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47 FLRA No. 2

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

PATENT OFFICE PROFESSIONAL ASSOCIATION

(Union)

and

U.S. DEPARTMENT OF COMMERCE

PATENT AND TRADEMARK OFFICE

WASHINGTON, D.C.

(Agency)

0-NG-1911

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

March 2, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns the negotiability of 48 provisions of a collective bargaining agreement which were included in the agreement by the award of an interest arbitrator and which were disapproved by the Agency head under section 7114(c) of the Statute. The Agency filed a statement of position and the Union filed a reply brief.

For the reasons stated below, we make the following findings. Provisions 1, 2, 5, and 6, which define terms used in performance management, are negotiable. Provisions 3 and 4 which prescribe that certain tasks be performed by identified management officials, directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute and are nonnegotiable. The first sentence of Provision 7, which requires the Agency to identify critical and other performance elements for each employee is nonnegotiable. The second part of the second sentence of Provision 7, which requires that performance elements be consistent with the duties and responsibilities in an employee's position description, is negotiable. The remainder of Provision 7, by limiting the Agency's discretion to determine the content of performance standards, directly interferes with the rights to direct employees and assign work under section 7106(a)(2)(A) and (B) and is nonnegotiable. Provision 8, which concerns the designation of critical elements, is negotiable.

Provision 9, which requires management to meet with employees to discuss establishment or modification of a performance appraisal plan, is a negotiable procedure under section 7106(b)(2). Provision 10, which requires management to respond in writing to written requests for explanations as to why it has not established performance standards in a particular manner, is negotiable. The disputed sentence of Provision 11, which provides that employees will not be held responsible for matters beyond their control, is an appropriate arrangement under section 7106(b)(3). Provision 12, which requires that performance standards be objective and job-related, is consistent with applicable law and is negotiable. Provision 13, which requires that any criterion or policy referenced in a performance standard be attached in written form to the performance appraisal plan, is negotiable.

Provision 14, which requires that the Agency consider all job functions an employee performs in evaluating the employee, and Provision 15, which provides examples of when it is deemed unreasonable to adversely evaluate an employee for failure to meet a timeliness standard, are negotiable. Provision 16, which requires that the Agency give the Union a written explanation of its rationale for establishing a timeliness standard which subtracts points for instances of failure to meet a standard but does not add points when the required action is taken in less than half the allotted time, is negotiable. The first part of the disputed second sentence in Provision 17, which requires that Agency docket reports be delivered to employees on a particular day during the biweek, is negotiable. The second part of the second sentence of Provision 17, which provides that examiners are entitled to rely on the completeness of the docket report, is an appropriate arrangement under section 7106(b)(3).

Provision 18, which requires management to document the contributions of each employee involved in certain actions, is a negotiable procedure under section 7106(b)(2) of the Statute. Provision 19, which requires that management annually provide employees with a list of bases and reasons which the Agency has used to grant a waiver or excuse, is negotiable. Provision 20, which requires that examiners specifically record the time spent on record keeping and time spent providing explanations of excuses and requests for waivers, is negotiable.

Provision 21, which requires evaluation of employees' work products at the completion of each assignment, is a negotiable procedure under section 7106(b)(2). Provision 22, which provides employees with 3 hours' non-examining time to become familiar with reexamination procedures when first assigned reexaminations, constitutes an appropriate arrangement under section 7106(b)(3) and is negotiable. Provisions 23 and 24, which prescribe how time spent on specific aspects of employees' work will be recorded, are negotiable procedures under section 7106(b)(2). Provision 25, which requires that management provide written explanations within 2 weeks when rejecting employees' requests for changes in goals, is also a negotiable procedure. Provision 26, which protects employees from adverse performance evaluations attributable to directed or authorized performance of non-examining functions, is negotiable as an appropriate arrangement under section 7106(b)(3). Provision 27, requiring that complaints against an employee may be considered valid only when in writing and the complainant is identified, excessively interferes with management's rights and is nonnegotiable.

Provisions 28 and 35, which require that employees be evaluated against performance standards established and provided to employees in writing at the beginning of the rating period, constitute negotiable procedures under section 7106(b)(2). Provisions 29 and 30, which require, respectively, that rating officials maintain documentation supporting assigned performance ratings and resolve employees' complaints concerning the accuracy of performance records, are also negotiable procedures. Provision 31, which requires that a supervisor disclose to an employee, normally within 2 weeks, any deficiency that will be used in a performance appraisal and that any delay in disclosure will be considered in mitigating a performance-based action, is negotiable. Provision 32, which requires that rating officials prepare one annual performance appraisal and conduct a performance review at the midpoint of the rating year for each employee, is a negotiable procedure.

Provision 33, which requires management to consider all extenuating circumstances in rating an employee's performance, is negotiable. Provision 34, which requires rating officials to notify employees of the dates and times of formal appraisal meetings, is a negotiable procedure under section 7106(b)(2). Provision 36, which provides that an employee will sign and date a statement certifying that his/her proposed performance rating was discussed with the rating official, is also a negotiable procedure. Provision 37, which provides that, if approving officials deny employees' requests to raise their recommended performance ratings, the reasons for the denials will be explained in writing, is a negotiable procedure.

Provision 38, which provides that performance appraisals will be based on performance during the fiscal year and that ratings generally will be completed by November 15, is a negotiable procedure under section 7106(b)(2). Provision 39, which requires that only performance during the established appraisal period be used in determining employees' ratings for that period, is negotiable. Provisions 40 and 41, which specify the rating levels for three and five level performance rating systems, are negotiable. Provision 42, which provides that performance-based disciplinary actions will be taken for just and sufficient cause and in accordance with applicable laws and regulations, is negotiable. Provision 43, which includes reduction in rank in the definition of performance-based disciplinary actions in the parties' agreement, is negotiable.

The disputed sentence of Provision 44 which requires the Agency to inform an employee of the conditions under which it will defer, modify, or cancel a disciplinary action is negotiable. The portion of Provision 45 that requires the Agency to provide a performance improvement period for employees facing performance-based disciplinary action under 5 U.S.C. chapter 75, is negotiable. However, the second sentence of section D.4 in Provision 45, providing that the required minimum performance improvement to avoid discipline must be reasonably attainable, excessively interferes with management's right to discipline employees under section 7106(a)(2)(A) and is nonnegotiable. Provision 46, which requires that performance-based disciplinary action be progressive, also excessively interferes with management's right to discipline employees and is nonnegotiable. Provision 47, which concerns determinations that employees will not be granted within-grade increases, is negotiable. Provision 48, which provides that the Agency will destroy all documents generated as part of a cancelled performance-based disciplinary action, is negotiable.

II. Background

In May 1981, the parties began negotiations concerning Performance Appraisal Plans. The Agency declared certain proposals to be nonnegotiable, and the Union filed two petitions for review. Subsequently, the Agency implemented performance appraisal plans to meet the October 1, 1981, deadline imposed by section 4303(b)(2) of the Civil Service Reform Act of 1978. The Union requested assistance from the Federal Service Impasses Panel (the Panel) early in 1982, but the Panel declined to assert jurisdiction and directed the parties to bargain on the performance appraisal proposals which the Agency had not declared nonnegotiable.

After bargaining in 1984 and 1985, the Agency declared certain proposals nonnegotiable, and the Union filed a third petition for review. In 1986, after they merged bargaining over performance appraisal issues with negotiations for a basic collective bargaining agreement, the parties again informed the Panel that they were at impasse. The Panel, in response to the parties' requests for binding arbitration, decided that the parties "should select an interest arbitrator" to resolve the parties' dispute over the basic agreement and performance appraisal issues. Reply Brief at 3.

The Arbitrator resolved issues concerning the basic agreement in 1986. Regarding Article 19, Performance Appraisals, he determined:

[i]nasmuch as the parties have several proposals concerning performance appraisal currently pending a negotiability determination before the FLRA, negotiations concerning performance appraisal subjects affected by those proposals may be deferred until the FLRA renders its decision(s) on those proposals. . . . The parties shall negotiate over those subjects which are not affected by the negotiability issues before the FLRA. . . . Within 45 days after the FLRA renders its decision(s), the parties shall negotiate over the appropriate affected performance appraisal subjects. The Arbitrator shall exercise continuing jurisdiction over this subject.

Attachment B to Statement of Position. Subsequently, the Authority issued Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384 (1987) (POPA I), aff'd mem. sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 30, 1988) (per curiam) and Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389 (1987) (POPA II), affirmed sub nom. Patent Office Professional Association v. FLRA, 873 F.2d 1485 (D.C. Cir. 1989). These decisions resolved all outstanding negotiability issues.

In January 1988, the Union submitted a revised package of proposals to the Agency regarding the outstanding performance appraisal issues. The Agency wrote to the Union on July 22, 1988, that "it would not bargain over most of these proposals . . . ." Statement of Position at 5. The Agency asserted that the Union's submission contained "over 40 new proposals" and noted that "some are clearly non-negotiable, some are inconsistent with the Basic Agreement, some are encumbered by ongoing grievance(s) or were previously presented in another set of negotiations, and others are clearly beyond the scope of these negotiations." Attachment E to Statement of Position at 2. In response, the Union filed an unfair labor practice (ULP) charge on February 2, 1989, alleging that the Agency had unlawfully refused to bargain. The Regional Director dismissed the Union's charge on April 28, 1989 because it was untimely filed, and the General Counsel dismissed the Union's appeal of the Regional Director's decision.

Arbitrator Marvin Johnson held an 8-day hearing beginning on September 9, 1989. The Agency refused to participate in the hearing after the first day "because of its objections to the Arbitrator's jurisdiction based upon the lack of any duty to bargain on the majority of [U]nion proposals." Statement of Position at 1-2. However, the Agency served the Arbitrator with an analysis of the differences between its proposals and the Union's including the Agency's "rationale as to the appropriate resolution of those differences." Attachment 1 to Union's Reply Brief. The Arbitrator issued his award, regarding Article 19, Performance Appraisals, on November 30, 1990.

III. Authority Jurisdiction

The Agency asserts that there is "uncertainty in the caselaw [sic] on the proper appeal of interest arbitration awards[,]" and notes that it filed exceptions to the Arbitrator's award under section 7122(a) of the Statute. Statement of Position at 2.

On July 31, 1991, the Authority issued an Order directing the Agency to show cause why its exceptions should not be dismissed because they related to an interest arbitration proceeding entered into under section 7119(b)(1) of the Statute. The Order noted the Authority's holding in U.S. Department of Justice and Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 37 FLRA 1346 (1990) (INS), petition for review dismissed sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA,

No. 90-1613 (D.C. Cir. Nov. 6, 1991) that interest arbitration directed by the Panel under section 7119(b)(1) of the Statute does not constitute binding arbitration to which exceptions can be filed under section 7122(a). The Authority's Order also cited Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 798 (1991) (POPA III), where we held that another interest arbitration award, issued by the Arbitrator pursuant to the same 1986 Panel decision involved in this case, resulted from the Panel's direction under section 7119(b)(1). After the Agency failed to respond to the Order to Show Cause, the Authority dismissed the Agency's exceptions.

Because the interest arbitration proceeding in this case arose under section 7119(b)(1) of the Statute, the agreement provisions imposed by the Arbitrator were subject to Agency head review under section 7114(c). The Agency followed those procedures, and the Union filed a petition for review of the Agency head's disapproval of the award. Consequently, the petition for review is properly before us.

IV. Preliminary Issues

A. Agency's Position

First, the Agency asserts that the Arbitrator "exceeded his jurisdiction under 5 CFR Parts 2470 and 2471, and must have his entire award set aside." Statement of Position at 10. In particular, the Agency argues that the Arbitrator could not consider new proposals offered by the Union following the Authority's negotiability determinations in POPA I and POPA II because the Agency had no duty to bargain concerning those proposals. In this connection, the Agency argues that the Arbitrator was authorized to resolve duty to bargain issues under Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988). The Agency asserts that, consistent with the General Counsel's refusal to issue a complaint on the Union's ULP charge, the Arbitrator had no jurisdiction to issue an award which included proposals the Union submitted in January 1988.

The Agency also argues that the Arbitrator exceeded his jurisdiction by including in his award proposals made by the Union in connection with a change in the performance standard for workflow management because this change was "clearly beyond the scope" of the dispute for which the Arbitrator was appointed. Statement of Position at 20. In addition, the Agency asserts that the Arbitrator had no jurisdiction over the majority of the proposals because the parties had not negotiated to impasse and the Arbitrator "failed to provide any mediation." Id. at 17 (footnote omitted). The Agency further asserts that the Arbitrator "disregarded" the parties' negotiated grievance procedure by resolving grievances filed by the Union. Id. at 18.

Second, the Agency argues that Article 19, "in its entirety," directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute by requiring management to spend "a substantial portion of its work day in meetings, drafting written responses and/or participating in joint committees . . . ." Id. at 50, 52-53. The Agency argues that the "practical consequences" of Article 19 directly interfere with management's "ability to exercise its rights," and, consequently, the article is nonnegotiable. Id. at 51.

B. Union's Position

The Union disputes the Agency's contention that the Arbitrator could not include provisions in his award that the parties had not discussed. The Union asserts that the Arbitrator had "jurisdiction over subject matters, not particular proposals or issues." Reply Brief at 7. The Union also contends that the dismissal of a ULP charge "has no precedential value, particularly when it was dismissed on the grounds of timeliness." Id. at 8. The Union further argues that the Agency is attempting to "sandbag the interest arbitration process" by "submit[ing] alternative language to the arbitrator, argu[ing] for the need for that alternative language, and then declar[ing] that very same language as nonnegotiable when the arbitrator adopts it." Id. at 4. The Union urges the Authority to establish a doctrine of equitable estoppel to prevent "this kind of abuse of the negotiations process[.]" Id. at 5.

C. Analysis and Conclusions

1. Arbitrator's Authority

Section 7119(b)(1) of the Statute empowers the Panel to direct parties to use interest arbitration to resolve negotiation impasses. INS, 37 FLRA at 1354-57. In INS, we specifically reaffirmed the Panel's authority to designate a private, outside arbitrator and noted that section 7119 "expressly authorizes the Panel to take whatever action it deems necessary to resolve an impasse[.]" Id. at 1357. In addition, under section 7119(c)(5)(ii) of the Statute, the Panel is authorized to resolve an impasse "through whatever methods and procedures, . . . it may consider appropriate." In this regard, the Panel "is empowered to take whatever action is necessary to resolve an impasse, including ordering parties to agree to specific proposed language." National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 415 (1990). The Arbitrator in this case was selected by the parties under the Panel's direction and, in our opinion, possessed the same authority to resolve the parties' dispute as the Panel. We find no basis on which to conclude that the Arbitrator was limited in any manner in resolving the parties' dispute concerning performance appraisal issues. Accordingly, we reject the Agency's argument that the Arbitrator exceeded his jurisdiction.

Furthermore, the Agency's position that the entire award should be set aside because the Arbitrator either failed to resolve, or improperly resolved, the argument that the Agency had no duty to bargain on certain proposals is not dispositive of this negotiability dispute. In this case, the Agency asserts, in addition to its position that the entire award should be set aside, that each provision contained in the petition for review is inconsistent with law and regulation and, therefore, nonnegotiable. Under section 7117(c) of the Statute and Part 2424.1 of the Authority's Rules and Regulations, the Authority will consider a petition for review of a negotiability issue where the parties disagree over whether a provision conflicts with law, rule, or regulation. See National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Typographic Production Center, Louisville, Kentucky, 45 FLRA 1199, 1200 (1992). The Agency clearly has declared that the disputed provisions are inconsistent with law or regulation. Consequently, we conclude that the dispute is properly before us for resolution as a negotiability appeal and we reject the Agency's argument that, apart from the negotiability of specific proposals, the award should be set aside.

Where, as here, the conditions for review of a negotiability appeal have been met, a union is entitled to a decision on whether a disputed provision is negotiable under the Statute even if additional issues exist, including whether an agency is obligated to bargain over certain proposals made by a union. To the extent that such issues exist, they should be resolved in other appropriate proceedings. See National Federation of Federal Employees, Local 341 and U.S. Department of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, Wapato, Washington, 39 FLRA 1272, 1275 (1991); American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984).

2. Remaining Arguments

We reject the Agency's argument that Article 19, taken as a whole, directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and, consequently, must be found nonnegotiable. The Agency cites no authority, and none is apparent to us, to support the Agency's argument that the negotiability of the entire article can appropriately be determined apart from the negotiability of its specific provisions. Accordingly, we will consider the negotiability of the specific provisions in Article 19 that the Agency has asserted are nonnegotiable.

Finally, we reject the Agency's assertion that certain provisions are nonnegotiable because their inclusion in the parties' collective bargaining agreement would subject to arbitral review management's exercise of its rights under section 7106(a) of the Statute. An agency's assertion that an arbitrator's judgment may be substituted for the agency's own is not a basis for finding a provision to be nonnegotiable. See, for example, National Federation of Federal Employees, Council of GSA Locals and General Services Administration, 41 FLRA 728, 744 (1991). As we discussed above, the negotiability of each of the provisions before us must be decided on its own merits. Those provisions which we find are negotiable will be included in the parties' agreement. The question as to whether a subsequent arbitral award based on these provisions constitutes an impermissible interference with management's rights must be directed to the merits of such an award. We will not address this argument further.

