American Federation of Government Employees, Local 1858 and (Union) and United States Department of the Army, Army Aviation and Missile Command, Redstone Arsenal, Alabama (Agency)

[ v56 p1115 ]

56 FLRA No. 198

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1858

(Union)

and

UNITED STATES DEPARTMENT OF THE ARMY
ARMY AVIATION AND MISSILE COMMAND
REDSTONE ARSENAL, ALABAMA
(Agency)

0-NG-2549

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

February 28, 2001

_____

Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members.

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of three proposals.

      The proposals were offered during negotiations over Agency changes to Army Regulation 690-400, Chapter 4302, Total Army Performance Evaluations System (TAPES). As relevant here, the Agency: (1) changed the formula for determining overall performance ratings; (2) eliminated the process for notifying employees of the number of other employees at the same grade level whose performance was rated at each of the five overall performance levels by various management officials; and (3) revised the "Army values" that are defined in TAPES for application to employees in appraisals.

      For the reasons that follow, we find that the proposals are not within the Agency's obligation to bargain. Accordingly, we dismiss the petition for review.

II.     Proposal 1

Base System, GS 8 and Below.
Total Army Performance Evaluation System
Success Level 1 (SL 1)--Rated Excellence in 2 or more of non-supervisory responsibilities and success in the remaining.
Success Level 2 (SL 2)--Rated Excellence in 1 of non-supervisory responsibilities and success in the other non- supervisory responsibilities.
Senior System
Applicable to bargaining unit employees in the Senior System.
Total Army Performance Evaluation System
Success Level 1 (SL 1)--Rated Excellence over 50% Objectives.
Success Level 2 (SL 2)--Rated Excellence 25-50% over Objectives. [ [n1] ]

A     Positions of the Parties

1.     Agency

      The Agency argues that Proposal 1 violates its rights to direct employees and assign work because it prohibits the Agency from modifying the formula it will use to evaluate an employee's overall performance rating and, "[i]n essence, [it] establishes a specified rating formula." Statement of Position at 8. The Agency also argues that "[t]he fact that the [U]nion's proposal seeks to maintain a rating formula that once was included as a management initiative does not render the [U]nion's proposal negotiable." Id. at 9.

2.     Union

      The Union contends that TAPES is a "negotiated item within the Agreement." Petition at 2. The Union also contends that its proposal would reinstate the previous formula for determining overall ratings and that doing so "does not excessively or directly interfere with a management right." Id.

B.     Meaning of the Proposal

      The parties agree that Proposal 1 would prescribe the formulas for calculating whether an employee's performance warrants an overall summary rating of Success [ v56 p1116 ] Level 1 or Success Level 2 in the Base System and in the Senior System. The parties also agree that the rating formula contained in the TAPES regulation has been revised, and that Proposal 1 would reinstate the pre-revision formula.

C.     Analysis and Conclusion

1.     Proposal 1 affects management's rights to direct employees and assign work.

      Management's rights to direct employees and assign work include the rights to determine the quantity, quality, and timeliness of employees' work products and to establish employees' work priorities. See NAGE, Local R14-52, 45 FLRA 910, 914 (1992) (citation omitted). Proposals that establish particular levels of performance required to achieve a particular summary performance rating affect management's rights to direct employees and assign work. See AFGE, Local 225, 56 FLRA 686, 687-88 (2000).

      Proposal 1 would require the Agency to change its current performance rating formulas to the formulas set forth in the proposal. As the proposal would establish the particular levels of performance required to achieve a particular summary performance rating, it affects management's rights to direct employees and assign work. See id. We note, in this connection, that the Union does not dispute the Agency's assertion that Proposal 1 affects management's rights. This also provides a basis for our finding. See AFGE, Local 2031, 56 FLRA 32, 34 (2000).

