United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
| In the Matter of
U.S. DEPARTMENT OF COMMERCE PATENT AND TRADEMARK OFFICE WASHINGTON, D.C. |
|
|
AND PATENT OFFICE PROFESSIONAL ASSOCIATION |
Case No. 93 FSIP 137 |
DECISION AND ORDER
The U.S. Department of Commerce, Patent and Trademark Office, Washington, D.C. (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).
After investigation of the request for assistance, the Panel determined to assert jurisdiction over the dispute concerning the implementation of new computer technology, which the Employer refers to as the Classified Search and Image Retrieval (CSIR) System, and directed the parties to meet informally with Assistant Executive Director H. Joseph Schimansky for the purpose of assisting them in resolving the impasse. If no settlement were reached, he was to notify the Panel of the status of the dispute, including the parties' final offers and his recommendations for resolving the issues. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the dispute.
Mr. Schimansky met with the parties on July 14 and 15, 1993, in Washington, D.C.,(1) but no agreement was reached.(2) He has reported to the Panel, and it has now considered the entire record.
BACKGROUND
The Employer's mission is to issue patents and register trademarks. The bargaining unit consists of approximately 2,000 professional employees, 90 percent of whom are patent examiners. The parties' collective bargaining agreement (CBA) went into effect in 1986, and has been rolled over for 1-year periods each year since 1989.
The impasse arose after the Employer introduced the computerized searching of patents by patent examiners into one of its approximately 17 Patent Groups, Group 210, on August 1, 1990.(3) The Union subsequently filed an unfair labor practice (ULP) charge which resulted in a settlement agreement. The settlement agreement essentially required the Employer to negotiate "over the impact and implementation of the computerized search of U.S. Patents in Group 210 implemented on or about August 1, 1990," and to apply the results of such bargaining retroactively. The parties also apparently agreed that such bargaining would also apply to the future deployment of the computerized search of patents throughout the Patent Corps.
ISSUES AT IMPASSE
The parties disagree over the following subjects regarding the deployment of the Employer's technological changes: (1) the scope of the agreement; (2) printing and distribution; (3) health and safety; (4) problem reporting; (5) operational hours; (6) training; (7) update support; (8) CSIR system utilization/special time categories and arrangements; (9) studies and/or reports; and (10) other equipment to be associated with the CSIR system/automation.
1. Scope of the Agreement
a. The Employer's Position
The Employer proposes that the following wording be included in the parties' agreement:
This agreement resolves all impact-and-implementation bargaining obligations related to the implementation in the Patent Examining Corps of RNA/DNA sequence searching and the Classified Search and Image Retrieval System (CSIR) as it existed in Group 210 on August 1, 1990, and including future deployment of CSIR throughout the Patent Examining Corps.
Its proposal would "inform employees of the changes which have taken place" to which the parties' agreement applies and "identify the specific system (by acronym) within PTO's overreaching umbrella of 'automation' systems over which the parties have negotiated with respect to impact and implementation." In this regard, the "CSIR" acronym "has a specific and recognizable meaning to all PTO employees, including patent examiners," as well as other interested parties, "including our Congressional oversight committees." Moreover, CSIR is the system which was implemented in Group 210 on August 1, 1990, and will be deployed throughout the Patent Examining Corps. The Union's references to the changes implemented in Group 210 as involving "computer equipment," "computers," or "automated systems" are vague, and "could apply equally to any of the components of the Office's umbrella automated system."
b. The Union's Position
The Union offers no counterproposal on this issue, and requests that the Panel "decline to retain jurisdiction over the PTO proposal." In this regard, the proposal appears to be a "zipper clause" which would "waive future bargaining rights under the ULP settlement agreement." Because neither the FLRA nor the courts have determined whether waiver clauses are mandatory or permissive subjects of bargaining, there appears to be no case law that the Panel can apply "pursuant to Carswell(4) to resolve the impasse on the scope of the agreement." Hence, "the Panel lacks jurisdiction to pass judgment on whether present action 'resolves all impact-and-implementation bargaining obligations' under the ULP settlement agreement." Moreover, scope-of-the-agreement wording is unnecessary at this time because the resolution of all bargaining obligations "may be left to another day," i.e., after the FLRA "resolves duty-to-bargain issues under 5 U.S.C. § 7117." Finally, since "CSIR" has "the nature of a trademark which is indefinite, uncertain, and arbitrary," imposition of provisions containing it "would further complicate negotiations." Thus, the Panel should avoid its use, and "stick to provision language which reflects the ULP settlement agreement."
