42:1305(90)NG - - NLRB Union and NLRB - - 1991 FLRAdec NG - - v42 p1305



[ v42 p1305 ]
42:1305(90)NG
The decision of the Authority follows:


42 FLRA No. 90

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL LABOR RELATIONS BOARD UNION

(Union)

and

NATIONAL LABOR RELATIONS BOARD

(Agency)

0-NG-1858

DECISION AND ORDER ON NEGOTIABILITY ISSUES

October 31, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The dispute concerns the negotiability of two proposals relating to the Agency's performance appraisal system. The proposals were submitted by the Union as proposed modifications to the performance appraisal article contained in the parties' current collective bargaining agreements, which cover professional and clerical employees in the Agency's field offices.

Proposal 1 would preclude the Agency from designating the regional director of a regional office as the reviewing official of field office employees' performance ratings. We find that Proposal 1 is nonnegotiable because it directly and excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Proposal 2 consists of three parts. The first part, section (b)(1), would require an employee's appraising official to prepare an independent appraisal of an employee's performance, including specific performance standard ratings. We find that section (b)(1) is not inconsistent with 5 C.F.R. § 430.206(c). We further find that although section (b)(1) directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B), it constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

The second part of Proposal 2, Option 1, would require an appraising official to provide a copy of the appraisal prepared pursuant to section (b)(1) to the employee and to discuss this evaluation with the employee before forwarding it to the appropriate reviewing official. We find that Option 1 is inconsistent with 5 C.F.R. § 430.206(c) and that it is, therefore, nonnegotiable.

Finally, the third part of Proposal 2, Option 2, would require the Agency to provide copies of the appraisal documents prepared by the appraising and reviewing officials to the appraised employee. We find that Option 2 is negotiable.

II. Proposal 1

Section (a).

If management designates any Regional Office manager as an employee's appraising official, the employee's reviewing official for purposes of an appraisal shall be at an organizational level above the Regional Office.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 1 is nonnegotiable because it directly interferes with management's right under section 7106(a)(2)(B) of the Statute to assign work. The Agency further contends that the proposal interferes with its right under section 7106(a)(2)(B) to determine the personnel by which an agency's operations shall be conducted.

The Agency asserts that the proposal "seeks to preclude the Agency from designating the Regional Director as the reviewing official for appraisals and ratings of record for field office employees . . . ." Statement of Position (Statement) at 9. Citing Authority decisions, the Agency contends that the Authority has consistently found that proposals designating particular individuals or supervisors within an agency to serve as appraising and/or reviewing officials directly interfere with an agency's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency maintains that it has "an absolute, unfettered right to decide what person and/or position will serve as its appraising and reviewing officials--as long as that selection is consistent with applicable [G]overnment-wide rules or regulations." Id. at 11.

The Agency takes issue with the Union's contention that no dispute exists "over which particular management official or officials are designated as 'appraising' or 'reviewing officials,' except as to what constitutes the next higher level in the organization for the reviewing officials over [the] apprais[ing] official . . . designated by the Agency." Id. (quoting Petition at 3) (original underscoring deleted). The Agency maintains that it "wants the Regional Director to be the reviewing and approving official for the appraisals and ratings of record of all field office employees." Id. at 12. The Agency contends that the Union, on the other hand, wants the "particular management official" to be an official outside the regional office. Id.

The Agency also disputes the Union's assertion that the Agency's decision to assign reviewing official functions to regional directors violates 5 C.F.R. 430.206(c).(1) According to the Agency, the regional director is at a higher level in the Agency's organization than any of the regional office employees who potentially act as appraising officials. These employees include the first-line supervisor, the assistant office manager, the office manager, the deputy regional attorney, the assistant to the regional director, and the regional attorney. The Agency states that these managers and/or supervisors are at a lower level in the Agency's organization than the regional director, and that all are supervised by and report to the regional director.

2. Union

The Union asserts that Proposal 1 is not contrary to section 7106(a)(2)(B) of the Statute. The Union contends that the proposal addresses "what constitutes the next higher level in the organization for the reviewing officials over [the] apprais[ing] . . . official . . . designated by the Agency." Petition at 3 (underscoring deleted). The Union states that Office of Personnel Management (OPM) regulations, in particular 5 C.F.R. § 430.206, specifically set forth the requirement for higher-level review.

