DEPARTMENT OF COMMERCE U.S. PATENT AND TRADEMARK OFFICE ARLINGTON, VIRGINIA and PATENT OFFICE PROFESSIONAL ASSOCIATION Case No. 03 FSIP 067

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF COMMERCE U.S. PATENT AND TRADEMARK OFFICE ARLINGTON, VIRGINIA
and PATENT OFFICE PROFESSIONAL ASSOCIATION	Case No. 03 FSIP 67

DECISION AND ORDER

The Department of Commerce, U.S. Patent and Trademark Office, Arlington, Virginia (PTO or Employer), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Patent Office Professional Association (POPA or Union).

Following an investigation of the request for assistance, which arose during negotiations over the Employer’s decision to implement Quality Initiatives,⁽¹⁾ the Panel determined that issues under six separate categories (spanning Union Proposals 1 through 67, and corresponding Employer counter-offers, where applicable) should be resolved through an informal conference⁽²⁾ with Panel Member Joseph C. Whitaker.⁽³⁾ The parties also were directed to submit written statements of position, with supporting evidence and arguments, prior to the informal conference, and informed that if no settlement was reached, Mr. Whitaker would notify the Panel of the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse. After considering this information, the Panel would resolve the dispute by selecting one of the party’s final offers on a category-by-category basis, to the extent they otherwise appear legal.

Pursuant to this procedural determination, Mr. Whitaker conducted an informal conference with the parties from September 8 through September 10, 2003. While efforts were undertaken to reach a voluntary settlement, significant issues remain to be resolved under all six categories. The parties submitted their final offers on September 12, and on October 3, they filed post-conference statements of position in support of their final offers. Mr. Whitaker has reported to the Panel and it has now considered the entire record, including the parties’ pre- and post-conference statements of position.

BACKGROUND

The Employer’s mission is to issue patents and register trademarks. The Union is the exclusive representative of a bargaining unit of approximately 3,500 professional employees in pay grades GS-5 through -15, most of whom are patent examiners. The unit also includes reference librarians and classifiers. The parties have different views regarding whether they are covered by a master collective bargaining agreement (MCBA).

ISSUES AT IMPASSE

The parties disagree over numerous items under the following six categories: (1) Category 1, "Provisions Applicable to All Issues;" (2) Category 2, "Provisions Applicable to All Tests;" (3) Category 3, "Provisions Applicable to All Competence Testing Associated with Specific Training Courses;" (4) Category 4, "Provisions Applicable to Certification Examination;" (5) Category 5, "Provisions Applicable to Re-certification Process;" and (6) Category 6, "Provisions Applicable to Enhancing the File Wrapper History."

POSITIONS OF THE PARTIES

1. Category 1: Provisions Applicable to All Issues

a. The Union’s Position

The Union’s final offer on this category is as follows:

1. The parties agree to meet at least once each six months to discuss issues related to the implementation of the Quality Initiatives. In addition, either party may reopen this agreement every two years so long as notice is provided to the other party at least thirty (30) days prior to the two-year anniversary of the effective date of this agreement.

2. Work product review:

   a. Notice of the intent to expand the review of an employee’s work product shall be given to the employee at the time the review is begun.

   b. Notice shall be given to the employee of any error found in a work product that was reviewed. Upon notification, the employee shall be given access to the file of the application containing the error. Notice shall also be given to the employee when a reviewed application is free of error.

   c. The employee shall be given 30 days after notification of an error to present a written defense (and any verbal argument) to management. Management shall issue a written decision within 30 days thereafter.

   d. When an employee having signatory authority disputes an alleged error in an action signed by that employee, an additional independent review shall be conducted after the case has been sanitized of any notes or documents that show a prior review. The results of this independent review, including the reviewer's notes and explanations, shall be given to the employee at the same time that they are given to the employee's supervisor.

   e. The time employees spend defending themselves in meetings with management, plus reasonable preparation time up to one half of the time for a balanced disposal at the employee’s assigned expectancy, shall be accounted for separately and shall be considered examining-related time.

   f. Employees’ entitlement to this provision shall be maintained on an official USPTO intranet web page, and a notice of this provision shall be e-mailed to each employee at the time of the transmittal of their performance appraisal plan.

Its final offer addresses two matters of "overriding importance" regarding the Quality Initiatives: (1) the need to treat the changes associated with the initiatives "as an experimental pilot program rather than a permanent program;" and (2) the need for a mechanism by which employees can defend themselves against improper allegations of error. With respect to the former, its proposed wording would provide the Union with the unilateral right to reopen negotiations over the impact of the initiatives every 2 years. This is warranted because of the "radical nature" of the proposed changes and the parties’ lack of experience with their impacts. The proposal is "copied" from a recent agreement the same parties reached in a previous Panel case involving telework.⁽⁴⁾ As to the latter, since the "most precious commodity to a professional is his or her reputation," employees must have notice of the error, time to review the facts and reconstruct their decision-making processes, and an opportunity to rebut the allegation. The additional independent review of alleged errors called for in its proposal is consistent with practices currently in effect under the 2-year signatory authority program, and "is a valuable element in creating a fair and accurate review of an employee’s competence." The Panel should reject the Employer’s contention that the existence of the negotiated grievance procedure makes it unnecessary to have a special procedure for handling disputes regarding allegations of error. For a variety of reasons, the parties’ grievance procedure is "entirely dysfunctional" for performance appraisal issues. In addition, the cost of the procedure it proposes for challenging allegations of error would be "trivial."