CONCLUSIONS
Having considered the evidence and arguments on this issue, we shall order the Employer to withdraw its proposal. In this regard, the Union's opposition to the proposed wording reflects the parties' longstanding dispute over the meaning of their ULP settlement agreement. While we sympathize with the Employer's goal, particularly in the circumstances of this case, of bringing to closure all negotiations over the implementation of the new technology, to the extent that a Panel order imposing its proposal would sanction its interpretation of the meaning of the ULP settlement agreement, we are reluctant to do so. In our view, the Panel best fulfills its function when resolving impasses over practical workplace problems. Determinations as to the scope or enforcement of bargaining obligations are best handled through other statutory mechanisms.(5) Moreover, given the existence of such mechanisms, adoption of the proposal may prejudice the Union in future proceedings, and unduly restrict it in the pursuit of its bargaining rights.
Although we shall not impose the Employer's proposal, it is clear from the parties' bargaining history in this case that their negotiations, while initially arising from the ULP settlement agreement, also have covered the future deployment of the new technology throughout the Patent Examining Corps. For this reason, we find unpersuasive the Union's argument that the "CSIR" acronym should be avoided because it goes beyond the terms of the ULP settlement agreement. Moreover, referring to the new technology as "CSIR" has the practical benefit of identifying the particular system over which the parties have been negotiating, from among the many at the PTO. Conversely, we find that referring to the new technology by the terms "automated system" or "computers" would carry a far greater potential for confusion and future disagreements. Therefore, in deciding the remaining issues in this case, "CSIR" shall be used to refer to the technology which is the subject of the parties' impasse.(6)
2. Printing and Distribution
a. The Employer's Position
The Employer proposes that "the Office shall arrange for printing the parties' agreement. The cost shall be shared equally by the Office and the Association. Printing will be done as expeditiously as possible." In agreeing with the Union's proposal to share the cost of printing the agreement, it "expects to include the Union in any cost projections and decision(s)." Its proposal would facilitate the mutual and legitimate goal of making the agreement available to all concerned, and "recognizes all of the Union's practical concerns." The Union's proposal, on the other hand, would require it to distribute copies of the agreement to supervisors and, accordingly, is nonnegotiable because "it does not relate to the working conditions of any bargaining-unit member." As a practical matter, the Employer distributes copies of agreements to all unit supervisors, "notwithstanding the fact that language mandating such distribution by management in a labor agreement would be deemed nonnegotiable." The Union's proposal also violates management's right to direct employees, assign work, and determine its budget.
b. The Union's Position
The Union proposes the following wording:
1. The Chief Negotiators shall arrange for printing the parties' agreement at a mutually agreeable cost. The cost shall be shared equally by the Office and the Association. The printing will be done as expeditiously as possible.
2. The Office will distribute copies to all unit supervisors and management officials.
3. The Association will distribute copies to all unit employees.
Its proposal is identical to the wording contained in the parties' CBA with respect to its printing and distribution. It "reasonably balances the interests and obligations of the parties" by requiring that printing be done at a mutually agreeable cost that is shared equally. It also places comparable obligations on the parties for the distribution of the agreement. In contrast, the Employer's proposal is silent with respect to distribution, and fails to balance the parties' interests. In this regard, the Union presumes that "PTO would not wish to share printing costs which are solely decided by POPA."