According to the Union, OPM regulations "distinguish between and direct distinct roles, and separation by organizational level, for appraising and reviewing officials." Id. at 7. The Union contends that Proposal 1 "reflect[s such] procedures and [is, therefore,] consistent with [OPM] regulations." Id. The Union asserts that the position taken by management with respect to the assignment of the review function to the regional director organizational level is not consistent with 5 C.F.R. § 430.206(c) because this section requires that the review function be performed by an official at a higher level in the organization than that of the appraising official. The Union also states that "to the extent [that] Agency management retains discretion under OPM . . . regulation[s]" as to higher-level review, the Union, through Proposal 1, "seeks to negotiate [section] 7106(b)(2) 'procedures' and [section 7106](b)(3) 'appropriate arrangements.'" Response at 2.

B. Analysis and Conclusions

1. Proposal 1 Directly Interferes with Management's Right to Assign Work under Section 7106(a)(2)(B) of the Statute

The record indicates that employees who act as appraising officials in the regional offices include first-line supervisors, assistant office managers, office managers, deputy regional attorneys, assistants to regional directors, and regional attorneys. It is uncontroverted that regional directors perform the higher-level review function. The record also shows that regional directors are at a higher level in the Agency's organization than any of the employees--supervisors and managers--who act as appraising officials.

We find that the appraisal function in regional offices is performed by individuals who occupy positions at a lower level in the offices than regional directors. Proposal 1 requires that the reviewing official be at an organizational level above the regional office if an employee's appraising official is a regional office manager. Because regional directors are at a higher level than the individuals performing the appraisal function, but are employed in the same offices as those individuals, Proposal 1, would preclude the Agency from assigning the review function to regional directors. Conversely, the proposal would require the Agency to assign the reviewing function to officials at an organizational level above the regional offices.

Proposals that preclude management from assigning particular functions to particular individuals directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See National Treasury Employees Union, Chapter 12 and U.S. Department of the Treasury, Internal Revenue Service, Birmingham, Alabama, 36 FLRA 70, 73-74 (1990) (Internal Revenue Service) (proposal preventing the agency from assigning the task of evaluating employee performance to a particular individual held to directly interfere with the agency's right to assign work under section 7106(a)(2)(B) of the Statute). See also National Federation of Federal Employees and U.S. Department of Defense, Defense Mapping Agency, Louisville, Kentucky, 39 FLRA 1169, 1179 (1991) (Defense Mapping Agency), petition for review filed sub nom. United States Department of Defense, Defense Mapping Agency, Louisville, Kentucky v. FLRA, No. 91-1217 (D.C. Cir. May 10, 1991) (fourth sentence of proposal requiring supervisory personnel to evaluate map sheets and precluding management from assigning that function to project directors held to directly interfere with management's right to assign work). Because Proposal 1 would preclude the Agency from assigning the reviewing function to regional directors, we conclude, consistent with Internal Revenue Service and Defense Mapping Agency, that the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

We reject the Union's contention that the proposal does not directly interfere with management's right to assign work because it simply reflects procedures that permit the Agency, consistent with 5 C.F.R. § 430.206(c), to determine the level at which higher-level review will be performed.(2) Even if the regulation permits management to determine the level at which higher-level review will be performed, as the Union claims, the proposal would still not constitute a negotiable procedure. As we held above, because the proposal would dictate that management assign the reviewing function to an organizational level outside of the regional office and, thus, would preclude management from assigning this function to regional directors, the proposal directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. A proposal that directly interferes with a management right does not constitute a negotiable procedure under section 7106(b)(2). See Department of Defense, Army-Air Force Exchange Service v. FLRA, 659 F.2d 1140, 1150-52 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982). Because we have found that Proposal 1 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute, we reject the Union's contention that the proposal constitutes a negotiable procedure under section 7106(b)(2).

Having found that Proposal 1 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute, we find it unnecessary to address the Agency's contention that the proposal directly interferes with management's right to determine its personnel under section 7106(a)(2)(B). Because Proposal 1 directly interferes with management's right to assign work under section 7106(a)(2)(B), it is nonnegotiable unless it constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

2. Proposal 1 Does Not Constitute an Appropriate Arrangement under Section 7106(b)(3) of the Statute

The Union claims that Proposal 1 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. To determine whether the proposal constitutes an appropriate arrangement, we must determine whether the proposal is (1) intended as an arrangement for employees adversely affected by the exercise of a management right, and (2) appropriate because it does not excessively interfere with the exercise of management's rights. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard).

