National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, Arlington, Virginia (Authority decision, March 17, 1992)

Final FLRA decision. This is a final order resolving a negotiability appeal. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

A union agreement provision called for the Patent and Trademark Office to complete quarterly case ratings and make them available to examining attorneys by the end of the following month in ordinary circumstances. The agency head disapproved the provision, arguing that it would prevent supervisors from using late ratings when evaluating employees. The union said the timetable did not bar use of any information outside it. The Authority adopted that reading because the provision was silent about the consequences of missing the deadline. It found no interference with management's rights to direct employees or assign work, ruled the provision negotiable, and ordered the agency to rescind its disapproval.

Decision snapshot

• Authority: Management rights under 5 U.S.C. § 7106(a)(2)(A) and (B); agency-head review under § 7114(c).
• Outcome: Rating timetable found negotiable; agency ordered to rescind its disapproval.
• Key point: The timetable did not prevent management from using ratings or information completed after its target date.

Full text (FLRA public release)

[ v44 p402 ]
44:0402(33)NG

The decision of the Authority follows:

44 FLRA No. 33

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

U.S. DEPARTMENT OF COMMERCE

PATENT AND TRADEMARK OFFICE

ARLINGTON, VIRGINIA

(Agency)

0-NG-1985

DECISION AND ORDER ON A NEGOTIABILITY
ISSUE

March 17, 1992

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of one provision of a memorandum of understanding that was disapproved by the Agency head under section 7114(c) of the Statute. The provision requires the Agency to complete, and make available to employees within a specified time period, certain performance ratings. For the following reasons, we find that the proposal is negotiable.

II. Provision

In ordinary circumstances, all cases to be rated will be located, all case ratings will be complete, and all rated cases will be made available to the examining attorneys by the end of the month following the end of the quarter.

III. Positions of the Parties

A. The Agency

The Agency argues that the provision interferes with its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. According to the Agency, by requiring supervisors to review and rate cases and make the ratings available to employees within a certain period of time, the proposal, "[b]y implication," precludes supervisors from rating employees on cases which have not been reviewed, or using ratings that have not been provided employees, within that time period. Statement of Position at 3.

B. The Union

The Union argues that the provision is "merely procedural" in that the provision "requires no more of the Agency than to make its best efforts to complete the employee rating within the 30[-]day time period." Reply Brief at

1. According to the Union, the provision "does not address the consequences of
   the Agency's failure" to comply with the provision. Id. The Union contends that, as the provision "places no bar on management using information falling outside of the time frame as a basis for evaluation[,]" it does not violate management's rights under section 7106 of the Statute. Id. at 2.

IV. Analysis and Conclusions

Proposals that prevent management from using particular information in evaluating employee performance directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. For example, American Federation of Government Employees, Local 3272 and Department of Health and Human Services, Social Security Administration, Chicago Regional Office, 34 FLRA 675, 679 (1990) (SSA).

In this case, the Union states that the provision "places no bar on management using information falling outside of the time frame as a basis for evaluation." Reply Brief at 2. The Union's statement is consistent with the plain wording of the provision, which is silent with respect to the consequences of a failure to comply with the provision. Accordingly, the Union's statement of intent is adopted for the purposes of this decision. Interpreted consistent with that statement, we find that the provision would not preclude the Agency from using any information in evaluating employee performance. Consequently, we reject the Agency's claim that the provision interferes with its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See Social Security Administration, 34 FLRA at 678. As the Agency asserts no other basis for finding the provision nonnegotiable, and none is apparent to us, we find that the provision is negotiable.(1)

V. Order

The Agency shall rescind its disapproval of the disputed provision.(2)

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

1. The Union stated in its petition for review both that
   the provision was procedural and that the provision was "an appropriate arrangement because it does not dictate or direct which cases management will rate." Petition for Review at 2. In view of our decision here, we need not address the claim that the provision is an appropriate arrangement.

2. In finding the disputed provision to be negotiable, we
   make no judgment as to its merits.