CONCLUSIONS
After considering the parties' proposals on the printing and distribution of the agreement, we conclude that neither should serve as the basis for settling the dispute. On the one hand, the Employer's proposal is unfair because it would ultimately have final authority to select the printing costs that the parties would share. On the other, portions of the Union's may be nonnegotiable, regardless of whether identical wording is contained in the parties' CBA. To avoid such defects, we shall order the adoption of compromise wording which requires the parties to: (1) arrange for printing the agreement at a mutually agreeable cost; (2) share such costs equally; and (3) have the printing done as expeditiously as possible. This should balance the interests of both parties by giving each an equal and explicit role in determining how its money is spent. Moreover, based on the record before us, we believe it is reasonable to assume that the parties can handle the matter of the distribution of the agreement without specific wording.
3. Health and Safety
a. The Employer's Position
The Employer's proposals are as follows:
1. In accordance with applicable rules and regulations, notice of a health hazard pertaining to the CSIR system, as determined by an appropriate authority, shall be posted in the immediate vicinity of such hazard.
2. The Office acknowledges that issues concerning the health and safety of employees utilizing the CSIR system will be handled in accordance with Article 27, Automation; Article 31, Health and Safety; and Article 16, Physical Facilities. Concerns relating to the use of CSIR equipment or related health and safety matters will continue to be referred to the Joint Automation Committee and Health and Safety Committee.
Its first proposal is directly responsive to the Union's primary concern that "the PTO post notices of health hazards in the immediate vicinity of workstations and appropriate work areas." The proposal also acknowledges that the posting of health hazards in the PTO "or other agencies" is routinely done in accordance with regulations by health and safety practitioners and experts. While the Union's health and safety concerns are "covered by existing contractual language," its second proposal nevertheless could be helpful by referring employees to the appropriate articles of the parties' CBA should such concerns arise in connection with their use of the CSIR system. Finally, to the extent that the Union's health and safety concerns relate to the "continuous use of computer equipment," because the CSIR system is a "command-directed system" requiring at most only a few keystrokes at a time to proceed through the search operation, "the traditional view of word processing skills on a continuous or repetitive basis" does not apply.
b. The Union's Position
The Union proposes that:
[1.] Should a health hazard be found in a workstation area and the Office recognizes such a health hazard, the Office shall immediately post notices of the hazard in the immediate vicinity of the workstations and in the appropriate work areas.
[2.] The Office shall take appropriate action to ensure that no unit member's health or safety will be affected by working in an area where the Office acknowledges that a health or safety hazard exists.
[3.] The continuous use of computer equipment may lead to certain physical disorders, i.e., cumulative trauma disorder, hence, the Office shall inform unit members of the potential of development of such disorders from the continuous use of computers and the appropriate ways of minimizing the potential for their development.
Its proposals reflect, and are intended to effectuate, its view that individuals should not "be forced to work in an environment which is dangerous" and that "health and safety consciousness should be fostered." In this regard, the computer equipment purchased by management "is new and in most cases unique to the Patent Office." For this reason, its first two proposals would require that notification of health hazards be "immediately" posted, and that the Employer take "appropriate action" in areas where it acknowledges such hazards exist. The third proposal is intended to protect employees from certain disorders associated with "the continuous use of the computer equipment of the automated system." Moreover, contrary to the PTO's allegations, its proposals are neither "covered by" nor "contained" in the CBA, nor has it waived any bargaining rights as to automation issues. The Employer's proposals, on the other hand, among other things, are unnecessary, inappropriate, and "of no benefit to unit members."
CONCLUSIONS
On the matter of health and safety, we shall order the adoption of the Employer's proposals. The record indicates that the CSIR system has been operational in Group 210 since August 1990. Since that time, there has been no evidence provided to demonstrate that the health of employees using the system has been adversely affected, or that the Employer has been derelict in providing a healthy and safe work environment. Put simply, we are not convinced, on the basis of the record, that the Union's proposals are necessary. This is particularly true concerning its third proposal, which is unspecific as to the level and type of information to be provided, and does not appear to be well suited to the functions employees actually perform when using the CSIR system. While the benefits of adopting the Employer's proposals appear to be only marginal, employees may find its references to specific provisions in the parties' CBA of some value.
4. Problem Reporting
a. The Employer's Position
The following are the Employer's proposals:
1. Problems of the CSIR system should be promptly reported. Unit members are encouraged to report such CSIR problems to the Office in as [expeditious a] manner as possible, utilizing the appropriate procedures and mechanisms provided by the Office.