V. Provisions 1-6

Provision 1: Section 1 - B.

Performance elements are job functions for which performance standards are set.

Provision 2: Section 1 - C.

Performance standards are expressed measures of the quality, quantity and timeliness of accomplishment of performance elements.

Provision 3: Section 1 - D.

The rating official is responsible for, among other functions connected with performance appraisal, disclosing to, and discussing with, [sic] the elements (both critical and noncritical) of the employee's position and the performance standards for those elements, appraising performance, and assigning the recommended performance rating. Normally, this is the employee's immediate supervisor.

Provision 4: Section 1 - E.

The approving official is the supervisor who assigns, controls and is responsible for the work of the rating official, normally the rating official's immediate supervisor. The approving official is responsible for assigning the final performance rating.

Provision 5: Section 1 - F.

Performance means an employee's accomplishment of assigned duties and responsibilities.

Provision 6: Section 1 - G.

A critical element is a performance element that is of sufficient importance that: (1) performance in that element below the satisfactory level merits the denial of a within grade increase and (2) unacceptable performance in that element merits one of the corrective actions of (a) reassignment and the denial of a within grade increase, (b) reduction in grade, or (c) removal. These actions may be taken regardless of the performance in other performance elements.

A. Positions of the Parties

The Agency contends that the definitions of "performance elements" and "performance standards" in Provisions 1 and 2 are inconsistent with 5 C.F.R. § 430.203.⁽¹⁾ The Agency also argues that the definitions of "rating official" and "approving official" in Provisions 3 and 4 directly interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Finally, the Agency asserts that the definition of "performance" in Provision 5 is inconsistent with the definition in 5 C.F.R. § 430.203,⁽²⁾ and the definition of "critical element" in Provision 6 is inconsistent with 5 C.F.R. Part 432 because it does not refer to the opportunity to improve period provided in 5 C.F.R. § 432.104.⁽³⁾

Initially, the Union notes that the parties agreed to Provisions 1 through 6 before they reached impasse on Article 19 and that the Agency could have, but did not, challenge their negotiability in 1981 or 1985. The Union asserts that the definition of "performance elements," in Provision 1, is found in the Federal Personnel Manual (FPM), chapter 430, subchapter 2. Regarding the definition of "performance standard" in Provision 2, the Union argues that it is not intended "to limit a standard to a measure of quality, quantity or timeliness." Reply Brief at 10. The Union argues that Provisions 3 and 4 are not intended "as any limitation on who management may appoint as rating and approving officials." Id. at 11. The Union also asserts that the definition of critical element found in Provision 6 was not intended "as a waiver of unit employees' right to have an opportunity to demonstrate improved performance." Id. Finally, the Union asserts, none of the provisions is intended to be applied in any manner which is "inconsistent with statutory or regulatory provisions . . . ." Id. at 10.

B. Analysis and Conclusions

At the outset, we reject the Union's assertion that Provisions 1 through 6 are not properly before us because the Agency could have, but did not, declare them nonnegotiable in 1981 or 1985, when the Union requested written allegations of nonnegotiability. As noted in Section III, the Arbitrator imposed certain Article 19 provisions, including Provisions 1 through 6. Consistent with INS, 37 FLRA 1346, these provisions were subject to agency head review under section 7114(c) and were disapproved. Because the Union has requested review of the provisions, their negotiability is properly before us.⁽⁴⁾

We also reject the Agency's arguments that the definitions in Provisions 1, 2, and 5 are inconsistent with 5 C.F.R. § 430.203 and that Provision 6 is inconsistent with 5 C.F.R. § 432.104.

Provisions 1, 2, 5, and 6 define, respectively, "performance elements," "performance standards," "performance," and "critical element." With regard to Provision 2, we note the Union's assertion that the definition of performance standards "is not intended to limit a standard to a measure of quality, quantity or timeliness." Reply Brief at 10. As the Union's statement of intent is consistent with the plain wording of Provision 2, we adopt that interpretation in analyzing that provision. We also find that the Union's statement that it does not intend any of these definitions to be applied in a manner inconsistent with "statutory or regulatory provisions" is consistent with the plain wording of Provisions 1, 2, 5, and 6, and we adopt it in analyzing these provisions. Id. Based on the plain language of Provisions 1, 2, 5, and 6 and the Union's statements of intent, we find that nothing in these provisions is inconsistent with the definitions in 5 C.F.R. §§ 430.203 and 432.104. As no other basis for finding these provisions nonnegotiable is argued or apparent to us, Provisions 1, 2, 5, and 6 are negotiable.

In reaching this conclusion, we reject the Agency's assertion that Provision 6 is inconsistent with 5 C.F.R. § 432.104 simply because it does not refer to the opportunity to demonstrate acceptable performance afforded by that regulation. Nothing in the plain wording of Provision 6 compels the conclusion that the provision would eliminate such an opportunity. Moreover, it is unreasonable to attribute to the Union an intent to deprive unit employees of an opportunity to demonstrate acceptable performance.

The Agency's sole argument concerning Provisions 3 and 4 is that they directly interfere with management's right to assign work under section 7106(a)(2)(B) by requiring that particular management officials prepare and approve performance appraisals. On the other hand, the Union asserts that the provisions are not intended to limit management's discretion in designating rating and approving officials. We find that the Union's assertion is inconsistent with the provisions' plain wording. Provision 3 delineates certain functions performed by the rating official and identifies that official as "[n]ormally . . . the employee's immediate supervisor." Similarly, Provision 4 describes certain responsibilities of the approving official and states that official is "normally the rating official's immediate supervisor." In our view, the provisions prescribe that the specified functions be assigned to the identified management officials. Moreover use of the word "normally" in the provisions does not eliminate the restrictions imposed on the Agency's right to assign work. See, for example, American Federation of Government Employees, Local 1658 and U.S. Department of the Army, Army Tank-Automotive Command, Warren, Michigan, 44 FLRA 1375, 1387-88 (1992). As such, the Union's assertion that the provisions do not restrict management in selecting rating and approving officials is inconsistent with their plain wording. We do not base negotiability determinations on a statement of intent that is inconsistent with the plain wording of a provision. See, for example, National Federation of Federal Employees, Local 1974 and U.S. Department of Veterans Affairs, Regional Office, Portland, Oregon, 46 FLRA 1170, 1172 (1993).

Proposals or provisions that concern the assignment of specific duties to particular individuals directly interfere with an agency's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1428 (1992) (Health Care Financing Administration). As Provision 3 and 4 specify that certain tasks are "normally" performed by particular management officials, we find that the provisions directly interfere with the Agency's right to assign work under section 7106(a)(2)(B). See id. Because the Union does not claim that the provisions are intended as appropriate arrangements under section 7106(b)(3), we do not reach that issue. Accordingly, Provisions 3 and 4 are nonnegotiable.

In sum, we find that Provisions 1, 2, 5, and 6 are negotiable and Provisions 3 and 4 are nonnegotiable.

VI. Provisions 7 and 8

Provision 7

Section 2- Procedures for Developing Performance Elements

B. Critical and other performance elements must be identified for each employee. Performance elements must include only those aspects of work over which the employee has control and must be consistent with the duties and responsibilities covered in the employee's position description. These performance elements and performance standards shall be identified through a systematic approach which will assure the job relatedness of elements and performance standards. The approach must identify what employees are expected to do in terms of duties and responsibilities and what they are to produce or achieve.

[Only the underscored sentences are in dispute.]

Provision 8

Section 2- Procedures for Developing Performance Elements

C. No job function can be designated a critical element unless it is so important that removal of the employee for unacceptable performance in that element would be a reasonable option regardless of the employee's performance in other performance elements.

A. Positions of the Parties

The Agency argues that the first and second sentences of Provision 7 are nonnegotiable. According to the Agency, to the extent that sentence 1 would require the identification of noncritical elements for employees, it directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency contends that sentence 2 in Provision 7 has the effect of establishing "substantive criteria governing the determination of the content of a critical or non-critical element." Statement of Position at 26. Provision 8, according to the Agency, is inconsistent with the definition of "critical element" in 5 C.F.R. § 430.203,⁽⁵⁾ because it restricts management's right to designate a job function as a critical element "'unless it is so important that removal of the employee for unacceptable performance would be a reasonable option.'" Id.

The Union asserts that sentence 1 in Provision 7 is not intended to require management to establish noncritical performance elements. The second sentence of Provision 7, the Union asserts, is not "materially different" from other proposals found negotiable by the Authority. Reply Brief at 12. Citing Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616, 635 (1987) (Newark), the Union also argues that because the content of performance standards, including those which hold employees accountable for matters beyond their control, can be arbitrated, the parties should be able to negotiate the content of such standards. Provision 8, the Union asserts, is not inconsistent with 5 C.F.R. § 430.203 and is not intended to be applied in any manner which is inconsistent with applicable statutory or regulatory provisions. Finally, the Union asserts that all of Section 2, including Provisions 7 and 8, is intended to constitute a procedure for satisfying the requirements of 5 U.S.C. § 4302(b)(1).⁽⁶⁾

B. Analysis

Management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute encompass the authority to identify critical elements of performance and to establish performance standards. See, for example, National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Western Region, 42 FLRA 964, 974-78 (1991) (decision and order on remand) (Food and Nutrition Service) and cases cited therein. Provisions which restrict an agency's authority to determine the content of performance standards directly interfere with management's right to direct employees and assign work. See, for example, id. at 975-77. On the other hand, provisions which concern the application of performance standards do not directly interfere with management's rights to direct employees and assign work. See, for example, National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 846 (1990) (NAFEC). Accordingly, the task in deciding the negotiability of a provision similar to Provisions 7 and 8 "'is primarily one of determining, based on the record, whether [it] concern[s] substantive matters, such as the content of performance standards and critical elements, or whether [it] concern[s] the application of those standards and elements and other nonsubstantive matters such as procedures.'" Food and Nutrition Service, 42 FLRA at 974 (brackets in original, quoting POPA I, 25 FLRA at 387).

The Union asserts that the first sentence of Provision 7 is "not intended to require management to establish non-critical elements for employees if it does not wish to." Reply Brief at 12. More particularly, the Union states that it intends sentence 1 to have the same effect as Proposal 1 in American Federation of Government Employees, AFL-CIO, Local 3028 and Department of Health and Human Services, Public Health Service, Alaska Area Native Health Service, 13 FLRA 697, 698 (1984) (Public Health Service) The Union asserts that, like Proposal 1 in Public Health Service, the first sentence of Provision 7 does not require the Agency to designate any elements as non-critical.

We disagree. The Authority noted that the Public Health Service proposal did not "require that any elements of any job be deemed to be 'noncritical.'" Id., 13 FLRA at 699. In contrast, sentence 1 in Provision 7 mandates that "[c]ritical and other performance elements must be identified[.]" The Union concedes that "other performance elements" include non-critical elements. See Reply Brief at 12. Therefore, sentence 1, unlike the Public Health Service proposal, requires management to identify non-critical elements for each position. Accordingly, we find the Union's explanation of the first sentence inconsistent with its plain wording and, consequently, we reject that explanation. See, for example, National Federation of Federal Employees, Local 1214 and U.S. Department of the Army, Headquarters, United States Army Training Center and Fort Jackson, Fort Jackson, South Carolina, 45 FLRA 1222, 1224-25 (1992).

As noted above, the authority to identify critical elements of a position is a component of management's rights to direct employees and assign work. Similarly, as the Authority noted in International Federation of Professional and Technical Engineer, Local 25 and Department of the Navy, Mare Island Naval Shipyard, 13 FLRA 433, 437 (1983), "the identification of job elements, if any, which are not critical is also an exercise of those rights." As the first sentence of Provision 7 provides that management "must" identify non-critical elements for each employee, it directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See id. As the Union does not claim that the first sentence of Provision 7 constitutes an appropriate arrangement, it is nonnegotiable.

The first part of sentence 2 in Provision 7 requires that performance elements include only those aspects of work over which employees have control. Provisions which require management to adjust or change performance expectations in specified circumstances dictate the content of performance standards and, thereby, directly interfere with management's rights to direct employees and assign work. NAFEC, 36 FLRA at 845. The first part of sentence 2, by limiting the content of critical elements to those aspects of work over which employees have control, restricts the Agency's authority to determine the content of employees' critical elements. Therefore, we conclude that the first part of sentence 2 directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See, for example, id. at 847-48 (provision requiring management to make allowances for factors beyond the control of an employee in evaluating performance held to require management to change or adjust its performance expectations).

The Union does not assert that the first part of the second sentence constitutes an appropriate arrangement under section 7106(b)(3) for employees adversely affected by the exercise of a management right. In this regard, the first part of the second sentence is distinguishable from a proposal, requiring that management make allowances for factors beyond employees' control in applying performance standards, which we recently determined was an appropriate arrangement in National Federation of Federal Employees, Local 1974 and U.S. Department of Veterans Affairs, Regional Office, Portland, Oregon, 46 FLRA 1170 (1993) (Department of Veterans Affairs). See also Provision 11, below. The first part of the second sentence bars inclusion of aspects of work beyond employees' control in performance standards. Even assuming, without deciding, that the first part of the second sentence is an arrangement for adversely affected employees, the Union has not explained how preclusion of performance standards which, for example, may be aimed at assessing employees' ability to cope with exceptional situations would not excessively interfere with management's rights to direct employees and assign work. We will consider whether a provision constitutes an appropriate arrangement when it is not argued in order to avoid an anomalous result. However, where, as here, the Union has not created a record that would permit us to determine whether the first part of the second sentence constitutes an appropriate arrangement, we will not examine that issue.

The parties bear the burden of creating a record on which we can base a negotiability determination. Association of Civilian Technicians, New York State Council and U.S. Department of Defense, National Guard Bureau, State of New York, Division of Military and Naval Affairs, 45 FLRA 17, 21 (1992). As the record does not provide a basis for determining whether the first part of the second sentence of Provision 7 constitutes an appropriate arrangement, and as it directly interferes with management's exercise of the rights to direct employees and assign work under section 7106(a)(2)(A) and (B), the first part of the second sentence is nonnegotiable.

Turning to the second part of sentence 2, we find that this part of Provision 7 does not restrict the Agency's authority to determine the content of critical elements. Rather, it requires that each employee's performance elements be consistent with the duties and responsibilities in the employee's position description. Provisions requiring consistency between position descriptions and performance elements do not restrict an agency's choice of performance elements. Rather, such provisions permit an agency to achieve consistency between performance elements and the position description by amending the descriptions. An agency's right to direct employees and assign work through the establishment of performance elements and standards remains unaffected, subject to the procedural requirement that the position descriptions involved must accurately reflect the work assigned. Accordingly, provisions that require consistency between position descriptions and performance elements are negotiable procedures under section 7106(b)(2) of the Statute. See, for example, United Power Trades Organization and U.S. Department of the Army Corps of Engineers, Walla Walla, Washington, 44 FLRA 1145, 1155 (1992) (Corps of Engineers), dismissed as to other matters sub nom. United Power Trades Organization v. FLRA, No. 92-70520 (9th Cir. Aug. 26, 1992).

The second part of sentence 2 in Provision 7 requires consistency between performance elements and the duties and responsibilities in an employee's position. In order to comply with this aspect of Provision 7, the Agency is required only to take the procedural step of assuring that employees' position descriptions accurately reflect the work assigned. Consequently, consistent with Corps of Engineers, we find that the second part of sentence 2 in Provision 7 constitutes a negotiable procedure under section 7106(b)(2) of the Statute.

Turning to Provision 8, we reject the Agency's assertion that it is inconsistent with 5 C.F.R. § 430.203. Provision 8 requires that in order to be designated a critical element, a job function must be "so important" that removal would be "a reasonable option" if an employee's performance in that element was unacceptable. 5 C.F.R. § 430.203 requires that a critical element must involve job functions which are of "such importance that unacceptable performance on [sic] the element would result in unacceptable performance in the position." We find no material difference between the regulatory definition of critical element and the definition contained in the provision. Consequently, we conclude that Provision 8 is not inconsistent with 5 C.F.R. § 430.203. As the Agency has asserted no other basis for finding Provision 8 nonnegotiable, and none is apparent to us, we conclude that the provision is negotiable.

C. Conclusions

Sentence 1 and the first part of sentence 2 of Provision 7 directly interfere with management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. Because the Union does not assert that the first sentence and the first part of the second sentence constitutes a negotiable appropriate arrangement, sentence 1 and the first part of sentence 2 of Provision 7 directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and are nonnegotiable. The second part of sentence 2 is a negotiable procedure. Finally, Provision 8 is negotiable.

VII. Provision 9

Section 3.C.

Prior to the establishment or substantive modification of any performance appraisal plan the following procedure will be used:

3. After consulting with the Association as to a mutually convenient date, time and place, management shall distribute a memo to all affected employees notifying them of the date, time and place of the meeting, its purpose and that they are afforded one hour of official time in accordance with Article 14, Section 3(C). Unless the parties agree otherwise or adequate space is not available, all employee meetings shall be completed within two weeks of the first employee meeting.

[Only the underscored sentence is in dispute.]