In determining whether a proposal is an arrangement for employees adversely affected by the exercise of management's rights, we look to "the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse." Id. at 31. The Union contends that the proposal "seeks to negotiate . . . appropriate arrangements" for employees whose appraisals are reviewed by a higher-level reviewing official in the Agency. Response at 3.

The Union asserts that, under the current appraisal process, "various appraising officials tailor their assessments" of an employee's performance to that of the reviewing official--the regional director. Petition at 6. Based on the Union's statement, we find that the Union intends the proposal to ensure a more objective review of employee appraisals by requiring that the reviewing function be performed at an organizational level above the regional office. We conclude that, as such, the proposal is intended to constitute an arrangement for employees who might be adversely affected if appraisal and review were confined to the regional office level. However, we find that Proposal 1 excessively interferes with management's right to assign work. The proposal constitutes an absolute prohibition of the designation of the regional director as the reviewing official. Even assuming that Proposal 1 may benefit employees by ensuring that review takes place above the regional office, we find that that benefit is outweighed by the absolute prohibition on the exercise of management's right. Consequently, we conclude that Proposal 1 does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute.

Accordingly, we conclude that Proposal 1 is nonnegotiable.

III. Proposal 2

Section (b).

(1) An employee's appraising official(s) shall prepare in writing an independent evaluation of an employee's performance and recommend specific performance standard ratings on each of the employee's critical and, as applicable, noncritical elements, and forward the same to the employee's designated reviewing official(s). Such evaluation will not contain a summary rating nor constitute a rating of record.

(2) Option 1. An employee's appraising official(s) shall provide a copy of an employee's evaluation and recommendations to the employee and discuss it with the employee before the appraising official(s) forwards the same to the appropriate reviewing official(s) for further action.

Option 2. [note - to be considered only if option 1 is determined to violate 5 C.F.R. 430.206(c)].

Once an employee's reviewing official(s) has (have) acted upon the written evaluation of performance and recommendations by the employee's appraising official(s), derived a summary rating, and conferred a rating of record, the employee shall be provided copies of the appraisal documents prepared by the appraising and reviewing officials.

[Only the underscored portions of the proposal are in dispute. Bracketed material above is in the original.]

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 2 is inconsistent with 5 C.F.R. § 430.206(c), a Government-wide regulation, and, therefore, is outside the duty to bargain under section 7117(a)(1) of the Statute. The Agency states that the Union concedes that the proposal is intended to create a "two-step" appraisal process and argues that the "'two-step' process is totally inconsistent with the one-step or 'one-voice' system created by OPM's [G]overnment-wide regulations . . . ." Statement at 14 (referencing in pertinent part 5 C.F.R. § 430.206). The Agency states that under a one-step or "one-voice" system, an employee is not permitted to see a performance rating or any documentation which would divulge the rating until the rating of record has been reviewed and approved by the final reviewer. Id. at 15. The Agency asserts that under the Union's proposed two-step system, employees' ratings would be accessible to employees prior to approval of the rating of record by the final reviewer. The Agency claims that the "clear language of [5 C.F.R. § 430.206(c)] does not support the Union's position" that the Union's proposed two-step appraisal process "is mandated" by 5 C.F.R. § 430.206(c). Id. at 15. Rather, the Agency claims that 5 C.F.R. § 430.206 "clearly establishes a one-step or one-voice system." Id. Further, the Agency contends that OPM interprets the appraisal process established by 5 C.F.R. § 430.206(c) as a one-step process.

The Agency contends that the final sentence of section (b)(1), which provides that the appraising official's written independent evaluation on each critical and noncritical element "will not contain a summary rating nor constitute a rating of record," does not make the proposal negotiable. The Agency argues that "the Union . . . intentionally placed [the final sentence] in section (b)(1) to make its proposal[ ] appear to be consistent with 5 C.F.R. 430.206(c)." Id. at 19. The Agency contends that the Union is aware that "divulgence of an employee's ratings on each of his/her critical elements will constitute disclosure of the rating of record itself" and "would circumvent the entire intent of 5 C.F.R. 430.206(c) to have a one-voice system which protects the ratings of record until it is approved by the reviewing official." Id. (emphasis in original).