2.     The Union has not demonstrated that Proposal 1 constitutes a procedure or an appropriate arrangement.

      The Union states in its petition for review that Proposal 1 "does not excessively or directly interfere with a management right." Petition at 2. Construing the Union's statement as a claim that the proposal constitutes a procedure or appropriate arrangement, we note that the Union provides no arguments or authority to support such a claim. Where a union offers no arguments or authority to support its bare assertion that a particular provision constitutes a procedure or appropriate arrangement, the Authority does not consider that assertion. See AFGE, Local 1302, Council of Prison Locals C-33, 55 FLRA 1078, 1079 (1999). As the Union offers no support for its statement, we reject that statement as a bare assertion and conclude that the Union has not demonstrated that Proposal 1 constitutes a procedure or an appropriate arrangement. [n2] 

      The Union also asserts that TAPES is a "negotiated item within the Agreement." Petition at 2. To the extent the Union is arguing that Proposal 1 is negotiable because it reflects the formula previously contained in the parties' agreement, the Authority has held that prior bargaining over performance formulas does not render future bargaining mandatory. See AFGE, Local 225, 56 FLRA at 689. Accordingly, the Union's assertion does not provide a basis for concluding that the Agency is required to bargain over Proposal 1.

      As Proposal 1 affects management's rights to direct employees and assign work under § 7106(a)(2)(A) and (B) of the Statute, and is not encompassed by § 7106(b)(2) or (3), it is outside the Agency's duty to bargain. Accordingly, we dismiss the petition as to Proposal 1.

III.     Proposal 2

To retain the Senior Rater and the Senior Rater Profile. [ [n3] ]

A.     Positions of the Parties

1.     Agency

      As an initial matter, the Agency asserts that the portion of the proposal requiring the Agency to retain "the Senior Rater" should "not be part of this negotiability appeal" under the Authority's Regulations. Statement of Position at 10. In this connection, the Agency contends that the original version of the proposal submitted to the Agency required retention of the "Senior Rater Profile" but not the Senior Rater. The Agency acknowledges that it agreed during the Post-Petition Conference that there was no substantive difference between the revised and the original proposals. However, [ v56 p1117 ] the Agency states that "a more careful look . . . now indicates otherwise." Id.

      With regard to the requirement that the Agency retain the Senior Rater Profile, the Agency argues that the proposal "directly impacts on the privacy interests of" employees whose performance ratings are disclosed by the Profile, and that, as a result, the proposal "may violate the Privacy Act, 5 U.S.C. § 552a." Id. at 12. In particular, the Agency asserts that, in some situations, disclosure of the Senior Rater Profile would be tantamount to disclosing individual employees' performance ratings. The Agency offers as examples situations where: (1) a Senior Rater rates only two employees at any particular grade level (an example that the Agency contends is not "uncommon", id.); (2) a group of equally-graded employees is aware that one employee is not performing as well as the rest of the group; and (3) everyone at a particular grade level receives the same rating.

2.     Union

      The Union asserts that the Senior Rater Profile allows employees to determine how well they are performing relative to their peers and enables them to ask a Senior Rater how they can improve their performance to equal that of their peers. The Union "agrees with the Agency that there needs to be a Senior Rater" because "[t]he system needs these checks and balances to ensure that the performance ratings are done properly." Petition at 2. The Union does not request that the portion of the proposal concerning the Senior Rater Profile be severed from the portion concerning the Senior Rater.

B.     Meaning of the Proposal

      There is no dispute that, as relevant here, Proposal 2 would require the Agency to retain its practice of preparing and distributing Senior Rater Profiles to all employees. See Statement of Position at 7; Petition at 2 ("[t]he Profile allows the employee to see how well they are doing in relation to his/her peers."). [n4]  There is no dispute that, as defined in the TAPES regulation, the Senior Rater Profiles contain employee performance ratings. See Attachment 2 to Statement of Position at Glossary-1 (the Senior Rater Profile is a "profile which shows the number of Ratees at the same grade level (regardless of pay plan) that the Senior Rater rated at each of the five overall performance rating levels for a rating period.").

