[ v47 p705 ]
47:0705(66)NG
The decision of the Authority follows:
47 FLRA No. 66
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
NATIONAL TREASURY EMPLOYEES UNION
(Union)
and
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
OFFICE OF HEARINGS AND APPEALS
FALLS CHURCH, VIRGINIA
(Agency)
0-NG-2077
_____
DECISION AND ORDER ON NEGOTIABILITY ISSUES
May 26, 1993
_____
Before Chairman McKee and Members Talkin and Armendariz.(1)
I. Statement of the Case
This case is before the Authority on 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 provisions of a collective bargaining agreement that were disapproved by the Agency head under section 7114(c) of the Statute.(2)
For the reasons that follow we conclude that Provision 1, which requires that a determination of a decrease in performance be predicated on a considerable body of work, is nonnegotiable because it excessively interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. Provisions 2 and 3, which require that the Agency maintain and, if necessary, create documentation supporting an evaluation and provide that documentation to the subject employee, are negotiable as procedures under section 7106(b)(2) of the Statute. Provision 4, which requires that performance evaluations take into account all job functions and the amount of time available to employees, is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.
II. Provision 1
Section 2b.
A determination of "decrease in performance" must be predicated upon a considerable body of work appropriate to the nature of the decrease rather than isolated, infrequent or occasional instances.
A. Positions of the Parties
1. Agency
The Agency contends that this provision excessively interferes with management's rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and assign work.
The Agency asserts that the Union's statements concerning the intent of this provision are contradictory and that the plain language of the provision prohibits it from using any work that is not substantial in the evaluation process. The Agency contends that this provision restricts its right to evaluate all of an employee's work by dictating that infrequent or occasional poor performance will not be appraised. The Agency argues that by such restriction the provision effectively removes its discretion to determine the level of performance required of employees and dictates the content of performance standards. In support of its position the Agency cites American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 28 FLRA 714 (1987) (OPM), in which the Authority found that Proposal 16, which prevented the agency from considering, for performance appraisal purposes, time spent by employees on the job before actual work assignments were made, interfered with management's rights to direct employees and assign work. The Agency argues that this provision is similar to Proposal 16 in OPM in that it prevents the Agency from considering specific work products during the evaluation process.
The Agency contends that under Provision 1 it could not enforce an established standard if the body of work used to evaluate the employee was not considerable and, thus, it would be required to modify its performance expectations. The Agency asserts that, consequently, this provision directly interferes with management's rights to direct employees and assign work.
The Agency argues that this provision does not constitute an appropriate arrangement that is negotiable under section 7106(b)(3) of the Statute because it excessively interferes with management's rights. The Agency acknowledges that this provision provides a benefit to employees by eliminating work that may be performed in a marginal or unsatisfactory way from being used in the evaluation process. However, the Agency contends that the severe restriction that this provision places on its ability to hold employees accountable for their performance outweighs the benefit to employees. The Agency asserts that this provision is like Provisions 2 and 3 in Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795 (1991) (Patent and Trademark Office III), which the Authority found excessively interfered with management's rights to direct employees and assign work.
2. Union
In its petition, the Union states that the term "decrease in performance" means that an employee's performance in any performance element is at least one complete rating level lower than the rating received by that employee on that element for the prior year. The Union describes the provision as requiring management to consider the bulk of an employee's performance rather than limited or isolated events when making a decision to lower a rating from the previous level and asserts that this provision is negotiable as an appropriate arrangement.
In its response, the Union asserts that this provision requires the Agency to consider all of an employee's work if it is going to lower an employee's rating, to weigh the good and bad elements, and to "reach a fair determination of the importance of the negative aspects of the performance." Response at 2. The Union states that under this provision the Agency must review a considerable body of an employer's work and not a small sample and that the provision "does not require anything of the performance standards or elements themselves." Id. The Union contends that this provision does not prohibit the Agency from looking at actions performed infrequently but "merely describes a procedure for reaching an evaluative decision which requires that infrequent activity be put in a larger context." Id.
As an example of how this provision would operate, the Union states that if an employee failed to meet a court filing deadline with a resultant "loss of a major case for the agency[]" a decrease in the employee's performance evaluation would be justified based on that one incident. Id. at 3. However, such a decrease would not be justified based on a missed internal deadline with no resultant harm. According to the Union, this provision "simply tells management to review all of an employee[']s work before evaluating her, and to lower performance only when a reasonable amount of work justifies it." Id.