2. The Office agrees to provide, where practicable, feedback regarding problem resolution to unit members who have reported CSIR problems.
3. The Office shall provide a mechanism for unit members utilizing the CSIR system to [give] notice [to] other users in that cluster of problems recently reported.
Its proposals address the parties' mutual interest in ensuring that the CSIR system perform efficiently, and that problems are handled expeditiously. Taken together, its proposals would help facilitate these goals. In particular, its second proposal would give the Employer proper discretion in determining that "the timing and nature of feedback is reasonably related to the nature of the problem reported," while the third provides examiners a vehicle to notify others that a particular problem has been reported so that "work strategy" may be planned more effectively and without disruption.
b. The Union's Position
The Union proposes the following wording:
[1.] The Office shall provide where practicable and in as [expeditious] a manner as possible, feedback regarding problem resolution to unit members who have reported problems with the automated system.
[2.] In order to efficiently utilize the time of unit members and to provide an efficient method of accounting of time spent reporting problems, the Office shall provide to unit members bi-weekly reports which summarize reports filed by the unit members.
The Union's first proposal would ensure that employees receive prompt feedback when problems are reported. This is necessary to ensure that the system runs "at optimum efficiency," and that employees are motivated to report future problems, should they arise. Its second proposal "allows unit members the time-saving tool of not running into problems that others have encountered and also allows for suggestions from unit members to the Office on possible solutions." The Employer's proposals "would not benefit unit members and are inappropriate as provisions." In this regard, they suggest "new obligations" for employees, and appear to be neither "procedures" nor "arrangements." Thus, the Panel should decline to retain jurisdiction over them because it "lacks jurisdiction to consider provisions which are inconsistent with 5 U.S.C. § 7106 (b)(2) and (b)(3)."
CONCLUSIONS
In our view, the Employer's proposals concerning problem reporting would more effectively ensure the attainment of the parties' mutual interests than the Union's. We believe it is important to strike an appropriate balance between the responsibilities of management and employees so that the burdens associated with problem reporting and feedback do not outweigh the benefits. In this regard, a need for requiring the Employer to produce bi-weekly reports summarizing the problem reports filed by unit members has not been substantiated on the basis of the record presented, and fails to meet this balancing test. For these reasons,(7) we shall order the adoption of the Employer's proposals.
5. Operational Hours
a. The Employer's Position
The Employer's proposals are that:
1. The Office will endeavor to maximize the time the CSIR system is available for use by unit members consistent with technical and operational factors, budgetary considerations, and sound management practices as determined by the Office.
2. While management reserves its right to determine the means by which searching will be accomplished, unit members may request to use the paper search files, if available, in the event that the CSIR system is not available for their use.
Although it has alleged that the Union's proposal on this issue is nonnegotiable, the Employer nevertheless recognizes "the employees' interest, as represented by the Union, in having the CSIR system available for searching of patents to the maximum extent possible." Hence, its first proposal attempts to achieve that goal, consistent with the considerations expressed therein. Similarly, its second proposal recognizes that "examiners may have a need to access the paper files, if and when appropriate, at times that the CSIR system is not available." It is essential, however, that such access remain within supervisory discretion so that the CSIR system will be used "as designed and intended," i.e., as the examiners' primary research tool.
b. The Union's Position
The Union essentially proposes that, for those periods of time that the automated system is not available for use by unit members, they be permitted to use the paper files, "as long as the paper files exist, so as to approximate the 24-hour, 7-day-a-week availability of the paper files." The mission of the PTO is to issue valid U.S. Patents, "not to perpetuate or justify the automated search system." Its proposal would serve this mission by providing the time-tested alternative paper-files-searching method "when the automated system is unavailable." Given the nature of the examiners' performance evaluation system, the adoption of its proposal could mean "higher productivity, awards, and promotions for the examiner, or just being rated satisfactory." Moreover, because it would permit the use of paper files only when there is no automated system available, the proposal does not directly, nor excessively interfere "with the mission of the office," but instead would contribute to it. The Employer's proposals are of no benefit to unit members, unnecessarily repeating work rights employees would have in any case, and are inappropriate as provisions.