The first portion of the Employer’s final offer would preclude negotiations "for any reason during the first 3 years following implementation of the agreement" if management decides to make non-de minimis mid-term changes to the Quality Initiatives program, or after 3 years if it decides to make mid-term changes even though the standards established in the proposal have not been exceeded. As such, its adoption would constitute an illegal waiver of the Union’s statutory bargaining rights. On its merits, it is "outrageous" that the Employer would find it acceptable for up to 20 percent of its most experienced employees not to be re-certified. A failure rate of even half that level would be an "indictment of management’s policies, not an accurate reflection of employees’ abilities." The Union knows of no other government agency that "holds its professional employees in such contempt." Moreover, other than its proposal in Category 3 involving the relatively minor situation where reviews are expanded due to a second failure to pass a test after a training course, "management provides no real mechanism for defending one’s self against error." Finally, the second portion of the Employer’s final offer would permit management to sever provisions found nonnegotiable on agency head review and implement the remainder of the agreement. The proposal "contains the potential for much mischief" because the Employer has included wording in its final offers which it would have alleged interfere with management’s rights, had it been proposed by the Union. Thus, "by the judicious use of declarations of non-negotiability," the Employer could "eliminate proposals encompassing substantial protections for employees while retaining and implementing those proposals favoring unfettered management discretion."

b. The Employer’s Position

The Employer proposes the following:

M1. Three years following the implementation of this agreement, management will negotiate, to the extent required by law, over the following:

a. Proposals submitted by POPA related to any changes that management decides to implement to the certification exam in the event that greater than 20% of examiners fail to earn their promotion to the GS-13 level solely because of their inability to successfully complete the exam. This will be a cumulative percentage of employees who have been denied promotion in the second and third year following the implementation of this agreement.

b. Proposals submitted by POPA related to any changes that management decides to implement to the re-certification process in the event that fewer than 80% of examiners at the GS-13 level and above fail to gain re-certification. This will be a cumulative percentage of employees who have undergone the re-certification process in the second and third years following the implementation of this agreement.

c. Proposals submitted by POPA related to any changes that management decides to implement to tests given after individual training courses in the event that fewer than 90% of examiners pass the tests. This will be a cumulative percentage of tests given the second and third years following the implementation of this agreement.

M2. If any provision of this agreement is disapproved on Agency Head Review, the remainder of the agreement will be effective upon the completion of the Agency Head Review process.

The Quality Initiatives giving rise to this impasse were developed in response to Congressional concern about the "sharp increase in the number of new patent applications and the shift in applications to more complex technologies." Congress recognized that public confidence in patentability determinations "is vital to the continued growth of the Nation’s economy," and implementation of the initiatives should ensure that the patents issued are of the highest quality. In this regard, its final offer establishes standards to assist management in assessing the effect of the Quality Initiatives and their impact on bargaining-unit employees. It also preserves the Union’s right to bargain over any negotiable changes the Employer decides are necessary if the standards are not met.

The Union’s reopener clause, on the other hand, would mandate negotiations every 2 years concerning the same issues the parties have been bargaining over for the past 15 months. Given the Union’s "strident opposition" to the Quality Initiatives, its adoption would "almost guarantee" the Panel’s involvement in resolving impasses over the initiatives "every other year ad infinitum." The Union has failed to justify such a "waste of Panel and Agency resources." As to the second part of the Union’s final offer, it would: (1) require the Employer to provide thousands of notices per year to employees whose work is being reviewed, regardless of whether an error was found; (2) implement a costly and burdensome procedure for challenging management determinations that errors were committed "whether or not that error is held against" employees "for purposes of their performance evaluation or awards;" (3) "excessively interfere[] with management’s ability to determine when an employee has committed an error" because of the length of time it would take to go through the Union’s proposed independent review process; and (4) create an incentive to challenge every alleged error, even if the challenge is frivolous, by rewarding poor performers with approximately 9 hours of "examining-related" time to prepare each challenge, which is credited toward the receipt of awards, but during which the employee is not responsible for producing any work. The Union’s final offer also is unnecessary: if the finding of an error has an adverse impact on an employee’s rating or awards, "that employee can already challenge that decision through the grievance procedure."

CONCLUSIONS

Having carefully considered the evidence and arguments presented by the parties on the issues under this category, we shall order the adoption of a modified version of the Employer’s final offer to resolve their dispute. Preliminarily, the Panel shares the Union’s belief that implementation of the Quality Initiatives program is likely to have an enormous impact on employees’ conditions of employment, as well as on the culture of the organization. It is not the Panel’s role, however, to question the underlying merits of the initiatives, or the manner in which the Employer has decided to ensure the quality of patent examination. We also note that the procedure adopted by the Panel for bringing finality to this lengthy and highly-charged dispute afforded the parties a number of opportunities to modify their initial proposals to accommodate the legitimate interests of both sides. The parties were also keenly aware that if a voluntary settlement did not occur during the informal conference, one or the other would necessarily have to face the consequences of its intransigence.

Overall, we find that the Union’s final offers in response to the Quality Initiative program would result in administrative burdens and expense that outweigh their purported benefits. Its proposals for provisions applicable to all issues are a prime example. In the previous Panel case cited by the Union to support the adoption of its final offer, the parties reached a voluntary agreement on a reopener clause; it was not imposed by the Panel. More importantly, since the document that will emerge as a result of the parties’ negotiations over the initiatives appears to have no expiration date, and the Union’s proposed wording does not in any way limit the scope of what could be reopened, its adoption would permit the Union to engage in unrestricted bargaining every 2 years over the same subject. In our view, this is unreasonable even in the context of the significant changes that are contemplated.

On the second matter of overriding importance identified by the Union, we assume that it is a common practice throughout the Federal government for supervisors to point out the errors of subordinates, and for subordinates to at least sometimes disagree with their supervisors’ judgements. We do not believe it is common, however, for employees to be provided with a procedure encouraging them to challenge any allegation of error both orally and in writing, which in certain circumstances would involve an independent review, regardless of whether the allegation adversely affects employees’ performance evaluations or awards. Traditionally, such challenges are reserved for forums designed for appeals of adverse actions against employees. Even if the parties’ negotiated grievance procedure is "entirely dysfunctional" for performance appraisal issues, a situation for which the Union surely bears some responsibility, it has failed to demonstrate the need to permit employees to challenge every allegation of error in a work product.

Turning to the Employer’s final offer, while it is helpful for the agency to set benchmarks for determining whether its Quality Initiatives program is achieving its intended goals, we agree with the Union that it could be interpreted to shield management from what would otherwise be a statutory bargaining obligation over certain sorts of mid-term changes both during and after the initial 3-year period. Accordingly, we shall include a provision specifically stating that it is not the Panel’s intent to waive any of the Union’s statutory rights in imposing the Employer’s final offer. Finally, we also agree with the Union that the Employer’s final offer in this category, and elsewhere, could be disapproved by the head of the agency on the ground that it interferes with a management right. While the parties should know within 30 days if the Union’s prediction comes to pass, this possibility provides an insufficient basis for rejecting the Employer’s proposals under the final-offer selection procedure the Panel is using to resolve the parties’ impasse.