The Agency notes that the Authority has found negotiable proposals that are "almost identical in intent, if not language," to Proposal 2. Id. at 20. However, the Agency argues that the Authority's rulings were made prior to OPM's implementation in 1986 of the "one-voice" appraisal system regulation. The Agency points out that, in finding similar proposals negotiable, and in response to a proposed OPM regulation, the Authority noted that "if and when OPM promulgated a regulation precluding supervisors from discussing or revealing an appraisal to an employee prior to its review and approval, the proposal would be inconsistent with that regulation." Id. at 21 (referencing U.S. Army Engineer Center and Fort Belvoir and U.S. Department of the Army, 13 FLRA 707, 713 n.8 (1984), reversed and remanded as to other matters sub nom. U.S. Army Engineer Center and Fort Belvoir and U.S. Department of the Army, 762 F.2d 409 (4th Cir. 1985), supplemental decision, 19 FLRA 746 (1985); National Federation of Federal Employees and Department of the Army, Fort Monmouth, New Jersey, 13 FLRA 426, 428-29 n.7 (1983)). The Agency submits that OPM did promulgate such a regulation--5 C.F.R. § 430.206(c).

Accordingly, the Agency contends that it has no obligation under section 7117(a)(1) to bargain over Proposal 2. The Agency asserts that as Proposal 2 is inconsistent with a Government-wide regulation it cannot constitute a negotiable procedure or appropriate arrangement under section 7106(b)(2) and (3) of the Statute.

The Agency further contends that Proposal 2 conflicts with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency asserts that, by directing that an appraising official prepare a written, independent evaluation addressing the performance standards for each critical and noncritical element, Proposal 2 "violates management's right to decide who will draft an appraisal, what it will contain, and when it will be shown to an employee." Id. at 23. The Agency contends that the proposal would, therefore, directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. Further, the Agency asserts that the proposal "seeks to prevent any discussions between the appraising and reviewing officials prior to the appraising official's preparation of a recommended appraisal and/or rating on each critical and non-critical element." Id. at 24. The Agency claims that this prohibition would directly interfere with its right to engage in internal and pre-decisional deliberations over appraisals of employees as provided under section 7106(a) of the Statute. The Agency concludes that because the proposal interferes with management rights, the proposal "cannot be considered to be [a] negotiable procedure[] under section 7106(b)(2) of the Statute." Id. at 23-24.

2. Union

The Union contends that Proposal 2 is intended to be a procedure under section 7106(b)(2) of the Statute. Alternatively, the Union contends that the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute for employees adversely affected by the exercise of a management right.

The Union argues that Proposal 2 "seek[s] to clarify and codify in collective bargaining agreements how . . . management will exercise its right consistent with OPM [G]overnment[-]wide regulation." Response at 2. The Union asserts that Proposal 2 seeks to provide a two-step appraisal process that allows independent evaluation by appraising and reviewing officials as required by 5 C.F.R. § 430.206(c). In particular, the Union asserts that "initial communication between an employee's appraising official(s) and reviewing official(s) regarding how the appraising official(s) will appraise an employee would violate . . . the provisions of OPM rules which[, in its view,] provide for separate 'appraising' and 'reviewing officials' and that the two be separated by organizational levels." Petition at 3-4.

According to the Union, before management changed the review process, an employee's immediate supervisor would: (1) prepare a written appraisal "which would discuss the employee's performance and recommend specific performance standard ratings on each critical element and . . . noncritical element of the employee's position"; and (2) "meet with the employee and discuss the appraisal." Id. at 5. The Union states that, thereafter, the supervisor's appraisal of the employee would be forwarded to higher-level officials in the regional office "(i.e. the Assistant to the Regional Director, Regional Attorney and Regional Director)." Id. The Union asserts that these individuals, except for the regional director, would each comment on the supervisor's appraisal and add their own assessment of the employee's performance. The Regional Director would then review the appraisal after these individuals and provide his or her own appraisal of the employee. The Union contends that following the regional director's review, an employee was furnished a "full package of each appraising official's written comments and provided an opportunity to discuss and/or comment on the appraisals" before such were finalized and sent to Washington, D.C. for Agency headquarter's review. Id.

The Union states that under this process, each appraising official was on record as to his or her assessment of the employee's performance and, further, there was "no requirement that the various appraising officials tailor their assessments" of an employee's performance to that of the "ultimate decider." Id. at 6.