CONCLUSIONS
The issue of whether employees should receive advance authorization to use the paper files when the CSIR system is unavailable once again requires a careful balancing of the interests involved. On the one hand, it is understandable if such a profound change from previous methods of performing work evokes apprehension on the part of some employees. The record demonstrates, however, that in making its decision to modernize, PTO management has taken into account the impact of the new technology on the morale of employees and the mission of the agency for which it ultimately is responsible. In our view, permitting continued access to the paper files on the terms proposed by the Union would provide a disincentive for employees to learn how to perform their work using the CSIR system, and undercut its effectiveness.
While the Union's arguments regarding the potential adverse impact of the switch to the CSIR system on employee performance evaluations and incentive awards appear plausible in the abstract, they are unsubstantiated by the record before us. In this regard, the CSIR system has been functioning in Group 210 since August 1990 and, in effect, has provided the parties with a laboratory to test its ultimate implementation throughout the Patent Examining Corps. There is no evidence in the record drawn from this experience to support the Union's theories regarding the adverse consequences of the deployment of CSIR on the performance ratings or financial rewards of bargaining-unit members. The Employer's proposals, on the other hand, are consistent with the results of the parties' previous experiment with the CSIR system, and its legitimate need to ensure that the system is used as intended. Accordingly, we shall order their adoption.
6. Training
a. The Employer's Position
The Employer proposes to provide formal and refresher CSIR training to unit members where it deems such appropriate, and to consider unit members' requests for specific training related to CSIR. Its proposal "is comprehensive" as it relates to training "specifically directed to the users' needs to promote effective use of the CSIR system," while the Union's proposal that the PTO provide an initial keyboarding course is unnecessary. In this regard, because the CSIR system is "command directed," similar to the WESTLAW and LEXIS legal research services, examiners are not required to be skilled typists or keyboard operators.
b. The Union's Position
The Union's proposals are as follows:
1. Since not all unit members are familiar with computers, subject to the needs of the Office, the Office shall provide an initial keyboarding course or class to unit members who are in need of such familiarization.
2. The Office shall provide appropriate training to unit members on the use of the automated system.
[3]. To efficiently and to accurately report problems with the automated system, the Office shall provide adequate information on how to file problem reports or equivalents in an appropriate and accurate manner.
Its proposals are intended to ensure that unit members are properly trained to use the automated system, and given the necessary information on how to report problems in an accurate manner. The complexity of the automated system "requires special training for efficient use," particularly so that those employees who may not be familiar with computers are not penalized "for not having a skill that was not a previous job requirement." Such training benefits both management and employees, and has been found by the FLRA to be an appropriate arrangement "if new equipment is installed or new procedures implemented."(8) Its last proposal is warranted because adequate instruction has never been provided to enable unit members to identify system problems efficiently. In contrast to its own, the Employer's training proposal is unnecessary, and "would not benefit unit members, since the appropriateness of the training would not be subject to arbitral review."
CONCLUSIONS
We conclude that the parties should withdraw their proposals, insofar as they relate to training employees on the use of the CSIR system, because they appear to be unnecessary. In our view, it is in the Employer's own interest to provide employees with appropriate and adequate training to maximize the benefits to be derived from the new technology, so specific wording to that effect would be superfluous. Our conclusion is buttressed by the fact that there is no evidence in the record that the Employer has been remiss in providing training to employees in Group 210, where the CSIR system has been in use for some time. Moreover, the Union's proposal regarding initial keyboard training appears particularly ill suited to employees' needs regarding the CSIR system. With respect to whether the Employer should provide employees with adequate information on how to file problem reports, we are persuaded that additional efforts in this regard should improve the integrity and performance of the system, and shall order the parties to adopt wording appropriate to achieving that result.
