DEPARTMENT OF THE ARMY U.S. ARMY CORPS OF ENGINEERS HUNTINGTON DISTRICT HUNTINGTON, WEST VIRGINIA AND LOCAL 3729, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF THE ARMY
U.S. ARMY CORPS OF ENGINEERS
HUNTINGTON, WEST VIRGINIA
LOCAL 3729, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 94 FSIP 46
DECISION AND ORDER
Local 3729, American Federation of Government Employees, AFL-CIO (Union or AFGE) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of the Army, U.S. Army Corps of Engineers, Huntington District, Huntington, West Virginia (Employer).
After investigation of the request for assistance, the Panel determined that the impasse, which arose during negotiations over performance evaluation procedures, should be resolved on the basis of an informal telephone conference with a Panel representative. The parties were advised that if no settlement were reached, the Panel's representative would notify the Panel of the status of the dispute, and would make recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Pursuant to the Panel's determination, Assistant Executive Director Joseph Schimansky conducted a telephone conference with the parties on February 15, 1994, but the issues at impasse were not resolved. Mr. Schimansky has reported to the Panel, which has now considered the entire record.
The Employer plans, engineers, and supervises the construction of locks and dams on the Ohio River and its tributaries, operates them, and engages in flood control. The Union represents 250 employees working mainly in the administrative area, and as engineering technicians. The parties' collective bargaining agreement (CBA) is to expire on September 7, 1994.
ISSUES AT IMPASSE
The parties, in essence, disagree over whether the Employer should: (1) provide a written explanation to an employee (or "Ratee") who discovers that a disagreement between his or her immediate supervisor (or "Rater") and reviewing official (or "Senior Rater") has resulted in a lower performance rating; and (2) be prohibited from lowering an employee's evaluation from what was received the previous year unless the Rater has taken affirmative steps to improve the employee's deteriorating performance.
1. Written Explanations
a. The Union's Position
The Union proposes the following wording:
In a case where the Senior Rater disagrees with the evaluation of the Ratee, and the evaluation is adjusted down by the Senior Rater, the Ratee, upon written request, will be furnished an explanation, in writing, for the adjustment, together with any documentation relied upon to support the adjustment. The explanation will be prepared by the Rater, sent through the Senior Rater and forwarded to the employee.
Its proposal would apply where the Senior Rater causes an employee to receive a lower rating than would have been received had the Rater alone prepared the evaluation. In such circumstances, a written explanation for the adjustment is justified because the Senior Rater may not be in the best position to evaluate the employee's performance, and may have extraneous reasons for requiring a lower rating. The proposal, therefore, would serve as a "balance of power" in the performance appraisal process, and contribute to the objectivity and acceptance of the process by employees. Moreover, its adoption would reduce the number of disputes, including formal grievances, arising over individual appraisals. Finally, the fact that the Employer previously offered to accept it as part of a package deal for settling the dispute belies any substantive concerns raised by management over the proposal.
b. The Employer's Position
The Employer has no counterproposal. It is true that it previously offered to accept an amended version of the Union's original proposal (to which the Employer added the last sentence of the Union's current proposal) if the Union would agree to withdraw its proposal on the second issue in dispute in this case. It did so only because this was "the lesser of two unacceptable proposals," and to avoid the "administrative nightmare" associated with the Union's proposal on the second issue.
Applicable Governmentwide regulations(1) require that ratings of record prepared by appraising officials be reviewed and approved by persons at a higher level in the organization. They also specify that "ratings of record may not be communicated to employees prior to approval by the final reviewer." Technically, therefore, the Union's proposal "is not applicable" because it contemplates a situation where an employee's rating is lowered by the Senior Rater, and "there is no rating" before such approval occurs. Moreover, the proposal "would give the appearance" to employees that Senior Raters are wrong for adjusting ratings, when in fact "it is their right and responsibility by law to ensure that ratings are fair and accurate." It also attempts to dictate how management officials will communicate. Finally, the proposal is unnecessary because "99.9 percent of the time" employees will never know there was a disagreement between the Rater and the Senior Rater, and there are legal and contractual procedures available to those who believe their ratings are inaccurate.
