---

29 FLRA NO. 7

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1263

             Union

      and

DEFENSE LANGUAGE INSTITUTE
PRESIDIO OF MONTEREY, CALIFORNIA

             Agency

Case No. 0-NG-1377

 

DECISION AND ORDER
ON NEGOTIABILITY ISSUES

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute), and concerns the negotiability of four proposals. We find that Proposals 1 and 3 are outside the duty to bargain and Proposal 4 is within the duty to bargain. Proposal 2 is no longer in dispute between the parties.

II. Background

The proposals in this case are sections of a proposed article concerning the use of classroom visits by the Agency for the purpose of evaluating Defense Language Institute (DLI) teachers. Several sections of the proposed article have been agreed to by the parties and only those sections which are the subject of this negotiability appeal remain in dispute. See Union Response to Agency Statement of Position at 1 and Union Petition for Review, Enclosures (1) and (2).

Proposals 1 and 2 are taken from Section 1--entitled "Formal Classroom Visits"--of the article and apply only to probationary and temporary instructors. Proposal 3 is a part of the same section but applies only to permanent instructors. Proposal 4 applies to all unit employees and concerns the Agency's policy on classroom interruptions. 

The proposed article concerns the system of "formal" and "informal" classroom visits which the Agency uses when evaluating the teachers' performance. According to the Union, "formal" classroom visits normally result in an evaluation report which is provided to the employee. The supervisor discusses the report with the employee and advises him or her concerning areas of and suggestions for improvement. "Informal" visits require no documentation, may be conducted without prior notification, and may be discussed with the employee on an "informal" basis. Union Petition for Review, Enclosure (2) at 1.

The Union states further that if the provisions concerning "formal" classroom visits are read in the context of the entire article (particularly the section relating to "informal" visits), it is apparent that the proposals in dispute do not prevent management from conducting observations or evaluations using a variety of methods. See Union's Response at 2-4. The Agency does not dispute the Union's characterization of the system of "formal" and "informal" classroom visits, nor does it allege that the proposals require it to implement procedures which are not currently used by management in the performance evaluation process. The Agency simply states that "formal" classroom visits are used as an integral aspect of the performance evaluation process. See Agency Statement of Position at 3.

While the distinction between "formal" and "informal" visits is not clear as it pertains to the performance evaluation process, we have determined from the record before us that the Union intends "formal" classroom visits to be the primary method of evaluating employees' classroom performance and "informal" classroom visits to be used as "follow-ups" to "formal" visits and for the limited purpose of observing employees to assess improvement. We adopt that distinction for purposes of this decision.

III. Proposals 1 and 2

Section 1. Formal Classroom Visits

A. Probationary and Temporary Instructors

(a) Instructors will be given prior notification of intended classroom visits.

(b) Visits will be scheduled early enough in the first year to allow the employee a chance to improve performance.  

A. Positions of the Parties

The Agency contends that Proposal 1 (Section 1.A.(a)) violates management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute, because it (1) prescribes certain performance evaluation practices and (2) prohibits unannounced classroom visits to determine the actual performance level of the teachers. The Agency states that it would withdraw its allegation of nonnegotiability as to Proposal 2 (Section 1.A.(b)) if the Union's intent is to require an early visit. The Agency states further, however, that if the Union intends to limit the Agency's right to visit the classroom for performance evaluation purposes, then Proposal 2 violates management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B).

The Union contends that Proposals 1 and 2 are merely procedures. The Union asserts that the proposals do not violate management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) since they do not prohibit additional "informal" classroom visits. The Union also argues that Proposals 1 and 2 are offered as appropriate arrangements for employees adversely affected by the differing classroom visitation policies used by the language schools within the Defense Language Institute.

B. Analysis and Conclusions

For the following reasons, we find that Proposal 1 is outside the duty to bargain.

The Authority has held that proposals which require an agency to sample employees' work in a particular way in order to audit employees' ongoing work performance interfere with management's right to direct employees and assign work. See Social Security Administration Northeastern Program Service Center, 18 FLRA 437, 439-41 (1985). In reaching that conclusion the Authority determined that section 7106(a)(2)(A) and (B) encompasses the right to determine the quantity, quality, and timeliness of employees' work, the aspects of employees' work which will be evaluated in connection with the preparation of employee performance appraisals, and the right to audit employees' work by the methods management deems most appropriate for those purposes. Id. See also American Federation of Government Employees, Local 1760, AFL - CIO and Department of Health and Human Services, Social Security Administration, 23 FLRA No. 21 (1986) (Proposals 2-6). 

