errors which could be counted against an employee in a performance
appraisal and, therefore, which could possibly constitute grounds for
disciplinary action for unacceptable performance, similarly would
directly interfere with management's right to discipline employees under
section 7106(a)(2)(A) and is outside the Agency's duty to bargain.
3. Section 11.E.
Section 11.E. precludes management from denying an employee a
within-grade increase, or determining that an employee deserves an
unacceptable rating or any other disciplinary action, based upon that
employee's performance in the noncritical elements of his or her
position. /14/ In this regard, the Agency alleges, and the Authority
agrees, that the proposal directly interferes with management's right
under section 7106(a)(2)(A) of the Statute to discipline employees. As
the Agency argues, nothing in 5 U.S.C. Section 4303(a), 5 U.S.C. Section
4301(3), or 5 CFR Section 430.203 /15/ precludes management from
disciplining employees for reasons which include performance on
noncritical elements. Taken together, 5 U.S.C. Section 4303(a) and 5
U.S.C. Section 4301(3) provide that removal or reduction in grade for
reasons of unacceptable performance must be based on performance in one
or more critical elements. To this extent, therefore, the proposal
merely restates the requirements of law. On the other hand, neither law
nor regulation precludes management from denying an employee a
within-grade increase based on a summary rating of less than fully
satisfactory which results from ratings on both critical and noncritical
elements. To the extent that Section 11.E. would prevent management
from taking such an action because it is based in part on performance in
a noncritical element, it directly interferes with management's right,
under section 7106(a)(2)(A), to discipline employees and is outside the
Agency's duty to bargain.
J. Proposal Concerning Transition Procedures
Section 22.B.
Section 22.B. requires management, on an interim basis, to establish
as its standards for the granting or denying of a within-grade increase
the currently existing standards for such a personnel action. By
establishing the level of performance required to achieve a particular
overall rating of fully successful or its equivalent, in terms of the
levels set forth in the currently existing standards, the proposal has
the same effect as Union Proposal 6 in American Federation of Government
Employees, AFL-CIO, Local 32 and Office of Personnel Management,
Washington, D.C., 14 FLRA 6, 12-14 (1984). In that case, the Authority
determined that a proposal which established the quality of performance
necessary to attain a "positive acceptable level of competence rating"
directly interfered with management's rights. By similarly prescribing
the level of performance necessary for achieving a within-grade
increase, Section 22.B., for the reasons set forth in Office of
Personnel Management, directly interferes with management's rights and
is outside the duty to bargain. We note that although Section 22.B.
requires management to adopt the specified standards for a limited
period, while Union Proposal 6 in Office of Personnel Management
contains no such limitation, this distinction is not dispositive. The
decisive factor in each proposal is that it requires management to
exercise its rights in a particular manner, not the length of time which
such a requirement applies. Compare National Association of Government
Employees, Local R4-75 and U.S. Department of the Interior, National
Park Service, Blue Ridge Parkway, 24 FLRA No. 7 (1986) (Provision 3)
(proposal providing 15 days notice prior to the effective date of a
suspension is a negotiable procedure).
IV. Order
The Agency must upon request (or as otherwise agreed to by the
parties) bargain concerning Section 4.D., Section 4.G., Section 4.I.,
the first paragraph of Section 9.C., and Section 9.D. of the Union's
Proposals. /16/ The Union's petition for review as to Section 1.F.,
Section 3.E., Section 3.F., Section 3.G., Section 3.H., Section 3.J.,
Section 3.K., Section 4.A., Section 4.C., Section 4.E., Section 4.F.,
Section 4.J., Section 4.K., Section 5, Section 6.B., Section 6.C.,
Section 7.B., Section 9.B., the second and third paragraphs of Section
9.C., Section 9.E., Section 9.F., Section 9.G., Section 9.H., Section
11.B., Section 11.D., Section 11.E., and Section 22.B. is dismissed.
Issued, Washington, D.C., February 2, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) Section 9.H. was appealed separately as Case No. 0-NG-589. The
Union withdrew its appeal concerning Sections 6.A., 7.A., and 9.A. and
those proposals will not be considered further.
(2) Throughout this decision, our references to "management rights"
mean the rights to direct employees, under section 7106(a)(2)(A), and to
assign work, under section 7106(a)(2)(B), unless otherwise stated.
(3) In National Treasury Employees Union and U.S. Nuclear Regulatory
Commission, 13 FLRA 325 (1983) ("Nuclear Regulatory Commission"), the
Authority held, relying on Bureau of the Public Debt, that the rights to
direct employees and assign work under section 7106(a)(2)(A) and (B)
extend to the establishment of levels of achievement, that is, rating
levels, for any given critical element. Just as the aspect of Section
3.E. which pertains to performance standards is controlled by Lowry
Technical Training Center, so is that aspect of Section 3.E. which
pertains to rating levels.
(4) 5 U.S.C. Section 4302(b)(1) provides as follows:
Section 4302. Establishment of performance appraisal systems
. . . . .
(b) Under regulations which the Office of Personnel Management
shall prescribe, each performance appraisal system shall provide
for
(1) establishing performance standards which will, to the
maximum extent feasible, permit the accurate evaluation of job
performance on the basis of objective criteria (which may include
the extent of courtesy demonstrated to the public) related to the
job in question for each employee or position under the system(.)
(Emphasis added.)
(5) Because we find these proposals interfere with management's
rights, we do not reach the question of whether, in requiring more than
is required by 5 U.S.C. Section 4302, they are also inconsistent with
law and nonnegotiable under section 7117.