A. Positions of the Parties

The Agency asserts that the last sentence of Provision 9 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute by "dictat[ing] when the meetings must be completed . . . ." Statement of Position at 27.

With regard to the last sentence of Provision 9, the Union asserts that the Agency asked the Arbitrator to establish "'a reasonable but fixed timeframe [sic] to complete the employee meetings. . . .'" Reply Brief at 14. The Union now asserts that it has "no position" on the negotiability of that sentence because the Agency is "object[ing] to the adoption of its own proposal[.]" Id.

B. Analysis and Conclusions

We reject the Agency's argument that the last sentence of Provision 9 directly interferes with management's right to determine when assigned work will be performed. It is undisputed that the meetings referred to in Provision 9 are intended to implement the requirement in 5 U.S.C. § 4302a(a)(2) that employees and management jointly participate in developing performance standards.⁽⁷⁾ The Agency does not claim that holding employee meetings directly interferes with its exercise of the right to assign work. Rather, the Agency argues that the provision interferes with that right by specifying when the meetings must be completed. We find that the requirement to complete such meetings within a particular time frame does not directly interfere with the exercise of management's right to assign work under section 7106(a)(2) of the Statute. Instead, we find that the timing requirement is one step that the Agency will follow in holding meetings with employees and, therefore, constitutes a procedure that management will follow. As such, the requirement to complete employee meetings within 2 weeks of the first meeting is a negotiable procedure under section 7106(b)(2). Health Care Financing Administration, 44 FLRA at 1510-11 (proposal concerning equal employment opportunity (EEO) complaint processing that included time limits held to constitute negotiable procedure).

VIII. Provision 10

Section 3.D.

1. Within a given job classification such as patent examiners or patent classifiers, it is normally expected that the performance standards, the units of measurement, and the levels at which different ratings will be given would 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. However, it has been held that deviation from the expectation is a management right. To promote better understanding, management will, upon the presentation of a written request, provide a written explanation of any deviation from that expectation.

2. Between different job classifications, it is normally expected that the performance standards, the units of measurement, and the levels at which different ratings will be given would be comparable for employees performing similar job functions with any variances being reasonably based on differences in job functions. However, it has been held that deviation from that expectation is a management right. To promote better understanding, management will, upon the presentation of a written request, provide a written explanation of any deviation from that expectation.

A. Positions of the Parties

The Agency asserts that Provision 10 directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute because it concerns the content of performance standards. In support, the Agency argues that the provision is "almost identical" to Sections 3.E. and 3.F. in POPA I, which the Authority held directly interfered with management's rights to direct employees and assign work. Statement of Position at 27.

The Union asserts that Provision 10 differs from the proposals found nonnegotiable in POPA I because it "explicitly recognizes that deviation from consistent performance standards [is] a matter of management right[.]" Reply Brief at 15. The Union also argues that because Newark, 30 FLRA at 635, permits arbitrators to review performance standards for conformity with existing legal and statutory requirements, provisions, such as Provision 10, which "supply[] information by which such conformity may be evaluated[,]" are negotiable. Reply Brief at 15. Finally, the Union contends that the provision is negotiable because it is consistent with FPM chapter 430, subchapter 2-3(b)(13) and 2-3(c).⁽⁸⁾

B. Analysis and Conclusions

Provision 10 describes the "expected" practices in establishing "performance standards, the units of measurement, and the levels at which different ratings will be given." In this regard, we note that the described practices parallel the guidance from the Office of Personnel Management contained in FPM Chapter 430, subchapter 2-3(b)(13) and 2-3(c) concerning the characteristics of good performance standards. However, the provision recognizes management's prerogative to deviate from the expectations outlined in the provision. If management elects to exercise that prerogative, the provision obligates the Agency to respond in writing to written requests for explanations of the variations. As such, the provision does not require the Agency to establish its performance standards in a particular manner, or to modify or adjust those standards and does not directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B). Accordingly, Provision 10 is negotiable. See, for example, Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 813-14 (1991) (Patent and Trademark Office II).

In reaching this conclusion, we reject the Agency's argument that Provision 10 is nearly identical to Sections 3.E and 3.F, which were found to directly interfere with management's rights to direct employees and assign work in POPA I. Provision 10 is similar to Sections 3.E and 3.F in that Provision 10 describes certain characteristics performance standards, units of measurement, and performance levels are "normally expected" to possess. Unlike the two sections in POPA I, however, Provision 10 acknowledges that "deviation from the expectation is a management right." Therefore, Provision 10 is distinguishable from Sections 3.E and 3.F because it does not "substantively restrict the establishment of standards and levels and thus . . . directly interfere with management's rights to direct employees and assign work." Id., 25 FLRA at 389.

On the other hand, Provision 10 provides that, "[t]o promote better understanding," management will provide "a written explanation of any deviation from that expectation" in response to written requests. Sections 3.E and 3.F in POPA I also required management to explain in writing any variations from the expectations described in those sections. In POPA I, the Authority found that this requirement directly interfered with management's rights to direct employees and assign work because, in reviewing the agency's explanation, an arbitrator would "be required to substitute his judgment as to how the [a]gency should be run for that of management." Id., 25 FLRA at 390. However, the Authority no longer finds a proposal nonnegotiable on that basis. See, for example, National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377, 403 (1991) (IRS), petition for review filed sub nom. Department of the Treasury, Internal Revenue Service v. FLRA, No. 91-1573 (D.C. Cir. Nov. 25, 1991); and Newark, 30 FLRA at 635. Accordingly, we find that the holding in POPA I is not controlling as to Provision 10 in this case.

IX. Provision 11

Section 3.F. All applications of performance standards to an individual's work shall be fair, equitable and reasonable. In addition, no employee shall be held responsible for matters beyond his control.

[Only the underscored sentence is in dispute.]

A. Positions of the Parties

Citing POPA I, 25 FLRA at 393-95, the Agency asserts that the disputed sentence in Provision 11 is nonnegotiable because it directly interferes with its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute by preventing management from establishing performance standards which hold employees accountable for matters beyond their control.

The Union argues that Provision 11 "deals exclusively with the application of standards to employees, and not to [sic] the content of standards." Reply Brief at 16. The Union also asserts that the disputed sentence of Provision 11 is intended as an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

Initially, the Agency argues that the holding in POPA I, 25 FLRA at 393-95 is controlling as to the negotiability of Provision 11. In POPA I, the Authority held that certain proposals were nonnegotiable because they resulted in arbitrators' substituting their judgment for that of the agency in determining the content of performance standards. However, as discussed in Section IV, we will no longer find proposals nonnegotiable on that basis. Consequently, the Agency's reliance on POPA I is misplaced.

As noted previously in our discussion of Provisions 7 and 10, provisions which restrict an agency's right to determine the content of performance standards and critical elements directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B). The disputed sentence of Provision 11 prohibits the Agency from holding an employee responsible "for matters beyond his control." Consequently, this sentence requires the Agency to adjust its performance standards so that employees' performance will not be downgraded because of matters beyond their control. As the disputed sentence requires that performance standards be adjusted or modified to compensate for such matters, it directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See Customs Service, 40 FLRA at 580-81 (provision requiring that, in "application of performance standards," management take into account certain mitigating factors held to directly interfere with rights to direct employees and assign work). Unless this sentence is an appropriate arrangement under section 7106(b)(3), as the Union argues, it is nonnegotiable.

To determine whether a provision is an appropriate arrangement, we first decide whether the provision is intended as an arrangement for employees adversely affected by the exercise of a management right. If we determine that the provision is an arrangement, we then examine whether the arrangement is appropriate because it does not excessively interfere with the exercise of the management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986) (KANG).

The Union asserts that the disputed sentence in Provision 11 is intended as an arrangement to provide relief for an employee whose performance is adversely evaluated because of matters beyond the employee's control and, consequently, is "discipline[d], remove[d], suspend[ed] or reduce[d] in pay . . . ." Reply Brief at 16. The Union contends that "[d]iscipline or any of the other recited consequences for proper performance clearly has an adverse [e]ffect on an employee."⁽⁹⁾ Id. (emphasis in original). Based on the Union's assertions, we find that the disputed sentence is intended as an arrangement for employees whose evaluations are lowered because of detrimental effects on performance caused by matters outside their control, and, consequently, are adversely affected by management's exercise of its rights to direct employees and assign work under section 7106(a)(2)(A) and (B).

Next, we consider whether the disputed sentence excessively interferes with management's rights to direct employees and assign work. This requires a balancing of the benefits to employees provided by the disputed sentence against the burden on the exercise of management's rights. KANG, 21 FLRA at 31-32. Employees whose performance ratings could be adversely affected by matters beyond their control would benefit from the disputed sentence because such matters would not be considered in evaluating their performance. As a result, the disputed sentence ensures that employees' evaluations will not be negatively affected by matters beyond their control. This benefit is significant for employees because performance appraisals, in addition to their use as a basis for awards and promotions, also may result in demotions suspensions, removals, and other negative personnel actions.

On the other hand, the burden placed on the Agency to avoid appraising employees on matters outside their control is slight. Initially, we note that the Agency retains discretion to establish performance elements and standards reflecting the work for which employees are responsible.⁽¹⁰⁾ In this regard, we note that management is required to evaluate an employee against the employee's performance elements and standards. See 5 C.F.R. § 430.204(b) ("An employee must be appraised on each critical and non-critical element in the employee's performance plan"). The disputed sentence does not affect that obligation. Accordingly, we find that the requirement in the disputed sentence puts a slight, but acceptable, burden on management. Finally, we note that the disputed sentence of Provision 11 benefits both management and employees by, in effect, requiring that those elements of performance for which an employee is responsible be clearly defined and that performance evaluations reflect employees' accomplishments in comparison with applicable performance standards.

On balance, we conclude that the benefits afforded employees by the disputed sentence of Provision 11 outweigh the effect on management's rights to direct employees and assign work. Accordingly, we conclude that the disputed sentence does not excessively interfere with management's rights and is an appropriate arrangement negotiable under section 7106(b)(3) of the Statute. See Customs Service, 40 FLRA at 582-83.

X. Provision 12

Section 3.G. Objectivity. To the maximum extent feasible, all performance standards and application of the standards to the individual's work shall permit the 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 the employee or position, and must be described in objective, job-related terms that are independent of the individual making the evaluation.

A. Positions of the Parties

The Agency asserts that Provision 12 directly interferes with management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute because it precludes management from establishing performance standards "which are subjective in nature . . . ." Statement of Position at 28. According to the Agency, 5 U.S.C. § 4302 does not require "rigid, mechanical standards devoid of any subjective judgment."⁽¹¹⁾ Id.

The Union asserts that Provision 12 "does not require a precision in the formulation of performance standards" other than what is required by 5 U.S.C. § 4302. Reply Brief at 17. The Union asserts that Provision 12, like 5 U.S.C. § 4302, only requires the use of objective criteria "'to the maximum extent feasible.'" Id.

B. Analysis and Conclusions

The Union maintains that "[c]onsistent with 5 U.S.C. § 4302(b)(1), [Provision 12] requires that the standards and their application permit evaluation of job performance based on objective criteria 'to the maximum extent feasible.'" Reply Brief at 17. We find that the Union's explanation is consistent with the plain wording of the provision. 5 U.S.C. § 4302(b)(1) requires that agencies establish performance standards "which will, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria . . . related to the job in question for each employee or position . . . ."

The exercise of management's rights under section 7106(a)(2) of the Statute is subject to "applicable laws." See IRS, 42 FLRA at 389. We have determined that 5 U.S.C. § 4302(b)(1) constitutes an applicable law within the meaning of section 7106(a)(2). Corps of Engineers, 44 FLRA at 1158.

Provision 12 incorporates into the parties' agreement the requirement in 5 U.S.C. § 4302(b)(1) that performance standards permit evaluations based on objective criteria to the maximum feasible extent. Consequently, we find that Provision 12 does nothing more than obligate the Agency to exercise its rights under section 7106(a)(2)(A) and (B) to direct employees and assign work consistent with applicable law.

The Agency argues that the provision is inconsistent with 5 U.S.C. § 4302(b)(1) because it requires "rigid, mechanical standards devoid of any subjective judgment." Statement of Position at 28. We disagree. Although the last clause of the provision requires that performance standards be described in "terms that are independent of the individual making the evaluation[,]" we find that this clause is also covered by the introductory clause requiring objectivity "to the maximum extent feasible," the same wording that appears in 5 U.S.C. § 4302(b)(1). We conclude, therefore, that Provision 12 allows the same latitude for managerial subjectivity in rating employees as does 5 U.S.C. § 4302(b)(1).

For these reasons, we find that Provision 12 is negotiable. See Corps of Engineers, 44 FLRA at 1156-59 (proposal, requiring objective performance standards "to the maximum extent feasible," found to incorporate permissible statutory limitation and held to be negotiable).

XI. Provision 13

Section 3.P. No performance standard shall refer to a criterion or policy which is not in written form and attached to the performance appraisal plan or to a criterion or policy which is to be specified at a later time.

A. Positions of the Parties

The Agency contends that Provision 13 is nonnegotiable because it directly interferes with management's rights to direct employees and assign work. According to the Agency, the provision affects the content of performance standards by precluding references to unwritten policies and criteria or to policies and criteria to be specified later.

The Union argues that the provision does not preclude management from determining the content of performance standards or from changing those standards. Rather, according to the Union, the provision "only requires that when performance standards incorporate some extrinsic [A]gency policy or criteria concerning work performance, that policy be . . . attached to the performance appraisal plan given to the employee." Reply Brief at 17.

B. Analysis and Conclusions

Provision 13 prevents reference in performance standards to criteria or policies that are not in writing and attached to performance appraisal plans. In addition, the provision prevents management from referring in performance standards to criteria or policies that are not yet promulgated.

The Union states that Provision 13 is intended to assure that employees have "adequate, written notice of the standard of performance that is expected of them." Reply Brief at 17. The Union further asserts that its intent is "only to preclude management from holding employees retroactively accountable for standards of performance before the substance of those standards were actually established and communicated to the employee." Id. According to the Union, the provision would, for example, "preclude the issuance of a performance standard on October 1 which reads 'Employee will comply with [A]gency regulation on timeliness of case closures to be issued on December 1.'" Id. The Union adds that the Agency "may, on December 1, amend the previously established appraisal plan for the employee by the inclusion of a standard requiring compliance with the newly established [A]gency regulation on timeliness, which would have to be attached to the appraisal plan." Id.

Based on the Union's explanation, which is consistent with the provision's plain wording, we find that Provision 13 addresses the content of performance standards only insofar as it prevents management from referring to unpublished criteria and policies in them. In other words, the provision requires the Agency to include in its performance standards the policies and criteria against which employees' performance will be evaluated. As the Union explains, management may subsequently act to incorporate any later published criteria or policies the Agency chooses to include. In this regard, we note that any change in the current performance standards to incorporate new criteria or policies would be subject only to impact and implementation bargaining. See, for example, National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 395 (1990). As such, Provision 13 does not establish substantive criteria governing the content of performance standards. That is, management retains discretion to determine the expectations or requirements employees must satisfy to attain a particular level of performance. Accordingly, Provision 13 is negotiable. See National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 456, 467-68 (1990) (Naval Underwater Systems Center), remanded as to other matters sub nom. United States Department of the Navy, Naval Underwater Systems Center v. FLRA, No. 91-1045 (D.C. Cir. July 23, 1991) (first sentence of proposal requiring inclusion in performance plans of information related to the accomplishment of organizational objectives for informational purposes only did not directly interfere with the agency's right to determine content of such plans).

XII. Provisions 14 and 15

Section 4- Procedures Specific to Developing and Implementing Timeliness Standards

Provision 14

C. No employees 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.

Provision 15

D. 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 actual 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.).

E. For employees other than patent examiners, it shall be unreasonable to adversely evaluate the employee under circumstances analogous to those set forth in subsection [D] above.⁽¹²⁾

[Footnote added.]

A. Positions of the Parties

Although the Agency concedes that the Authority found provisions negotiable in POPA I which were the same as Provisions 14 and 15, it argues that Provisions 14 and 15 directly interfere with management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency contends that these provisions place "a substantive limitation" on the Agency's discretion to evaluate an employee's performance because they "preclude an adverse evaluation in certain instances." Id. at 30-31.

The Union argues that Provisions 14 and 15 should be found negotiable for the reasons stated in connection with Section 4.G, H, and I in POPA I, 25 FLRA 401-03.

B. Analysis and Conclusions

The parties agree that Provisions 14 and 15 are the same as Section 4.G, H, and I in POPA I. In POPA I, the Authority found that Section 4.G, which is the same as Provision 14, addressed "the manner in which the [performance] requirements management does impose are applied to employees in evaluating them." POPA I, 25 FLRA at 401 (emphasis in original). The Authority also found that Section 4.H and I, which are the same as Provision 15, concerned "the application of [timeliness] standards to the differing work situations of employees." Id. at 402. The Authority concluded that Section 4.G, H, and I concerned the application of performance standards, did not directly interfere with management's rights to direct employees and assign work, and were negotiable.