2. Category 2: Provisions Applicable to All Tests

a. The Union’s Position

The Union includes the following wording as a preamble to its final offer on this category:

To clarify the statements regarding management’s intended change, the following information has been provided to POPA regarding tests taken after training courses:

A. The tests will be pass/fail.

B. The tests will not be a basis for performance appraisal, removal of signatory authority, denial of within grade increases or denial of awards.

C. All tests shall be performed on duty time, and shall not be treated as examining time.

D. The performance or nonperformance of work will serve as the only basis for performance appraisal.

3. [old 18]. Employee training identification numbers will be used in lieu of names on all tests. The correlation between the identification number and the name of the employee taking the test, and the demographics of the employee, shall not be disclosed to those grading the exam. [Agreed 12/16/02].

4. [old 20] All test questions, answers, and grading shall be objective, except when written communication techniques themselves are the primary subject matter of the course. [Agreed 12/16/02].

5. [old 21] All test questions, answers, and grading shall be written, either in paper or electronically. [Agreed 12/16/02].

It proposes the following final offer:

6. During a test, at the instructor’s discretion, answers to an employee’s request for a clarification of a test question will be given to the employee and to all other employees taking the test.

7. Management will provide POPA with a statistical analysis of each test's results, including percentage of correct answers for each question as a whole, by art unit, and grade and upon request, by protected class.

8. All test results shall be analyzed for protected class bias and the results of the analysis shall be published to POPA and to employees on a yearly basis.

9. Records of failures shall be permanently removed from the employee's personnel files and sent to the employee upon the employee's subsequent passing of the test, or 18 months after the employee is notified of the failure, whichever comes earlier.

10. All records of failures that identify specific employees, other than those in employees’ personnel files, shall not be kept more than three (3) years after the date of the failure.

11. Any written report concerning the success or failure or other analysis of the testing program that would otherwise be available under the Freedom of Information Act shall be provided to POPA contemporaneously with its transmission to any commissioner-level employee. However, the copy given to POPA may redact the name of any specific employee who is cited.

12. POPA shall be given a report of all exemptions granted from testing, and the reason for each exemption, in enough detail to be usable as precedent for application to other employees, each July and January, covering the prior six months.

13. Any written or oral instructions to supervisors that are created concerning the consequences of passing or failing a test shall be transmitted to POPA within a pay period after they are created.

The Employer "has no experience with competency and certification testing." Only after the parties know the difficulty of each exam and the distribution of grades achieved by employees "will we know whether additional training is necessary or whether the tests themselves are defective." Within this context, Proposal 7 would provide a statistical analysis of each test’s results and put the parties "on the road to deal with their actual impact." Proposal 8 is designed to analyze the test results for "protected class bias." Proposals 9 and 10 would protect the privacy of employees by ensuring that outdated records are destroyed, and are consistent with current agency policies regarding the removal of reprimands and other disciplinary actions from an employee’s personnel file after 18 months. Proposal 11 assumes that the Employer will analyze the effectiveness of its training programs and requires any reports and analysis of such matters automatically to be transmitted to the Union, with appropriate wording to protect the confidentiality of management’s decision-making process and the privacy of individuals. This way, the Union would receive reports that it may otherwise never know exist. Similarly, Proposals 12 and 13 provide for the transmission of information "essential for fair and equitable administration of the testing programs" that the Union ordinarily would not receive without a contractual provision.

The Employer’s approach of limiting the release or retention of information to what is required by law is "tantamount to a refusal to bargain." Moreover, the Union regards the Employer’s opposition to producing documentation and analysis of protected class bias "as the equivalent of intent to discriminate" which is "unbecoming of a government agency that is committed to following the laws of the land." Its proposal to retain tests for a 4-month period "appears meaningless in the context of employee impact," while its Proposal 6 contains "significant language errors" from what the parties have already agreed to on this topic.

b. The Employer’s Position

The final offer of the Employer is as follows:

M3. Current laws, rules, and regulations regarding the release of information will govern access to completed tests.

M4. The Office shall retain completed tests for a minimum of four months following the report of the results to the employees.

M5. Management will retain and produce records of test results as required by law.

6. Employee training identification numbers will be used in lieu of names on all tests. The correlation between the identification number and the name of the employee shall not be disclosed during the test.

7. All test questions, answers, and grading shall be objective, except when written communication techniques themselves are the primary subject matter of the course.

8. All test questions, answers, and grading shall be written, either in paper or electronically.

Its final offer advances the Employer’s goal of improving quality while establishing procedures that ensure the proper production, release, and retention of records. M3 and M5 protect employees against unwarranted disclosure of personal and test information. M4 requires management to retain test results for "an appropriate period of time" so employees can pursue any rights they may wish to assert. Proposals 6, 7, and 8 supplement other provisions the parties have already agreed to that provide fundamental fairness in testing conditions. In contrast, the Union’s proposals excessively interfere with management’s right to determine how to test employees’ skills and qualifications, and "are overly burdensome and impose significant expense." For example, U7 would require the Employer to develop a statistical analysis of employee passage rates on every test it administers for the Union’s exclusive use "for all time," and under U8 management would have to prepare and distribute another statistical report based on all test results for every test given to unit employees on an annual basis. Nor has the Union demonstrated a need for the internal management information described in U11, particularly where the Statute already provides a mechanism for unions to request such reports.

CONCLUSIONS

After thoroughly reviewing the evidence and arguments with respect to the issues under this category, we are persuaded that the Employer’s final offer provides the more reasonable approach to resolving the parties’ impasse. In our view, requiring the creation of statistical reports encompassing every test that will ever be administered under the Quality Initiatives program is excessive, and the need for such reports has not been sufficiently established. In particular, we fail to follow the Union’s logic that the Employer’s unwillingness to agree to develop such exhaustive reports for an indeterminate length of time is evidence of an intent to engage in unlawful discrimination. Although the Panel shares the Union’s interest in ensuring that the Employer’s testing programs are administered fairly and equitably, it should have proposed less obtrusive ways of doing so. Accordingly, we shall order the adoption of the Employer’s final offer under this category.⁽⁵⁾

3. Category 3: Provisions Applicable to All Competence Testing Associated with Specific Training Courses

a. The Union’s Position

The Union includes the following wording as a preamble to its final offer on this category:

To clarify the statements regarding management’s intended change, the following information has been provided to POPA regarding tests taken after training courses:

A. The tests are intended to measure competence in the knowledge necessary to perform functions of the position held by the employees.