7. Update Support
a. The Employer's Position
The Employer basically proposes to advise employees on the availability and use of new CSIR enhancements when they are directly related to the patent searching function. This would improve "searching capability and systemic viability." Because some enhancements involve only non-interactive portions of the system, "reference to enhancements which are directly related to the searching function is on point."
b. The Union's Position
The Union proposes that the PTO provide "notice to unit members of newly available software enhancements which the unit member may use," and that such notice "include a description of the software enhancement and how it is used." This would provide unit members with information on how to use software enhancements which are necessary to perform work on the automated system. While the Employer's proposal is similar to its own, it is objectionable because of its use of the acronym "CSIR," a term which is "indefinite, uncertain, and arbitrary." Further, its reference to enhancements which are "directly related" to unit members' patent searching functions, is unclear.
CONCLUSIONS
Although both proposals on this issue would inform employees of mutually beneficial software enhancements, the Employer's appears to be marginally better because of its additional clarity. In this regard, we have already endorsed the use of the acronym "CSIR" to distinguish it from other components within the Employer's "automated system." Similarly, specifically targeting those enhancements directly related to the employees' patent searching function also is preferable to the Union's formulation. For these reasons, we shall order its adoption.
8. CSIR System Utilization/Special Time Categories and Arrangements
a. The Employer's Position
The Employer proposes to "consider ways, and make reasonable efforts, to assist" employees experiencing difficulty in adjusting to the CSIR system. It addresses the Union's concerns in this regard, "notwithstanding the relative simplicity of the functional requirements" of the CSIR system. Assistance in adjusting to the system "is in both the employee's and management's best interest." The practical results of the Union's approach, on the other hand, would be to permit searching of paper files for an indefinite period, "in direct opposition" to the PTO's goal of implementing the "CSIR system for use by all examiners as the searching tool." It would also require reassigning examiners, regardless of the impact this would have on the PTO's mission or current objectives. Finally, it should not be obligated to cooperate with employees in obtaining early retirements because such a requirement "may not be consistent with the Office's staffing plan, may not meet regulatory requirements, or justify approval by the Office of Personnel Management."
b. The Union's Position
The Union proposes the following wording:
In the event that unit members have difficulty adapting to the use of the automated system, the Office shall: (a) Permit searching of the paper files as long as they exist; or (b) Reassign the employee to work which does not require the use of the workstations; or (c) Cooperate with the unit member in obtaining an early retirement.
Unlike the Employer's proposal, the Union's is intended "to accommodate a unit member after reasonable efforts to assist the employees to use the automated system have failed." Should this occur, it wants the PTO, "to the extent consistent with the interests of the Office, to make every reasonable effort to accommodate the unit member to avoid an adverse or disciplinary action." The alternative arrangements specified in its proposal were selected because they would not excessively interfere with management's rights. In this regard, by forbidding the use of the paper files, the Employer, "in effect," has eliminated the examiner position using paper search files. The FLRA, however, has found that requiring management to reassign employees "is an appropriate arrangement when positions are eliminated due to automation."(9)
CONCLUSIONS
After considering the parties' arguments and evidence, we conclude that, on balance, the Employer's proposal provides the more reasonable basis for resolving this issue. Preliminarily, we reject the Union's view that the proposal "does not address the same problem" as its own. That is, we believe that it applies to all phases of the process, including after it becomes apparent that an employee cannot adapt to the CSIR system. Although it does not spell out in detail precisely the accommodations to be provided, its wording nevertheless would permit the Union to grieve Employer efforts which it believes do not conform to the reasonableness standard. Further, we view the Employer's proposed wording as adequate, given that there is no evidence in the record that it previously has been unreasonable in accommodating employees who have had difficulty in adjusting to the CSIR system as it currently exists in Group 210. In contrast to the flexibility inherent in the Employer's proposal, the Union's could well provide a disincentive for employees to put forth their best efforts during the adjustment process, and undercut the decision to implement the computerized search of patents. We shall, therefore, order the adoption of the Employer's proposal.