The Agency's argument provides no grounds for reassessing the conclusion reached in POPA I concerning the counterparts of Provisions 14 and 15. In this regard, the cases the Agency relies on are inapposite. In Coordinating Committee of Unions and Department of the Treasury, Bureau of Engraving and Printing, 29 FLRA 1436, 1444-46 (1987) (Bureau of Engraving), the disputed portion of Proposal 4 prevented the agency from basing a performance appraisal on performance of certain duties. In American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 28 FLRA 714, 716-18 (1987) (OPM), Proposal 3 restricted management from changing the type and percentage of work reviewed for performance appraisal purposes.

Unlike the proposals in Bureau of Engraving, OPM, and Provision 11, in this case, which address the content of performance standards, Provisions 14 and 15 concern the application of performance standards. Accordingly, we conclude that these provisions do not directly interfere with management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) and are negotiable.

XIII. Provision 16

Section 4- Procedures Specific to Developing and Implementing Timeliness Standards

4(F)- When management establishes any measure of timeliness which subtracts points for instances of a failure to meet a standard but does not also add an equal number of positive points for instances in which the required action is taken before one half of the allocated time expires, management shall give the Association a written explanation of its reasons for not including the positive points.

A. Positions of the Parties

The Agency asserts that Provision 16 directly interferes with its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute by substantively restricting the establishment of performance standards.

The Union asserts that it intends to require management "to expand the number of ways in which examiners could have points added to their score . . . ." Reply Brief at 20. The Union concedes that a proposal requiring additional points for timeliness would be nonnegotiable, but asserts that Provision 16 merely requires the Agency to "explain in writing the reasons for actions it takes in the performance appraisal process . . . ." Id. at 21. Therefore, the Union claims that the provision only obligates the Agency to "consider" adopting a revised performance standard. Id.

B. Analysis and Conclusions

Under Provision 16, if the Agency establishes a timeliness measurement which subtracts points for an employee's failure to meet a standard and does not add points when the required action is taken in less than half the allotted time, then the Agency is required to provide the Union with a written explanation of its reasons for not adding points. Because the provision does not require the Agency to modify or adjust its performance standards, we reject the Agency's argument that Provision 16 is like Section 3.E in POPA I, which limited management's ability to determine the content of performance standards.

Provision 16 simply requires that, in certain circumstances, the Agency explain its reasons for failing to take certain actions. Therefore, we find that Provision 16 does not directly interfere with the Agency's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) and is negotiable. See, for example, Patent and Trademark Office II, 39 FLRA at 813-14.

XIV. Provision 17

Section 4- Procedures Specific to Developing and Implementing Timeliness Standards

4(I)- The docket report shall be expanded to include all cases an examiner is expected to work on during the biweek that are known as of the end of the prior biweek. The report shall be delivered to each examiner by the first Tuesday of each biweek and the examiner shall be entitled to rely on the completeness of the report.

[Only the underscored sentence is in dispute.]

A. Positions of the Parties

The Agency asserts that Provision 17 directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute because the first part of the second sentence "mandates" that the docket report be available by the first Tuesday of each biweek. Statement of Position at 32. According to the Agency, management's right to assign work includes the right to determine when the work assigned to employees will be performed.

The Agency also contends that the second part of the provision's second sentence directly interferes with its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) because, "to the extent it would permit an employee to rely on the completeness of the report . . . to avoid liability for failure to meet his/her timeliness standard, it would preclude an adverse rating in such a situation." Id. Finally, the Agency argues that Provision 17 "is not merely procedural in nature." Id. at 33.

The Union contends that the first part of the second sentence in Provision 17 is "procedural." Reply Brief at 21. The Union further argues that the second part of the provision's second sentence does not absolve employees of accountability if cases are not reported "because management retains the right to update or amend the report to include omitted cases." Id. The Union asserts that the second part of the second sentence is also procedural because it merely requires the Agency to inform employees about matters for which they will be held accountable. The Union maintains that, alternatively, Provision 17 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

1. The First Part of the Disputed Sentence

According to the Union, employees receive biweekly docket reports that list their outstanding cases and how long the cases have been pending. The first sentence of Provision 17 seeks to expand the reports to include cases examiners will be expected to work on during the biweek.

The Agency does not object to the proposed expansion of the docket reports. The Agency argues only that the first part of the second sentence interferes with its right to assign work by specifying when the reports will be delivered to employees. In this regard, Provision 17 is similar to the proposal requiring that employees receive their paychecks 6 days after the close of the pay period, which we held was negotiable in American Federation of Government Employees, Local 1698 and U.S. Department of the Navy, Naval Aviation Supply Office, Philadelphia, Pennsylvania, 38 FLRA 1016 (1990) (Naval Aviation Supply Office). We found that the proposal in Naval Aviation Supply Office did not "directly relate" to management's rights. 38 FLRA at 1023. Rather, we found that the proposal left the agency with discretion to exercise its management rights in any manner that allowed it to meet the proposed paydate. Accordingly, we rejected the agency's claim that the proposal interfered with management's rights.

Like the proposal in Naval Aviation Supply Office, this disputed part of the provision does not specify how, or by whom, management will accomplish delivery of docket reports on the specified day. Therefore, for the reasons more fully explained in Naval Aviation Supply Office, we find that the first clause of the disputed sentence does not interfere with the Agency's right to assign work and is negotiable.

2. The Second Part of the Disputed Sentence

This disputed part of Provision 17 provides that employees "shall be entitled to rely on the completeness" of the docket report. As noted above, the Union states that the docket report is the vehicle selected by management to inform employees of the time frames within which their assignments must be completed. According to the Union, the provision requires management to give employees information to help them meet their performance standards. More particularly, the Union explains that this part of the provision "requires that the employee be notified . . . of the existence of a time deadline that he or she is expected to meet before being appraised on it." Reply Brief at 21 (emphasis added). The Union's explanation is consistent with the plain wording of the provision. As the docket report is the means by which the Agency informs employees of the time frames for their various assignments, we find that this disputed part would preclude the Agency from evaluating employees on cases not included in the report or an amendment to it.

Provisions which prevent management from using particular information in evaluating employee performance directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA 27, 56-57 (1991) (Office of Chief Counsel), aff'd in part, vacated and remanded sub nom. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068 (D.C. Cir. 1992). By preventing management from evaluating employees on cases omitted from docket reports, or from amended reports, the disputed portion of Provision 17 directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. As this portion of Provision 17 directly interferes with management's rights, it is not a negotiable procedure under section 7106(b)(2). See, for example, American Federation of Government Employees, Local 2452 and U.S. Department of Health and Human Services, Social Security Administration, District Office, Huntington Park, California, 45 FLRA 1213, 1216 (1992) petition for review filed as to other matters sub nom. U.S. Department of Health and Human Services, Social Security Administration, District Office, Huntington Park, California v. FLRA, No. 92-1584 (D.C. Cir. Nov. 12, 1992).

The Union argues that Provision 17 constitutes an appropriate arrangement under section 7106(b)(3). As discussed previously, in determining whether a provision is an appropriate arrangement, we first determine whether the provision is intended to be an arrangement for employees adversely affected by the exercise of a management right. If the provision is so intended, we examine whether the arrangement is appropriate because it does not excessively interfere with the exercise of that right.

The Union asserts that the second part of the second sentence is an arrangement for employees who are "adversely affected by management's exercise of its right to determine the content of performance standards." Reply Brief at 22. More specifically, the Union states that:

[M]anagement has chosen to implement workflow standards by category rather than by the direct assignment of specific work. For example, an examiner must work on all amended applications within two months. There are many such categories. In the absence of a computerized docket report . . . in an organization that handles as many patent applications as the [Agency] does, it would be impossible to determine which applications fall within the performance appraisal categories set forth in management's plan. It is highly predictable that in the absence of a report such as provided in [Provision 17][,] an employee would be adversely affected by criticism and discipline for failure to accomplish the work assigned by the performance appraisal plan.

Id. Based on this explanation, we conclude that the requirement that employees be able to rely on the completeness of the docket report is intended to ameliorate the reasonably foreseeable adverse effect of management's exercise of its rights to direct employees and assign work on employees whose performance ratings would otherwise suffer for failing to complete an assignment on time because it was not listed in a docket report. Compare Office of Chief Counsel, 39 FLRA at 58 (provision barring use of adverse information in evaluating performance if not provided to employee within 45 days of receipt or development found to be an arrangement). As such, this part is intended as an arrangement for employees adversely affected by the exercise of management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B).

This part of Provision 17 would benefit certain employees, who have relied to their detriment on information contained in docket reports, by not subjecting them to poorer performance appraisals or performance-based actions for failure to work on, or timely complete, cases not listed on the docket report. In other words, this part would protect employees who otherwise would be adversely affected for relying on the information provided them by management. Accordingly, we find that this part offers a significant benefit to affected employees.

On the other hand, this part restricts the Agency in evaluating certain employees' performance. Management would be unable to evaluate employees' timeliness on cases omitted from the docket report. However, the accuracy of its docket reports is within management's control, and management can amend docket reports to include previously omitted cases. Therefore, management has the ability to minimize or eliminate the burden on its rights to direct employees and assign work by assuring that the docket reports accurately reflect current assignments. Balancing the significant benefit to affected employees against the burden on the Agency's rights, we find that this disputed part of Provision 17 does not excessively interfere with management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) and, therefore, constitutes an appropriate arrangement under section 7106(b)(3). See, for example, Office of Chief Counsel, 39 FLRA at 56-59 (proposal barring use of certain documents to adversely affect performance ratings held to be negotiable as an appropriate arrangement).

In sum, we conclude that the requirement to furnish the docket report on the first Tuesday of the biweek is negotiable. We also find that the disputed part of the provision that authorizes examiners to rely on the completeness of the docket report is an appropriate arrangement under section 7106(b)(3) of the Statute.

XV. Provision 18

Section 4- Procedures Specific to Developing and Implementing Timeliness Standards

4(J)- Whenever a performance standard involves a time period for an action which requires the sequential cooperation of multiple employees, management shall document the separate contributions of each employee. For example, consider a performance standard that looks to the time taken to mail an action after it is submitted for counting. Mailing an action usually involves work by a docket clerk, a typing pool supervisor, typist, the examiner, a photocopy clerk, and a mailing clerk.

A. Positions of the Parties

The Agency asserts that Provision 18 directly interferes with its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute because it would "mandate the inclusion of . . . the contributions of each employee, in the content of a performance standard" and would limit management's right to determine the aspects of an employee's work to be evaluated where "such contributions were not documented . . . ." Statement of Position at 33.

The Union contends that Provision 18 is "both a procedure and an appropriate arrangement for examiners who are appraised on how well they meet specified deadlines in processing cases." Reply Brief at 22. The Union explains that the provision establishes, for management's consideration in evaluating timeliness, a system to reflect the time taken by each employee involved in processing a case. The Union denies that the provision would change established performance standards or elements.

B. Analysis and Conclusions

Provision 18 applies to actions for which performance standards establish time limits and requires the Agency to "document" the contributions of employees, other than those being evaluated, whose cooperation is necessary to complete those actions within prescribed time limits. Contrary to the Agency's assertions, Provision 18 neither mandates the inclusion of any information in a performance standard nor limits management's right to determine the aspects of an employee's work that it will evaluate. Further, the provision does not expressly obligate management to consider the documented information in evaluating an employee's performance against a timeliness standard. By its plain wording, Provision 18 requires only that, when an employee's performance standard involves timeliness for an action requiring the sequential cooperation of others, management will document the work performed by the other employees. Contrary to the Agency's arguments, nothing in the provision would affect management's discretion to modify, or not modify, performance standards in light of the information provided under the provision and to consider, or not consider, the information in rating performance.

We conclude that Provision 18 does not directly interfere with the Agency's rights to direct employees and assign work and constitutes a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. See, for example, National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 36 FLRA 606, 612 (1990) (Patent and Trademark Office I) (proposal requiring an agency to count a particular action under a performance standard constituted a negotiable procedure).

XVI. Provision 19

Section 4- Procedures Specific to Developing and Implementing Timeliness Standards

4(K)- Whenever performance standards contain an explicit recognition of the possibility of waiver or excuse, management shall publish to each affected employee yearly, a list of all known possible bases and reasons which would justify the grant of a waiver or excuse at a level of description that would permit use of the description as a precedent.

A. Positions of the Parties

The Agency asserts that Provision 19 would require modification of the content of performance standards, and, thereby, directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency states that:

if a standard indicated that the failure to have adequate time due to the examiner's unavailability because he/she was on leave would be a proper excuse, this provision would require management to list this "excuse" and permit its use as a precedent. The result would be to incorporate this "excuse" into the standard itself, thereby modifying the standard.

Statement of Position at 34.

In the Union's view, Provision 19 does not modify the performance standards for timeliness because "the basis for the waivers or excuses are still controlled and established by management," and the provision "does not dictate under what conditions excuses or waivers will be granted." Reply Brief at 23. Provision 19, according to the Union, requires only that management inform employees "of the circumstances in which excuses and waivers of time deadlines have been granted in the past . . . so that employees will know what is and is not an acceptable excuse or waiver . . . ." Id.

B. Analysis and Conclusions

The Union's assertion that Provision 19 requires the Agency to provide employees with a list of excuses and waivers of time deadlines granted by management in the past is consistent with the plain wording of the provision. In particular, the obligation to describe the grounds for granting waivers or excuses "at a level . . . that would permit use of the description as a precedent" does not contradict the Union's assertion, or support the Agency's contention that publication of previously granted excuses and waivers would limit its discretion to deny requests for excuses or waivers in the future. In this regard, Black's Law Dictionary (5th ed. 1979) defines "precedent" as, among other things, "[a] course of conduct once followed which may serve as guide for future conduct[,]" and, similarly, the Random House College Dictionary (1973) includes the definition, "a preceding instance or case that may serve as an example for or a justification in subsequent cases."

Accordingly, adopting the Union's explanation, which is consistent with the provision's plain wording, we find that Provision 19 requires nothing more than publication of guidance for unit employees and does not obligate the Agency to incorporate into its performance standards the list of possible bases and reasons that would justify grants of waivers or excuses. Consequently, Provision 19 does not interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute and is negotiable.

XVII. Provision 20

Section 4- Procedures Specific to Developing and Implementing Timeliness Standards

4(M)- Examiners shall separately account for the cumulative amount of time spent each quarter on maintaining records for documenting accomplishment of workflow management standards and for providing explanations of excuses and requests for waivers to supervisors.

A. Positions of the Parties

The Agency asserts that Provision 20 interferes with its right to assign work under section 7106(a)(2)(B) because the provision assigns to examiners the specific task of accounting "for the cumulative amount of time spent each quarter on maintaining records[.]" Statement of Position at 34.

The Union contends that Provision 20 is a negotiable procedure by which employees will record their time spent "documenting the accomplishment of timeliness standards." Reply Brief at 24. The Union also asserts that Provision 20 is similar to Proposal 9.D., which was found to be negotiable in POPA I.

B. Analysis and Conclusions

Provision 20 applies to unit employees, specifically "examiners," who record the amount of time spent on various aspects of their work for use in evaluating their performance against timeliness standards established by the Agency. In this connection, we note that the bargaining unit is comprised of patent examiners. U.S. Office of Personnel Management, Union Recognition in the Federal Government 147 (1991). The provision merely requires that employees record the time spent on such record keeping and on providing their supervisors with explanations of excuses and requests for waivers of their performance standards. It does not specify the manner in which management must use the recorded information. Because Provision 20 neither requires inclusion of any information in performance standards nor limits aspects of employees' work to be evaluated, it does not directly interfere with the rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. We conclude that the provision establishes a negotiable procedure, within the meaning of section 7106(b)(2), for providing management with information it may consider in evaluating employees' performance against timeliness standards.

We reject the Agency's argument that Provision 20 directly interferes with management's right to assign work, because it requires that employees record certain information. Procedures entailing some assignment of work to employees do not necessarily interfere with that right. See, for example, National Federation of Federal Employees, Local 1384 and U.S. Department of Air Force, 3245th Air Base Group, Hanscom Air Force Base, Massachusetts, 41 FLRA 195, 205-06 (1991) (holding that proposal, requiring "[a]gency employees" to perform additional work to implement it, did not directly interfere with management's right to assign employees and work), and American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187, 213-14 (1991) (Merchant Marine Academy) (provision establishing committee of bargaining unit employees to review and make recommendations on proposed adverse actions found not to directly interfere with management's right to assign work). In this case, as in the cited cases, management is required to assign work to examiners who are in the bargaining unit. Accordingly, based on the reasoning in the cited cases, Provision 20 does not interfere with the Agency's right to assign work.

XVIII.Provision 21

Section 5- Patent Examiners Not Having Full Signatory Authority

5(A)- Reviews of work for purposes of performance evaluation of non-primary examiners will take place prior to the signing by a Primary Examiner of the examiner's action or issue for functions which receive a close review. For functions which receive a cursory review, reviews for purposes of performance evaluation will normally take place prior to signing by a Primary Examiner of the examiner's action or issue. Under exceptional circumstances, the review of the examiner's work product may be conducted subsequent to signing the examiner's action or issue.

A. Positions of the Parties

The Agency asserts that Provision 21 directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute and is nonnegotiable because it dictates when review of employees' work will take place.