B. All tests shall be performed on duty time, and shall not be treated as examining time.

14. [old 36]. Unless there are unusual circumstances which affect timing, training and testing shall not be mandatory in the last biweek of any quarter or during the last two biweeks of the fiscal year. [Agreed at mediation, 1/14/03]

The Union’s final offer reads as follows:

15. [old 6]. Tests shall cover subject matter that was disclosed and explained during the training during the employees' duty hours. There shall be no expectation that an employee read and research material on their own time in order to answer any questions on the agency administered test. [Agreed to 9/18/02 by both parties. Agreement subsequently withdrawn by Management].

16. Tests shall be designed so that time shall not be a significant factor in successfully completing the test. A reasonable time will be provided for the test, with adjustments granted for unusual circumstances.

17. When all testing is complete for a given subject in a given quarter, the correct answers will be given to all test takers. Any corrective action by management will be held in abeyance until the answers are posted. The Office shall make available for inspection tests taken by the employees within thirty (30) calendar days of management’s posting of the correct answers. In the month after the employee receives access to the test data, the employee may challenge the fairness or correctness of the grading, and any adverse consequences that flow therefrom.

18. a. For all employees other than those having failed a test in a particular course for the second time, the ratio of the number of work products reviewed to the total number of work products for which credit is received during the applicable review period shall be substantially equal.

    b. For all employees who failed a test in a particular course for the second time, expansion of the review shall be limited to work products in which the knowledge of the subject matter of the particular training course is relevant to a determination of the quality of the work product.

19. Management shall provide to POPA in May and November of each year, a listing of all errors in work products that were counted against employees in the previous six-month period in areas in which the employees had passed a competency test within the past two (2) years. This report will include an analysis that shall:

    a. Specify the number and percentage of cases on an individual employee basis;

    b. Set forth the result of the review including any adverse action taken against the employee;

    c. Provide demographic information about the employee;

    d. Provide the number of errors found in areas tested and failed by the employee;

    e. Set forth the number of errors found in all other areas; and

    f. Provide a narrative explanation of the nature of the errors found.

20. POPA shall be given a report of all exemptions granted from training and/or testing, and the reason for each exemption, in enough detail to be usable as precedent for application to other employees, each July and January, covering the prior six months.

21. In general, for all training for which there shall be multiple sections, sign-up shall be via an on-line registration system posted at least two months in advance, with a deadline for registration no earlier than one week in advance. There shall be an exception to the general rule when training must be given more quickly because of a need to implement a change required by an authority outside the USPTO.

22. Employees shall be notified at the time of registration whether or not the course shall include a test to ensure competence in the training provided.

23. Since the nature of the testing is to establish basic competence, not expertise, test results in which fewer than 90% of the students pass shall be prima facie evidence that the course was improperly designed.

24. Employees who fail a test for the first time after having once taken a course shall be given a reasonable opportunity to retake the training and test without suffering any other adverse consequences.

25. [old M43]. Employees who fail a test for a second time will receive appropriate remedial training.

26. At the PTO’s discretion on a course-by-course basis, employees will be given the option to take the test prior to receiving training and, if the employee passes the test, the training requirement shall be waived.

Overall, the Union’s final offer "will provide for the smooth administration of the testing program in a manner that will be fair to employees while not imposing any unreasonable burdens on management." U17 merely would require management to supply employees with the correct answers to tests. This ensures that employees have the opportunity to learn from their mistakes, and makes it easier for them to protest their grades if they believe they have given correct answers. U18 "is the employee’s primary defense against the selective enforcement of performance standards." By making the ratio of the number of work products reviewed to the total number of work products substantially equal for all employees who do not fail a second test, it would ensure the "even-handed administration of expanded reviews." U19 would provide the Union with "essential data" linking the commission of errors to competency testing. Such data is necessary to determine the effectiveness of work product reviews and the value of the Quality Initiatives. U20 is warranted because it would permit the Union to track who the Employer exempted from training and/or testing, and why, so it can monitor whether the granting of exemptions has been fair or discriminatory.

The Employer’s final offer, on the other hand, is inadequate to protect employees from the adverse affects of such a "significant departure to past practice." M9, for example, permits employees to defend themselves against allegations of error only after a second failure on a test given after training. These sorts of situations are likely to occur infrequently if tests are fair and reasonable, so the proposal is of little value. Moreover, the portion of the proposal involving time that will be granted employees associated with a defense is "too vague for implementation in the workplace," and could violate the Anti-Deficiency Act, 31 U.S.C. § 1342, "which makes it illegal for the Federal Government to accept volunteer services." M10 includes matters that constitute the manner in which management will test employees’ qualifications; in conjunction with management’s proposed severability clause in Category 1 (M2), it "gives a false impression of providing a protection for employees." M12 and M16 are defective because they "would permit favoritism and cronyism in the workplace," which is consistent with the PTO’s "long history of unfair administration in the treatment of employees." Finally, M19 and M23 are an "anathema" to the Union’s status as an exclusive representative, the former, because it would permit the agency to make public information critical to the working conditions of unit employees in ways that could deny the Union knowledge of its availability; the latter, because it would end the long-standing practice of providing the Union with access to top management.

b. The Employer’s Position

The following wording is proposed by the Employer:

    M9a. Notice of the intent to expand the review of an employee's work product after the second failure of a test after training shall be given to the employee at the time the review is begun.

    b. In any review in paragraph (a) above that results in notification to an employee that an error has been found, the employee shall be given access to the file of the application containing the error.

    c. The employee shall be given 30 days after notification of an error, pursuant to paragraph (b) above, to present a written defense (and any verbal argument) to management. Management shall issue a written decision within 30 days thereafter.

    d. Initially, the time employees spend defending themselves in meetings with management, plus reasonable preparation time, shall be accounted for as examining time. The time associated with this defense shall in no case exceed the time allotted for the initial action in which the error was made. If the employee is successful in persuading management to withdraw its determination that an error has been committed, all such time shall be treated and recorded as examining-related time for purposes of the employee’s performance appraisal and awards.