9. Studies and/or Reports
a. The Employer's Position
The Employer has no counterproposal on this issue because it "does not maintain an existing system of records" capable of creating the reports the Union is demanding, and "any similar system of records would represent a significant and overriding burden to produce, prepare, and distribute." Most importantly, it has been advised by its information system specialists that the software necessary to track and report on the time for each computer response listed by the Union "would require at least 18 months to develop." This means it would be unable to comply with a Panel decision imposing the Union's wording "for a period of approximately 2 years." Moreover, the diversion of resources needed to provide this information would disadvantage "other primary elements of the overall automation program." In this regard, the Union's proposal would require the issuance of "approximately 3,600 reports and summary reports on a bi-weekly basis," and "have a direct impact on management's budget, systemic operation, and staffing level." Finally, if the purpose of the reports is to document the amount of nonproduction time associated with the use of the new system, an examiner will continue to have the option of requesting that the supervisor grant "other time" or "nonexamining time" whenever an "unusual delay or other situation is experienced with the CSIR system which would warrant such action."
b. The Union's Position
The following wording is proposed by the Union:
The Office shall provide a report to unit members of various times between log-on and log-off, such times shall include at least the following:
(a) The time between log-on and the ability to input data;
(b) The time between input of data and the request for documents;
(c) The time between the request for documents and the display of the first document;
(d) The time between log-on and log-off; and
(e) The cumulative time of requests in progress.
Bi-weekly reports shall be provided with at least these details and shall provide a summary of the details.
Because the PTO "is the epitome of time-based production quotas in the Federal government," where unit members must account for all of their production time "to the tenth of an hour," the incidence of nonproductive time associated with the automated system is of great concern to the bargaining unit. In addition, one of the selling points of the automated system is its time efficiency, but "this claim is not based on any accurate accounting or factual basis." Thus, its proposal would ensure that the amount of nonproductive time is accurately tracked so that unit members may "bring the amount of dead time to the attention of PTO management." Such an accounting would also benefit unit members by permitting them to "organize their search tasks in the most efficient manner."
Contrary to the Employer's contentions, a program necessary to implement its proposal could be written "in a few hours," and debugged "in a few days." In this regard, "all five required times are currently available on the automated system in electronic form," and "the current time of a request in progress is video displayed." To provide the reports contemplated under the proposal, the times need only be stored, and then displayed as a report on a video screen so that "a unit member then could print the screen for a hard paper copy." These reports would also be of assistance to the PTO by providing benchmarks for the performance of the automated system as it evolves.
CONCLUSIONS
As we have observed previously, the CSIR system has been in place in Group 210 since August 1990. During this greater than 3-year period, the Union has had an opportunity to study its impact on the conditions of employment of unit members, and to craft proposals whose need is objectively demonstrated on the basis of the parties' common experience under the new patent searching system. With this in mind, and quite apart from the parties' disagreement over the length of time it would take to implement the Union's proposal, we find that the burdens it would impose on the Employer far outweigh the benefits cited by the Union in its support. In this regard, it eventually could require the creation of thousands of documents per month capturing data which largely appear to be routine to the functioning of any automated system. Moreover, implementing the software necessary to generate such data could have the ironic effect of increasing the very nonexamining time which the Union believes establishes the need for its proposal. The record also indicates that unit members currently using the CSIR system are already granted some nonexamining time to compensate for the delays inherent in the use of the technology. Finally, the Union has itself admitted that perhaps the most important data it is requesting, the time of a request in progress, currently is video displayed. In our view, it would be much more cost effective for unit members to make a record of such times themselves to persuade their supervisors to grant additional nonexamining time if they are so inclined. Accordingly, we shall order the Union to withdraw its proposal.
10. Other Equipment Associated with the CSIR System/Automation
a. The Employer's Position
"Where practicable," the Employer proposes to "make accessible a voice communication device for CSIR problem reporting at each grouping of workstations." Its proposal acknowledges that it would be expedient, in most cases, for examiners to report problems with the CSIR system directly from their workstations so that technical assistance can immediately be provided. Contrary to the Union's proposal, however, "an intercom system or internal telephone system" is superior to traditional telephone equipment as the means for such communication, because the PTO is limited by the telephone company as to the number of telephone lines its facilities may have. For this reason, it seeks adoption of its proposal.
b. The Union's Position
The Union proposes that, "where practicable," the Employer "make accessible a telephone at each grouping of workstations." The proposal addresses a defect in the current method by which problems with the automated system are reported. In this regard, unit members currently report problems by leaving their workstations and telephoning the information systems representative from a different location. The technical expert then often asks specific questions regarding information displayed on the employee's computer monitor with which the employee no longer has visual contact. Its proposal, therefore, would increase problem-reporting efficiency by permitting unit members to stay at their workstations in such circumstances. The Employer's proposal is similar, but uses "CSIR," which is "indefinite, uncertain, and arbitrary," and the term "voice communication device," whose precise meaning is unclear.