According to the Union, under the new review process: (1) the regional director is now the "reviewing official" or "(ultimate decider)"; (2) the Agency headquarter's appraisal review panel no longer reviews the performance standard ratings an employee will receive; and (3) the appraising officials, except for the regional director, remain the same. Id. The Union contends that the appraising officials and the reviewing official (regional director) now meet in advance to determine the performance standard ratings the employee will receive. The Union also asserts that the regional director "determines the outcome of the appraisal and each appraising official tailors his or her appraisal of an employee's performance to the Regional Director's decision." Id. at 6-7. The Union states that once the regional director "decides the outcome, a written appraisal (in 'one-voice') is prepared and furnished the employee." Id. at 7. According to the Union, if any of the employee's appraising officials' views differ from that of the regional director, they "are forbidden by the Agency to disclose [these views] to the employee." Id.

The Union asserts that the Agency's position in this matter is not consistent with 5 C.F.R. § 430.206(c). The Union contends that the Agency's characterization of OPM's interpretation of the regulation is erroneous.

B. Analysis and Conclusions

Proposal 2, which consists of three parts, concerns the preparation of employee performance evaluations and the communication of those evaluations to unit employees. Section (b)(1) of the proposal would require an employee's appraising official to: (1) prepare a written independent evaluation of the employee's performance; (2) recommend in that evaluation specific performance standard ratings for each of the employee's critical and noncritical elements; and (3) forward this evaluation to the employee's designated reviewing official. Section (b)(1) also provides that this evaluation will not contain a summary rating nor constitute a rating of record.

The second part of the proposal, Option 1, would require the employee's appraising official to provide a copy of the performance evaluation prepared pursuant to section (b)(1) to the employee and to discuss this evaluation with the employee before forwarding it to the appropriate reviewing official. The last part of Proposal 2, Option 2, is to be considered only if Option 1 is found to be nonnegotiable. Option 2 would require management, after the reviewing official has acted upon the appraising official's evaluation and conferred a rating of record, to provide the employee with copies of the evaluation prepared by the appraising official pursuant to section (b)(1) and the appraisal document prepared by the reviewing official.

The Union submitted Proposal 2 to address concerns related to the current appraisal process. The record reveals that under the current process the regional director of a regional office is the designated higher-level reviewing official. During the appraisal process, neither the employee's performance rating nor anything that will divulge that rating is given to the employee. The employee's performance rating is not disclosed in any manner to an employee until the appraising official(s) and the reviewing official discuss the appraisal and the rating, come to a consensus about the rating of record, and the rating is approved by the final reviewer, the regional director. Once the regional director approves the appraisal, a copy is furnished to the employee.

Under 5 C.F.R. § 430.203, a rating of record is "the summary rating required at the time specified in the Performance Management Plan," and the summary rating is "the written record of the appraisal of each critical and non-critical element and the assignment of a summary rating level."(3) Under 5 C.F.R. § 430.206(c) "[r]atings of record may not be communicated to employees prior to approval by the final reviewer." Section 430.206(c), however, does not "preclude communication about appraisal of performance between a supervisor and an employee prior to the determination of the rating of record." Section 430.206(c) is part of the regulations prescribed by OPM for performance appraisal systems for General Schedule employees to implement and supplement the provisions of 5 U.S.C. §§ 4301-4305. See Defense Contract Audit Agency, 37 FLRA 1218, 1227.

We now address the specific parts of Proposal 2.

1. Section (b)(1)

We find, for the reasons expressed below, that section (b)(1) is not inconsistent with 5 C.F.R. § 430.206(c). Moreover, although section (b)(1) directly interferes with management's rights to direct employees and assign work, it is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.

Section (b)(1), as noted above, would require an employee's appraising official to prepare an independent evaluation of the employee's performance, including specific performance standard ratings for each of the employee's critical and noncritical elements, and forward this evaluation to the designated reviewing official. The Union asserts that Proposal 2 is intended to provide for an independent evaluation of an employee's performance by the appraising official. That is, under section (b)(1), an appraising official would not communicate with the reviewing official prior to preparing this evaluation, but would prepare the evaluation and then forward it to the reviewing official. The proposal also provides that the "independent evaluation" will not contain a "summary rating" and does not constitute a "rating of record."

We find nothing in this part of the proposal that is inconsistent with 5 C.F.R. § 430.206(c). By its terms, section (b)(1) would not require disclosure of the independent evaluation to the employee prior to review by the reviewing official. We will consider the issue of the disclosure of the independent evaluation to the employee in our disposition of Option 1, the second part of Proposal 2 below. Compare Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 29 FLRA 1389, 1409-10 (1987) (Patent and Trademark Office), affirmed as to other matters sub nom. Patent Office Professional Association v. FLRA, 873 F.2d 1485 (D.C. Cir. 1989) (a proposal requiring disclosure of ratings of records 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)).