The Union states that Provision 21 requires primary examiners to review the work of examiners not having full signatory authority "for the purposes of performance appraisal and for the purposes of signature and release simultaneously so that errors are brought to the [employee's] attention earlier in the appraisal period so that deficient work practices can be corrected and improved during the course of the appraisal year." Reply Brief at 25. In the Union's view, the provision constitutes a negotiable procedure under section 7106(b)(2) of the Statute.

B. Analysis and Conclusions

Provision 21 requires the Agency to evaluate employees' work at the end of each assignment, as well as at the end of the annual appraisal period. In our view, Provision 21 constitutes a negotiable procedure under section 7106(b)(2) of the Statute.

We reject the Agency's claim that the provision directly interferes with management's right to assign work under section 7106(a)(2)(A) and (B) of the Statute because it determines when evaluations will occur. Provision 21 merely requires the Agency to provide employees throughout the evaluation period with work appraisals, rather than providing such appraisals only at annual performance evaluations. The provision neither describes the nature or extent of the interim work evaluations nor affects the Agency's discretion to evaluate employees during their annual formal appraisal. Further, Provision 21 does not obligate the Agency to conduct any additional performance evaluations and does not require it to change the nature of its present performance standards or elements or the manner in which the Agency evaluates employees.

Proposals that determine when appraisals are to be given to employees do not directly interfere with management's right to assign work and constitute negotiable procedures under section 7106(b)(2) of the Statute. See, for example, National Labor Relations Board Union and National Labor Relations Board, 42 FLRA 1305, 1319 (1991) (NLRB), petition for review filed sub nom. National Labor Relations Board v. FLRA, No. 91-1608 (D.C. Cir. Dec. 18, 1991); American Federation of Government Employees, Local 2761 and Department of the Army, Army Publications Distribution Center, St. Louis, Missouri, 32 FLRA 1006, 1015 (1988) (Army Publications). Consistent with these decisions, we conclude that Provision 21 is a negotiable procedure under section 7106(b)(2) of the Statute.

XIX. Provision 22

Section 9-B. 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.

A. Positions of the Parties

The Union asserts that Provision 22 is negotiable because it is identical to Section 9.C in POPA I, which the Authority found was negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

The Agency acknowledges that the Authority held that Section 9.C in POPA I, which is identical to Provision 22, directly interfered with management's right to assign work under section 7106(a)(2)(B) but found that it was an appropriate arrangement under section 7106(b)(3). However, the Agency argues that Provision 22 is not negotiable as an appropriate arrangement. Citing Department of the Treasury, Internal Revenue Service v. FLRA, 494 U.S. 922 (1990) (IRS v. FLRA), the Agency asserts that "no appropriate arrangement negotiated between the parties in accordance with 5 U.S.C. § 7106(b)(3) can interfere at all with the exercise of management's reserved rights under section 7106(a)." Statement of Position at 36 (emphasis in original).

B. Analysis and Conclusions

The Agency's only argument regarding Provision 22 is that IRS v. FLRA requires the Authority to reverse its holding in POPA I that the identical proposal was negotiable as an appropriate arrangement. However, the Agency's reliance on IRS v. FLRA is misplaced.

In IRS v. FLRA, the Supreme Court did not address, explicitly or implicitly, the standard for determining whether a provision constitutes an appropriate arrangement. Further, the Agency's argument ignores the plain wording of both section 7106(a), which provides that the rights contained therein are "[s]ubject to subsection (b)" and section 7106(b), which provides that "[n]othing" in section 7106 precludes parties from negotiating appropriate arrangements. See generally Office of Chief Counsel, 39 FLRA at 31-33. See also Overseas Education Association, Inc. v. FLRA, 876 F.2d 960, 965-66 (D.C. Cir. 1989); American Federation of Government Employees, AFL-CIO, Local 2782 v. FLRA, 702 F.2d 1183, 1188 (D.C. Cir. 1983). The Authority has reaffirmed the excessive interference test for determining whether a provision constitutes an appropriate arrangement, and the Agency's arguments provide no basis for reconsidering that test here. For example, American Federation of Government Employees, National Border Patrol Council and National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 40 FLRA 521, 525-26 (1991), rev'd as to other matters sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, 975 F.2d 218 (5th Cir. 1992).

Provision 22 gives employees 3 hours of nonexamining time in which to familiarize themselves with the procedures for handling reexaminations the first time they are assigned. We reaffirm the Authority's holding in POPA I, 25 FLRA

at 410, that the language of the first paragraph of Section 9.C, which is identical to Provision 22, directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute "by establishing a priority for a particular work assignment." Id. Consistent with POPA I, however, we also find that Provision 22 does not excessively interfere with management's right to assign work because the burden on management's right to assign work, imposed by the obligation to afford employees 3 hours' preparation time, is "insubstantial" compared to the benefits afforded to employees and management in terms of improved work products. Id. Consequently, for the reasons stated in POPA I, 25 FLRA at 409-10, we conclude that Provision 22 constitutes a negotiable appropriate arrangement, under section 7106(b)(3) of the Statute. See also Patent and Trademark Office II, 39 FLRA at 837-38, (portion of proposal requiring adequate training for certain examiners found to constitute an appropriate arrangement).

XX. Provisions 23 and 24

Provision 23

Section 9-C. In order to implement the performance standard of production goal achievement in an accurate, equitable, and reasonable manner, the following procedures for recording special examining time will be implemented:

1. 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.

2. Examiners shall record the actual amount of time needed to read, search, prepare and review PCT applications and such time shall be accounted for separately.⁽¹³⁾

3. Time spent for preparation for and conduct of applicant-or attorney-initiated interviews shall be accounted for separately.

4. Time spent by examiners shall be accounted for separately for any required processing or treatment of patent applications during Public Use Proceedings of those applications.

5. Time spent by examiners in Group 220 for learning unfamiliar arts as necessary for examining applications with SIR (Statutory Invention Registration) requests shall be accounted for separately.

6. Time spent reviewing and preparing an action shall be accounted for separately if a SIR request is received prior to the time the action is turned in for credit.

7. Time spent in preparing an action for a revived abandoned application which does not result in a production count for the examiner shall be accounted for separately.

[Footnote added.]

Provision 24

Section 9 - D. Time spent on service activities that are irrelevant to the amount of patent examination performed by the employee shall be recorded in a separate service time category. The service time category shall at least include the following items:

1. reviewing the Official Gazette and the technical literature for the purpose of adding patents and publications to the search files unless the superior determines that the added patents and publications are not useful;

2. consultations by the examiner from whose docket new or amended applications have been transferred regarding those transferred applications;

3. the assistance of fellow examiners in searches, legal issues, and procedural issues;

4. the assistance of members of the public with searches and applicant-initiated interviews;

5. all service activities for which patent examiners have been authorized in fiscal year 1981 to take non-examining time on the PTO-690E form;

6. assisting Group 220 personnel in examining applications with SIR requests by examiners outside Group 220;

7. processing Rule 312 amendments, certificates of correction and printer waiting applications except when necessary to correct an examiner's own error.

A. Positions of the Parties

The Agency asserts that Provisions 23 and 24 directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statutes because the segregation of "'special examining time' . . . redefines the content of the standard." Statement of Position at 37.

The Union asserts that the preamble and sentence 1 of Provision 23 were found negotiable by the Authority as proposal 9.D. in POPA I, 25 FLRA at 411-12. The Union also asserts that paragraphs 2 through 7 of Provision 23 are "modeled on" the second paragraph of Section 9.D in POPA I and, therefore, are negotiable. Reply Brief at 27. The Union maintains that Provisions 23 and 24 are negotiable procedures under section 7106(b)(2) of the Statute because they merely establish methods for measuring the quantity of employees' production.

B. Analysis and Conclusions

These provisions, like Provision 18, require documentation of the time spent on various elements of an employee's work.⁽¹⁴⁾ The provisions also require the recording of time spent on activities, outside the employees' primary functions, that may affect the ability to meet management's timeliness standards. The Agency argues, as it did concerning Provision 18, that Provisions 23 and 24 would change the content of performance standards. For the reasons stated more fully in our discussion of Provision 18, we conclude that Provisions 23 and 24 constitute negotiable procedures, within the meaning of section 7106(b)(2) of the Statute. See Patent and Trademark Office I, 36 FLRA at 612.

Additionally, we note that Provision 18 requires management to record the contributions of employees other than the individuals to whom the timeliness standards apply, while Provisions 23 and 24 require employees to maintain the records. That difference, however, does not affect our conclusion that the provisions are negotiable. See our discussion of Provision 20.

XXI. Provision 25

Section 9 - K. Amendment of a Goal Whenever an individual examiner or group of examiners request a change in their goal(s), the following procedure shall be utilized:

b. After consultation between and among the examiner(s) and the relevant management official, the request shall be answered, in writing, and shall clearly state the action to be taken and the reasons therefore. All reasons presented by the examiner(s) shall be responded to as fully as possible unless the requested change in the goal is granted. This answer shall be rendered within two weeks of the submission of the request.

A. Positions of the Parties

The Agency asserts that Provision 25 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute by requiring that the "relevant management official" respond to the employee's request in writing within 2 weeks of the request.

The Union contends that Provision 25 does not require a specific management official to prepare an answer. According to the Union, the provision only requires that the employee's request for a change in goals be answered.

B. Analysis and Conclusions

Provision 25 requires that, when an employee seeks a change in performance goals, the "relevant management official" shall consult with the examiner and reply to the request in writing within 2 weeks. Although the provision would require management officials to respond in writing to employee requests to have their performance goals changed, the Agency would retain the right to determine the nature and content of performance standards and elements. Accordingly, we find that Provision 25 does not directly interfere with the right to assign work and constitutes a negotiable procedure under section 7106(b)(2) of the Statute, to be followed by the Agency in exercising its right to evaluate the performance of employees. See Food and Nutrition Service, 42 FLRA at 978-79.

Although the provision would require the "relevant management official," to take a certain action, that requirement does not make the provision nonnegotiable. In our view, the provision does not assign work to any specified manager. Rather, the provision requires certain action by the official whom management has already designated to determine the goals of unit employees. Therefore, the provision does nothing more than require the "relevant management official" to perform an additional function related to the work currently performed by that official. Negotiable procedures entailing some assignment of work to employees do not necessarily directly interfere with an agency's right to assign work. See National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, D.C., 43 FLRA 1442, 1446-47 (1992), petition for review filed as to other matters sub nom. National Treasury Employees Union v. FLRA, No. 92-1161 (D.C. Cir. Apr. 10, 1992) (disputed part of proposal found to be procedural and held not to interfere with right to assign work by requiring management official conducting interview to notify employee of right to union representation). Accordingly, for the reason more fully set out in the cited case, we find that the requirement in Provision 25 that the "relevant management official" undertake an additional function does not interfere with management's right to assign work.

XXII. Provision 26

Section 9 - L. Non-examining Activities

No examiner shall be prejudiced by the fact that he or she is directed or authorized (including authorization by contract) to spend time performing non-examining activities.

A. Positions of the Parties

The Agency contends that Provision 26 directly interferes with its rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and assign work by limiting the aspects of employees' work which can be considered in appraising performance.

The Union denies that Provision 26 determines what aspects of employees' work may be considered in evaluating performance. According to the Union the provision is "intended to ensure that nonexamining activities which the employee is authorized to do (i.e., and in particular, use of official time for labor-management relations activities; EEO activities; training) will not result in a lower performance appraisal." Reply Brief at 30.

B. Analysis and Conclusions

Provision 26 protects employees from adverse ratings under quantitative performance standards resulting from their failure to meet those standards for the specified reasons. The provision, therefore, requires that management adjust quantitative standards to reflect time authorized for certain functions other than work production. Provisions that make adjustments or changes in production expectations directly interfere with management's rights, under section 7106(a)(2)(A) and (B) of the Statute, to direct employees and assign work because they interfere with management's discretion to determine the standards of work production to be required of employees. See, for example, POPA III, 41 FLRA at 812. Provision 26 requires management to make such adjustments to production expectations by including the amount of authorized time spent on other duties in determining the timeliness of projects. Consequently, Provision 26 directly interferes with the Agency's right to direct employees and assign work.

Although the Union does not expressly assert that Provision 26 is an appropriate arrangement, the Authority will examine that issue if a proposal is substantively similar to a proposal previously considered by the Authority under section 7106(b)(3) in order to avoid the anomaly of conflicting results in similar cases. See Naval Underwater System Center, 42 FLRA at 769. In Customs Service, 40 FLRA 576-79, 582-83, we reviewed two proposals which required that the agency: (1) not place union representatives at "a disadvantage" in appraising performance because of time spent in representational activities; and (2) "take into account," in applying performance standards, mitigating factors such as frequent authorized interruptions of regular work assignments. We found that the proposals were arrangements for employees whose productivity was adversely affected by authorized interruptions to the work assignments on which timeliness goals are based. Accordingly, we found that the proposals were arrangements for employees adversely affected by management's exercise of the rights to direct employees and assign work. We determined that the benefit afforded union representatives by protecting them from penalty for their authorized use of official time outweighed the burden on management's right to direct employees and assign work. We also found that the benefits afforded to unit employees by assuring that their evaluations will be based on those performance elements over which the employees have control outweighed the burdens imposed on management's rights to direct employees and assign work. Accordingly, we found that the proposals did not excessively with management's rights and that they were appropriate arrangements.

Provision 26 imposes like burdens on management and affords employees comparable benefits. We note particularly, in this regard, that management retains the authority to limit interruptions to primary assignments so that employees have the opportunity to meet timeliness goals. Consequently, for the reasons more fully stated in Customs Service, Provision 26 constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. Compare National Treasury Employees Union and U.S. Department of Health and Human Services, Office of Hearings and Appeals, 44 FLRA 293, 299-301 (1992) (provisions insulating employees from adverse effects of delays in case processing "caused by or related to" temporary relocation of some agency employees found to protect employees from certain unnecessary delays in work production and, thereby, excessively interfere with rights to direct employees and assign work).

XXIII.Provision 27

Section 11- Performance Appraisals- General

11(B)- Complaints against any bargaining unit member cannot be judged to be valid unless it [sic] is reduced to writing and the complainant is identified.

A. Positions of the Parties

The Agency asserts that Provision 27 directly interferes with its rights to discipline and direct employees under section 7106(a)(2)(A) of the Statute by precluding management from considering complaints against employees which are not "reduced to writing and complainant identified." Statement of Position at 39.

The Union asserts that Provision 27 does not directly interfere with any management right. According to the Union, the Agency may use an oral complaint about an employee's work, provided that it discloses the source of the complaint, reduces the complaint to writing, and gives a copy to the employee "so that he or she can defend himself or herself against it." Reply Brief at 30-31.

B. Analysis and Conclusions

Based on the Union's explanation, which is consistent with the plain wording of the provision, we find that Provision 27 precludes the Agency from taking disciplinary or performance-based action against an employee because of a complaint, unless management "give[s] the employee written notice of the substance of the complaint and identif[ies] its source . . . ." Reply Brief at 31.

Provisions that restrict the evidence an agency may use to evaluate an employee's performance or rely on to support a disciplinary action directly interfere with the agency's right to discipline employees under section 7106(a)(2)(A) of the Statute. See, for example, American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, 44 FLRA 63, 68-69 (1992), petition for review filed sub nom. United States Department of the Treasury, Office of Thrift Supervision v. FLRA, No. 92-1170 (D.C. Cir. Apr. 17, 1992) and Office of Chief Counsel, 39 FLRA at 56. See also American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1047-50 (1988) (Provisions 20 and 22) (Naval Weapons Station, Concord), reversed as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, No. 88-7408 (9th Cir. Feb. 7, 1989). In particular, provisions that prevent use of "anonymous information, confidential statements, and similar information at any stage of the disciplinary process[]" directly interfere with the right to discipline. Id. at 1048. As Provision 27 would also prevent the use of any information from an unidentified source, it likewise directly interferes with that right, for the reasons more fully explained in Naval Weapons Station, Concord.

Although the Union does not argue that the provision is negotiable as an appropriate arrangement under section 7106(b)(3), we note that in Naval Weapons Station, Concord, we found that Provisions 20 and 22 did not constitute appropriate arrangements under section 7106(b)(3) of the Statute because they excessively interfered with the right to discipline under section 7106(a)(2)(A). See id., 32 FLRA at 1049-50.

XXIV. Provisions 28 and 35

Provision 28

Section 13- Performance Appraisals- Disclosure

13(A)- No employee shall be rated based upon a performance standard that was not disclosed to him as part of a written performance appraisal plan either at the beginning of the rating year or at the time of substantial job change. The disclosure of the performance appraisal plan shall include:

1. Each critical and noncritical performance element for the position.

2. Each performance standard that will be used to evaluate employee.

3. An explanation of how the employee's performance in each performance element will be evaluated.

Provision 35

Section 15- Performance Appraisals- Ratings

15(E)- The rating official will discuss with the employee the proposed performance rating and the basis for the proposed rating. The proposed rating must be based on the employee's performance during the rating period in regard to the standards set at the beginning of the period in the performance plan.

A. Positions of the Parties

The Agency asserts that Provisions 28 and 35 are inconsistent with 5 C.F.R. § 430.205(b).⁽¹⁵⁾ The Agency also asserts that Provision 35 directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute by assigning specific duties to the rating official.