Having considered the evidence and arguments presented on this issue, we conclude that the dispute should be resolved on the basis of a modified version of the Union's proposal. Preliminarily, the record establishes that the number of instances where employees have become aware of disagreements between immediate supervisors and reviewing officials resulting in downward adjustments of performance evaluations have been rare. In our view, a provision requiring management to supply a written explanation to employees, upon written request, in the circumstances envisioned, would make the public disclosure of such disagreements even less likely. More importantly, we are persuaded that a written explanation with supporting documentation is reasonable, given the important role of performance evaluations in the careers of employees, and their obvious interest in ensuring that ratings are accurate. By unnecessarily specifying the particular officials who would be required to provide such explanations, however, the Union's proposal may violate management's rights. Accordingly, we shall order the adoption of wording which excludes its last sentence.
2. Evaluations of Employees With Deteriorating Performance
a. The Union's Position
The Union proposes the following wording:
An employee's evaluation, including an annual summary rating, shall not be lowered from a previous evaluation in any objective/responsibility, that has not been changed from the previous rating, unless the Rater has notified the Ratee that his/her performance is deteriorating and told the employee what performance is expected to maintain or improve the level of performance, and how the Rater intends to assist the employee.
An employee may inquire of the Rater, and/or Senior Rater as to what performance is expected to maintain or improve the employee's level of performance, particularly when the employee is working under new objectives/responsibilities.
Its proposal is consistent with: (1) the "merit principle that the Government should be used effectively and efficiently," and (2) the requirements of Federal Personnel Manual (FPM) Chapter 430, Subchapter 2, Item 2-4c(2) and ORD Regulation 690-1-24,(3) Item 9, page 9. In this regard, the FPM mandates that the role of supervisors is to "help employees improve their performance;" the internal regulation contains identical wording, and also specifies that "periodic counseling sessions with employees will ensure timely identification of their strengths and weaknesses and help to avoid unexpected performance ratings at the end of the rating period." Its proposal, therefore, would provide supervisors with incentives to achieve these regulatory requirements that would otherwise be lacking. Finally, it also would serve as a "balance of power" in the performance appraisal process, contribute to the objectivity and acceptance of the process by employees, and reduce the number of disputes, including formal grievances, arising over individual appraisals.
b. The Employer's Position
The Employer proposes that:
In order for the Ratees to have a general understanding of their performance, the Raters and Ratees are encouraged to have periodic in-progress reviews regarding Ratees' objectives/responsibilities. These reviews can be initiated by either the Raters or Ratees. These are in addition to the required midpoint reviews.
The regulations cited by the Union encourage "communication of work performance progress between the Ratees and Raters" which would ultimately assist the Ratees in achieving and maintaining a high level of performance. Its proposal is "in keeping with the intent of those regulations," but has none of the defects of the Union's approach to performance appraisal, which goes far beyond regulatory requirements. In this regard, the Union has never provided an explanation of how its proposal would be implemented on a day-to-day basis sufficient to alleviate management's chief concern that "a large percentage of everyone's time will be spent on interim ratings rather than accomplishing the mission."
By specifically requiring Raters and Senior Raters to evaluate Ratees' performance on objectives/responsibilities at stages prior to completion of the appraisal year, the Union's proposal violates Ratees' previously-established rights to submit, and have Raters consider, significant contributions prior to beginning the rating evaluation process. It also does not adequately account for situations where objectives/responsibilities, which average 12 per Ratee, change from one appraisal year to the next; nor does it appear to be consistent with the role established by regulations that Senior Raters have "ultimate rating authority." Finally, adoption of the Union's proposal could cause an increase in grievances, particularly where Ratees are told during interim ratings that it appears they are "on the same track as last year," but a final analysis reveals that the same rating is not warranted.
After reviewing the evidence and arguments of the parties, we are persuaded that the Employer's proposal should adequately address the issue. In this regard, by encouraging periodic in-progress performance reviews, the day-to-day communication necessary to assist employees in achieving high level performance should be fostered. Any disagreements over individual performance appraisals, or whether supervisors complied with regulatory requirements in assessing performance, would be resolved by traditional means. On the other hand, while perhaps appealing in theory, the Union's approach to the problems associated with the performance appraisal process is completely untested in practice. Thus, we share the Employer's concern that the amount of time that would be required properly to administer the Union's proposal would far outweigh any benefits that have been identified in its support. In the absence of any evidence that employees have experienced unusual difficulties with the Employer's performance evaluation system, we find that such a radical change in the status quo is unwarranted. For these reasons, we shall order the adoption of the Employer's proposal.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel's regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following: