35:0254(30)NG - - NTEU and Agriculture, Food and Nutrition Service - - 1990 FLRAdec NG - - v35 p254



[ v35 p254 ]
35:0254(30)NG
The decision of the Authority follows:


35 FLRA No. 30

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

(Union)

and

DEPARTMENT OF AGRICULTURE

FOOD AND NUTRITION SERVICE

(Agency)

0-NG-1662

DECISION AND ORDER ON NEGOTIABILITY ISSUE

March 27, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority as the result of a negotiability appeal filed by the Union under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of one proposal which requires that (1) periodic reviews of all performance elements be provided to employees not more than 3 workdays prior to the end of the appraisal period and (2) supervisors discuss performance ratings with employees within 3 workdays of the initial preparation of the ratings of record. For the following reasons, we find that the first paragraph of the proposal is negotiable, but the second paragraph is not.

II. Proposal

Performance ratings shall not be reduced due to budgetary considerations. A periodic review in all elements shall be provided to each employee no more than 3 workdays prior to the end of the appraisal period. Employees may provide a copy of this periodic review to the union. Supervisors shall discuss with each of their employees about their appraisal of performance no more than 3 workdays prior to the initial preparation of the rating of record by the supervisor.

[The Agency contends that the underlined portions of the proposal are nonnegotiable.]

III. Preliminary Matter

A. Positions of the Parties

The Agency contends that the petition for review is untimely and should be dismissed. The Agency asserts that the Union's proposal is "substantially identical" to a Union proposal involved in a prior negotiability appeal that was withdrawn by the Union and argues that the Union could have "perfect[ed] its petition for review [in the previous case] simply by filing the the [sic] Union's response." Statement of Position at 4. The Agency contends that the Union's withdrawal of the prior appeal renders the instant appeal untimely.

The Union asserts that the prior proposal provided employees with "a preliminary, non-binding rating." Reply Brief at 2. The Union states that because of its concern over the proposal's negotiability, it elected to withdraw the petition for review and modify the proposal. The Union states that the current proposal concerns "a 'periodic review' which is provided for in the Agency's Performance Appraisal Plan." Id. The Union asserts that because it submitted the petition for review with a revised proposal, the petition is timely and appropriate for Authority review.

B. Analysis and Conclusion

The Union's proposal concerns periodic reviews and discussions about employee performance. The Union's previous proposal concerned a "preliminary non-binding rating." Statement of Position at 2. It is clear that both proposals concern the same general subject matter. We reject, however, the Agency's assertion that the two proposals are "substantially identical[.]" Id. at 4.

We do not address whether the previous proposal would be found to be negotiable. We note, however, that both parties rely on 5 C.F.R. § 430.206(c), which prohibits disclosure of "[r]atings of record" in certain circumstances but does not "preclude communication about appraisal of performance between a supervisor and an employee prior to the determination of the rating of record." In addition, 5 C.F.R. § 430.205(e) defines "progress review[s]" separately from "ratings."

The Union's previous proposal referred to "rating[s]." The Union's current proposal does not. Because applicable regulations appear to distinguish between ratings and other performance documents or discussions, we conclude that the two proposals are not so similar as to require dismissal of the Union's petition for review. Compare American Federation of Government Employees, Local 2303 v. FLRA, 815 F.2d 718 (D.C. Cir. 1987) (dismissal of appeal affirmed where proposal contained no changes in the substance or language when compared with prior proposal alleged in writing by the agency to be nonnegotiable).

IV. Positions of the Parties

A. The Agency

The Agency argues that the proposal is inconsistent with a Government-wide regulation, 5 C.F.R. § 430.206(c), prohibiting communication of performance ratings of record to employees prior to approval by the final reviewer and, therefore, is nonnegotiable in accordance with section 7117(a) of the Statute. The Agency also asserts that, to the extent that the proposal requires supervisors to undertake a specific task, the proposal violates its right under section 7106(a)(2)(B) of the Statute to assign work.

The Agency acknowledges that it is obligated "'to bargain on procedures which management officials will observe in the development and implementation of performance standards and critical elements; and, under section 7106(b)(3), on appropriate arrangements for employees adversely affected by the application of performance standards to them.'" Statement of Position at 9 (quoting National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 770 (1980), affirmed sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982)). The Agency argues, however, that the proposal is not a negotiable procedure under section 7106(b)(2) because it conflicts with a Government-wide regulation and because it "does not relate to the development and implementation of performance standards and elements." Id. at 10. The Agency also asserts that the proposal does not constitute an "appropriate arrangement" under section 7106(b)(3) because it "would excessively interfere with the exercise of management's right to accomplish its mission." Id.