CONCLUSIONS
On this issue, both of the proposals recognize that a practical problem with the current reporting system exists, and provide virtually identical solutions. In such circumstances, we see no reason why the Employer should not be permitted to decide upon the kind of communication device to install at each grouping of workstations. We shall, therefore, order the adoption of the Employer's proposal to resolve this matter.
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 § 2471.11(a) of its regulations hereby orders the following:
1. Scope of the Agreement
The Employer shall withdraw its proposal.
2. Printing and Distribution
The parties shall adopt the following wording:
The parties shall arrange for printing the agreement at a mutually agreeable cost. The cost shall be shared equally by the Office and the Association. The printing will be done as expeditiously as possible.
3. Health and Safety
The parties shall adopt the Employer's proposals.
4. Problem Reporting
The parties shall adopt the Employer's proposals.
5. Operational Hours
The parties shall adopt the Employer's proposals.
6. Training
The parties shall adopt the following wording:
The Office shall provide adequate information on how to file problem reports or equivalents in an appropriate and accurate manner.
7. Update Support
The parties shall adopt the Employer's proposal.
8. CSIR System Utilization/Special Time Categories and Arrangements
The parties shall adopt the Employer's proposal.
9. Studies and/or Reports
The Union shall withdraw its proposal.
10. Other Equipment Associated with the CSIR System/Automation
The parties shall adopt the Employer's proposal.
By direction of the Panel.
Linda A. Lafferty
Executive Director
October 8, 1993
Washington, D.C.
1.On July 13, 1993, Mr. Schimansky met with the parties at the Employer's facility to learn how the new computerized system operates, and assess its impact on how employees currently perform their work.
2.During the informal conference, the Union withdrew approximately 100 of its proposals. It subsequently requested written allegations of nonnegotiability from the Employer regarding these proposals, as well as on most of the proposals that remain before the Panel in the instant case.
3.Eventually, the computerized searching of patents is intended to replace, as much as possible, the current method of manually searching paper files in all of the Patent Groups.
4.Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988) clarifies the authority of interest arbitrators and the Panel to consider duty-to-bargain issues raised by the parties during an interest arbitration or Panel proceeding.
5.The Union currently is availing itself of one such mechanism, i.e., it has petitioned the FLRA for review of the Employer's nonnegotiability allegations with respect to numerous proposals related to the instant request for Panel assistance.
6.We understand "CSIR" to refer to the computerized search of U.S. Patents implemented by the PTO in Group 210 on or about August 1, 1990, and its future deployment throughout the Patent Corps. To the extent that the Union seeks additional clarification as to the "hardware, functions, and subsystems CSIR does and does not include," we believe the parties' continuing disagreement over the matter involves differing interpretations of the ULP settlement agreement which are best addressed in that forum.
7.The Union's argument here, and elsewhere, that the Panel should decline to retain jurisdiction over Employer proposals unless they are "procedures" or "appropriate arrangements," appears to be based on a mistaken interpretation of the Statute. While nothing in § 7106 of the Statute precludes employers and unions from negotiating (1) procedures that management will observe in exercising its specified management rights, or (2) appropriate arrangements for employees adversely affected by the exercise of such rights, § 7106 does not exhaust the universe of subject areas or proposals that may legitimately be negotiated in the Federal sector.
8.See American Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany,
Georgia, 29 FLRA 1587 (1987).
9.See Bremerton Metal Trades Council and Naval Supply Center, Puget Sound, 32 FLRA 643 (1988); and American Federation of Government Employees, AFL-CIO, Local 1931 and Department of
the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023 (1988).