34:0675(116)NG - - AFGE Local 3272 and HHS, SSA, Chicago Regional Office - - 1990 FLRAdec NG - - v34 p675

[ v34 p675 ]
The decision of the Authority follows:

34 FLRA No. 116











January 31, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority based upon a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and involves a single proposal. The proposal concerns management's obligation to furnish statistics used in employee evaluations to the concerned employees, and the consequences of the failure to do so on a timely basis. For the reasons stated below, we find the first two sentences of the proposal to be negotiable and the last sentence to be nonnegotiable.

II. Proposal

Statistics used in employee evaluation normally will be provided to the employee(s) involved within 5 workdays of the time the immediate supervisor receives them. If the statistics are given later than 5 days from that date, the reason(s) for the delay will be explained in writing to the employee(s) involved. Statistics collected and/or released too late for the employee to effectively review and/or . . . rebut them will not be used for employee evaluation.

A. Positions of the Parties

The Department of Health and Human Services, Social Security Administration, Chicago Regional Office (the Agency) did not furnish the American Federation of Government Employees, Local 3272 (the Union) with a declaration of nonnegotiability, nor did it file a statement of position with the Authority.

The Union filed only a petition for review. The Union states that the proposal is intended to provide employees adequate time to study and become familiar with the performance standards they are expected to meet. The Union contends that the proposal reflects the effect of 5 U.S.C. § 4302(b)(1) and is an extension of the requirements set forth in 5 C.F.R. § 430.204. The Union argues that applicable regulations require that: (1) performance appraisal systems establish a minimum appraisal period of not less than 90 calendar days; (2) critical and non-critical elements and performance standards be in writing; (3) the elements and standards be reviewed and approved by higher level supervision; and (4) performance ratings be in writing. In conclusion, the Union asserts that the proposal's requirement that standards be available in sufficient time to allow employees to know and understand them is consistent with the applicable regulations. Petition for Review at 1-2.

B. Analysis and Conclusions

1. Procedural Issues

The record indicates that on April 14, 1988, the Union, by certified mail, requested that the Agency provide it with an allegation that the disputed proposal was nonnegotiable. As of the date of the petition for review, June 1, l988, the Union had received no reply to its request. The Agency's failure to respond to the Union's request constitutes a constructive declaration of nonnegotiability, giving rise to a right of appeal to the Authority. See, for example, Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 21 FLRA 580, 581 (1986).

While the record does not include either a statement of position from the Agency or a reply brief from the Union, the available information is adequate for us to make a negotiability determination concerning the proposal. The proposal does not contain any language requiring further explanation. For example, a description of the proposal's context is not required in order for us to make a negotiability finding. Therefore, we will proceed to determine the negotiability of the proposal. Compare American Federation of Government Employees, AFL-CIO, Local 3760 and Department of Health and Human Services, Social Security Administration, 32 FLRA 813 (1988), motion for reconsideration denied, 33 FLRA 498 (1988) (petition for review dismissed because it did not contain description of work situation or "sample cases" to which proposal was applicable).

We note that the parties bear the burden of creating a record upon which the Authority can base a negotiability determination. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886 (D.C. Cir. 1982), affirming National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). A party failing to meet that burden acts at its peril. American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 29 FLRA 990, 997 (1987), motion for reconsideration denied, 30 FLRA 492 (1987), petition for review as to other matters filed sub nom. U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut v. FLRA, No. 87-1762 (D.C. Cir. Dec. 14, 1987).

Turning now to the dispute in this case, we find that the proposal is within the duty to bargain to the extent that it (1) obligates the Agency to provide employees within a specif