M10. a. The tests are intended to measure competence in the knowledge necessary to perform functions of the position held by the employees.

     b. The tests will be pass/fail.

     c. The tests alone will not be a basis for performance appraisal or for denial of an award.

     d. All tests shall be performed on duty time, and shall be treated as examining-related time.

     e. Failure of a test a second time will be used as a trigger to increase review of the work done by the employee.

     f. Performance appraisals will be based solely on the standards set forth in the Performance Appraisal Plan (PAP).

M11. There shall be no expectation that an employee read and research material on their own time in order to answer any questions on the agency-administered test.

M12. Each test shall be designed so that time shall not be a significant factor in successfully completing the test. A reasonable time will be provided for each test, with adjustments granted for unusual circumstances at management’s discretion.

M13. Tests will be given as soon as possible after the corresponding training is given.

M14. Unless on approved leave, employees must take tests when offered, unless excused at PTO’s sole discretion. PTO will determine the format and content of any test or make up test.

M15. Employees participating in the same session of a training class shall normally take the tests simultaneously.

M16. In the case of an employee who files an EEO complaint or grievance based on his or her failure of a test after training, the employee’s test will be kept until the issue is resolved, or the parties to the EEO complaint or grievance agree that the information is not in dispute.

M17. During a test, at the instructor’s discretion, answers to an employee’s request for a clarification of a test question will be given to the employee and to all other employees taking the test in the same session.

M18. At the employee’s request, references to a test failure shall be deleted from all individual employee files kept in the Technology Center upon successful completion of the test on the second attempt, or at the end of the quarter following the expiration of twenty-four months after the communication of the second failure to the employee.

M19. Any public report covering employee passage rates of tests after training shall be made available to POPA (upon request) generally at the same time as the public release.

20. Unless there are unusual circumstances which affect timing, training and testing shall not be mandatory in the last biweek of any quarter or during the last two biweeks of the fiscal year.

M21. Whenever possible, management will give examiners two weeks notice of upcoming training and provide an opportunity for class registration at that time.

M22. Employees should expect that every training course will include a test at the end to determine whether the employee can demonstrate satisfactory competence of the material presented at the training.

M23. At POPA’s request, the Deputy Commissioner for Patent Operations, or designee, will meet annually for up to one hour with up to three representatives of the Association to allow the Association to provide input into the type of training that would be most beneficial to examiners.

M24. Employees who fail a test for the first time must sign up for the next available time that course is offered, or they may retake the test with up to two hours of preparatory time.

M25. Employees who fail a test for a second time will receive appropriate remedial training, as determined by management.

M26. At the PTO’s discretion, and on a course-by-course basis, employees may be given the option to take the test prior to receiving training, and if the employee passes the test, the training requirement shall be waived.

Its final offer is consistent with management’s right to determine how to test employees’ skills and qualifications, but would also ensure fair testing conditions, and provide employees who fail tests with significant protections. Among other things, under M10(c), the results of testing given after training will not alone affect employees’ performance appraisals and awards; the time spent taking tests will be counted as examining-related time, so employees will not be expected to produce work during test taking (M10(d)); the tests will be pass/fail, as they are designed to determine only whether employees have retained a basic understanding of the information covered in a training session (M10(b)); and, if employees fail a test, they will have at least one additional opportunity to pass the test, and be given 2 hours of preparation time to study (M24). Finally, when the "rare step" of expanding the review of employees’ work is taken, they will receive notice; if an error is found, employees will be permitted to challenge the finding; and where management changes its view based upon such a challenge, the employee will be granted examining-related time to prepare the challenge up to the time allotted for the initial action in which the alleged error was made (M9).

The Union’s proposals under this category "impose unjustified and unreasonable expenses on the [PTO] and unduly restrict the [PTO’s] exercise of its management rights." In this regard, the Employer would have to generate "incredibly burdensome and expensive reports" for the Union’s exclusive use, "encompassing each employee and every test given," some as frequently as every 6 months. Some reports would have to be prepared on each of the 3,500 examiners on an individual basis, including portions in narrative form. U18 would dictate the kind and amount of work management can review, "arbitrarily" limiting the number of cases to a pre-determined ratio for each individual patent examiner through an elaborate procedure requiring calculations, and constant recalculations, based on the number of cases completed by other examiners. It also would limit reviews only to areas where knowledge of the subject matter of the particular training course is relevant to a determination of the quality of the work product. The Union "has not articulated any basis" for such an unfeasible "dramatic change from current practice," whereby the Employer reviews "any and all cases."

CONCLUSIONS

Upon careful consideration of the issues presented under this category, we shall order the adoption of the Employer’s final offer. In this regard, it provides employees with a number of safeguards concerning the conditions under which the testing will occur, as well as adequate protections for those who fail tests associated with specific training courses. The Employer’s final offer also establishes a meaningful procedure permitting employees to challenge allegations of error that arise after the review of their work has been expanded, while discouraging frivolous challenges. In contrast, the portion of the Union’s final offer which would apply a mathematical formula to ensure that employees are equally affected by expanded work reviews appears out of place under this category, which deals with competence testing associated with specific training courses. In addition, by limiting the review of work products of employees who fail such tests for a second time only to those related to the subject matter of the testing, the Union’s final offer undermines one of the primary purposes of this part of the Quality Initiatives program: to use the results of competency testing as a trigger for identifying problem employees. Finally, the administrative burden and cost of creating the "essential data" the Union contends is necessary to link the commission of errors to competency testing appears so extensive as to once again outweigh its potential benefit.

4. Category 4: Provisions Applicable to Certification Examination

a. The Union’s Position

The Union includes the following wording as a preamble to its final offer on this category:

To clarify the statements regarding management’s intended change, the following information has been provided to POPA regarding Certification Examinations:

    A. The certification exam is intended to measure competence in the knowledge necessary to perform functions of a GS-13 patent examiner;

    B. Failure of a certification exam will not be used as a trigger to increase review of the performance of the work done by the employee;

    C. Content may be drawn from Agent’s exams, or from other sources determined by the USPTO.

The Union proposes the following as its final offer:

27. Tests shall cover subject matter that was disclosed and explained during the employees' duty hours. There shall be no expectation that an employee read and research material on their own time in order to answer any questions on the agency administered test.