(6) Element II in the Agency's performance appraisal system, "Docket
Management," which contains the "turnaround" or timeliness standards
referenced in the Union's proposal, is designated a noncritical element.
Exhibit D attached to the Agency's statement of Position. The
Authority has held, however, based on its decision in Bureau of the
Public Debt, that the designation of noncritical elements of a position
and the establishment of performance standards for such noncritical
elements constitute an exercise of management's rights. Nuclear
Regulatory Commission, 13 FLRA at 326-28.
(7) For the text of this footnote see Appendix B to this decision.
(8) See n. 7, supra, set forth in Appendix B.
(9) The record indicates that during negotiations on the Agency's
performance appraisal system the Agency notified the Union that it
objected to the continuation of the provision of the existing agreement
pertaining to the granting or denying of a within-grade pay increase
based on achievement of 75% of an examiner's production goal. Since the
Union had incorporated that provision by reference in the instant
proposal it requested and received from the Agency an allegation of
nonnegotiability, which it then appealed to the Authority as Case No.
0-NG-589.
(10) For the text of this footnote see Appendix B to this decision.
(11) For example, the Agency's performance appraisal system provides
that achievement of 90% of the assigned production goal constitutes
fully satisfactory performance as to production goal achievement. See
Exhibit D attached to the Agency's Statement of Position.
(12) We note that Section 11.B. would also be nonnegotiable under
section 7117(a)(1) because it is inconsistent with 5 CFR Section
430.204(h), a Government-wide regulation issued by the Office of
Personnel Management after this case was filed. 5 CFR Section
430.204(h) requires performance appraisal systems to provide for five
summary rating levels.
(13) The Agency has withdrawn its allegation of nonnegotiability with
respect to that part of Section 11.D. which limits employee evaluations
only to actions taken or not taken during an appraisal period. Thus,
that portion of the proposal is no longer in dispute and will not be
considered here. Agency Statement of Position at 50.
(14) The Union withdrew the last sentence of Section 11.E. from its
appeal in this case. Union Response to Agency Statement of Position at
49-50.
(15) 5 CFR Section 430.203 provides as follows:
Section 430.203 Definitions
In this part, terms are defined as follows --
. . .
"Critical element" means a component of a job consisting of one
or more duties and responsibilities which contributes toward
accomplishing organizational goals and objectives and which is of
such importance that "Unacceptable" performance on the element
would result in "Unacceptable" performance of assigned work.
"Non-critical element" means a component of an employee's job
which does not meet the definition of a critical element, but is
of sufficient importance to warrant appraisal and the assignment
of an element rating.
(16) In finding these Sections negotiable, we make no judgment as to
their merits.
APPENDIX A
ARTICLE XIV. PERFORMANCE APPRAISALS
Section 1. Definitions
. . . . .
F. Quality of patent examining refers to matters related to
patentability of allowed claims.
Section 3. Procedures for developing and implementing performance
standards
. . . . .
E. Within a given job classification such as patent examiners or
patent classifiers, the performance standards, the units of measurement,
and the levels at which different ratings will be given shall be (1) the
same for all employees performing the same job function and (2)
reasonably based on the differences in job functions for employees
performing similar job functions. If it is necessary to vary the
performance standards, the units of measurement, or the levels at which
different ratings will be given, management will, upon the presentation
of a written request, provide adequate written justification for the
variance.
F. Between different job classifications, the performance standards,
the units of measurement, and the levels at which different ratings will
be given shall be comparable for employees performing similar job
functions with any variances being reasonably based on differences in
job functions. Upon the presentation of a written request, management
will provide adequate written justification for any variances.
G. It shall be unreasonable to adversely evaluate an employee in the
area of courtesy to the public unless there are at least three
complaints from the public during the rating year which, upon
investigation, the evidence establishes are justified.
H. Validation of the objectivity of the application of the units of
measurement to written work products. Prior to implementing a
performance appraisal plan and on every third anniversary of this
article, the application of each unit of measurement to written work
products that involves some judgment shall be validated for objectivity
in accordance with the following test procedure:
1. Each supervisor shall select two work products which he would
give different ratings (from the same employee, if possible).
2. Each selected work product shall be independently and without
prior consultation rated by:
a. two coordinate level supervisors under the jurisdiction of
the selecting supervisor's reviewing official, if available (e.g.,
two other SPEs in the same group).
b. the selecting supervisor's rating official (e.g., Group
Director) and
c. a coordinate level supervisor or Quality Review Examiner
outside the jurisdiction of the selecting supervisor's rating
official (e.g., SPE in another group).
To insure that the work products are compared with the standard and
not with each other, a coordinate level supervisor shall rate no more
than one work product selected by a particular rating official.
The ratings shall include the reasons for the rating.
3. The ratings produced in subsection 2. above shall be compared for
each work product. Unless at least 90% of all work products reviewed
receive identical ratings from all raters the application of the unit of
measurement to the work product is not sufficiently objective for use in
performance appraisals. (Note that in the examining corps the sample
size would be about 140 cases based on about 70 SPEs. The heaviest
burden would be on Directors who would each have about 8-10 cases to
review.)
4. All test data, including each rating, the reasons for the
ratings, and the work products rated, shall be supplied to POPA.
5. If the application of the unit of measurement to the work product
is not sufficiently objective according to the criterion in subsection
3. above, management may either propose a new unit of measurement and
subject it to a new test or management may redefine the unit of
measurement (e.g., by decreasing the sensitivity of the unit of
measurement) so that the test actually conducted would be applicable but
would satisfy the criterion in subsection 3. above.
. . . . .