C.     Analysis and Conclusion

      The Union did not file a response to the Agency's Statement of Position in this case. Further, unlike the situations with respect to Proposals 1 and 3, there is nothing in the record indicating the Union's position with respect to the Agency's Privacy Act claim.

      Section 2424.32 of the Authority's Regulations provides that a party's failure to respond to an argument "will, where appropriate, be deemed a concession to such argument or assertion." The Authority has applied this regulation to find that a union conceded that a proposal affected a management right under § 7106(a) in a case where the record was silent with respect to the union's position on that issue and where the agency's argument was supported by Authority precedent. See Int'l Fed'n of Prof'l and Technical Eng'rs, Local 96, 56 FLRA 1033, 1034-35 (2000).

      Like Int'l Fed'n of Prof'l and Technical Eng'rs, Local 96, the Agency's position here is supported by applicable precedent. In this regard, under the framework established by the Authority in United States Dep't of Transp., Fed. Aviation Admin., N.Y. TRACON, Westbury, N.Y., 50 FLRA 338, 345 (1995) (TRACON), an agency asserting a Privacy Act bar to disclosure of information is required to demonstrate: (1) that the information is contained in a "system of records" under the Privacy Act; (2) that disclosure of the information would implicate privacy interests; and (3) the nature and significance of those interests. See also NTEU, 55 FLRA 1174, 1179 (1999). If the agency makes the requisite showings, then the burden shifts to the party asserting that disclosure would not result in a clearly unwarranted invasion of personal privacy under Exemption 6 to: (1) identify a public interest cognizable under the Freedom of Information Act (FOIA); and (2) demonstrate how disclosure of the requested information will serve that public interest. See id. at 1179-80. Once the "respective interests have been articulated," the Authority "balance[s] the privacy interests against the public interest[,]" with the balance weighted in favor of disclosure. TRACON, 50 FLRA at 345, 346.

      With regard to the first inquiry under TRACON, the Authority has held that performance ratings of federal employees are contained in a system of records within the meaning of the Privacy Act. See United States Dep't of Transp., Fed. Aviation Admin., New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Conn., 51 FLRA 1054, 1061 (1996) (FAA, New England). Proposal 2 does not require disclosure of name-identified performance ratings. However, even where an employee's name is not identified [ v56 p1118 ] on a requested document, if the identity of the employee is nonetheless apparent, then the employee's privacy interests are affected. See id. See also Carter v. United States Dep't of Commerce, 830 F.2d 388, 391 (D.C. Cir. 1987). Moreover, "what constitutes identifying information . . . must be weighed not only from the viewpoint of the public, but also from the vantage of those who would have been familiar" with those individuals. Dep't of the Air Force v. Rose, 425 U.S. 352, 380 (1976). Accord Alirez v. NLRB, 676 F.2d 423, 427-28 (10th Cir. 1982) (where "[t]he requested documents relate to a few incidents involving about a dozen people[,]" and "[e]ven sanitized," they would enable people "who had specific knowledge of these incidents to identify readily the informant and persons discussed in each document[,]" disclosure was not required).

      It is undisputed that Proposal 2 would require that the Senior Rater Profile be "distributed" to all employees. Response at 7. It is also undisputed that the Senior Rater Profile contains employee performance ratings. Accordingly, we conclude that the proposal would require disclosure of name-redacted performance ratings to employees.

      The Agency argues that, even though the Senior Rater Profile would not include employees' names, employees would be able to determine which individuals received which ratings in certain situations, including those where: (1) the Senior Rater appraises only two employees at a particular grade; and (2) all employees are given the same appraisal rating. The Agency asserts, in addition, that the first example is not "uncommon." Statement of Position at 11. These assertions are reasonable and not controverted by the Union, which did not respond in any way to the Agency's Privacy Act argument. Accordingly, we find that, in at least some situations, disclosure of the Senior Rater Profile would be tantamount to disclosure of individual employees' performance ratings.