Finally, the Agency contends that the proposal is inconsistent with an Agency regulation for which a compelling need exists. The Agency argues that by requiring periodic reviews to be held no earlier than 3 days prior to the end of the appraisal period, the proposal conflicts with an Agency regulation which requires that progress reviews be conducted within 6 to 9 months of the beginning of the appraisal period "to make the employee aware of any deficiencies and to encourage continuation of acceptable or better performance." Id. at 11. The Agency asserts that there is a compelling need for its regulation because "[i]t is essential that the requirements of the [Agency's] Plan be maintained, to assure consistency with Governmentwide regulations issued by OPM [Office of Personnel Management], and to assure equity for all employees." Id. at 12.

B. The Union

The Union contends that the proposal is consistent with 5 C.F.R. § 430.206(c) because that regulation "plainly states that a supervisor and an employee are allowed to discuss the appraisal of performance prior to the determination of the rating of record." Reply Brief at 4 (emphasis in original). Further, the Union argues that the proposal "does not require the supervisor to communicate the 'rating of record.'" Id. The Union disputes the Agency's assertion that the proposal is inconsistent with the Agency's right to assign work and argues that the proposal's requirement that "this communication take place within 3 workdays is merely a procedural time limit[.]" Id. at 5. The Union also denies any conflict with an Agency regulation, asserting that the proposal "calls for an additional periodic review and in no way prevents the Agency from proceeding with its Performance Appraisal Plan." Id. at 6.

V. Analysis and Conclusions

A. The Proposal Does Not Violate 5 C.F.R. § 430.206(c)

The Government-wide regulation relied on by both parties is 5 C.F.R. § 430.206(c). That regulation provides, in relevant part, as follows:

Ratings of record and performance-based personnel actions shall be reviewed and approved by a person(s)

at a higher level in the organization than that of the appraising official. Ratings of record may not be communicated to employees prior to approval by the final reviewer. This does not preclude communication about appraisal of performance between a supervisor and an employee prior to the determination of the rating of record.

A proposal requiring disclosure of ratings of record to employees prior to approval by the final reviewer is nonnegotiable under section 7117(a)(1) of the Statute because such disclosure violates 5 C.F.R. § 430.206(c). Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389, 1409-10 (1987) (Patent and Trademark Office) (first disputed sentence of Proposal 10, requiring that a determination that an employee's performance was not at an acceptable level of competence be given to the employee in writing before the personnel office was notified of the determination, held to be inconsistent with 5 C.F.R. § 430.206(c)).

As previously noted, the Union's proposal does not refer to ratings of record. In fact, the Union withdrew a previous proposal which concerned preliminary ratings. The Union's proposal refers only to progress reviews and discussions. Further, the Union asserts that its proposal "does not require the supervisor to communicate the 'rating of record.'" Reply Brief at 4. We conclude that the Union's assertion is consistent with the plain wording of the proposal. Accordingly, we conclude that the proposal does not obligate the Agency to provide ratings of record to employees prior to higher-level review and approval.

Further, we reject the Agency's argument that the progress review would become "in essence, a 'preliminary rating' since it is communicated to the employee immediately before the end of the appraisal period." Statement of Position at 6. Nothing in the plain wording of the proposal would require the progress review to include the disclosure of specific ratings. In addition, 5 C.F.R. § 430.206(c) provides that the prohibition on disclosure of ratings prior to review does not "preclude communication about appraisal of performance between a supervisor and an employee prior to the determination of the rating of record." It is reasonable to conclude that some of the information conveyed to an employee during the progress review required by the proposal also would be found in the employee's ratings of record. That conclusion does not, however, create an inconsistency between the proposal and the regulation.

B. The Proposal does not Conflict with an Agency Regulation for which a Compelling Need Exists

The Agency argues that by requiring periodic reviews of employees to be held no earlier than 3 days prior to the end of the appraisal period, the proposal conflicts with an Agency regulation, Department Personnel Manual Chapter 430, Subchapter 2-6, which provides:

Agencies will provide for at least one progress review of standards and accomplishments during the established appraisal period; however, it is encouraged that progress reviews be done on a quarterly basis. The progress review(s) should take place within six or nine months of the beginning of the appraisal period and should not normally result in a new appraisal period. These reviews are used to ensure that critical and non-critical elements, and performance standards are appropriate and current. The reviews are also used to advise employees of current performance.