By providing for advance notification of "formal" classroom visits, Proposal 1 restricts the exercise of management's rights under section 7106(a)(2)(A) and (B) of the Statute because it would prevent the Agency from conducting unannounced "formal" classroom visits in connection with the preparation of employee performance appraisals. The Union, however, argues that Proposal 1 does not prevent the Agency from using unannounced visits, since under the proposed article the Agency may make "informal" visits at any time without notification.

While we agree that the Agency may make unannounced "informal" visits, the Union's explanation of "informal" visits indicates that they are used primarily to "observe any improvement" in employee performance. The "formal" classroom visit is the method by which management obtains a representative sample of teachers' daily work performance. The conclusions reached as a result of that visit are used to prepare evaluation reports and to identify deficiencies in performance. The evaluation report is the basis for counseling employees concerning areas of improvement and, apparently, is the document to which supervisors refer when conducting "informal" visits to assess employees' level of improvement. By requiring management to notify employees of those "formal" visits which involve written documentation and counseling the proposal has a direct effect on the type of appraisal record which management is able to produce.

Clearly, the purpose of evaluating employees through the use of unannounced classroom visits is to obtain the most representative sample of teachers' daily work product. By requiring management to use prearranged "formal" visits to obtain such a sample, Proposal 1 interferes with management's right to determine how it will sample employee classroom performance. Under the proposal, management would be unable to audit employees' work by the method--unannounced "formal" visits--it deems most appropriate for the purpose. Consequently, based on the precedent cited above, Proposal 1 directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See also National Federation of Federal Employees, Local 1454 and Veterans Administration, 26 FLRA No. 99 (1987) (Proposals 2-6).

Proposal 1 is distinguishable from a proposal found negotiable in American Federation of Government Employees AFL - CIO, General Committee of AFGE for SSA Locals and Social Security Administration, 23 FLRA No. 43 (1986) (Proposal 1), which established the normal frequency for "service observation" telephone monitoring. We determined that the criteria in that proposal were illustrative rather than restrictive and did not inhibit the Agency from employing more vigorous scrutiny of employees' work when closer review was warranted. See also American Federation of Government Employees, National Council of Social Security Administration Field Operations Locals, AFL - CIO, 26 FLRA No. 92 (1987); American Federation of Government Employees, Local 1760, AFL - CIO and Department of Health and Human Services, Social Security Administration, 15 FLRA 909 (1984) (Proposal 7).

Because we find that Proposal I directly interferes with management's rights to direct employees and assign work, we conclude that it does not constitute a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. See National Federation of Federal Employees, Local 1454, 26 FLRA No. 99 (1987), slip op. at 5.

We turn now to the question of whether the proposal constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986), the Authority held that a proposal does not constitute an appropriate arrangement for employees adversely affected by the exercise of a management right if the proposal excessively interferes with the exercise of management's rights.

Even assuming that Proposal 1 is an "arrangement" for adversely affected employees, we find that it is not an "appropriate" arrangement because it excessively interferes with management's right under section 7106(a)(A) and (B) to audit employees' work by the methods management deems most appropriate for those purposes.

The Union claims that employees will benefit from the standardization of evaluation procedures provided by the proposal. However, while it may be important to employees that they all be evaluated in the same way, that is a different objective from the purposes achieved by the proposal. The fact that the proposal contributes to consistent evaluation practices by management is incidental to the proposal's primary effect, which is to give employees the advantage of knowing when they are to be evaluated and to minimize the potential for disruption of the classroom.

In our view that benefit does not outweigh management's interest in randomly sampling an employee's actual day-to-day teaching performance. Evaluating how well employees can do when they are given a chance to prepare their best work is an inadequate substitute for knowing what is a representative sample of their everyday performance. For these reasons, we conclude that Proposal 1 excessively interferes with management's right under section 7106(a)(2)(A) and (B) of the Statute to determine the methods by which it will evaluate employee performance. Consequently, Proposal 1 does not constitute an "appropriate" arrangement under section 7106(b)(3) and is outside the duty to bargain. See AFGE, Local 1760 and HHS, SSA, 23 FLRA No. 21 (1986) (Proposals 2-6).

As to Proposal 2, the Agency states that "(i)f the intent of the Union's proposal is to require an early visit, but does not limit the number of later visits, the agency would withdraw its allegation of nonnegotiability." Agency Statement of Position at 3. The Union states that Proposal 2 applies to probationary and temporary employees who are either on probation or normally appointed for 1 year. The union argues, essentially, that Proposal 2 is intended to provide for an early evaluation so that employees might have an opportunity to improve within the 1-year period. Union Response at 2.