      Based on the foregoing, Proposal 2 would require the Agency to disclose information that is contained in a "system of records" under the Privacy Act. Thus, the Agency has satisfied the first inquiry under TRACON, 50 FLRA 338. With regard to the second and third inquiries, the Authority has held that employees have "significant" privacy interests in shielding their individual performance appraisals from public view. Id. Accord FAA, New England, 51 FLRA at 1061. Consistent with this precedent, the Agency has satisfied its burden under TRACON.

      The Union has not responded to the Agency's argument, or otherwise articulated a public interest in disclosure. The Authority previously has held that disclosure of employee evaluation material serves the public interest because "the public is served if [an agency] carries out its personnel functions fairly, equitably, and in accordance with laws, rules and regulations." TRACON, 50 FLRA at 347 (citations omitted). In this case, the Union asserts simply that Proposal 2 would permit employees to determine their performance relative to their peers, thereby enabling them to achieve ratings that are on par with those of their peers. The Union does not assert how this would serve a public interest that is cognizable under TRACON. In any event, an interest that is specific to the Union may not be considered in balancing interests under FOIA Exemption 6. See United States Dep't of Defense v. FLRA, 510 U.S. 487, 496 (1994); United States Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 771 (1989). Further, the Authority has held that "the public interest . . . is not enhanced by disclosure that includes the identities of affected employees." NTEU, 55 FLRA at 1180. To the extent that the disclosure required by Proposal 2 would reveal the identities of affected employees in some situations, there is no basis for concluding that disclosure would serve a public interest.

      The Union has not met its burden of rebutting the Agency's prima facie case under the analysis set forth in TRACON, 50 FLRA 338. Therefore, the Agency's Privacy Act argument is supported by applicable precedent. In this situation -- where the record is silent with respect to the Union's position on the Privacy Act claim and where the Agency's claim is supported by applicable precedent -- we apply § 2424.32 of the Authority's regulations and find that the Union has conceded that Proposal 2 is inconsistent with the Privacy Act. Accordingly, we dismiss the petition with regard to Proposal 2. [n5]  [ v56 p1119 ]

IV.     Proposal 3

To delete DA Values and Ethics (in the performance appraisals) in its entirety. [ [n6] ]

A.     Positions of the Parties

l.     Agency

      The Agency argues that a "key component of the TAPES system" is the "discussion and appraisal of employee adherence to Army values and ethics." Statement of Position at 12. The Agency contends that its rights to direct employees and assign work include the right to determine the aspects of employees' work that it will evaluate in preparing employee performance appraisals. Because the proposal restricts the Agency's authority to determine the content of performance standards, the Agency asserts that Proposal 3 affects management's rights to direct employees and assign work.

2.     Union

      The Union contends that the proposal is negotiable because Army values and ethics are listed on the performance appraisal and the comments made by the raters can affect anyone reviewing their appraisal, "i.e., Promotions, disciplinary actions etc." Petition at 2.

B.     Meaning of the Proposal

      The parties agree that Proposal 3 would require management to delete from the performance evaluation form the section in which rating officials may comment regarding an employee's performance with respect to the Army values set forth in the TAPES regulation. The parties also agree that Proposal 3 would preclude management from evaluating employees on those criteria.

C.     Analysis and Conclusion

      The Authority has held that the establishment of performance standards and elements constitutes an exercise of management's rights to direct employees and assign work under § 7106(a)(2)(A) and (B) of the Statute. See Federal Educ. Ass'n, Stateside Region, 56 FLRA 473, 475 (2000) (Federal Educ. Ass'n). Proposals or provisions that restrict an agency's authority to determine the content of standards and elements affects the exercise of these rights. See id.

      Proposal 3 would restrict the Agency's ability to determine the content of performance standards by precluding management from evaluating employees on the Army values set forth in the TAPES regulation. As such, the proposal affects management's rights to