The Union contends that this provision does not govern the content of performance standards and elements, but, rather, concerns their application. Citing United Power Trades Organization and U.S. Department of the Army, Corps of Engineers, Walla Walla, Washington, 44 FLRA 1145, 1152-56 (1992), petition for review dismissed, No. 92-70520 (9th Cir. Aug. 26, 1992), in which the Authority concluded that a proposal requiring that performance standards be applied fairly, equitably, objectively, and uniformly did not directly interfere with management's rights to direct employees and assign work, the Union contends that Provision 1 "is slightly more specific as to how the agency will be fair[]" and does not infringe on any management right. Response at 4.
The Union asserts that the cases cited by the Agency are distinguishable from this provision and, thus, not relevant to this dispute. In this regard, the Union argues that unlike the circumstances involved in the cases cited by the Agency, this provision does not address a work standard and does not prevent the Agency from holding employees to performance standards.
B. Analysis and Conclusions
1. The Meaning of the Provision
We find that the Union's statement of intent is inconsistent with the language of this provision. The provision states that a determination that there has been a decrease in performance must be predicated upon a considerable body of work rather than isolated, infrequent, or occasional instances. It does not, as the Union suggests, merely require the Agency to view isolated, infrequent, or occasional instances of poor performance in the context of the bulk of an employee's performance when appraising the employee. Rather, the plain language of the provision would preclude the Agency from relying on instances of poor performance to justify a decrease in an employee's performance evaluation where such instances are isolated, infrequent, or occasional. On its face, the provision does not allow the Agency to make judgments as to the seriousness of such instances, as the Union claims is intended. Thus, under the provision as written, the Agency's ability to base a decrease in an evaluation on particular instances of performance would be dependent on the frequency of occurrence rather than considerations such as their significance.
We do not base negotiability determinations on a statement of intent that is inconsistent with the plain meaning of a proposal or provision. See, for example, National Federation of Federal Employees, Local 1974 and U.S. Department of Veterans Affairs, Regional Office, Portland, Oregon, 46 FLRA 1170, 1172 (1993) (Veterans Affairs, Portland), petition for review filed, No. 93-1201 (D.C. Cir. Mar. 11, 1993).
2. The Provision Directly Interferes with Management's Rights to Direct Employees and Assign Work
It is well established that management's rights to direct employees and assign work include the rights to supervise employees and determine the quantity, quality, and timeliness of employees' work products and to establish employees' work priorities. See, for example, National Association of Government Employees, Local R14-52 and U.S. Department of Defense, Defense Finance and Accounting Service, Washington, D.C., 45 FLRA 910, 913 (1992) (Defense Finance and Accounting Service); National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775-76 (1980) (Public Debt), aff'd 691 F.2d 553 (D.C. Cir. 1981). The establishment of critical elements and performance standards are among the ways that management supervises employees and determines the quantity, quality, and timeliness of work required of employees and, consequently, constitutes an exercise of management's rights to direct employees and assign work. See, for example, Public Debt, 3 FLRA at 775-76; see also Defense Finance and Accounting Service, 45 FLRA at 913-14 (management's rights to direct employees and assign work extend to the establishment of job requirements in the form of productivity or performance standards that serve as the basis for encouraging and rewarding successful performance and discouraging and remedying performance that is unacceptable).
The evaluation of employee performance is an exercise of management's rights to direct employees and assign work. See American Federation of Government Employees, AFL-CIO, Local 1760 and Department of Health and Human Services, Social Security Administration, 28 FLRA 160, 169 (1987). Moreover, the right to evaluate employee performance extends to the determination of the rating that management will assign to a given employee. See id. Proposals that require management to take into account specific factors in evaluating employee performance directly interfere with management's rights to direct employees and assign work. See, for example, National Treasury Employees Union and U.S. Department of Health and Human Services, Office of Hearings and Appeals, 44 FLRA 293, 300 (1992). Similarly, proposals that prohibit management from holding employees accountable for work performance directly interfere with those rights. See, for example, id. Put another way, proposals that prevent management from enforcing its established performance standards directly interfere with management's rights to direct employees and assign work because they effectively alter the content of the standards. See National Treasury Employees Union and Department of Health and Human Services, Office of Hearings and Appeals, 34 FLRA 1022, 1026 (1990).
While Provision 1 would not absolutely prohibit the Agency from holding employees accountable for lapses in their work performance that occur on an isolated, infrequent, or occasional basis, it would place a substantive limitation on the Agency's ability to do so. That is, by preventing the Agency from using such performance as a basis for lowering an employee's performance rating, this provision limits the extent to which the Agency may enforce its performance standards and hold employees accountable for such performance. Thus, in circumstances where, under the Agency's established performance standards, such performance would warrant a lowered rating, this provision would require the Agency to modify its performance expectations. See National Treasury Employees Union and U.S. Department of the Treasury, U.S. Customs Service, Washington, D.C., 40 FLRA 570, 581 (1991) (Customs Service) (a proposal that requires an agency to change or adjust its performance expectations directly interferes with management's rights to direct employees and assign work).
Based on the foregoing, we conclude that Provision 1 directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.
3. Appropriate Arrangement
The Authority established an analytical framework for determining whether proposals that directly interfere with management's rights are nevertheless negotiable because they constitute appropriate arrangements under section 7106(b)(3) of the Statute in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under that framework, we initially determine whether the proposal constitutes an arrangement. To do this, we ascertain whether the proposal in question seeks to address or compensate for adverse effects on employees produced by the exercise of management's rights. See id. at 31.(3) If the proposal satisfies the first part of this analysis, we then determine whether the proposed arrangement is appropriate. Under this second part, we examine the competing practical needs of the parties and determine whether the negative impact on management's rights is disproportionate to the benefits that the arrangement confers on employees such that the proposal excessively interferes with management's rights. See id. at 33.
Performance appraisals are the basis for training, rewarding, reassigning, promoting, reducing in grade, retaining and removing employees. 5 U.S.C. § 4302. Thus, the rating that an employee receives in his or her performance appraisal has far-reaching consequences in the employee's employment relationship. The most readily apparent consequences are those that can result from a rating of less than fully satisfactory.(4) However, the consequences are not limited to these types of actions but extend to a variety of employment matters and actions that are influenced by the rating level that the employee receives relative to the ratings received by other employees.
For example, an employee's rating of record is one of the factors that determines an employee's retention standing when determining who will be affected by a reduction-in-force (RIF). See 5 C.F.R. §§ 351.501-351.504. Under RIF regulations, employees whose ratings of record are fully successful or higher are credited with additional amounts of service in direct proportion to the levels of their three most recent ratings of record for purposes of establishing their ranking on RIF retention registers. Thus, the difference between an "outstanding" and "commendable," or "excellent," rating could be the determinative factor in whether an employee will undergo separation, demotion, or reassignment during a RIF.
An employee's performance appraisal also can determine the employee's success when competing with other employees for promotion and career enhancement opportunities. See, for example, American Federation of Government Employees, Local 3509 and U.S. Department of Health and Human Services, Social Security Administration, Greenwood, South Carolina District, 46 FLRA 1590, 1599-1602 (1993) (proposal found nonnegotiable because it impermissibly altered management's established qualifications for the work of reviewer, which, among other factors, limited assignment to that duty to employees whose summary rating was excellent or better). Additionally, an employee's eligibility for performance awards and the accompanying remuneration is dependent on a rating of record. See 5 C.F.R. § 430.503.
It is uncontroverted that this provision addresses those circumstances in which the Agency's exercise of its management rights to direct employees and assign work results in a decrease in an employee's performance rating in any performance element of at least one rating level lower than that received in the prior year. An employee's summary rating level is derived from the appraisals of various performance elements. 5 C.F.R. § 430.204. Thus, a drop in the appraisal on a particular element can result in a corresponding drop in the employee's summary rating level. As discussed above, a lowered performance rating level can have any number of negative consequences for an employee ranging from performance-based adverse actions to a reduction in retention standing for RIF purposes and a diminution in an employee's potential for promotions and monetary awards.
This provision would apply only to an employee who receives an appraisal that is lower than the appraisal received the previous year. We find that this provision is intended to address the adverse effects that flow from a decrease in an employee's performance appraisal and, therefore, that it constitutes an arrangement within the meaning of section 7106(b)(3). See, for example, National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 685-86 (1991) (Veterans Administration, Memorial Affairs) (proposals that are intended to eliminate the possibility of an adverse effect may constitute arrangements for adversely affected employees within the meaning of section 7106(b)(3) of the Statute). See also United States Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, (Minerals Management Service v. FLRA), 969 F.2d 1158, 1162-63 (D.C. Cir. 1992) (court rejected interpretation of section 7106(b)(3) that "use of the past tense in the phrase 'adversely affected' creates a temporal wall forbidding any negotiability except as to harm that has already occurred").
We now turn to the question of whether this provision is appropriate or whether it is inappropriate because it excessively interferes with management's rights to direct employees and assign work. As we discussed above, a decrease in an employee's performance appraisal can have far-reaching and significant effects on the employee's employment relationship, affecting matters ranging from the employee's continued employment to the employee's potential for career advancement. This provision would offer a significant benefit to employees by prohibiting the Agency from using isolated, infrequent, or occasional instances as a basis for a decrease in an employee's performance appraisal in any performance element of at least one rating level lower than that received in the prior year.