28. Certification examinations shall be offered in the second month of each quarter.

29. When all testing is complete for a given subject in a given quarter, the correct answers will be given to all test takers. The Office shall make available for inspection tests taken by the employees within thirty (30) calendar days of management’s posting of the correct answers. In the month after the employee receives access to the test data, the employee may challenge the fairness or correctness of the grading, and any adverse consequences that flow therefrom.

30. Challenges to any allegation that a question was answered incorrectly, which is supported by at least one employee having full signatory authority, shall be submitted to a panel of the Board of Appeals for decision. The panel shall be randomly chosen from among qualified Board members who are not also members of management. Decisions of the Board must be rendered within one month of the time a Brief is submitted by the employee or their representative challenging management's choice of the correct answer.

31 [old M48]. Non-probationary employees may take the certification exam within two years of being eligible for a GS-13 position.

32. [old M49]. Any employee who has passed the Agent's exam administered by the Office of Enrollment and Discipline (or successor organization) shall be exempt from taking the certification exam.

33. Employees may take the certification exam no more than twice per fiscal year during duty hours, and no more than two additional times per fiscal year during unpaid time.

34. [old M53]. Upon request, the employee's supervisor shall confer with the employee and provide an explanation of the rationale for the correct answer for any question that was answered incorrectly by the employee on the examination. These conferences shall be accounted for as training.

35. Management will provide a forty-hour course covering patent law, evidence and procedure to GS-12 examiners to help prepare for the certification exam during duty hours.

The wording in Proposal 27 would protect employees from preparing for certification exams on their own time, something many would otherwise do given the "high stakes" nature of the test. Proposal 29 requires the Employer to provide employees with the correct answers, something it already does for the Patent Agent’s Exam; providing correct answers also would permit employees to challenge test results, which has the potential to improve the patent system by identifying conflicts or inconsistencies in the training and/or testing. Permitting employees to challenge the correctness of an answer with the Board of Patent Appeals and Interferences (Board) is similar to what candidates for the patent bar can do, and its proposal that challenges must be supported by an examiner already having full signatory authority would help to avoid abuse of the procedure. Taken together, Proposals 28 and 33 would allow an employee the opportunity to take the test up to four times per year, which is less likely to prejudice certain examiners than the Employer’s offer, and requiring that the test be given at least once per quarter during the second month of each quarter would ensure more timely promotion to the GS-13 level without interfering with employees’ ability to meet their productivity standards.

As to the Employer’s proposals, because management presented M27 for the first time in its final offer to the Panel, the Union has not had an opportunity to present appropriate proposals to protect its right to bargain over the impact and implementation of the content of the certification examination. M27, therefore, "constitutes an indirect waiver" of the Union’s right to negotiate mid-term regarding significant and unanticipated management changes, and should be considered non-negotiable and "beyond the power of the Panel to impose." In addition, permitting employees to take the exam no more than twice per year, as the Employer proposes in M33, does not take into account the "huge expected failure rate" due to the difficulty of the questions.

b. The Employer’s Position

The final offer of the Employer on this category is the following:

M27. Content may be drawn from Agent’s exams, or from other sources determined by the USPTO.

M28. Patent Examiners will be required to pass the certification examination, in addition to the other requirements, to qualify for promotion to the GS-13 level. Employees who meet the other requirements for promotion to the GS-13 level prior to March 1, 2004, will not be required to pass the certification examination in order to qualify for promotion to the GS-13 level.

M29. Non-probationary employees may take the certification exam within two years of being eligible for a GS-13 position.

M30. Any employee who has passed the Agent’s exam administered by the Office of Enrollment and Discipline (or successor organization) shall be exempt from taking the certification exam.

M31. The certification examination will be pass/fail. To pass the certification exam, an examiner must answer at least 70% of the questions correctly.

M32. Employees who fail the certification exam should work with their Supervisory Patent Examiner to determine appropriate training.

M33. Employees may take the certification exam no more than twice per fiscal year.

M34. When an examiner fails a certification examination, management will confer with the examiner, upon the examiner’s request, and provide an explanation of the correct answer for any question that was answered incorrectly by the examiner. An examiner may be granted up to one hour of examining-related time for this purpose.

M35. Management will offer the certification exam at least twice per year. In order to accommodate the initial group of employees that will be subject to the certification examination requirement, management will offer the exam on multiple occasions in the first year.

M36. Management will provide a course covering patent law, evidence and practice and procedure to GS-12 examiners to help prepare for the certification exam. This course will be approximately one week long.

Implementation of its final offer would provide management with a tool to improve patent quality while serving "as an objective and fair method of determining employee competency." Currently, an employee is promoted to the GS-13 level based solely on the supervisor’s review of his or her work. A certification exam would determine whether employees possess the legal competency necessary to examine patent applications at the GS-13 level "by ensuring that all employees are judged using a uniform criterion." The exam would provide basic fairness by, among other things, testing employees only on material they have previously been given, and only after they are adequately trained, including 1 week of classroom training for each employee at the GS-12 level (M36). Its proposals also exempt certain employees from taking the exam for a variety of reasons (M28 and M30), and allow most examiners four chances to pass the examination prior to their eligibility for promotion to the GS-13 level (M29 and M35). This would ensure that qualified employees are promoted "without delay." Furthermore, appropriate arrangements would also be provided to employees who fail the examination by giving them explanations of correct answers (M34) and remedial training (M32).

Portions of the Union’s final offer (U30), on the other hand, excessively interfere with management’s right to determine the way the Employer tests employees’ qualifications by permitting them to challenge each certification examination question before the Board. Such a task is outside the Board’s core statutory function, and it would be forced to prioritize its primary work to meet an arbitrary 30-day time frame, thereby delaying the adjudication of disputes concerning patents. U30 also is unjustified because it would allow challenges to occur regardless of whether the examiner passes the test, and because employment actions already can be challenged through the grievance procedure. U33 is also illegal because it would allow employees to perform work (i.e., take the certification exam twice per year) without compensation.