We note, however, that the wording of 5 C.F.R. § 430.206(c) suggests that performance appraisals and performance-based personnel actions prepared or taken under this section are forwarded to the appropriate official at a higher level for review and approval. Section (b)(1), by its terms, would require that the independent evaluation prepared pursuant to this section be forwarded to the reviewing official. Moreover, we note that, as worded, 5 C.F.R. § 430.206(c) would not preclude the independent evaluation that is required by section (b)(1).

The Agency also asserts that by directing that an appraising official prepare a written, independent evaluation addressing the performance standards for each critical and noncritical element, section (b)(1) directly interferes with management's right to assign work. The Agency further contends that this section directly interferes with its internal deliberative process under section 7106(a) of the Statute because it would prevent any discussions between the appraising and reviewing officials prior to the appraising official's preparation of the recommended appraisal or rating on each critical and non-critical element. We find, for the reasons expressed below, that section (b)(1) directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

Section (b)(1) of the proposal limits management's right, under section 7106(a)(2)(A) and (B) of the Statute, to evaluate employees by restricting management's internal deliberations concerning employees' appraisals. The Authority has consistently held that management's rights enumerated in section 7106 of the Statute encompass not only the right to act but also the right to discuss and deliberate concerning the relevant factors upon which decisions as to the exercise of those rights will be made. Specifically, proposals that limit management's deliberations concerning employee evaluations directly interfere with management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870, 875 (1986).

Based on the Union's statement of intent concerning Proposal 2, we find that section (b)(1) is intended to prevent any discussions between the appraising and reviewing officials prior to the appraising official's preparation of the "independent evaluation"; that is, the recommended appraisal or rating on each critical and non-critical element. Section (b)(1) would, in effect, prevent an appraising official from discussing the "independent evaluation" prepared pursuant to this section with the reviewing official prior to it being forwarded to that official. Therefore, section (b)(1) would directly interfere with the deliberative process associated with management's evaluation of employees pursuant to its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

We reject the Agency's argument that section (b)(1) directly interferes with management's right to assign work because it requires the appraising official to prepare a written evaluation. The proposal would not dictate the particular individual to whom management would assign this responsibility. Rather, the proposal preserves management's right to designate the appraising official and would take effect pursuant to that designation. Moreover, because the appraisal of employees is a duty inherent in the responsibilities of an appraising official, the proposal does not add duties to the functions already performed by the appraising official.

We also reject the Agency's claim that the proposal is contrary to management's right to assign work because it would determine when an appraisal would be provided to an employee. Matters concerning the timing of performance appraisals constitute procedures under section 7106(b)(2) of the Statute. See, for example, American Federation of Government Employees, Local 2761 and Department of the Army, Army Publications Distribution Center, St. Louis, Missouri, 32 FLRA 1006, 1015 (1988).

Because we have found that section (b)(1) directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute, we reject the Union's contention that the proposal constitutes a negotiable procedure under section 7106(b)(2). As stated in Section II.B.1., a proposal that directly interferes with a management right does not constitute a negotiable procedure under section 7106(b)(2). Accordingly, we conclude that section (b)(1) does not constitute a negotiable procedure.

As this section directly interferes with management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute, it is negotiable only if it is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Based on our discussion in Section II.B.2. above, we must decide whether section (b)(1) is (1) intended to be an arrangement for employees adversely affected by the exercise of a management right and (2) appropriate because it does not excessively interfere with the exercise of management's rights. Kansas Army National Guard.

The Union asserts that section (b)(1) constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. We find that the Union intends section (b)(1) of its proposal to constitute an arrangement for employees adversely affected by management's exercise of its right to evaluate employees' job performances through its performance management system. More particularly, section (b)(1) is intended to ensure that employees, whose careers could be adversely affected depending on the evaluation they receive, will be evaluated objectively and fairly by Agency officials performing that function.

Having concluded that section (b)(1) is an arrangement, we now consider whether it is appropriate within the meaning of section 7106(b)(3). To determine whether a proposal is an appropriate arrangement because it does not excessively interfere with the exercise of a management right, we weigh "the competing practical needs of employees and managers" to determine whether the benefit to employees afforded by the proposal outweighs the burden placed by the proposal on the exercise of the management right or rights involved. Kansas Army National Guard, 21 FLRA at 31-32.