J. Accuracy. All performance standards, applications of units of
measurement to the work measured, interpretations of whether the
standards have been met, and levels at which different ratings will be
given shall permit the accurate evaluation of job performance to the
maximum extent feasible as required by 5 USC 4302(b)(1). If POPA
proposes any performance standard, applicaiton of a unit of measurement
to the work measured, interpretation of whether the standard has been
met, or levels at which different ratings will be given that is feasible
and more accurate than that proposed by management, then either (a) the
performance standard, application of a unit of measurement to the work
measured, interpretation of whether the standard has been met, or levels
at which different ratings will be given as proposed by POPA will be
adopted or (b) management must propose a performance standard,
application of a unit of measurement to work measured, interpretation of
whether the standard has been met, or levels at which different rating
will be given that is at least as accurate as the one proposed by POPA.
No performance standard, application of a unit of measurement to the
work measured, interpretation of whether the standard has been met, or
levels at which different ratings will be given shall be used to
evaluate any employee unless the performance standard, application of a
unit of measurement to the work measured, interpretation of whether the
standard has been met, or levels at which different ratings will be
given is at least as accurate as the one proposed by POPA. Any
arbitrator who decides that management's proposed performance standard,
application of a unit of measurement to the work measured,
interpretation of whether the standard has been met, or levels at which
different ratings will be given is not at least as accurate as the one
proposed by POPA shall retain jurisdiction until management adopts a
performance standard, application of a unit of measurement to the work
measured, interpretation of whether the standard has been met, or levels
at which different rating will be given that is at least as accurate as
the one proposed by POPA.
Performance standards, applications of units of measurement to the
work measured, interpretations of whether the standsrds have been met,
and levels at which different ratings will be given are not accurate in
any of the following are true:
1. They hold an employee accountable for matters not under the
employee's control.
2. They, as collectively applied to an employee, do not fully
take into account the need to spend time on job functions which
are not evaluated or for which time is not separately provided.
3. When collectively applied, they do not accurately evaluate
the employee's contribution toward accomplishing the mission of
the Patent and Trademark Office.
4. They are based on conduct or personal attributes unrelated
to job functions.
5. They specify qualitative error rates as a function of
quantitative performance because supervisors do not have time to
evaluate more work products for employees who do a large volume of
work than for other employees and the public interest is not
served by making it safe for employees to do poor quality work
just by doing more of the poor quality work.
K. All performance standards, applications of the units of
measurement to the work measured, interpretations of whether the
standards have been met, and levels at which different ratings will be
given must be fair, equitable and reasonable. If any of the following
is true, the levels at which different ratings will be given do not meet
the test of being fair, equitable and reasonable:
1. More than 5% of a statistically normal employee population
cannot meet the level for a denial of a within grade increase or
have not met the level in the year prior to the use of the level
unless management presents adequate written justification that
there exists a substantial need for the higher level (see Buffa,
Elwood S., MODERN PRODUCTION MANAGEMENT, 2nd Ed., John Wiley &
Sons, New York, 1965, pages 332-338 and 367-368.) Any showing of a
need for a higher than one that can be met or has been met by 95%
of the statistical normal employee population must be based on job
functions actually assigned and not on other considerations such
as budget restrictions or personnel ceilings. It is management's
responsibility to change the assigned job functions to conform to
considerations such as budget restrictions or personnel ceilings.
2. The level is based upon average performance in the past
without properly accounting for reasonable deviations from the
average.
3. The level is based on what is physiologically possible
rather than what is sociologically desirable as defined by Marvin
E. Mundel in MOTION AND TIME STUDY PRINCIPLES and PRACTICES, 4th
Ed., Prentice Hall, Inc., Englewood Cliffs, N.J., 1970, pages
306-309 and 558-559.
4. The levels have not been validated by, or do not conform
to, the requirements of 29 CFR Part 1607 as if the performance
standards were employee selection criteria.
5. The levels for one employee are based upon the achievement
of that employee or upon the achievements of particular other
employees whose number is substantially less than the total number
of employees in similar positions within the PTO.
6. The levels were developed under conditions and assumptions
that do not apply to the time period when the levels are to be
used unless compensating changes in assigned duties are made. For
example, the levels of patent examiners fail to take into account
anticipated increases in the search files which are not
compensated for by any changes in other assigned duties.
7. For patent examiners, the level for an acceptable level of
competence shall be set no higher than a level determined by the
following procedure:
a. For fiscal years 1978-1980, identify examiners (1) who were
denied permanent signatory authority (full or partial), (2) for
whom a written performance evaluation for the period of temporary
authority is available, and (3) who were subsequently granted a
within-grade increase for the period covered by their temporary
grant.
b. Translate the written evaluations that formed the basis for
the denial into an evaluation that would be made under the
appraisal system proposed under this Article. The lowest
evaluation after translation shall be higher than the level set
for an acceptable level of competence.
. . . . .
Section 4. Additional procedures for developing and implementing
timeliness standards
A. All timeliness standards for patent examiners must take into
account that each examiner is expected to set his priorities for when to
act on his applications so that he will use his time most efficiently.
If meeting a timeliness standard would conflict with meeting a quality
goal or a production goal, the examiner should first give priority to
meeting the quality goal and second give priority to meeting the
production goal unless management has explicitly set the priorities
differently.
. . . . .
C. Before any particular timeliness standard is put into effect,
management shall test the standard by determining the degree to which
the standard was met in fiscal year 1980, and shall provide the data
collected to POPA. Any standard which was not met by at least 95% of
the individuals to which it applies shall be prima facie unreasonable.
D. Turnaround times shall be expressed in working days during which
the employee is present and beginning after the employee is given the
case ready for action.