The Union asserts that Provisions 28 and 35 must be read together and that they are intended to ensure that employees are advised of their performance standards in writing "at the beginning of the rating year or at the time of substantial job change." Reply Brief at 43 (emphasis in original). The Union also argues that the provisions are consistent with the requirements of 5 C.F.R. § 430.205(b). The Union specifically argues that Provision 28 is a negotiable procedure under section 7106(b)(2) of the Statute, or, alternatively, that it constitutes an appropriate arrangement under section 7106(b)(3).

B. Analysis and Conclusions

We reject the Agency's argument that Provisions 28 and 35 are inconsistent with 5 C.F.R. § 430.205(b). We find nothing in the plain wording of Provisions 28 and 35 that prevents the Agency from establishing minimum appraisal periods under 5 C.F.R. § 430.205(b). In this regard, Provision 28 addresses when employees will receive information concerning their performance standards, and Provision 35 requires management to discuss proposed performance ratings with employees. Neither Provision 28 nor Provision 35 precludes establishment of a minimum appraisal period. Consequently, the provisions are not inconsistent with 5 C.F.R. § 430.205(b).

We also reject the Agency's argument that Provision 35 directly interferes with its right to assign work. As Provision 35 merely requires that management discuss proposed performance ratings with employees, we find that it is a negotiable procedure. As such, it is not nonnegotiable merely because it requires someone to implement the procedure. See, for example, NRC, 43 FLRA at 1294.

In addition, we note that "[p]roposals requiring an agency to provide a statement setting forth the reasons for the agency's action are negotiable procedures under section 7106(b)(2) . . . ." National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 43 FLRA 1279, 1293 (1992) (NRC). Furthermore, as we stated in connection with Provision 21, proposals that involve the timing of performance appraisals are procedural, and the Authority "has consistently rejected arguments that certain procedures interfere with management's rights simply because they would require the [a]gency to take some action it might otherwise not take . . . ." Patent and Trademark Office II, 39 FLRA at 809. Moreover, where "a proposed procedure places no substantive restraints on an agency's ability to act with respect to its reserved rights, the Authority will find it to be within the agency's obligation to bargain." Id.

In summary, we conclude that Provisions 28 and 35 are consistent with 5 C.F.R. § 430.205(b) and are negotiable.

XXV. Provisions 29 and 30

Provision 29

Section 14 - A. Each rating official shall maintain documentation to support the assigned rating.

Provision 30

Section 14 - B. Each employee shall have access to all records that relate to his performance appraisal. No sources of data or record thereof shall be used to the detriment of an employee in performance appraisals without disclosure to the employee. When an employee believes that an error exists in a performance record, the employee shall report the error to the rating official. The rating official will determine what information he considers to be correct and will see that the record reflects the information that he considers to be correct.

[Only the underscored sentence of Provision 30 is in dispute.]

A. Positions of the Parties

The Agency asserts that Provision 29 and the underscored sentence of Provision 30 directly interfere with its right, under section 7106(a)(2)(B) of the Statute, to assign work because the provisions assign specified duties to particular management officials.

The Union denies that Provision 29 and the disputed portion of Provision 30 interfere with the Agency's right to assign work, contending that they assign duties "only to the management-designated rating official." Reply Brief at 35. The Union asserts that the provisions are negotiable procedures under section 7106(b)(2) of the Statute or, alternatively, constitute appropriate arrangements under section 7106(b)(3).

B. Analysis and Conclusions

Provision 29 and the disputed portion of Provision 30, require, respectively, that rating officials maintain documentation supporting assigned performance ratings and resolve employees' complaints concerning the accuracy of performance records. These requirements clearly are procedural aspects of the performance appraisal process and do not in any substantive way interfere with the Agency's discretion to evaluate employee performance. See, for example, NRC, 43 FLRA at 1294 (proposal, requiring rating panel or rating official to prepare written evaluations of all applicants for position, found to constitute a negotiable procedure); Patent and Trademark Office II, 39 FLRA at 810-11 (proposal, obligating reviewing official to consult with employee before deciding that work contained error, held to be a negotiable procedure). In this connection, we reject the Agency's contention that Provisions 29 and 30 directly interfere with its right to assign work under section 7106(a)(2)(B) of the Statute. Proposals establishing otherwise negotiable procedures do not directly interfere with the right to assign work merely because they obligate the agency to assign someone to implement the procedures. See, for example, American Federation of Government Employees, AFL-CIO, Local 446 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, Asheville, North Carolina, 43 FLRA 836, 845 (1991) (National Park Service) (requirement that supervisors document basis for referring employees for reasonable suspicion drug testing determined not to interfere with right to assign work).

In sum, we conclude that Provisions 29 and 30 are negotiable procedures under section 7106(b)(2) of the Statute. Accordingly, we need not address the Union's additional claim that they are appropriate arrangements.

XXVI. Provision 31

Section 14 - C. If a supervisor becomes aware of any deficiency (e.g., clear error) that will be used in a performance appraisal, he must disclose the facts concerning the deficiency to the employee as soon as practical, normally within two weeks from when the supervisor becomes aware of the deficiency. When there has been a delay in disclosure, this fact must be considered along with all other relevant facts in determining the degree to which the action that otherwise would be taken is mitigated.

A. Positions of the Parties

The Agency asserts that Provision 31 directly interferes with its rights to discipline, direct employees, and assign work under section 7106(a)(2)(A) and (B) of the Statute by requiring that supervisors disclose to affected employees performance deficiencies within 2 weeks after becoming aware of them. While acknowledging that failure to meet the time limit would not prevent management from taking action, the Agency contends that the provision "mandate[s] mitigation of any planned action." Statement of Position at 41.

The Union asserts that failure to meet the time limit in Provision 31 does not prevent the Agency from using the information in evaluating performance, "or in any other manner." Reply Brief at 37. Rather, the Union claims, management is "merely required to 'consider' the delay with all other relevant factors in determining whether to mitigate the action." Id. The Union maintains that proposals "only requiring management to 'consider' various factors in evaluating or disciplining employees have long been held negotiable." Id. at 38.

B. Analysis and Conclusions

Provision 31 requires that when a supervisor fails to inform an employee within 2 weeks of any performance deficiency, the failure "must be considered" in deciding "the degree" to which a performance-based action is "mitigated." The Union asserts that, under the provision, management must consider whether an action should be mitigated if management fails to meet the time limit. The Union's explanation of the provision is consistent with its plain wording, and we adopt it for the purpose of this decision. That is, contrary to the Agency's claim, we find that the phrase "the degree to which the action that otherwise would be taken is mitigated" does not obligate the Agency to mitigate any penalty. Instead, Provision 31 obligates the Agency only to consider whether, and to what degree, any delay in informing an employee of performance deficiencies warrants mitigation of the penalty management might otherwise impose.

Proposals requiring management to "consider" specified factors do not mandate a particular result but, rather, permit management to weigh and assess the significance of those factors before reaching a decision. See, for example, National Association of Government Employees, Local R12-29 and U.S. Department of the Navy, Naval Facilities Contracts Training Center, Construction Battalion Center, Port Hueneme, California, 43 FLRA 810, 818 (1991) (proposal requiring management to consider limiting "objectives within the workplan" to five found not to directly interfere with rights to direct employees and assign work). As Provision 31 does not limit management's discretion in imposing sanctions, it does not directly interfere with management's rights to direct employees, assign work, and discipline under section 7106(a)(2)(A) and (B) of the Statute. We conclude, therefore, that Provision 31 is negotiable.

XXVIII. Provision 32

Section 15 - A. Each rating official shall conduct one formal performance appraisal of each employee annually and one informal progress review at the approximate midpoint of the rating year. Additional performance appraisals on an individual basis may be made only in connection with a request by the employee or when the supervisor has identified specific deficiencies which, if continued, would justify an overall rating that is less than satisfactory. Any problem or exceptionally good work should be brought to the employee's attention whenever it is discovered.

A. Positions of the Parties

The Agency contends that Provision 32 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute in two ways. First, the Agency asserts that the provision assigns the tasks of preparing formal performance appraisals and conducting annual progress reviews to rating officials. Second, the Agency argues that, by "limit[ing] additional performance appraisals to certain circumstances--i.e., when requested by the employee or when the supervisor has identified specific deficiencies[,]" Provision 32 directly interferes with management's right to assign work. Statement of Position at 42.

The Union disputes the Agency's contention that the provision interferes with the right to assign work, asserting that, "after the [A]gency has designated a rating official," the individual identified by management will execute the tasks listed in the provision. Reply Brief at 39. The Union also denies that the provision interferes with the right to assign work by specifying when appraisals are to be done. According to the Union, the Authority has held that proposals concerning the timing and frequency of appraisals are negotiable procedures under section 7106(b)(2) of the Statute. Alternatively, the Union argues that the provision is an appropriate arrangement under section 7106(b)(3).

B. Analysis and Conclusions

We reject the Agency's argument that Provision 32 directly interferes with its right to assign work by assigning rating officials the tasks of preparing formal performance appraisals and conducting progress review meetings with employees. Under 5 C.F.R. § 430.205(a) and (e), the appraisal of employees and the conduct of informal progress reviews are duties required of a rating official.⁽¹⁶⁾ Additionally, the provision does not limit the Agency's choice of who will perform the rating function. As the provision neither adds duties to those already performed by the rating official nor limits management's choice of who will rate employees, it does not directly interfere with management's right to assign work. See NLRB, 42 FLRA at 1319.

We also reject the Agency's claim that the provision is contrary to management's right to assign work because it would limit additional appraisals to specified times. Matters concerning the timing of performance appraisals constitute procedures under section 7106(b)(2) of the Statute. See, for example, id.; Army Publications, 32 FLRA at 1015. The provision, consistent with 5 C.F.R § 430.205(a) and (e), establishes one formal performance appraisal and one progress review. In addition, based on the provision's plain wording, nothing prevents management from advising employees of their progress at any time during the performance period. Moreover, we note that Provision 21 obligates the Agency to evaluate certain employees' performance at the completion of individual work projects. As the Agency does not allege that the limitation on additional appraisals is inconsistent with applicable law and regulation, or advance any other grounds for finding the provision nonnegotiable, and we are aware of none, we conclude that Provision 32 is a negotiable procedure under section 7106(b)(2) of the Statute.

XXIX. Provision 33

Section 15- Performance Appraisals- Ratings

15(B)- When assigning a rating all extenuating circumstances will be considered.

A. Positions of the Parties

The Agency asserts that Provision 33 directly interferes with its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute by placing "a substantive contractual limitation on [its] discretion to evaluate an employee's performance." Statement of Position at 42.

The Union contends that Provision 33 does not directly interfere with management's right to evaluate employees because it merely requires the Agency to consider extenuating circumstances. Alternatively, the Union asserts that Provision 33 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

Based on its plain wording, Provision 33 requires only that the Agency consider extenuating circumstances when rating performance. Proposals requiring management merely to "consider" various factors in exercising a management right under section 7106(a) of the Statute do not directly interfere with the exercise of that right. As such proposals leave management with the discretion to determine the weight it will give to specific factors, they do not require management to take a particular action. See, for example, American Federation of Government Employees, Council 147 and U.S. Department of Health and Human Services, Social Security Administration, Teleservice Center, Phoenix, Arizona, 38 FLRA 110, 118 (1990). More particularly, the obligation to consider specified matters in evaluating employee performance does not require management to alter existing performance standards and does not dictate a particular performance rating. Id.

As the Agency retains authority under Provision 33 to determine the content of performance standards and what rating is appropriate for an employee based on all relevant factors, the provision does not directly interfere with management's rights to direct employees or assign work. Accordingly, Provision 33 is negotiable. Compare Customs Service, 40 FLRA at 581 (proposal, obligating agency to "take into account" certain factors, required change or adjustment to performance expectations and directly interfered with management's rights under section 7106(a)(2)(A) and (B) to direct employees and assign work).

XXX. Provision 34

Section 15- Performance Appraisals- Ratings

15(D)- The rating official shall initiate the formal annual appraisal by providing notice to the employee of the date and time for the formal appraisal meeting.

A. Positions of the Parties

The Agency contends that Provision 34 directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute to the extent that it specifically assigns the job of initiating formal appraisals to rating officials.

The Union asserts that Provision 34 is a negotiable procedure under section 7106(b)(2) of the Statute because it does not interfere with the right to assign work, as the Agency retains the right to designate rating officials. Alternatively, the Union argues that Provision 34 is an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

As we noted in connection with Provisions 29 and 30, provisions which add nothing more than related incidental duties to the evaluation process do not directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. Provision 34 clearly does not affect any substantive aspect of the performance evaluation process. Rather, the provision merely obligates rating officials to notify employees of the scheduled date and time of formal appraisal meetings. Accordingly, Provision 34 constitutes a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. Furthermore, as also noted in our analysis of Provisions 29 and 30, proposals establishing otherwise negotiable procedures do not directly interfere with the right to assign work because management must assign personnel to implement the procedures. Therefore, we reject the Agency's argument that Provision 34 directly interferes with its right to assign work by requiring that rating officials notify employees of the time and date of formal appraisal meetings. Having found that Provision 34 is a negotiable procedure under section 7106(b)(2), we need not address the Union's argument that the provision is also an appropriate arrangement.

XXXI. Provision 36

Section 15- Performance Appraisals- Ratings

15(F)- The employee will sign and date a statement to indicate that the proposed rating was discussed with the rating official.

A. Positions of the Parties

The Agency asserts that Provision 36 directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute by assigning to employees the duty of "signing . . . the appraisal[.]" Statement of Position at 44.

The Union contends that the provision establishes a procedure to ensure that employees have received performance appraisals. Reply Brief at 44. The Union, alternatively, contends that Provision 36 is an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

Provision 36 requires employees to sign and date statements indicating that they have discussed their proposed performance ratings with their rating officials. The provision does not, in any way, interfere with management's discretion to determine what performance ratings will be assigned to employees. Rather, the provision establishes a procedure for documenting discussions with rating officials concerning employees' performance ratings. As we noted in connection with Provisions 29 and 30, procedures entailing some assignment of work to employees do not directly interfere with the Agency's right to assign work. Because Provision 36 only requires an employee's signature, we find that it requires only an incidental assignment of work in connection with an otherwise negotiable procedure and does not directly interfere with the Agency's right to assign work. See, for example, National Park Service, 43 FLRA at 845. Therefore, Provision 36 is a negotiable procedure under section 7106(b)(2) of the Statute. In view of our conclusion, we need not address the Union's argument that the provision is an appropriate arrangement.

XXXII.Provision 37

Section 15- Performance Appraisals- Ratings

15(G)- If the employee is dissatisfied with the rating recommended by the rating official, he may request reconsideration from the approving official with an oral or written explanation of why the employee believes he should have a higher rating. If the approving official assigns a rating that is lower than requested by the employee, the approving official must give written justification for the rating given. A copy of the final rating will be given to the employee.

A. Positions of the Parties

The Agency asserts that Provision 37 directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute by assigning the responsibility for reconsidering an employee's performance rating to the approving official and requiring that official to explain in writing why no change in the rating is warranted.

The Union contends that Provision 37 constitutes a negotiable procedure within the meaning of section 7106(b)(2) of the Statute under which management retains discretion to designate the approving official and allows employees to challenge their performance ratings. Alternatively, the Union argues that Provision 37 is an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

Provision 37 obligates approving officials to assess employees' written or oral complaints concerning their performance ratings and to justify in writing ratings which are lower than those sought by the employees. This provision is similar to Provision 25, which requires "relevant" management officials to consult with employees and respond in writing when they seek changes in performance goals. Like Provision 25, Provision 37 merely requires reviewing officials to review, evaluate, and respond in writing to employees' requests to reconsider recommended performance ratings. The Agency retains the right to determine employees' ratings. Accordingly, we conclude, consistent with our finding on Provision 25, that Provision 37 constitutes a negotiable procedure under section 7106(b)(2) of the Statute. See, for example, Food and Nutrition Service, 42 FLRA at 978-79.

As we noted in our discussion of Provision 25, procedures which merely entail the assignment of some incidental work to personnel do not directly interfere with an agency's right to assign work. Provision 37 requires only that approving officials review and explain in writing the bases for assigned ratings in response to employee complaints. Therefore, we reject the Agency's contention that Provision 37 is nonnegotiable because it requires the Agency to assign work to specified management officials. See, for example, National Park Service, 43 FLRA at 845.

XXXIII.Provision 38

Section 15 - H. The annual performance appraisal shall be based on the performance for the fiscal year or that part of a fiscal year which the employee has worked provided that it is at least 120 days. The rating shall normally be completed by November 15 unless the employee has been in the position less than 120 days during the fiscal year in which case the rating will be deferred until the employee has been in the position for 120 days.

A. Positions of the Parties

The Agency maintains that by requiring that performance ratings be completed by November 15 of each year Provision 38 directly interferes with the right to assign work under section 7106(a)(2)(B) of the Statute. The Agency argues that its right to assign work "includes the right to determine when the work assigned will be performed." Statement of Position at 45.

The Union asserts that Provision 38 is negotiable because "proposals concerning the timing of performance appraisals are negotiable procedures." Reply Brief at 46.