As noted above, section (b)(1) is intended to ensure that employees will be evaluated objectively and fairly by Agency officials performing evaluations. According to the Union, under the current process, "various appraising officials tailor their assessments" of an employee's performance to that of the reviewing official. Petition at 6. Section (b)(1) would prevent that result by ensuring that the appraising official, at least during this evaluation, would provide a written record of his or her own independent judgment of an employee's performance on each critical or noncritical element. This section would, therefore, ensure that an employee's performance will be objectively considered by managers and/or supervisors involved in the appraisal process. Therefore, we find that section (b)(1) affords a benefit to employees.

On the other hand, this section prevents the appraising official from discussing the evaluation prepared pursuant to this section prior to submission to the reviewing official. We find, however, that the negative impact on management's rights to direct employees and assign work caused by the requirements of section (b)(1) is minimal. In this regard, section (b)(1) only amplifies 5 C.F.R., Part 430 which already requires management to appraise an employee's performance under the Agency's performance management plan. Also, although this section prevents initial discussions between the appraising official and the reviewing official, it would not preclude management from discussing the appraising official's "independent evaluation" with that official after receipt of the document and prior to any final action. Management would still be able to engage in internal deliberations and could, after doing so, reach a different assessment of the employee's performance. Thus, the burden imposed by section (b)(1) on management's rights to direct employees and assign work is minimal.

We conclude that, on balance, the benefit to employees outweighs the burden placed on the Agency. Consequently, we find that section (b)(1) does not excessively interfere with management's rights to direct employees and assign work and is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

We turn next to the proposals designated as Option 1 and Option 2 regarding disclosure of the appraising official's independent evaluation. Noting that the Authority has previously considered proposals designated as alternative proposals, we will do so here. See National Labor Relations Board Union and National Labor Relations Board, the Board and Office of the General Counsel, 22 FLRA 486 (1986). However, we also note that, in some circumstances, extensive use of options or alternative proposals in negotiability appeals before the Authority could result in unnecessary litigation and expenditure of resources of the parties and the Authority. As always, we encourage agencies and unions to attempt to resolve any disputes concerning the negotiability of proposals before invoking the negotiability appeal procedures under section 7117 of the Statute.

2. Option 1

We find that Option 1 is nonnegotiable because it is inconsistent with 5 C.F.R. § 430.206(c), a Government-wide regulation. See Patent and Trademark Office, 29 FLRA at 1410.

Option 1 requires an employee's appraising official to provide a copy of the independent evaluation, prepared pursuant to section (b)(1), including "specific performance standard ratings" on critical and noncritical elements, to the employee and to discuss this evaluation with the employee before forwarding it to the reviewing official. We must consider whether Option 1 is consistent with 5 C.F.R. § 430.206(c), which, as noted above, provides that a "rating of record" may not be communicated to an employee until it has been approved by the reviewing official.

As we discussed above, a rating of record under 5 C.F.R. § 430.206(c) includes the ratings on each critical and noncritical element as well as an overall summary rating that is derived from the ratings on the individual elements. We find that the clear intent of 5 C.F.R. § 430.206(c) is to preclude the disclosure to employees both of the ratings on each critical and noncritical element and the overall summary rating prior to the approval of the reviewing official. We note that disclosure of the ratings on individual elements would effectively constitute disclosure of an overall summary rating as well because the overall summary rating is derived from the ratings on the individual elements. See 5 C.F.R. § 430.204(g).

Moreover, if 5 C.F.R. § 430.206(c) were interpreted as allowing disclosure of ratings on individual elements, the portion of section 430.206(c) that permits "communication about appraisal of performance" before determination of the rating of record would be unnecessary. Clearly, that exception is intended to allow supervisors to discuss performance appraisals with employees without communicating specific ratings on critical or noncritical elements, or an overall summary rating, to those employees. See National Treasury Employees Union and Department of Agriculture, Food and Nutrition Service, 35 FLRA 254, 257-60 (1990) (proposal requiring that a periodic review of all elements be given to employees 3 days prior to the end of the rating period held not to be inconsistent with 5 C.F.R. § 430.206(c) because "[n]othing in the plain wording of the proposal would require the progress review to include the disclosure of specific ratings").

In sum, we find that 5 C.F.R. § 430.206(c) is intended to preclude the disclosure of any part of the rating of record prior to approval by the reviewing official. Because disclosure of the independent evaluation to an employee prior to approval by the reviewing official would require the disclosure of specific ratings on individual critical or noncritical elements, and thus would disclose one component of the rating of record, we conclude that Option 1 is inconsistent with 5 C.F.R. § 430.206(c), a Government-wide regulation, and nonnegotiable under section 7117(a)(1) of the Statute.