E. Whenever an employee is expected to meet multiple timeliness
standards simultaneously and those standards conflict in view of the
time that must be spent to meet them, then the employee shall determine
the priority of actions taken without any adverse effect on his
performance appraisal except that the supervisor may determine the order
in which categories of timeliness standards are to be met.
F. When multiple timeliness standards conflict with quantitative
productivity standards as in the case of patent examiners whose reduced
flexibility due to turnaround time standards, date case movement
standards, etc., will result in less efficient use of time, an
appropriate allowance will be made in either the timeliness standard or
the productivity standard to avoid the conflict.
G. No employee shall be evaluated on the basis of production
constancy unless the evaluation explicitly takes into account all job
functions the employee is expected to perform and the actual amount of
time available to perform those functions.
H. The following are examples of situations in which it shall be
unreasonable to adversely evaluate an examiner for failure to meet a
particular timeliness standard:
1. the action or actions required more time than the acutal
amount of examining time available to the examiner.
2. an action which the examiner certifies requires a large
block of uninterrupted time, such as a particular Examiner's
Answer, must be prepared, and the required large block of
uninterrupted time is not available to the examiner.
3. the examiner did not have an adequate amount of examining
time because he was unavailable due to leave or he was directed or
authorized to perform other functions. An examiner is, however,
expected to plan his work in anticipation of expected absences.
4. the patent applicant or his representative made an
appointment to hold an interview or stated an intention to file a
further paper.
5. the application to which the standard applies is
unavailable.
6. material necessary for the preparation of an action (e.g.,
a related application necessary for taking action, a translation
of a reference, or a reference on order through the interlibrary
loan system) is unavailable but ordered. The examiner should make
a reasonable attempt to obtain the needed material. Once it
appears impossible to obtain the needed material, the examiner
must act on the application.
7. completion of the action is dependent upon the action of
another employee over whom the examiner has no control (e.g., the
application is out for terminal disclaimer processing,
classification disputes, etc.
I. For employees other than patent examiners, it shall be
unreasonable to adversely evaluate the employee under circumstances
analogous to those set forth in subsection H. above.
J. Any measure of timeliness which subtracts points for instances of
a failure to meet a standard shall also add an equal number of points
for instances in which the required action is taken before one half of
the allotted time expires.
K. Except for special cases or for applications in which a time
period is running against applicant, compliance with timeliness
standards for patent examiners shall be required no more often than once
per quarter unless other duties are reduced to compensate for the
examiners's reduced flexibility to plan how to use his time most
efficiently or unless there is adequate justification.
Section 5. Patent examiner authority levels
The performance standards of patentability determination and action
taking are described from the perspective of an examiner having full
signatory authority. Examiners not having full signatory authority will
be evaluated under these standards by applying the standards to the work
product that the examiner actually turns in. The number of errors that
would justify a denial of a within grade increase or an unacceptable
rating will increase in inverse proportion to the examiner's actual
authority level. Once an examiner having full signatory authority has
signed an action of an examiner not having full signatory authority, the
examiner not having full signatory authority is no longer responsible
for any errors in the actions. A nonsupervisory examiner who signs the
actions of another examiner will not be adversely evaluated for errors
in the actions except when the examiner is being evaluated for
supervisory ability.
Section 6. Procedures for implementing the performance standard of
patentability determination for patent examiners
A. Management has identified the following as being the performance
standard of patentability determination:
All allowed claims are patentable (i.e., there has been no clear
error in the allowance of any claim):
a. over all art of record (under 35 USC 102 and 103)
b. over all art which if not of record, should have been
(under 35 USC 102 and 103)
c. considering all other pertinent sections of the statute
(such as 101, 112, 132, 251, etc.)
d. considering all nonstatutory rejections, i.e., double
patenting of the obviousness type, etc.
B. In order to implement the performance standard of patentability
determination in an accurate, equitable, and reasonable manner, the
supervisor shall interpret whether the standard has been met as follows:
"Clear error" in the allowance of a claim will be considered as
having occurred where a reasonable SPE could not have permitted the
allowance. Clear error as defined here is not to be confused with an
honest and legitimate difference in opinion as to what is and what is
not patentable. If the determination made by the examiner is reasonable
and the determination proposed by the SPE is reasonable, this would
represent an honest and legitimate difference of opinion and does not
constitute a clear error.
An examiner will not be charged with clear error for factors which
are not within the examiner's control or knowledge. Examples of such
factors are:
1. The facts that rendered a claim unpatentable would not be
discovered in a normal examination of the application containing
the claim (for example, facts related to a best mode or to a
public use).
2. A newly found reference which rendered a claim unpatentable
was not classified or cross-referenced in any subclass or
collection of prior art which was part of the proper field of
search for the application involved. In view of the limited
amount of time allotted to examine applications, the search areas
which are considered to be a proper field of search shall not
include those areas in which it could reasonably have been
determined that there was a low probability of finding a useful
reference.
3. A newly found reference was not in its subclass when the
examiner searched the application. If the file integrity of a
subclass is at issue, the accuracy of the following statements
will constitute evidence that the reference was in its subclass
and the inaccuracy of the following statements will constitute
evidence that the reference was not in its subclass:
a. The newly found reference was in another subclass searched
by the examiner.
b. Other references which teach the concept in question and
which are not of record in the application are found in the
subclass searched by the examiner.
c. The record in the application shows that the examiner did
not understand the concepts being claimed.
4. A newly found reference was not found because the examiner
had relied on the expertise of another examiner whose assigned
docket area encompasses an area where the new reference is
classified. Evidence that the examiner failed to communicate the
relevant features of the invention shall negate reliance upon the
expertise of another.
