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The decision of the Authority follows:
34 FLRA No. 116
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3272
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY ADMINISTRATION
CHICAGO REGIONAL OFFICE
DECISION AND ORDER ON NEGOTIABILITY ISSUE
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.
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 specified time frame with the statistics used in rating performance, and (2) requires the Agency to provide a written explanation of any failure to furnish the information within that time frame. However, to the extent that the Agency is precluded from using any statistics it deems necessary in evaluating employees' performance, the proposal concerns the content of performance standards and is nonnegotiable.
2. The First Two Sentences of the Proposal
The Union contends that the proposal is intended to allow employees to become familiar in a timely manner with the performance standards applicable to their work and to assure that the performance standards and elements meet applicable legal and regulatory requirements. Those contentions conflict with the proposal's language. The term "performance standards" appears nowhere in the proposal, nor is there any reference to applicable law and regulation in the body of the proposal. To the contrary, the proposal states that it is concerned with "[s]tatistics used in employee evaluation[.]" Consequently, we reject the Union's view that the proposal is concerned exclusively with the application of management-established performance standards and with adherence to law and regulation. Nevertheless, we find the first two sentences to be negotiable.
The proposal's first sentence requires the Agency to provide the statistics used in employees' evaluations to the concerned employees within 5 days of receipt by the supervisor. The sentence does not dictate what statistics management will use, nor how the statistics will be used. We note that applicable regulations encourage exchanges of information concerning employee performance. 5 C.F.R. § 430.206(c), promulgated by the Office of Personnel Management, permits "communication about appraisal of performance between a supervisor and an employee prior to the determination of the rating of record." See National Federation of Federal Employees, Local 476 and Department of the Army, U.S. Army Electronics Research and Development Command, Fort Monmouth, New Jersey, 26 FLRA 217 (1987) (finding negotiable a provision providing 60 days' notice prior to taking action for unacceptable performance). In our view, providing employees with statistics regarding their performance in relation to the Agency's performance standards is consistent with that regulatory provision. Therefore, the first sentence of the proposal is consistent with applicable regulations and is negotiable.
The second sentence requires the Agency to provide a written explanation of any delay beyond 5 days in furnishing the statistics to the employee concerned. The sentence does not preclude the Agency from evaluating employee performance on the basis of statistics which are not provided within 5 days. The only obligation imposed on management by the sentence is to provide a written explanation for the delay beyond the 5-day period. Therefore, the sentence has no impact on management's authority to use whatever statistics it chooses in evaluating performance. Consequently, we find that the second sentence of the proposal is also negotiable. See National Association of Government Employees, Local R1-144 and Department of the Navy, Naval Underwater Systems Center, 29 FLRA 471, 472-73 (1987), reversed as to other matters sub nom. Department of the Navy, Underwater Systems Center v. FLRA, 854 F.2d 1 (1st Cir. 1988).
3. The Third Sentence of the Proposal
The third and last sentence of the proposal bars the use of any statistics "released too late for the employee to effectively review and/or rebut them" in evaluating employee performance. We find that this sentence interferes with management's rights, under section 7106(a)(2)(A) and (B) of the Statute, to direct employees and to assign work because it limits the information that may be used in evaluating employee performance.
Proposals which prevent management from using particular information in evaluating employee performance also preclude management from accurately evaluating an employee's work. Therefore, such proposals violate management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. See American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 28 FLRA 714, 725-26 (1987) (Proposal 11) (proposal excluding any work errors not discovered prior to review by specified organizational elements from employee records found to be inconsistent with management's rights to direct employees and to assign work because it prohibited management from considering certain errors in evaluating accuracy of employees' work).
The last sentence of the disputed proposal prevents management from using information it has decided is necessary in assessing employee performance. The sentence precludes the use of statistics which otherwise would have been factors in evaluating employee performance. Consequently, management would not be able to evaluate the full range of employees' work products to determine whether the employees' performance is acceptable. Therefore, the last sentence revises the content of the performance standards themselves and is nonnegotiable.
In summary, we find the first two sentences of the disputed proposal to be negotiable and the third sentence to be nonnegotiable.
The Agency must upon request, or as otherwise agreed to by the parties, bargain over the first two sentences of the disputed proposal.(*) The petition for review, as it relates to the third and last sentence of the proposal, is dismissed.
(If blank, the decision does not have footnotes.)
*/ In finding the first two sentences of the proposal to be negotiable, the Authority makes no judgment as to their merits.