Since nothing in the record indicates a contrary intent, we find that Proposal 2 is designed to provide for classroom visits early in the year to allow employees who are appointed for short terms, normally 1 year, an opportunity to improve their performance. The proposal does not require the Agency to notify employees of a "formal" visit once it has been scheduled by management nor does it limit the number of visits the Agency may conduct in order to evaluate employees' performance. Based on this interpretation of the proposal, which is supported by the record in the case, we find that the Agency has withdrawn its allegation of nonnegotiability and Proposal 2 is no longer in dispute.

IV. Proposal 3

B. Permanent Instructors

(a) Will work out schedule between employee and supervisor: No more than two "formal" visits a year.

A. Positions of the Parties

The Agency contends that Proposal 3 violates management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency argues that the proposal would prohibit management from   conducting the number of "formal" visits it deems necessary to ensure that adequate evaluation of the employee's performance has been accomplished.

The Union contends that Proposal 3 would not restrict the number of times an employee could be observed for evaluation purposes because Section 2 of the article provides for unlimited "informal" visits. The Union argues that Proposal 3 is a procedure which management must use in exercising its right to evaluate permanent instructors' performance. The Union also argues that Proposal 3 is an appropriate arrangement for bargaining unit employees adversely affected by the differing class visitation policies in the language schools.

B. Analysis and Conclusion

Proposal 3 requires permanent instructors and their supervisors to meet and schedule no more than two "formal" classroom visits per year. It is evident from the record that "formal" classroom visits are normally used to evaluate employees' performance in connection with the preparation of employee performance appraisals. The evaluation procedures of a "formal" classroom visit are more extensive than the "follow-up" observation which occurs during an "informal" visit. Union Response at 2. See also the discussion of Proposal 1 at Section III.B. of this decision.

We interpret Proposal 3, therefore, as limiting the number of times the Agency may conduct classroom visits during a single year, for the purpose of evaluating employees' performance in connection with the preparation of employee performance appraisals. Although Proposal 3 appears to allow unlimited "informal" classroom visits, it limits the ability of management to audit the performance of permanent instructors by restricting the number of "formal" visits which include detailed evaluation reports and counseling. That is, Proposal 3 prevents management from formally evaluating the performance of instructors more than twice a year even if the Agency determines that more intense scrutiny and counseling than that provided by the two "formal" visits permitted under the proposal is necessary in order to accurately appraise an employee's performance.

By limiting the number of times the Agency may conduct "formal" classroom visits, therefore, Proposal 3 directly interferes with management's right to audit employees' work by the methods it deems most appropriate for those purposes. See National Federation of Federal Employees, Local 1454 and Veterans Administration, 26 FLRA No. 99 (1987) (Proposals 2-6). In that case, we held that proposals which would   require an agency to sample employees, work in a particular way in order to audit the timeliness of that work directly interfered with management's rights. See also Social Security Administration, Northeastern Program Service Center, 18 FLRA 437, 439-40 (1985) (proposal which limited the use of particular methods of evaluation in favor of other methods held to be nonnegotiable); American Federation of Government Employees, Local 1760, AFL - CIO and Department of Health and Human Services, social Security Administration, 15 FLRA 909, 915-16 (1984) (proposal limiting the number of "case counts" management can make in auditing employee performance held to be nonnegotiable because it limited management's ability to collect data for evaluating performance).

Additionally, by requiring supervisors to meet with instructors and schedule "formal" classroom visits, Proposal 3 impermissibly restricts the exercise of management's rights under section 7106(a)(2)(A) and (B) of the Statute because it would prevent the Agency from conducting unannounced classroom visits in connection with the preparation of employee performance appraisals. See Section III.B. of this decision.

Since Proposal 3 directly interferes with management's rights to direct employees and assign work, it does not constitute a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. See National Federation of Federal Employees, Local 1454, 26 FLRA No. 99 (1987), slip op. at 5.

As to whether the proposal constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute, we find that even assuming that Proposal 3 is intended to be an "arrangement" for employees adversely affected by the exercise of the Agency's right to conduct classroom visits as a method of evaluating employees' performance, it is not an "appropriate" arrangement. Proposal 3 prohibits the Agency from evaluating employees through "formal" classroom visits more than twice per year. While the proposal thus protects instructors from the alleged "harassment" resulting from numerous classroom visits, it does so by restricting management's ability to decide how carefully and extensively it will evaluate their performance. By so severely limiting management's discretion as to whether additional "formal" classroom visits are necessary when evaluating employees' performance, the proposal excessively interferes with management's right, under section 7106(a)(2)(A) and (B) of the Statute, to audit employees by the method it deems most appropriate. See   National Federation of Federal Employees, Local 1454, 26 FLRA No. 99 (1987). See also American Federation of Government Employees, Local No. 12 and U.S. Department of Labor, 25 FLRA No. 83 (1986) (Proposal 1). Proposal 3, therefore, is nonnegotiable.