5. The application is from an art not familiar to the examiner
in which his level of technical expertise is less than that of
those who normally examine the art, and, if at least one examiner
has appropriate technical expertise in the art, the search notes
indicated consultation with that examiner or the latter's
supervisor.
6. The examiner made an inadvertent error of a clerical or
typographical nature unless there are numerous such instances.
Allowing a dependent claim which does not further restrict the claim
from which it depends shall not be considered a clear error.
C. In order to implement the performance standard of patentability
determination in an accurate, equitable, and reasonable manner, the
supervisor shall assign the patentability determination rating as
follows:
A patentability determination error is an allowed application in
which there is at least one clear error in the allowance of a claim.
There can not be more than one patentability determination error for a
single allowed application. If the supervisor locates a patentability
determination error, he shall analyze a sufficient number of the
examiner's allowed applications to determine whether the patentability
determination error is fairly representative of the examiner's work, the
supervisor should consider what form of training would be most
appropriate to correct the problem. If the supervisor should consider
rating the examiner unacceptable in patentability determination, the
supervisor shall determine if the examiner has made more patentablility
determination errors than a number of errors that is appropriate
according to the Quality Review results as explained below.
Satisfactory It shall be unreasonable to rate an examiner less than
satisfactory in patentability determination unless he has made more
patentability determination errors than a number of errors that is
appropriate according to historical Quality Review results. The
historical Office-wide average rate of making patentability
determination errors represents the middle of the satisfactory range.
Assuming that the Office-wide average production goals remain constant,
a number of errors that is appropriate according to the Quality Review
results would be a number that is twice the average percentage of
applications which has been found by Quality Review over the previous
six year period to contain unpatentable claims times the average number
of disposals per examiner per year over the same period. If the average
amount of time allotted per application should decrease without a
compensating decrease in duties, the number of patentability
determination errors that would be appropriate would correspondingly
increase.
Unacceptable If an examiner has made more patentability determination
errors than are appropriate according to Quality Review results, he
shall be rated unacceptable in patentability determination.
Outstanding An outstanding rating in patentability determination will
be assigned if the examiner, in addition to having no serious
patentability determination errors, does more than is expected to
strengthen the validity of issued patents. Three or more of the
following are evidence that would justify an outstanding in
patentability determination:
1. Unusually high respect from others for the examiner's work.
2. Finding relevant references from outside the expected field
of search.
3. Having superior technological competence, which could, for
example, be measured by an above average number of consultations
with the examiner in his assigned art area.
4. Having a superior knowledge of the references in the
assigned art area, which could, for example, be measured by an
above average success at locating useful references for searchers.
5. Taking initiative to acquire training that is beyond the
training that is subsidized by management and that is directed
toward improving technological knowledge.
6. Doing more than is expected to maintain the search files,
such as by (a.) setting up a significant digest that is useful to
other examiners, (b.) adding an extensive number of useful patents
and publications to the search files, or (c.) removing large
quantities of nonuseful reference from the search files.
7. Searches normally result in the discovery of the best art
available.
8. Patentable subject matter is normally recognized as soon as
the evidence or arguments in support of patentability are of
record.
Section 7. Procedures for implementing the performance standard of
action taking for patent examiners
A. Management has identified the following as being the performance
standard of action taking:
No clear error has been made in the following areas:
(a) No unreasonable rejection was made,
(b) No unreasonable formal requirement was made,
(c) No action was arbitrary and/or capricious,
(d) The record in an allowed application, taken as a whole, is
reasonably clear as to the reasons for allowance, and
(e) All matters of substance in affidavits and declarations
have been treated.
B. In order to implement the standard of action taking in an
accurate, equitable, and reasonable manner, the supervisor shall
interpret whether the standard has been met as follows:
"Clear error" in an action taken (or not taken) will be considered as
having occurred where a reasonable SPE could not have permitted the
action (or inaction) at the time and under the circumstances that the
action (or inaction) was taken. Clear error as defined here is not to
be confused with an honest and legitimate difference of opinion as to
what action should have been taken. If the action taken by the examiner
is reasonable and the action preferred by the SPE is reasonable, this
constitutes an honest difference of opinion and the action taken by the
examiner is free of clear error.
In determining whether an examiner has made a clear error in action
taking, the supervisor should consider that it is a priority goal of the
Office to issue patents in a reasonably timely manner with the patents
being as valid as is feasible given the limited amount of time allotted
to examine the applications. Thus, the Office desires to encourage
examiners to reject unpatentable claims. This desire is demonstrated by
not including as action taking errors several areas in which an examiner
can make an improper action or can fail to make a proper action. This
desire is also demonstrated by requiring that a rejection or formal
requirement must be unreasonable before it becomes as action taking
error. An examiner therefore has the flexibility to make incorrect
rejections or formal requirements as long as they do not rise to the
level of being unreasonable. Since the Office also desires to encourage
examiners to correct any improper rejections and to add any needed
rejections before allowance, the failure to make a proper rejection
becomes an error only if an unpatentable claim becomes allowed. The
failure to make a proper rejection is a patentability determination
error rather than an action taking error.
1. A minor formal rejection (e.g., under 35 U.S.C. 112 as failing to
recite an antecedent basis) in lieu of a more significant and
substantive rejection is an unreasonable rejection. On the other hand,
making only a rejection on 35 U.S.C. 112 where appropriate would not be
clear error.
2. Decisions by the Board of Appeals that reverse a rejection of an
examiner are ordinarily the result of an honest and legitimate
difference of opinion and are not ordinarily based on a finding that the
rejection was unreasonable.
3. If an examiner improperly accepts an affidavit or declaration
submitted or the purpose of overcoming a rejection, and this improper
acceptance results in the allowance of an unpatentable claim, then the
examiner has made a clear error under Patentability Determination. If
the examiner fails to treat the affidavit or declaration at all, then
the examiner has made a clear error under (e) above. If the examiner
improperly refuses to accept the affidavit or declaration, and this
improper refusal results in an unreasonable rejection, then the examiner
has made a clear error under (a) above. The examiner should be given
more latitude to refuse to accept an affidavit or declaration than to
accept the affidavit or declaration as overcoming a rejection before the
rejection would be considered to be unreasonable since the applicant can
point out any errors in the refusal to accept while no one has an
interest in pointing out errors in an improper acceptance of the
affidavit or declaration.
4. The failure to make a rejection based on a defective reissue oath
is a clear error under Patentability Determination if the claims are
allowed. A rejection based on an incorrect determination that a reissue
oath is defective is a clear error under Action Taking if the rejection
is unreasonable. The examiner shall have greater latitude in making the
rejection since an incorrect rejection is so much easier to correct than
an incorrect allowance.
5. The record in an allowed application should be reasonably clear
as to the reasons for allowance. Under certain circumstances, such as
when an examiner withdraws a rejection for reasons not in the record or
when the references cited in a first action allowance are such that the
reasons for allowance set forth in the record do not apply, that the
examiner would be expected to add a reason for allowance to the record.
6. If an examiner has made one reasonable rejection, the failure to
make a different or additional rejection is not a clear error.
7. A rejection is not unreasonable because it fails to explicitly
mention a claim limitation or could have treated a claim limitation
differently unless it was probable at the time the rejection was made
that patentability would be predicated on the claim limitation.
8. A rejection or formal requirement that appears designed to harass
an applicant is an example of an unreasonable rejection or formal
requirement.
9. The failure to answer a specific argument which overcomes a
rejection renders the subsequent making of that rejection an
unreasonable rejection.
10. A restriction requirement is an unreasonable formal requirement
if it is clearly contrary to written Office policy.
11. The refusal to enter an amendment without a relevant reason is
an example of an arbitrary and capricious action.
12. The refusal to grant an interview without a relevant reason is
an example of an arbitrary and capricious action.
13. Rejecting an allowance claim is an unreasonable rejection unless
the response could improve the record as to the reasons for allowance.
14. An examiner shall not be adversely evaluated when an error is
made in the course of acting on a case from an art not familiar to the
examiner, in which his level of technical expertise is less than that of
those who normally examine in the art, and the search notes indicate
consultation with either (a) one or more examiners known to have
appropriate technical expertise in the art or (b) the SPE in the Art
Unit to which the art is assigned, and the error resulted from the lack
of familiarity.
15. Objections to the specification will not be treated as clear
error.
16. Failure to object to claim language which has no antecednet
basis in the specification will not be clear error.
17. Making a rejection under 35 USC 102 when it should have been 35
USC 103 and conversely shall not be clear error.
18. Any problems with the search are not covered under Action
Taking.
19. The requirements for original oaths or declarations in patent
applications are formal matters rather than matters of substance in
accordance with (e) above. Failure to mention whether an affidavit or
declaration is effective for overcoming a rejection or for changing
inventorship would be an error under (e). Standard (e) deals with the
question of whether matters of substance are treated at all and not with
the question of whether these matters are treated properly.
C. In order to implement the performance standard of action taking
in an accurate, equitable, and reasonable manner, the supervisor shall
assign the action taking rating as follows:
The supervisor shall determine if any of the identified action taking
errors has been made in any of the examiner's allowed applications,
abandonments or Examiner's Answers. If the supervisor locates one of
the identified action taking errors, he shall analyze a sufficient
number of the examiner's allowed applications, abandonments or
Examiner's Answers to determine whether the identified action taking
error is fairly representative of the examiner's work or is merely an
isolated error. If the making of any identified action taking error is
determined to be fairly representative of the examiner's work, the
supervisor should consider what form of training would be most
appropriate to correct the problem. If the supervisor should consider
rating the examiner unacceptable in action taking, the supervisor shall
determine from the examiner's allowed applications, abandonments and
Examiner's Answers whether the examiner has made serious and repetitive
errors in any one of the five categories of identified action taking
errors listed above.
Satisfactory It shall be unreasonable to rate an examiner less than
satisfactory in action taking unless he has made serious and repetitive
errors in any one of the five categories of identified action taking
errors listed above.
Unacceptable If an examiner has made serious and repetitive errors in
any one of the five categories of identified action taking errors listed
above, he shall be rated unacceptable in action taking.
Outstanding The following is evidence that would justify an
outstanding rating in action taking:
1. File wrapper records which typically are unusually complete
and clear relative to normal satisfactory file wrapper records.
2. Actions which typically are very thorough, clear and
relatively concise compared to normal satisfactory actions.
3. Actions which do not contain redundant rejections or
objections, i.e., compliance with compact prosecution.
4. Offering helpful suggestions and comments to a greater
degree than required by Office practice.
5. Unusually high respect from others for the examiner's work.
6. Unusually creative and resourceful rejections.
7. Examiner's Answers which demonstrate unusually thorough
analyses of the case law.
. . . . .
Section 9. Procedures for implementing the performance standard of
production goal achievement for patent examiners
A. Management has identified the following as being the performance
standard of production goal achievement:
The examiner's production goal has been achieved.