CONCLUSIONS

After careful consideration of the parties’ positions with regard to this category, we conclude that the Employer’s final offer should be adopted to resolve their impasse. Overall, the parties’ proposals appear comparable in a number of areas, and on the matter of whether employees would be tested only on material they have previously been given, although such wording is not part of the Employer’s final offer, it has confirmed in its supporting statement that this would be the case. The main defect in the Union’s final offer, from our perspective, is its use of the Board of Patent Appeals and Interferences as a vehicle for challenging certification examination questions. By delegating such tasks to an existing entity whose primary role lies elsewhere, imposing deadlines for the receipt of decisions which would undercut its ability to perform its core function, and permitting employees to file challenges regardless of whether failure to get credit for an answer has any adverse impact on the test-taker, the Union once again appears to have proposed an over-reaching solution to a legitimate interest.

5. Category 5: Provisions Applicable to Re-certification Process

a. The Union’s Position

The Union includes the following wording as a preamble to its final offer on this category:

Management has communicated the following policies on the re-certification process:

    A. Under current practice, primary examiners are required to attend various continuing education activities.

    B. In addition, under current practice, management has the authority to withdraw signatory authority based on a work product review.

    C. Re-certification shall be applicable to all POPA bargaining unit employees in the 1220-1226 job series who are GS-13 and above.

    D. No test or quiz will be a basis for performance appraisal, removal of signatory authority, denial of within grade increases or denial of awards.

    E. Failure of a second test will merely be used as a trigger to increase review of the performance of the work done by the employee.

The Union proposes the following wording as its final offer:

36. When the Office alleges an error against an employee who has been previously certified or has any level of signatory authority, the Office shall:

a. Identify and provide all evidence and supporting rationale the agency will rely upon should the allegation of error be contested;

b. When the employee disputes an allegation of clear error, conduct an additional independent review after the case has been sanitized of any notes or documents that show a prior review. The results of this independent review, including the reviewer's notes and explanations, shall be given to the employee at the same time that they are given to the employee's supervisor.

37. The Agency shall transmit to POPA the error rates by Technology Center for expanded reviews on a quarterly basis. Until the error rates for at least 80% of all employees who have been subject to review within the past fiscal year fall within the fully successful range or better, there shall be a prima facie assumption that achievement of the fully successful error rate is not reasonably possible within the time allotted. In such cases, in any removal of signatory authority, Management shall bear the burden of proving that the fully successful level of quality can reasonably be achieved within the time allotted under the employee’s performance appraisal plan, taking into account both production requirements and workflow requirements.

38. In any performance-based action, Management shall bear the burden of proving that the employee is a poor performer relative to the average performance achieved by employees at the same grade level in the same technology center.

39. Time spent by Association representatives in activities occasioned by this contract that involve helping employees to defend themselves shall be considered non-bank time and shall be limited to 50% of the time granted to employees in the prior year for defending themselves in the re-certification process.

40. Examiners at the GS13-15 level who have less than 25% examining time for the one year period preceding the time that they are scheduled to undergo the re-certification will not need to be re-certified, but must still complete the required continuing education training, and associated tests. Management will conduct the enhanced review established by the Quality Initiatives of an employee’s work product no sooner than 6 months after the employee resumes substantially full time examining duties.

The adoption of its proposals "would facilitate a fair implementation of the [Quality Initiatives] program that would be better received by the workforce," and prevent management abuse. U36 provides senior examiners with "a structured appeal process, in which they can have confidence," for contesting allegations of error similar to what the Union proposed under Category 1. U37 sets a prima facie evidence standard for shifting the burden of proof to the Employer regarding the reasonableness of an employee’s ability to achieve a particular standard when the vast majority of employees do not meet the standard; hence, it would protect employees from potential abuses of discretion. U38 would ensure that adverse performance actions are taken against poor, as opposed to average performers, provide equity for employees, and protect the public "against a program that could ultimately decrease, rather than increase, quality." U39 would provide the Union with an "extremely modest time" to assist employees in defending themselves in the re-certification process, while U40 is more reasonable than the Employer’s proposal on the same subject by exempting employees who spend less that 25 percent of their time in the preceding year examining patents from being subject to re-certification.

As to the Employer’s final offer, M37 suffers from the same defect as some of its proposals in previous categories in that it sets forth the details of an aspect of the Quality Initiatives program (i.e., the re-certification requirement) which essentially encompasses the exercise of a management right. To the extent such proposals provide employees with protections, "they are likely to be unenforceable." M37 has the additional defect of being "so indefinite as to be non-negotiable." In this regard, its references to a "mandatory continuing education program" and "an enhanced review" are "open-ended and indefinite," and if adopted it could shield management from having to negotiate the impact and implementation of future changes to the program.

b. The Employer’s Position

The Employer’s final offer is as follows:

M37. Re-certification shall be applicable to all POPA bargaining unit employees in the 1220-1226 job series who are GS-13 and above, except as set forth in M38. The re-certification process shall consist of meeting the requirements of the mandatory continuing education program and, for examiners, an enhanced review of the employee’s work product once every three years. Each year, approximately 1/3 of GS-13 through GS-15 examiners will undergo the enhanced work product review.

M38. Employees at the GS 13-15 level who have not examined applications for one year preceding the time that they are scheduled to undergo the enhanced work product review will not be re-certified, but must still meet the requirements of the mandatory continuing education program. Management will conduct the enhanced review of an employee’s work product six months after the employee resumes examining duties.

M37 permits management to exercise its right to determine the quality of employees’ work, which includes how work will be measured or recorded. M38 establishes an exemption from the requirements of the re-certification program for employees who have not examined patents for a year preceding the time they are scheduled to undergo the expanded review process, which includes Union officials. Although such employees will not have to undergo the expanded work review, they would still be provided with significant continuing training to ensure their skills are completely up-to-date if they resume patent examining duties.