B. Analysis and Conclusions

As we stated in connection with Provision 32, matters concerning the timing of performance appraisals constitute negotiable procedures under section 7106(b)(2) of the Statute. See NLRB, 42 FLRA at 1319. See also Army Publications, 32 FLRA at 1014-15, (Authority determined that provision, requiring completion of performance appraisals no later than 45 calendar days following close of rating period, "establishe[d] a procedure--a time limit for providing performance appraisals to employees following the end of the rating period--by which the [a]gency carries out its authority with respect to performance appraisals"). There is no material difference between the provision in Army Publications and Provision 38. Accordingly, for the reasons more fully set forth in Army Publications, we conclude that Provision 38 is a negotiable procedure under section 7106(b)(2) of the Statute.

XXXIV. Provision 39

Section 15 - I. For all evaluations, only actions taken or not taken during the period under consideration will be evaluated.

A. Positions of the Parties

The Agency contends that Provision 39 directly interferes with its rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and assign work because it would "preclude evaluation unless the action being evaluated was within the time limits prescribed by the provision." Statement of Position at 45.

The Union asserts that Provision 39 is a negotiable procedure under section 7106(b)(2) because: (1) it does not affect the critical elements and performance standards used in evaluating performance; (2) it leaves management free to determine the length of the rating period and; (3) it requires only that performance evaluated must have occurred within the rating period established by the Agency. The Union further contends that, to the extent that the provision, "when read with [Provision 32], limits the maximum rating period to one year, it is still negotiable." Reply Brief at 47 (footnote omitted). The Union argues that limiting evaluations to work performed during the annual appraisal period is consistent with applicable regulations which define "appraisal period" as "the period of time established by an appraisal system for which an employee's performance will be reviewed." Id. (quoting from 5 C.F.R. § 430.203). The Union also argues that the provision is an appropriate arrangement under section 7106(b)(3).

B. Analysis and Conclusions

We reject the Agency's argument that Provision 39 precludes the evaluation of any aspect of an employee's performance. The provision requires that only actions occurring during the established appraisal period be evaluated in determining the employee's rating for that period. Management is free to consider events occurring subsequent to the close of an appraisal period in arriving at the employee's rating for the following appraisal period. Put simply, nothing in Provision 39 prevents the Agency from evaluating any aspect of an employee's work. In fact, the provision does nothing more than parallel the definition contained in 5 C.F.R. § 430.203, which states that the "appraisal period" is "the period of time established by an appraisal system for which an employee's performance will be reviewed." Accordingly, Provision 39 is negotiable.

XXXV.Provisions 40 and 41

Provision 40

Section 15- Performance Appraisals- Ratings

15(J)- When performance ratings are to be based upon a five level system, the names of the rating levels going from highest to lowest shall be: outstanding, commendable, fully successful, acceptable and unacceptable (or unsatisfactory).

Provision 41

Section 15- Performance Appraisals- Ratings

15(K)- When performance ratings are to be based upon a three level system, then the names of the rating levels shall be outstanding, fully successful and unacceptable (or unsatisfactory).

A. Positions of the Parties

The Agency asserts that Provision 40 is inconsistent with 5 C.F.R. § 430.204(h) because it identifies one of the rating levels as "unacceptable (or unsatisfactory)" and Provision 41 is inconsistent with that regulation because it discusses" a three-level rating scheme.⁽¹⁷⁾ Statement of Position at 46.

The Union contends that Provision 40 is consistent with 5 C.F.R. § 430.204(h) because that section "does not mandate that the lowest rating be specifically called unacceptable." Reply Brief at 48. The Union notes that the Agency has been using the term "unsatisfactory," and its inclusion is merely intended to provide continuity.

B. Analysis and Conclusions

We reject the Agency's contention that Provision 40 is inconsistent with 5 C.F.R. § 430.204(h) because it identifies the lowest rating level as "unacceptable (or unsatisfactory)." 5 C.F.R. § 430.204(h) provides that agency appraisal systems "must include an 'Unacceptable' level[.]" Therefore, the negotiability of Provision 40 depends on whether it provides for a designation that is consistent with the applicable regulation. See National Association of Government Employees and U.S. Department of Veterans Affairs, Washington, D.C., 43 FLRA 414, 430 (1992), petition for review filed sub nom. U.S. Department of Veterans Affairs v. FLRA, No. 92-1111 (D.C. Cir. Mar. 16, 1992). As Provision 40 gives the Agency the option of designating its lowest rating level as "unacceptable," the designation required by 5 C.F.R. § 430.204(h), the provision is consistent with that regulation.

We also reject the Agency's contention that Provision 41 is inconsistent with 5 C.F.R. § 430.204(h) because it "discusses" a three-level rating system. Statement of Position at 41. 5 C.F.R. § 430.204(h) authorizes agencies to establish appraisal systems with "at least three and not more than five summary rating levels." As Provision 41 addresses the option, provided by 5 C.F.R. § 430.204(h), of a three-level appraisal system, it is consistent with that regulation.

As the Agency asserts no other bases for finding the provisions nonnegotiable, and none is apparent to us, Provisions 40 and 41 are negotiable.

XXXVI.Provision 42

Section 16- Performance-Based Disciplinary Actions

A. General. Disciplinary actions based upon performance will be taken for just and sufficient cause and will be in accordance with all applicable regulations and laws.

A. Positions of the Parties

The Agency asserts that Provision 42 requires performance-based disciplinary actions to "be based on the higher standard of 'just and sufficient cause' rather than the lower standard of 'substantial evidence.'" Statement of Position at 46. Therefore, the Agency argues that Provision 42 is inconsistent with 5 U.S.C. § 7701(c)(1)(A).⁽¹⁸⁾

The Union contends that, although Provision 42 contains the term "just and sufficient cause," the provision also requires that performance-based disciplinary actions must be "in accordance with all applicable laws and regulations." Reply Brief at 49. Accordingly, the Union argues that Provision 42 does not change the burden of proof required of the Agency in taking 5 U.S.C. Chapter 43 or Chapter 75 actions. The Union asserts that the provision "does nothing more than require the [A]gency to follow all applicable laws and regulations when taking a disciplinary action based on performance." Id.

B. Analysis and Conclusions

Under 5 U.S.C. § 7701(c)(1)(A), an agency's decision to impose performance-based adverse action described in 5 U.S.C. § 4303 "shall be sustained . . . only if . . . supported by substantial evidence[.]" 5 U.S.C § 7701(c)(1)(B) requires "a preponderance of the evidence" to sustain an agency's decision to take performance-based adverse action under 5 U.S.C. chapter 75. The Agency appears to have confused the term "just cause," which frequently is used to evaluate the sufficiency of the grounds for initiating disciplinary action against an employee, with the evidentiary standards used to describe the quantity and quality of evidence needed to sustain an action under either Chapter 43 or 75. See Merchant Marine Academy, 39 FLRA at 196-97 (Authority noted that proposal, requiring that proposed actions be for "just and sufficient cause as shall promote the efficiency of the service," concerned "the circumstances when the [a]gency may propose a removal action").

Nothing in Provision 42 alters the burden of proof--the quantity and quality of evidence--required by 5 U.S.C. § 7701(c)(1) to support performance-based actions. Consequently, we reject the Agency's assertion that Provision 42 is inconsistent with 5 U.S.C. § 7701(c)(1)(A). As no other basis for finding Provision 42 nonnegotiable is asserted or apparent to us, the provision is negotiable.

XXXVII.Provision 43

Section 16- Performance-Based Disciplinary Actions

B. Definition.

1. Performance-based disciplinary actions are actions in which management finds fault with the performance of an employee including oral warnings, letters of reprimand, written notifications of deficient performance, written warnings, involuntary reassignments for performance reasons, denials of within grade increases, marginal ratings, unacceptable ratings, suspensions, reductions in rank, reductions in grade, and removal.

A. Positions of the Parties

The Agency asserts that Provision 43 is inconsistent with 5 U.S.C. § 4303 and 5 C.F.R. Part 432, which do not provide for "the concept of 'reduction in rank'" among performance-based disciplinary actions.⁽¹⁹⁾ Statement of Position at 46. The Agency contends that Provision 43 is nonnegotiable to the extent that it "attempts to mandate that when the [A]gency reduces an employee in rank it follow certain procedures not otherwise provided by Congress . . . ." Id.

The Union defines the term "reduction in rank" as "the removal of signatory authority from an examiner." Petition for Review at 11. In the Union's view, a reduction in rank is a "'lesser disciplinary action.'" Reply Brief at 50. The Union asserts that, as lesser disciplinary actions are not unacceptable performance actions under Chapter 43 or adverse actions under Chapter 75, the parties are "free to define these actions and to prescribe the reasons that must be supported, and the burden of proof, in taking such actions." Id. The Union argues that Provision 43 is a negotiable procedure under section 7106(b)(2) of the Statute and that, alternatively, Provision 43 constitutes a negotiable appropriate arrangement under section 7106(b)(3).

B. Analysis and Conclusions

We reject the Agency's argument that the inclusion of reduction in rank in Provision 43 is inconsistent with 5 U.S.C. § 4303, which provides that an agency may reduce in grade or remove an employee for unacceptable performance, and implementing regulations in 5 C.F.R. Part 432, which describe how and when such discipline will be imposed. Provision 43 defines performance-based disciplinary actions for purposes of the parties' negotiated grievance procedure and includes reduction in rank as a grievable matter.

The Agency has not established, and it is not apparent to us, how the inclusion of reduction in rank as a performance-based disciplinary action in the parties' agreement is inconsistent with 5 U.S.C. § 4303 and 5 C.F.R. Part 432. Those provisions simply do not address reduction in rank as performance-based discipline. However, that silence does not indicate that a reduction in rank may not be grievable as a performance-based action under a negotiated agreement. Accordingly, we conclude that Provision 43 is not inconsistent with 5 U.S.C. § 4303 or 5 C.F.R. Part 432 and is negotiable. We note, in this regard, that the Agency does not object to a number of other performance-based actions listed in Provision 43 that are not covered by 5 U.S.C. § 4303 and 5 C.F.R. Part 432.

XXXVIII.Provision 44

Section 16- Performance-Based Disciplinary Actions

C. Employee Assistance Program

1. If an employee alleges that he could be helped by participation in the Employee Assistance Program (EAP), he shall be given the opportunity to be referred to the appropriate EAP Coordinator responsible for rendering program assistance. Even in the absence of such a request by the employee, if the supervisor has reason to believe that the employee could be helped by participation in the program, management shall encourage the employee to participate.

2. If the employee consents to such a referral, the employee's supervisor or other appropriate management official shall consult with the EAP Coordinator who met with the employee. Any performance based disciplinary action will be stayed pending the consultation with the EAP Coordinator. Based on such consultation, Management shall specify to the employee the conditions under which it will defer, modify or avoid an action based on less than satisfactory performance.

[Only the underlined sentence is in dispute.]

A. Positions of the Parties

The Agency asserts that Provision 44 interferes with its rights to direct and discipline employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency argues that the provision "would, in certain circumstances, prevent [it] from acting at all with respect to its right to take disciplinary action against employees." Statement of Position at 47. While acknowledging that the provision would not prevent it from disciplining an employee, the Agency asserts that the obligation to mitigate the penalty would preclude "taking the initial action e.g., removal," and would require it "to defer, modify or avoid the initial action." Id.

The Union contends that to the extent Provision 44 "requires a stay of a performance-based disciplinary action pending consultation by management with an EAP coordinator, it is a permissible negotiable procedure." Reply Brief at 52. The Union argues that nothing in Provision 44 requires "mitigation" of any action or that the Agency "defer, modify or avoid an action." Id. The Union asserts that the provision requires management to "inform the employee as to what conditions, if any, have been established by the [A]gency to defer, modify or avoid" a performance-based action. Id. The Union also asserts that Provision 44 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

At the outset, we note that, contrary to the Agency's assertion, the disputed sentence in Provision 44 does not prevent management from taking disciplinary action. Rather, Provision 44 provides that management, after consulting with the EAP Coordinator, shall specify to an employee who is performing unacceptably the conditions "under which it will defer, modify or avoid" a proposed performance-based action. Moreover, management retains exclusive authority to determine the circumstances warranting changes to proposed discipline based on performance. By its terms, the provision does not require the establishment of conditions under which performance-based discipline will be mitigated. Rather, the provision only obligates management to reveal to affected employees the conditions, if any, it has determined, after consultation with the EAP Coordinator, would cause deferral, modification, or cancellation of an action.

As we noted in connection with Provisions 13 and 19, provisions that require an agency to notify employees about matters relating to conditions of employment do not directly interfere with management's rights and are negotiable, provided they do not require the release of information which otherwise is protected. See, for example, National Treasury Employees Union and U.S. Department of Energy, Washington, D.C., 41 FLRA 1241, 1247-48 (1991), petition for review filed sub nom. United States Department of Energy, Washington, D.C., No. 91-1514 (D.C. Cir. Oct. 21, 1991). The conditions under which the Agency would decide to defer, modify, or avoid a performance-based action unquestionably concern the employee's conditions of employment. Moreover, the obligation to advise an employee how to avoid, postpone, or mitigate a performance-based action does not bind management to any particular course of action. Accordingly, we conclude that the notice requirement in Provision 44 is negotiable.

XXXIX.Provision 45

Section 16- Performance-Based Disciplinary Actions

D. Warning. A written notice of opportunity to improve must be given to an employee before the employee can be (1) reduced in grade, or (2) removed. The written notice must contain the following:

1. The performance standard that the employee performed at the unacceptable (or unsatisfactory) level.

2. The factual basis for the determination that the employee performed at the unacceptable (or unsatisfactory) level.

3. A specific improvement period during which the employee's performance should improve. The specified improvement period will be seven pay periods unless the employee and his supervisor agree on a different specified improvement period of at least three pay periods.

4. The specific minimum improvement required to avoid further disciplinary action. This specific minimum improvement must be reasonably attainable during the specified improvement period. During the specified improvement period, appropriate on-the-job assistance will be given the employee if such assistance could result in improved performance and if the employee requests such assistance.

5. An identification, where appropriate, of the options available to the employee for improving performance, such as technical training, transfer to a different art or supervisor, academy courses, or the employee assistance program. Employees who are rated at a level below the fully successful level are entitled to special assistance for improving performance.

6. At the midpoint of the improvement period, the employee shall be provided with a written evaluation of his/her progress.

7. Management cannot take the action being warned about in the written notice of opportunity to improve until after the improvement period specified in the notice has expired. If, because of performance improvement by the employee during the notice period provided in the written notice of opportunity to improve the employee is not reduced in grade or removed, and the employee's performance continues to be acceptable for one year from the date of the notice, any entry or other notation of the unsatisfactory performance for which the action was proposed shall be removed from any agency record relating to the employee.

A. Positions of the Parties

The Agency argues that Provision 45 directly interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute. The Agency asserts, that, although 5 U.S.C. Chapter 43 provides for a period for performance improvement, Chapter 75 of title 5 U.S.C. has "no express provision . . . that requires an agency to afford an employee a period of time to improve performance before management effects a performance-based action." Statement of Position at 47-48. The Agency asserts that, because Chapter 75 does not provide for an improvement period, the Merit Systems Protection Board has "declined to provide a right not enacted by Congress . . . and the Authority should do likewise." Id. The Agency also asserts that an improvement period is similar in effect to a "statute of limitations" and would interfere with the Agency's right to take a performance-based disciplinary action. Id. at 49. In addition, the Agency argues that section 4 of Provision 45 is nonnegotiable because it defines the minimum improvement required of an employee as that which is "reasonably attainable."

The Union argues that Provision 45 constitutes a negotiable procedure under section 7106(b)(2) of the Statute. According to the Union, there is "nothing in the law which precludes the parties from negotiating an improvement period in a performance-based adverse action" taken under Chapter 75. Reply Brief at 55. The Union asserts that, at most, Provision 45 requires the Agency to delay its action until the improvement period is completed. Alternatively, the Union contends that Provision 45 should be found to be negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

For the following reasons, we conclude that the requirement in Provision 45 that the Agency provide a performance improvement plan for an employee facing performance-based disciplinary action is negotiable. However, we find that the requirement that the minimum improvement in performance be "reasonably attainable" excessively interferes with management's right to discipline employees under section 7106(a)(2)(A).

1. Performance Improvement Plans

Although the Agency asserts that Provision 45 is inconsistent with Chapter 75 because that chapter does not require performance improvement plans before management takes performance-based disciplinary actions, nothing in Chapter 75 specifically precludes the use of performance improvement plans by an agency. See Fairall v. Veterans Administration, 33 M.S.P.R. 33, 46 (1987) (holding that an agency was not required to give an improvement period to an employee facing a Chapter 75 performance-based action, but that an agency might "elect[] to afford" an employee such an opportunity). It is well established that, where applicable law and regulation afford an agency discretion over a matter affecting conditions of employment, the agency is obligated under the Statute to exercise that discretion through bargaining, unless the law or regulation limits that discretion exclusively to the agency. See, for example, National Federation of Federal Employees, Local 29 and U.S. Department of the Army, Engineer District, Kansas City, Missouri, 45 FLRA 603, 606 (1992). Accordingly, we conclude that the performance improvement period required by Provision 45 is not inconsistent with chapter 75.