On the other hand, the Agency has a significant interest in being able to hold employees accountable for their performance by establishing and enforcing performance standards. This interest extends to instances of performance that are isolated, infrequent, or occasional. By ensuring that isolated, infrequent, or occasional instances could not have a negative impact on an employee's performance appraisal, this provision would severely hamper the Agency's ability to hold employees accountable for that performance. Additionally, we note that, as discussed above, this provision does not permit the Agency to make judgments based on the seriousness of a particular lapse but would require that each event's effect on an employee's performance rating be determined solely on the basis of frequency of occurrence.
We find that the restrictions that Provision 1 places on management's rights to direct employees and assign work outweigh the benefits to employees and that this provision excessively interferes with those rights. Consequently, it is not negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. Compare National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 39 FLRA 731, 738-39 (1991) (In concluding that a provision requiring that atypical performance on one performance factor should not unduly influence an overall rating was negotiable as an appropriate arrangement, the Authority found that the provision merely required that the agency subjectively consider an uncharacteristic rating in reaching an overall evaluation, while retaining the flexibility to determine how to accommodate the uncharacteristic rating without undue harm or benefit to the employee).
Based on the foregoing, we conclude that Provision 1 is nonnegotiable.
III. Provisions 2 and 3
[Provision 2]
Section 2c.
Management being aware of the necessity of rendering fair and adequately documented appraisals recognizes that it is the duty of all supervisors to retain adequate documentation to substantiate each and every rating given. Although what amount of documentation needed will obviously vary according to the degree of decrease and the GJT(s) [Generic Job Task] involved, it is acknowledged that such documentation should include work samples, ALJ [Administrative Law Judge] instructions where pertinent to the deficiency and contemporaneously recorded records establishing failure to meet due dates, or any other deficiency.
[Provision 3]
Section 2d.
If a decrease in performance is alleged, upon written request, the Staff Attorney will be provided with the documentation establishing the decrease. In any event, the employer agrees to show such documentation to the employee prior to the issuance of the performance appraisal which is based in whole, or part, on that documentation.
A. Positions of the Parties
1. Agency
The Agency contends that Provision 2 would prevent it from lowering an employee's rating if the supervisor lacks adequate documentation. In this regard, the Agency asserts that under Provision 2 a supervisor would be required to create documentation if it did not otherwise exist and that if documentation were inadequate, a lowered rating would be invalidated. The Agency argues that Provision 2 is distinguishable from Proposal 12 in Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 811-14 (1991) (Patent and Trademark Office II), which the Authority found negotiable. The Agency states that Proposal 12, which required the agency to provide employees with copies of written evaluations by reviewers, was determined negotiable only because it was limited to requiring that existing documentation be given to employees and did not require that written documentation be created. The Agency asserts that requiring managers to prepare a record, if one does not already exist, places an "onerous responsibility" on the Agency. Response at 8.
The Agency contends that Provision 2 is analogous to Sections 3.E. and 3.F. in Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384, 388-91 (1987) (Patent and Trademark Office I), aff'd mem. per curiam, No. 87-1135 (D.C. Cir. Mar. 30, 1988), which required the agency to provide an adequate written justification for any variance in performance standards and which the Authority found were nonnegotiable.
The Agency argues that Provision 2 excessively interferes with management's rights to direct employees and assign work because it requires the Agency to create a record to support a lowered rating and would invalidate a lowered rating if it were not supported by an adequate record. The Agency contends that the benefits to employees are outweighed by the burden on the Agency's ability to hold employees accountable for their performance.
The Agency asserts that Provision 3, like Provision 2, requires it to create documentation where none exists and would invalidate lowered ratings if not supported by adequate documentation. The Agency argues that Provision 3, like Provision 2, excessively interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.
2. Union
In its petition, the Union states that "GJT(s)" refers to performance elements. The Union describes Provision 2 as intended to require the Agency to have documentation to justify performance ratings. According to the Union, this provision permits the Agency to create such documentation contemporaneously for the specific purpose of justifying a performance rating or use documentation that was created incident to the performance of relevant work. The Union states that Provision 2 does not limit the types of documents or records that may be used. The Union describes Provision 3 as merely requiring that the Agency show documentation that will be used as the basis for an evaluation to the subject employee.