Statement of Position at 11.

The Agency claims that there is a compelling need for its regulation because: (1) it is essential that the requirements of the Agency's Performance Appraisal Plan be maintained; (2) the regulation maintains consistency with the applicable Government-wide regulations; and (3) the Agency regulation assures equity for all employees. Id. at 12. The Agency does not, however, specify which of the illustrative criteria for determining compelling need set out in section 2424.11 of the Authority's Rules and Regulations it relies on to support its claim of compelling need.

In our view, the Agency has not established that the proposal conflicts with its regulation. First, we note that the regulation requires "at least one" progress review during an employee's appraisal period. The Union asserts that its proposal "calls for an additional periodic review and in no way prevents the Agency from proceeding with its Performance Appraisal Plan." Reply Brief at 6. The Union's statement of intent is fully consistent with the plain wording of the proposal, which refers to "[a] periodic review[.]" Accordingly, neither the proposal nor the regulation prohibits the Agency from scheduling more than one progress review during an appraisal period, and the Agency's assertion that under the proposal, "the only periodic review to be conducted . . . would be the review held 1 to 3 workdays before the end of the appraisal period" is unfounded. Id. at 11-12.

Second, we are unable to conclude that the regulation requires all progress reviews to take place within 6 to 9 months of the beginning of an employee's appraisal period. In this regard, we note that although the regulation provides that progress reviews "should" take place within 6 to 9 months of the beginning of an employee's appraisal period, the regulation also "encourage[s] that progress reviews be done on a quarterly basis." In addition, the Agency acknowledges that the regulation "provides certain latitude to managers in determining when periodic reviews will be conducted, with the limitation that the first such review must be conducted no later than 9 months after the beginning of the appraisal period." Id. at 12 (emphasis in original). Assuming for the purpose of this decision that the Agency's interpretation of the regulation is correct, nothing in the Union's proposal would prevent the Agency from holding the first progress review no later than 9 months after the beginning of the appraisal period.

For the foregoing reasons, we conclude that the proposal is not inconsistent with the Agency's regulation. Accordingly, it is unnecessary to examine the Agency's assertion that a compelling need exists for the regulation.

C. The Second Paragraph of the Proposal Violates the Agency's Right to Assign Work under Section 7106(a)(2)(B)

Proposals requiring that specific duties be assigned to particular individuals, including management officials, directly interfere with an agency's right under section 7106(a)(2)(B) of the Statute to assign work. See, for example, American Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command, Redstone Arsenal Commissary, 27 FLRA 69, 80-81 and 83-84 (1987) (U.S. Army Missile Command) (Provisions 6 and 8).

The second paragraph of the proposal requires particular individuals (supervisors) to perform specific duties (discussing employees' performance with the employees no more than 3 workdays prior to the initial preparation of the ratings of record). It appears that performance-related discussions would be best accomplished between employees and their supervisors. In fact, 5 C.F.R. § 430.206(c) specifically refers to "communication about appraisal of performance between a supervisor and an employee[.]" Nevertheless, we conclude that, as asserted by the Agency, the second paragraph directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. See Bremerton Metal Trades Council and Naval Supply Center Puget Sound, 32 FLRA 643, 652 (1988) (Provision 4, designating management official to perform specified task, held to be nonnegotiable even though provision used the same wording as a local regulation because the provision violated management's right to assign work under section 7106(a)(2)(B)). Because the second paragraph directly interferes with management's right to assign work under section 7106(a)(2)(B), it is not a negotiable procedure under section 7106(b)(2). See, for example, American Federation of Government Employees, AFL-CIO, Local 1411 and Department of the Army, Fort Benjamin Harrison, 32 FLRA 990, 994-95 (1988).

We recognize that this result may appear awkward. We emphasize, however, that the "defect" in the Union's proposal is easily cured. If, for example, the Union removed the requirement that a "supervisor" undertake the discussions, the second paragraph of the proposal would be negotiable. U.S. Army Missile Command, 27 FLRA at 81.

E. Conclusion

We find that the Union's petition for review was timely filed. We also find that the proposal does not conflict with either an applicable Government-wide regulation or an Agency regulation for which a compelling need exists. However, we find that the proposal's second paragraph is inconsistent with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Accordingly, the first paragraph of the proposal is negotiable, but the second paragraph is not negotiable.

VI. Order