Turning to the Union’s final offer, U36 would impose a "pointless procedure" that would permit "every senior examiner to challenge every error found against them," even if it has no substantive impact on the employee, without cost or penalty to the employee. U37 and U38 "fall well outside the scope" of the negotiations by attempting to bargain over performance standards and actions taken as the result of deficient performance. Even if this was not the case, they would impose burdens of proof on management that exceed current practice when it takes performance-related actions. U39 is also outside the scope of the current negotiations over the Quality Initiatives because it fails to address procedures and appropriate arrangements for employees adversely affected by the re-certification program. How the Union chooses to allocate its already "huge grant" of official time (10,000 hours per year and additional reasonable other time) is "an internal Union matter" unrelated to the subject of the Quality Initiatives. Finally, U40 would permit employees who spend less than 25 percent of their time examining patents to avoid the re-certification process, and impermissibly defeats the Employer’s goal of ensuring that all employees who examine patent applications do so "in a quality manner."

CONCLUSIONS

With respect to the provisions that should be applicable to the re-certification process, we find that the Employer’s final offer is superior to the Union’s for some of the same reasons that were articulated in the rationale provided for previous categories. Among other things, the Union’s proposed procedure would encourage management allegations of error made in connection with re-certification to be challenged even if the allegation has no adverse impact on the performance appraisals or awards of employees. Given the agency-wide scope of the re-certification process, and the number of higher graded employees the Union represents, its adoption could siphon-off resources that otherwise would be used for implementing the initiative. As to the Union’s attempt to establish a prima facie evidence standard, the 80-percent threshold set forth in this portion of its final offer appears arbitrary. While its motive of preventing potential abuses of discretion is understandable, there is little evidence in the record of previous management abuse to substantiate the need for its proposal. Should such abuse occur, however, the Union would still have the opportunity to defend employees who suffer tangible consequences through the more traditional means of the parties’ negotiated grievance procedure.

6. Category 6: Provisions Applicable to Enhancing the File Wrapper History

a. The Union’s Position

The Union includes the following wording as a preamble to its final offer on this category:

Management explained the initiative as follows:

The MPEP [Manual of Patent Examining Procedure] will be amended to require a full summary of the interview and the reasons for withdrawing a rejection.

The Union proposes the following wording:

U41. Time spent by employees for enhancing the file wrapper history of a patent application shall be considered examining related and shall be accounted for separately. Management shall report the information collected to POPA at 6-month intervals.

The Employer once again has presented its proposed exercise of a management right "as a negotiation proposal." The "mere fact" that it has been included as a separate item in the negotiations demonstrates that these new duties "cannot be considered as de minimis." Moreover, employees are already putting forth "maximum effort." The proper approach to this situation is not to expect examiners to absorb the time it takes to perform these duties, as the Employer would have it, but to account for the amount of time separately under the current time and activity reporting system. The Union’s proposal would not change management’s quantity performance standard, i.e., time spent enhancing the file wrapper history would still count as "production time," but would result in the generation of reliable data to be used when a supervisor considers the true impact of those duties on employees. While employees could track such time on their own, management is likely "to distrust the unilaterally generated data." The "net effect" of M40, on the other hand, would be "to deny any allotment of time for performing these duties while avoiding the creation of any data regarding the time and/or cost of the duties." In this connection, M40 does not address the amount of time spent recording reasons for withdrawing rejections; it requires the examiner to accurately predict the amount of time necessary to make a record of the substance of the interview before the interview occurs, which "is impossible;" and employees would have to receive approval for such time in advance from a Senior Executive Service level supervisor, which probably could not be arranged until after the interview is already over.

b. The Employer’s Position

The following is the Employer’s proposed wording on this category:

M39. The MPEP will require that the examiner provide a full summary of the interview and the reasons for withdrawing a rejection.

M40. At management’s discretion, and in extraordinary circumstances, an examiner may be granted additional examining-related time to record the substance of an interview with an applicant. An examiner must make an application for such additional time to his or her Group Director and the additional time, if any, must be approved prior to the interview.

The agency’s goal, and the focus of the Quality Initiative under this category, is to make the reviewable record of a patent application’s prosecution history "clearer and more complete, while avoiding unnecessary costs, in order to improve the overall quality of the decision to grant the patent." The significant benefit to its mission of meeting this goal "far outweighs the small burden placed on examiners." M39 merely restates the existing requirement that examiners maintain a complete record of actions taken on a patent application. M40 provides employees a mechanism for requesting additional time in advance of an interview to ensure proper preparation of the file wrapper record in the "rare circumstances" that it is needed to complete the short interview summary.

The Union’s final offer would provide no limit on the amount of examining-related time an employee could receive to complete the file wrapper history, even though employees already are granted 1 hour for conducting in-person interviews, most of which "take much less than an hour." It would also impose "astronomical costs" on the agency. Even 15 minutes of additional examining-related time provided for this purpose would require it to hire 45 additional examiners to make up for lost production, an expense not justified in view of the fact that this initiative "enforces existing requirements" and would result in the performance of duties which are minor in nature.

CONCLUSIONS

Having carefully considered the evidence and arguments of the parties on this issue, we are persuaded that, on balance, the Employer’s final offer should be adopted to resolve the dispute. In our view, the Union makes a valid point about the difficulty of discerning exactly how much time examiners will have to spend performing the work necessary to implement this initiative. By considering such time as "examining related," however, its final offer would do more than merely generate reliable data on the impact of the additional duties on employees. In addition, by failing to specify any limit on how much examining-related time an employee should have to write a full summary of the interview, and the reasons for withdrawing a rejection, the Union’s final offer may cause unnecessary conflicts between examiners and their supervisors. While agreeing with the Union that the procedure the Employer proposes for permitting examiners to receive additional time for completing interview summaries likely would be of marginal benefit, given the stated defects of the Union’s final offer, it nevertheless provides the better alternative. Accordingly, we shall order the adoption of the Employer’s final offer.

ORDER

Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel, under 5 C.F.R. § 2471.11(a) of its regulations, hereby orders the following:

1. Category 1: Provisions Applicable to All Issues

The parties shall adopt the Employer’s final offer with the following additional wording:

Implementation of the Employer’s final offer is not intended to permit management to make other non-de minimis midterm changes in conditions of employment in connection with its Quality Initiatives program without fulfilling its statutory bargaining obligations, or to otherwise limit the Union’s statutory rights to bargain mid-term.

2. Category 2: Provisions Applicable to All Tests