B. In order to implement the performance standard of production goal
achievement in an accurate, equitable and reasonable manner, the
supervisor shall follow the following procedures when unfamiliar art is
assigned to an examiner:
A fair and adequate adjustment for the assignment of either new or
amended application in unfamiliar arts will, to the greatest extent
possible, be agreed upon by the examiner and the SPE at the time the
unfamiliar art is assigned. In the past, a typical adjustment was 30%
from the normal goal for the unfamiliar art. If the original adjustment
significantly differs from the actual time used, a change in the
original adjustment will be made to reflect the actual time used unless
the actual time used was unreasonable.
Unless the situation is unusual, an examiner's goal in unfamiliar art
will be adjusted for the unfamiliarity for as many pay periods as it
takes him to produce two quarters' output i.e., the production for
1664/2 equals 832 examining hours) of first actions for a docket
containing only the unfamiliar art; then by half the previous
adjustment for as many pay periods as it takes him to produce another
two quarters' output of first actions in the unfamiliar art.
After he has produced four quarters' output of first actions, no
further adjustments will be made as the art will no longer be considered
unfamiliar. However, if the cases in the unfamiliar art are so few and
infrequent that the output is extended beyond a time during which
familiarity can accure, the initial adjustment will continue ad
infinitum.
C. In order to implement the performance standard of production goal
achievement in an accurate, equitable, and reasonable manner, the
supervisor shall follow the following procedures when a reexamination
application is assigned to an examiner:
At the time of initial action on the examiner's first reexamination
application, each examiner will be given three hours of non-examining
time to review and become familiar with the reexamination procedures.
For each reexamination application, the examiner will be given a
reasonable amount of non-examining time to decide whether or not to
grant the request for reexamination. If the request is denied, no
additional time will be provided because no further action will be
required by the examiner. If the request for reexamination is granted,
the examiner will, in due course, receive both a first action credit and
a disposal credit for the reexamination application.
If the actual time it takes to examine a reexamination application
differs from the hours per balanced disposal goal for the art involved,
an adjustment will be made to reflect the actual time used unless the
actual time used was unreasonable.
D. In order to implement the performance standard of production goal
achievement in an accurate, equitable, and reasonable manner, the
following procedure for recording special examining time will be
implemented:
The time spent on reexamination applications and on applications from
unfamiliar arts shall be recorded in a special examining time category
that is distinct from the examining time category used to record the
production time for regular examination in the familiar, assigned
docket.
E. In order to implement the performance standard of production goal
achievement in an accurate, equitable, and reasonable manner, examiners'
production goals will be adjusted in accordance with the following
procedures:
The assigned goals for examiners will be increased each year to
provide additional examining time per application in proportion to the
increase in the size of the search files since the goal was assigned.
F. In order to implement the performance standard of production goal
achievement in an accurate, equitable, and reasonable manner, the
supervisor shall interpret whether the standard has been met as follows:
Examiners' production goals are approximate guesses of how long
should be needed to examine average applications. It has never been
possible to fairly and equitably assign individual production goals
within an accuracy of plus or minus 25%. Thus a goal can be used as
only a rough measure of how effectively and efficiently an examiner is
performing. In view of the inaccuracies in assigned goals, it is
unreasonable to treat goals as expectancies or quotas. However, it is
hoped that examiners will strive to meet their assigned goals.
The following are examples of circumstances that could reasonably
constitute a rebuttal of the prima facie levels set forth in Article
VII, Section 2 of the Agreement or could reasonably rebut any proposed
adverse performance appraisal based on the quantity of patent examining:
1. The applications worked during the rating period required
more or less than the average amount of examination time for the
assigned docket.
2. The assigned goal was not adequately adjusted (up or down)
to accommodate changes in the technological complexity of the art
or changes in the volume of the prior art that needs to be
searched or changes in the competitiveness of the art.
3. The examiner was not adequately compensated for the
additional time required due to:
a. the assignment of applications in an unfamiliar art area.
b. the transfer of amended applications from another
examiner's docket.
c. changes in examining practices or procedures since the goal
was assigned.
4. Disruptions have been caused by extensive non-examining
time, irregular authorization of overtime, changes in clerical
support or workload/workflow, directed emphasis on new case or
disposal production, etc. where the disruptions have affected
productivity.
a. An examiner coming back from a 4 to 6 month detail will
probably have very little amended activity in the pipeline. It is
obvious that 5 to 12 months will be required before any volume of
amendments will be built up. This could, and probably would,
impact on the examiner's production since his emphasis would be on
new cases which normally require more time.
b. If an examiner has one or more reissue in litigation cases
with one or more protest and a variety of issues, the time
remaining to work on his docket could, and probably would, impact
on the examiner's ability to meet his expectancy.
If an examiner has not been assigned sufficient new applications to
meet his assigned goal, the examiner's assigned goal will be adjusted to
account for the insufficiency.
A balanced disposal or BD is defined to be BD equals (N+D)/2 where N
is the number of first actions on the merits only and D is the number of
disposals. The time spent writing all restriction requirements which do
not include an action on the merits will be considered nonexamining
time.
G. In order to implement the performance standard of production goal
achievement in an accurate, equitable, and reasonable manner, the
supervisor shall authorize the taking of other time in accordance with
the following:
It shall be unreasonable to evaluate the quantity of patent examining
performed without accurately determining the actual amount of time spent
performing those aspects of patent examining that are measured. Thus,
in addition to the times for which patent examiners have been authorized
in fiscal year 1981 to take non-examining time on the PTO-690E form,
examiners will be authorized to take non-examining time for the time
actually spent on:
1. actions required because a petition was granted even though
the examiner followed proper procedures;
2. reviewing the Official Gazette and the technical literature
for the purpose of adding patents and publications to the search
files unless the supervisor determines that the added patents and
publications are not useful;
3. consultations by the examiner from whose docket new or
amended applications have been transferred regarding those
transferred applications.