V. Proposal 4

Section 4. Classroom Interruptions

Management will periodically issue a policy statement regarding the inappropriateness of classroom interruptions except in cases of emergency or announcements of building-wide concern.

A. Positions of the Parties

The Agency interprets Proposal 4 as prohibiting classroom interruptions except in cases of emergency or announcements of building-wide concern. The Agency argues that Proposal 4 interferes with management's right to assign work in accordance with section 7106(a)(2)(B) of the Statute by not allowing a supervisor to enter a classroom to give instructions to an employee. The Agency also argues that the proposal concerns the "means" of performing the Agency's work and, therefore, that it is a permissive subject of bargaining concerning which the Agency has chosen not to bargain. Finally, the Agency argues that Proposal 4 should not be considered an "appropriate arrangement" because the proposal fails to meet the criteria established in Kansas Army National Guard.

The Union contends that Proposal 4 only requires the Agency to notify bargaining unit employees of its policy concerning the inappropriateness of classroom interruptions. The Union asserts that (1) the proposal does not require that the Union be involved in the establishment of the policy statement; (2) the proposal only concerns management's communication of a policy to employees, once management has established it; and (3) the purpose of the proposal is to make sure that all employees are aware of what the policy is, after management has established it. The Union also contends that Proposal 4 establishes a negotiable procedure under section 7106(b)(2) of the Statute which management would use to implement its right to observe and evaluate employees.  

B. Analysis and Conclusions

Contrary to the Agency's argument, Proposal 4 does not prohibit classroom interruptions so as to prevent a supervisor from entering a classroom to give instructions to employees. The proposal requires only the issuance of a statement to bargaining unit employees of the Agency's policy regarding the circumstances (excluding emergencies or announcements of building-wide concern) under which classroom interruptions will be considered by the Agency to be inappropriate.

We have held, generally, that proposals which merely require an Agency to notify employees of matters concerning their conditions of employment are negotiable as procedures. See, for example, Illinois Nurses Association and Veterans Administration Medical Center, Hines, Illinois, 28 FLRA No. 35 (1987) (Proposal 2, Section 5, first sentence and Proposal 5, Section 4, last paragraph) (proposals requiring management to inform employees of certain agency actions and changes in work schedules, respectively, found negotiable); American Federation of Government Employees, AFL - CIO, Local 1760 and Department of Health and Human Services, Baltimore, Maryland, 25 FLRA No. 2 (Proposal 3, paragraph A) (proposal which required the agency to provide information with respect to performance standards and ratings found negotiable); American Federation of Government Employees, AFL - CIO, General Committee of AFGE for SSA Locals and Social Security Administration, 23 FLRA No. 43 (1986) (Proposal 5), application for enforcement filed FLRA v. Social Security Administration, No. 87-1118 (D.C. Cir. March 3, 1987) (proposal requiring the agency to give employees notice of elements which are subject to performance rating constitutes a procedure and is negotiable).

Proposal 4 requires the Agency to inform employees of its policy concerning classroom interruptions. The Union states that it does not seek to be involved in the establishment of that policy, but is concerned only with the communication of the policy to employees after management has established it. See Union Response at 5. We find that Proposal 4 provides only for the publication of an Agency policy so that teachers are aware of the circumstances which warrant interruption of classroom activity by supervisors or other personnel. The proposal does not restrict the Agency's ability to formulate the substance of its policy concerning the circumstances under which classroom interruptions are appropriate. The proposal is a negotiable procedure under section 7106(b)(2) of the Statute. See Illinois Nurses  Association, 28 FLRA No. 35 (1987) (Proposal 4) (proposal requiring management to agree to a goal of not assigning certain duties as a normal part of work activity held to be negotiable where the union recognized that the language could not restrict the Agency's authority to assign duties and work).

Moreover, because this proposal simply sets out the procedural steps management will follow in communicating to employees its policy regarding classroom interruptions, it does not concern the means of performing the Agency's work within the meaning of section 7106(b)(1) of the Statute. See Illinois Nurses Association and Veterans Administration Medical Center, North Chicago, Illinois, 27 FLRA No. 79 (1987) (Proposal 7, Section 4). Similarly, we reject the Agency's argument that Proposal 4 affects nonbargaining unit employees by prohibiting supervisors from performing certain duties. As we noted above, the proposal does not prevent supervisors from entering classrooms to give instructions to teachers.

VI. Order

The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning Proposal 4. 1 The Union's petition for review as to Proposals 1, 2 and 3 is dismissed.

Issued, Washington, D.C., September 25, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY  

 

FOOTNOTES

Footnote 1 In finding the proposal to be within the duty to bargain, we make no judgment as to its merits.

---