Because we find that Option 1 is inconsistent with 5 C.F.R. § 430.206(c), we need not address the Union's contention that Option 1 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. Section 7106(b)(3) does not make negotiable a matter that is inconsistent with a Government-wide regulation. American Federation of Government Employees, Department of Education, Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068, 1111 (1990), decision on reconsideration, 39 FLRA 1241 (1991), petition for review filed sub nom. United States Department of Education v. FLRA, No. 91-1219 (D.C. Cir. May 10, 1991).

3. Option 2

Option 2 would require that after a reviewing official has acted upon an appraising official's written "independent evaluation" and approved the ratings on the critical or noncritical elements and the summary rating, the Agency must provide an employee with copies of the appraisal documents prepared by the appraising and reviewing officials. We find that Option 2 is negotiable.

The proper inquiry with respect to union proposals that require agencies to provide general information to employees is whether: (1) the information concerns conditions of employment of unit employees; and (2) disclosure of the information violates any law or applicable regulation. POPA, 39 FLRA at 813. It cannot be contested that information concerning the evaluation of employees' work for the purpose of determining employees' performance ratings concerns conditions of employment. Further, we find nothing in 5 C.F.R. Part 430, in particular 5 C.F.R. 430.206(c), that would preclude the release of appraisal documents prepared by the appraising and reviewing officials to the affected employee after an appraisal has been approved by the appropriate reviewing officials and a rating of record/summary rating conferred.

Additionally, the language of Option 2 in no way restricts management in the exercise of its rights under section 7106(a)(2)(A) and (B) of the Statute. Option 2 requires no specific individual to provide employees with copies of appraisal documents. See National Labor Relations Board Professional Association and General Counsel, National Labor Relations Board, 32 FLRA 557, 563-65 (1988) (proposal that required the agency, but no specific individual, to respond to employee requests in writing did not interfere with right to assign work). Unlike section (b)(1), Option 2 would not interfere with management's deliberative process. Moreover, we have held that the deliberative process associated with the exercise of management's section 7106 rights does not prohibit the disclosure of information relied on in exercising those rights or information that is the product of deliberations involving the exercise of those rights. See POPA, 39 FLRA at 813-14. Option 2 would require the Agency to release the appraisal documents after the appropriate higher officials had acted on the appraisal and a rating of record had been determined. Accordingly, we find that Option 2 would not directly interfere with management's rights under section 7106(a) of the Statute.

Consequently, we conclude that Option 2 is negotiable.

IV. Order

The Agency must negotiate on request, or as otherwise agreed to by the parties, concerning section (b)(1) and Option 2 of Proposal 2.(4) We dismiss the petition for review as to Proposal 1 and Option 1 of Proposal 2.

 

APPENDIX

Relevant sections of 5 C.F.R. Part 430 are as follows:

§ 430.203 Definitions.

In this subpart, terms are defined as follows--

Appraisal means the act or process of reviewing and evaluating the performance of an employee against the described performance standard(s).

. . . .

Rating: see Summary rating.

Rating of record means the summary rating required at the time specified in the Performance Management Plan or at such other times as the Plan specifies for special circumstances.

Summary rating means the written record of the appraisal of each critical and non-critical element and the assignment of a summary rating level (as specified in § 430.204(g) and (h) of this subpart).

§ 430.204 Agency performance appraisal systems.

. . . .

(g) Each appraisal system shall include a method for deriving a summary rating level from performance appraisals of critical elements and, at agency discretion, appraisals of noncritical elements. . . .

(h) Each appraisal system shall provide for five summary rating levels. The rating levels must include an "Unacceptable" level, a level between "Unacceptable" and "Fully Successful" level, a "Fully Successful" level, and two levels which are above "Fully Successful." . . .

. . . .

§ 430.206 Ratings.

(a) Written rating. A written rating of record must be given to each employee as soon as practicable after the end of the appraisal period.

(b) Appraisal of each critical and non-critical element. Employees must be appraised on each critical element and non-critical element of the performance plan(s) on which the employee has had a chance to perform.

(c) Higher level review. 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. Ratings of record must be approved by the official with the responsibility for managing the performance awards budget within the agency. Agencies may describe exceptions to higher level approval of ratings of record and performance-based personnel actions in their Performance Management Plans.




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

1. The text of 5 C.F.R. § 430.206(c) is set forth in the Appendix to this decision.