4. duties required by changes in examining practice since the
goals were assigned.
5. the assistance of fellow examiners in searches, legal
issues, and procedural issues.
6. the assistance of members of the public with searches and
applicant-initiated interviews.
H. In order to implement the performance standard of production goal
achievement in an accurate, equitable, and reasonable manner, the
supervisor shall assign the production goal rating as follows:
The examiner's production goal rating shall be assigned in accordance
with the performance levels set forth in Article VII, Section 2 of the
Agreement of December 13, 1972 between the Commissioner of Patents and
Trademarks and the Patent Office Professional Association.
(Article VII, Section 2 of the Agreement provides, in part:
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.)
. . . . .
Section 11. Performance appraisal -- General
. . . . .
B. At the annual performance appraisal, employee's performance shall
be classfied into one of the following four overall rating categories:
Overall Rating . . . . . Criteria
OUTSTANDING: Performance is outstanding in one critical element.
For patent examiners, outstanding performance in the critical element of
patent examining requires outstanding performance in one of the
performance standards of patentability determination, action taking, or
production goal achievement.
SATISFACTORY: Performance is at least satisfactory in each critical
element.
MARGINAL: Performance is marginal in at least one critical element.
Marginal performance merits the denial of a within grade increase. For
patent examiners, marginal performance in the critical element of patent
examining requires marginal performance in the performance standard of
production goal achievement.
UNACCEPTABLE: Performance is unacceptable in at least one critical
element. Unacceptable performance merits one of the corrective actions
of (a) reassignment and the denial of a within grade increase, (b)
reduction in grade, or (c) removal. For patent examiners, unacceptable
performance in the critical element of patent examining requires
unacceptable performance in at least one of the performance standards of
patentability determination, action taking, or production goal
achievement.
. . . . .
D. For all evaluations, only actions taken or not taken during the
period under consideration will be evaluated and an employee will not be
adversely evaluated for any error which he has corrected prior to the
evaulation.
E. Noncritical performance elements will not be considered in
determining whether an employee deserves a denial of a within grade
increase or an unacceptable rating or any other form of disciplinary
action. The noncritical performance elements may be considered for all
other evaluation purposes such as in considering an employee for an
award or for a promotion. For patent examiners, the timeliness standard
under patent examining will be treated the same as a noncritical
performance element.
. . . . .
Section 22. Transition procedures
. . . . .
B. The standards for granting within grade increases that were in
existence on October 1, 1980 shall remain in effect for each employee
until after he becomes eligible for his first within grade increase on
or after October 1, 1981.
APPENDIX B
7. On July 9, 1976, the parties agreed to amend their agreement of
December 13, 1972, as extended by the extension agreement of October 24,
1975, by adding, as relevant herein, the following to Article VII,
Section 2:
Insofar as purely quantitative criteria are concerned, an
individual's goal shall have the following meaning and effect:
1. An achievement of 110% of a goal over a period of twelve
consecutive months shall be deemed prima facie evidence of
sufficiently outstanding performance on the factor of production
to warrant the grant of a quality step increase, except where the
individual has been promoted during the twelve month period, in
which case the twelve month period runs from the date of
promotion.
2. An achievement of 110% of a goal over a period of six
consecutive months shall be deemed prima facie evidence of
sufficiently exceptional performance on the factor of production
to warrant the grant of a special achievement award, except where
the individual has been promoted during the six month period, in
which case the six month period runs from the date of the
promotion.
3. An achievement at least half-way between the goal for the
next higher grade and the goal for the present grade over a period
of six months shall be deemed prima facie evidence of performance
on the factor of production qualifiying for a promotion in
accordance with Article IX, Section 8 of this agreement.
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
the purposes of granting a within-grade increase unless there are
extenuating circumstances which justify the achieved production
level.
Quantitative criteria are only some of the factors to be considered
in evaluating the performance of a member of the Unit. All other
evaluation and classification factors, including quality, and any
extenuating circumstances must also be considered.
Appendix C to the Union's Petition for Review in Case No. 0-NG-589.
10. 5 U.S.C. Section 5335(a) provides that an employee in the
General Schedule shall be advanced to the next higher within-grade rate
at certain intervals provided, among other things, the work of the
employee is of an "acceptable level of competence." "Acceptable level of
competence" is defined in 5 CFR 531.403 and 404 as follows:
Section 531.403 Definitions.
In this subpart:
"Acceptable level of competence" means fully successful performance
by an employee of the duties and responsibilities of his or her assigned
position which warrants advancement of the employee's rate of basic pay
to the next higher step of the grade of his or her position, subject to
the requirements of Section 531.404 of this subpart.
. . . . .
Section 531.404 Earning within-grade increase.
An employee paid at less than step 10 of the grade of his or her
position shall earn advancement in pay to the next higher step of that
grade upon meeting the three requirements established by law:
(a) To earn a within-grade increase, the employee's performance
of assigned work must be at an acceptable level of competence, as
defined in this subpart by authority of Section 402 of E.O. 11721,
as amended. Acceptable level of competence means a level of
performance of assigned in Part 430 of this chapter, for each
critical element. In addition, the employee's most recent summary
performance rating, as defined in the agency Performance
Management Plan, must be at least "Fully Successful."
Furthermore, since the above-stated regulation provides that the
granting of a within-grade increase must be based on an overall rating
of fully successful, the instant proposal is interpreted, consistent
with the record, to mean that, as a part of determining whether an
employee's overall performance is fully successful, achievement of 75%
of the production goal would evidence fully successful performance as to
the quantitative aspects of the employee's job.