2. "Reasonably Attainable" Minimum Improvement

The second sentence in section D.4 of Provision 45 provides that the minimum improvement required of an employee who is on a performance improvement plan to avoid disciplinary action must be "reasonably attainable." That is, the second sentence requires that employees improve their performance only to a reasonably attainable level rather than to the acceptable level. While, in some circumstances performance improvement to the acceptable level may be reasonably attainable, in others, an employee's performance may be so poor that reasonably attainable improvement would still be unacceptable performance. Therefore, under this criterion, the Agency would be prevented from imposing discipline when an employee improved, even though the employee was still performing unacceptably. Consequently, we find that the second sentence of section D.4 directly interferes with the Agency's right to discipline employees under section 7106(a)(2)(A) of the Statute. See American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 309, 321 (1990), enf'd sub nom. U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio v. FLRA, 949 F.2d 475 (D.C. Cir 1991). Unless this sentence constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, as the Union asserts, it is nonnegotiable.

By protecting from discipline those employees who are performing unacceptably if their performance improves to a "reasonably attainable" level under a performance improvement plan, the disputed portion of section D.4 ameliorates the adverse effect of management's exercise of its right to discipline. Therefore, the second sentence of section D.4 is intended as an arrangement under section 7106(b)(3) of the Statute for employees whose performance is unacceptable and who, as a result, may be demoted or terminated for failing to improve. Moreover, the disputed sentence of Provision 45 would benefit affected employees by limiting the performance improvement required during an improvement period to a "reasonably attainable" level. This provision would be of significant benefit to employees facing performance-based discipline because they could avoid disciplinary action by improving their performance to a reasonably attainable level, even though their performance fails to meet the acceptable level established in their performance elements and standards.

On the other hand, the disputed sentence imposes a burden on management's right by preventing the Agency from taking performance-based disciplinary action against an employee who has not demonstrated an ability to perform at the acceptable level during the performance improvement period. In this regard, the provision would eliminate management's discretion to decide on remedial action commensurate with the employee's performance deficiencies and consistent with the Agency's mission requirements.

On balance, we conclude that the burden on management's right to impose discipline for unacceptable performance outweighs the benefit to employees afforded by the second sentence in section D.4. Accordingly, we conclude that the second sentence in section D.4 of Provision 45 excessively interferes with the Agency's right to take disciplinary action under section 7106(a)(2)(A) of the Statute.

In summary, we find that Provision 45, except for the second sentence of section D.4, is not inconsistent with Chapter 75 and is negotiable. The second sentence of section D.4 of Provision 45, however, excessively interferes with the Agency's right to discipline under section 7106(a)(2)(A) of the Statute and is nonnegotiable.

XL. Provision 46

Section 16- Performance-Based Disciplinary Actions

F. Corrective Action. Performance based discipline under 5 U.S.C. Chapter 75 shall be progressive. Written warnings of poor performance shall be preceded by oral warnings plus an improvement period. Oral warnings shall be identified as such explicitly and shall orally include all the information that would be given in a written warning. Written warnings shall precede more severe discipline.

A. Positions of the Parties

The Agency asserts that Provision 46 directly interferes with its right to impose discipline under section 7106(a)(2)(A) of the Statute by placing "contractual limitations" on management's right to choose whether to take a performance-based action under chapter 43 or chapter 75. Statement of Position at 49. The Agency also argues, as it did concerning Provision 45, that the provision is nonnegotiable to the extent it mandates a performance improvement plan for performance-based actions taken under 5 U.S.C. Chapter 75.

The Union contends that Provision 46 constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. The Union asserts that "[w]hen an employee is in need of corrective action, only the minimal corrective action should be applied." Reply Brief at 57.

B. Analysis and Conclusions

At the outset, for the reasons set forth in our analysis of Provision 45, we reject the Agency's argument that Provision 46 is nonnegotiable to the extent it requires a performance improvement period before imposing

performance-based discipline under 5 U.S.C. Chapter 75. Put simply, a proposal requiring a performance improvement period prior to taking performance-based action under chapter 75 is negotiable.

The Union's sole argument is that Provision 46 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute for employees adversely affected by management's exercise of its right to discipline. Therefore, consistent with Authority precedent, we will assume that the provision directly interferes with the Agency's right to discipline under section 7106(a)(2)(A). See Merchant Marine Academy, 39 FLRA at 198 (holding that provision, which, among other things, required agency to administer discipline in a progressive and consistent manner, directly interfered with right to discipline employees).

In support of its position that Provision 46 constitutes an appropriate arrangement, the Union contends that the provision is intended to ameliorate management's "[o]verly harsh conduct" in disciplining employees for performance deficiencies. Reply Brief at 57. Consistent with the Union's explanation, we conclude that Provision 46 is an arrangement intended to mitigate the adverse effect of management's exercise of its right to discipline employees whose performance is unacceptable.

The restrictions imposed by Provision 46 on the Agency's ability to select disciplinary penalties for inadequate performance would benefit employees subject to performance-based discipline by ensuring that management will use progressive discipline. Consequently, we conclude that Provision 46 would provide a significant benefit to employees facing performance-based discipline. However, the provision's beneficiaries are employees who have failed to demonstrate the ability to perform at a fully successful level. Additionally, the provision would protect those employees from performance-based actions after they have failed to meet performance requirements during a performance improvement period. Finally, the benefit to employees is obtained by restricting the Agency's ability to impose the discipline it considers appropriate to the facts and circumstances of a particular case. We have previously found such a restriction to be a "significant intrusion on the exercise of management's right to discipline." American Federation of Government Employees, Local 1426 and U.S. Department of the Army, Fort Sheridan, Illinois, 45 FLRA 867, 875 (1992).

We conclude that the burden placed on management by requiring that performance-based discipline be progressive outweighs the benefit to employees subject to such discipline. Therefore, Provision 46 excessively interferes with management's right to take disciplinary action under section 7106(a)(2)(A) of the Statute and is nonnegotiable. See Merchant Marine Academy, 39 FLRA at 199.

XLI. Provision 47

Section 16- Performance-Based Disciplinary Actions

H. Within Grade Increases.

. . . .

2. Negative Determination. A negative determination that an employee's performance is not at an acceptable level of competence shall be given to the employee in writing no later than the pay period after the completion of the employee's waiting period and shall include:

a. The performance standard that the employee failed to perform at the satisfactory level.

b. The factual basis for the determination that the employee failed to perform at the satisfactory level.

c. The fact that the employee has the right to request reconsideration from management under the procedures and requirements and time limits of 5 CFR 531.410 and then to grieve the propriety of the reconsidered decision under the negotiated grievance procedure.

d. An identification, where appropriate, of the options available to the employee for improving performance.

A. Positions of the Parties

The Agency asserts that Provision 47, which concerns within-grade increases (WIGs), is inconsistent with FPM chapter 531, subchapter 4-9.h.⁽²⁰⁾ to the extent it would "preclude management from making a negative determination after the first pay period after the completion of the waiting period[.]" Statement of Position at 50.

The Union contends that Provision 47 would not "prevent the [A]gency from denying a within-grade increase if this time period is not met[,]" and that the provision "only prescribes the time frame" when management must advise an employee of its decision not to approve a within-grade increase. Reply Brief at 58. The Union argues that Provision 47 constitutes a negotiable procedure under section 7106(b)(2) of the Statute because it "concern[s] only the timing of employee appraisals[.]" Id.

B. Analysis and Conclusions

Provision 47 requires that, if the Agency determines that an employee's performance is not at an acceptable level of competence, management will notify the employee of its determination in writing no later than the pay period after the completion of the employee's waiting period.

We reject the Agency's assertion that Provision 47 is inconsistent with FPM chapter 531, subchapter 4-9.h. Initially, we note that Provision 47 concerns only the timing of notice to an employee that performance is not at an acceptable level of competence, and the Agency does not argue that the timing of the notice is inconsistent with FPM provisions. Rather, the Agency's objection is based on the possible consequences of management's failure to comply with the time frame established by the Provision 47. However, the provision is silent concerning the penalty for noncompliance. Therefore, nothing in Provision 47 prevents the Agency from denying a within-grade increase, based on an employee's performance during the waiting period, when a negative determination is not made on a timely basis because of administrative oversight, error, or delay. Moreover, if an arbitrator were to resolve a grievance concerning this provision in a manner that was contrary to FPM chapter 531, subchapter 4-9.h., the award could be set aside under section 7122(a)(1) of the Statute. Consequently, we find that Provision 47 is not inconsistent with FPM chapter 531, subchapter 4-9.h. See National Treasury Employees Union and Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 40 FLRA 849, 866-67 (1991), aff'd in part, vacated and remanded as to other matters sub nom. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068 (D.C. Cir. 1992) (provision requiring only that employees be notified within specified time of intent to deny within-grade increase found not to require within-grade increase for failing to meet time limit).

Additionally, the Agency's reliance on the findings regarding Proposal 10 in POPA II is misplaced. Proposal 10 provided that the Agency's failure to provide written notice of a negative within-grade determination prior to the end of the month after the waiting period would be conclusive evidence that an employee's performance was at an acceptable level of competence. The Authority found that this requirement was inconsistent with FPM provisions, including chapter 531, subchapter 4-9.h. In contrast, as noted above, Provision 47 does not mandate favorable within-grade determinations when management fails timely to notify employees of negative determinations.

As Provision 47 is consistent with FPM chapter 531, subchapter 4-9.h., and as the Agency has asserted no other reason for finding it nonnegotiable, and none is apparent to us, it is negotiable.

XLII.Provision 48

Section 16- Performance-Based Disciplinary Actions

I. Enforcement. In the event of a decision that a performance-based disciplinary action should be withdrawn and no further appellate or amended action is pending, management shall destroy all of its papers generated as a consequence of the proposed action and shall destroy all of its files relating to the disciplinary action except management's official separate grievance and/or Merit System[s] Protection Board case files. This retained file will not be used as background information about the employee.

A. Positions of the Parties

The Agency asserts that Provision 48 is nonnegotiable because it is inconsistent with 5 U.S.C. § 4303(d).⁽²¹⁾

The Union contends the requirement to destroy documents in Provision 48 is consistent with 5 U.S.C. § 4303(d) because that section "represents the maximum period of time for which negative documentation can be kept[.]" Reply Brief at 59 (emphasis in original). The Union also asserts that the provision is a negotiable procedure under section 7106(b)(2) of the Statute and an appropriate arrangement under section 7106(b)(3).

B. Analysis and Conclusions

We reject the Agency's contention that Provision 48 is inconsistent with 5 U.S.C. § 4303(d). Section 4303(d) obligates an agency to discard records concerning a proposed performance-based demotion or removal when improvement in the employee's performance during the notice period warrants cancellation of the action and the employee's performance continues at the acceptable level for 1 year from the date of the written notice of proposed adverse action. Put simply, the section requires the Agency to discard information in certain circumstances. Nothing in the section, however, requires an agency to retain records concerning performance-based actions for that period. Stated differently, although section 4304(d) requires deletion of relevant records at a certain time, it does not prevent their earlier deletion. Accordingly, we conclude that Provision 48 is not inconsistent with 5 U.S.C. § 4303(d). As no other basis for finding Provision 48 nonnegotiable is asserted or apparent to us, we find that it is negotiable.

XLIII. Order

The Agency shall rescind its disapproval of the following provisions and parts of provisions: Provisions 1, 2, 5, and 6; the second part of the second sentence of Provision 7, requiring that performance elements reflect the duties and responsibilities in employees' position descriptions; Provisions 8, 9, and 10; the disputed sentence of Provision 11; Provisions 12 through 16; the disputed second sentence of Provision 17; Provisions 18 through 26 and 28 through 44; Provision 45, except for the second sentence of section D.4; and Provisions 47 and 48.⁽²²⁾

The petition for review is dismissed insofar as it concerns Provisions 3 and 4; Provision 7, except for the second part of the second sentence; Provision 27; the second sentence of section D.4 of Provision 45; and Provision 46.

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

1. Relevant portions of 5 C.F.R. § 430.203 provide:

Critical element means a component of a position 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 in the position.

Non-critical element means a component of an employee's position which does not meet the definition of a critical element, but is of sufficient importance to warrant written appraisal. Non-critical elements are optional and may be used at agency discretion.

Performance standard means a statement of the expectations or requirements established by management for a critical or non-critical element at a particular rating level. A performance standard may include, but is not limited to, factors such as quality, quantity, timeliness, and manner of performance.

2. The Agency cited 5 C.F.R. § 430.204, however, "performance" is defined in section 430.203 as follows:

an employee's accomplishment of assigned work as specified in the critical and non-critical elements of the employee's position.

3. 5 C.F.R § 432.104 provides, in relevant part, that:

For each critical element in which the employee's performance is unacceptable, the agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance[.]

4. Insofar as the Union reasserts this argument regarding other provisions, it will not be separately noted or addressed.

5. See note 1.

6. 5 U.S.C. § 4302(b)(1) provides:

(b) . . . 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 . . . related to the job in question for each employee or position under the system[.]

7. 5 U.S.C. § 4302a(a)(2) provides that:

(a) Each agency shall develop one or more performance appraisal systems for employees . . . which--

. . .

(2) require the joint participation of the supervising official and the employee in developing performance standards . . . .

8. FPM chapter 430, subchapter 2-3, provides in pertinent part:

b. Characteristics of good standards. . . .

. . . .

(13) Are all standards the same for all employees of the work unit who have the same position description? If not, can differences in standards be explained and justified?

c. Variations in critical elements and performance standards. . . . particular care should be taken to ensure that employees are treated equitably within each organization developing standards and that differences in standards and critical elements reflect real differences in the jobs. This is particularly important when dealing with "identical" jobs in the same grade, series, and organization. . . .

9. We construe the Union's reference to "proper performance" to mean performance that would have been rated as acceptable but for management's evaluation of matters beyond an employee's control.

10. See notes 1, 2, and 6.

11. 5 U.S.C. § 4302a(b) provides, in relevant part, that:

. . . each performance appraisal system . . . shall provide for--

. . .

(2) establishing, in writing, the critical elements of each employee's position and the performance standards . . . for each such element which will to the maximum extent feasible, permit accurate evaluation of job performance o[n] the basis of objective criteria related to the job in question; . . . .

12. The parties agree that the interest arbitrator inadvertently referred to subsection H and that the reference should be to subsection D.

13. The record does not indicate the meaning of "PCT."

14. Provision 20 also required that employees document time spent on specific functions. The Agency argued that Provision 20 directly interfered with its right to assign work by requiring employees to account for certain functions. Unlike its position on Provision 20, the Agency asserts that these provisions directly interfere with its rights to direct employees and assign work by affecting the content of performance standards. Accordingly, we address Provisions 23 and 24 separately.

15. 5 C.F.R. § 430.205(b) provides:

(b) Minimum appraisal period. Agency appraisal systems shall establish a minimum appraisal period of at least 90 days but not more than 120 days.

16. 5 C.F.R. § 430.205(a) and (e) provide, in pertinent part:

(a) Appraisal period. Each agency appraisal system shall establish an official appraisal period for which a rating of record shall be prepared. Employees shall generally be given a rating of record on an annual basis.

. . . .

(e) Progress review. A progress review shall be held for each employee at least once during the appraisal period.

17. 5 C.F.R. § 430.204(h) provides that:

Each appraisal system shall provide for at least three and not more than five summary rating levels. The rating levels must include an "Unacceptable" level, a "Fully Successful" level, and an "Outstanding" level. Agencies may identify terms as equivalent to "Fully Successful" and "Outstanding" in their Performance Management Plans. Agencies also may use a rating level between "Fully Successful" and "Unacceptable" and a rating level between "Fully Successful" and "Outstanding."

57 Fed. Reg. 7321 (1992).

18. 5 U.S.C. § 7701(c)(1), in relevant part, provides that:

. . . the decision of the agency shall be sustained . . . only if the agency's decision---

(A) in the case of an action based on unacceptable performance described in section 4303 of this title, is supported by substantial evidence, or

(B) in any other case, is supported by a preponderance of the evidence.

19. 5 U.S.C. § 4303 provides, in pertinent part:

(a) Subject to the provisions of this section, an agency may reduce in grade or remove an employee for unacceptable performance.

5 C.F.R. Part 432 provides, at § 432.101, that:

This part applies to reduction in grade and removal of employees covered by the Performance Management and Recognition System (PMRS) based solely on performance below the fully successful level and the reduction in grade and removal of other employees covered by the provisions of this part based solely on performance at the unacceptable level.

20. FPM chapter 531, subchapter 4-9.h. states that:

When a determination by an agency is not made on a timely basis through administrative oversight, error, or delay, the determination when made shall be based on the employee's performance during the period that would have been covered had the determination been timely made; and it is considered to have been made as of the date it would have been made were it not for the administrative oversight, error, or delay.

21. 5 U.S.C. § 4303(d) provides:

If, because of performance improvement by the employee during the notice period, the employee is not reduced in grade or removed, and the employee's performance continues to be acceptable for 1 year from the date of the advance written notice provided under subsection (b)(1)(A) of this section, any entry or other notation of the unacceptable performance for which the action was proposed under this section shall be removed from any agency record relating to the employee.

22. In finding these provisions and parts of provisions to be negotiable, we make no judgment as to their merits.

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