In its response, the Union asserts that Authority precedent supports finding these two provisions negotiable. In this regard, the Union contends that in various decisions the Authority has found that proposals requiring that agencies provide employees with statistics and recordations used in evaluating them are negotiable. Although the Union concedes that Provisions 2 and 3 require the creation of documentation where none already exists, it disputes the Agency's claim that such a requirement is an onerous burden.
Applying the Authority's KANG analysis, the Union asserts that these provisions would offer a significant benefit to employees by providing them with information concerning any dissatisfaction on the part of the Agency with their work performance. In response to the Agency's claim that in the absence of documentation a rating would be invalidated, the Union states that all that is necessary on the Agency's part to avoid such a result is to create a document, an act requiring minimal time and effort.
B. Analysis and Conclusions
Provision 2 requires only that the Agency maintain and, if necessary, create documentation supporting performance appraisals and ratings. Provision 3 requires that the documentation be provided or shown to the subject employee in specified circumstances.
We reject the Agency's assertion that "the plain language" of Provision 2 "clearly prevents lowering an employee's rating whenever the supervisor lacks 'adequate' documentation[.]" Response at 7-8. Nothing in the "plain language" of Provision 2 imposes any restriction on the Agency's ability to lower a performance rating. Additionally, the Union states that under this provision the Agency retains the ability to create documentation contemporaneously to justify a performance rating if none already exists. This statement of intent is consistent with the language of Provision 2 and is adopted for purposes of this decision.
While the Union does not disavow any intention of seeking to invalidate a performance rating based on inadequate documentation, it does not claim that Provision 2 dictates such a result and the provision itself is silent with respect to the consequences of any failure to comply with the requirement that adequate documentation be maintained. Where a provision is silent concerning what penalty or remedy will result from its violation, speculation that a remedy may result that infringes on management's right does not provide a basis for finding that the particular provision interferes with management's rights. Compare National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377, 403 (1991), petition for review filed, No. 91-1573 (D.C. Cir. Nov. 25, 1991) (an agency's concern that an arbitrator's judgment may be substituted for its own is not a basis for precluding negotiation over a proposal); Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616, 635-36 (1987) (the question of any impermissible interference with management's rights must be directed to the merits of an arbitration decision, including the remedy). Thus, nothing in Provision 2 prevents the Agency from lowering an employee's rating or requires that a lowered rating be invalidated.
As we discussed in conjunction with Provision 1, management's rights to direct employees and to assign work encompass the rights to establish critical elements and performance standards, enforce those standards, evaluate employee performance, and determine the rating to be given employees.
We find that Provision 2 does not place any substantive limitation on the Agency's discretion to exercise its rights relating to the appraisal of employee performance. Rather, it is a procedural aspect of the performance appraisal process. See Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, Washington, D.C., 47 FLRA 10, 66-68 (1993) (Patent and Trademark Office IV) petition for review filed, No. 93-1255 (D.C. Cir. Apr. 2, 1993) (Provision 29, which required that rating officials maintain documentation supporting assigned performance ratings constituted a procedure negotiable under section 7106(b)(2) of the Statute). See also National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696 (1992), petition for review filed, No. 93-1076 (D.C. Cir. Jan. 25, 1993) (Provision 22, which, among other things, required that supervisors prepare narratives with example of performance, did not interfere with management's rights to direct employees and assign work); National Treasury Employees Union and U.S. Nuclear Regulatory Commission, Washington, D.C., 43 FLRA 1279, 1292-93 (1992) (Proposal 2, which required rating and ranking officials to prepare written evaluations of all applicants for a position, found to constitute a negotiable procedure); American Federation of Government Employees, AFL-CIO, Local 446 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, Asheville, North Carolina, 43 FLRA 836, 845 (1991) (proposal requiring that a supervisor document the basis for his or her suspicions prior to deciding to have an employee tested for use of illegal drugs was procedural in nature).
We note that a requirement that the Agency maintain documentation supporting its exercise of a management right is distinguishable from a prohibition on the collection or use of information or evidence in connection with the exercise of a management right. The former requirement leaves intact the Agency's discretion and ability to exercise its management's rights where, as here, there is no limitation placed on when the Agency may create the necessary documentation. The latter prohibition impairs the Agency's ability to exercise its rights. See, for example, American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, 44 FLRA 63, 68 (1992) (Office of Thrift Supervision) (proposals preventing management from using particular information in evaluating employee performance directly interfere with management's right to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute); Patent and Trademark Office II, 39 FLRA at 798-800 (proposals that limit management's ability to gather information necessary to make determinations reserved to it under section 7106 of the Statute interfere with the right to make those determinations).
We reject the Agency's contention that the Authority concluded that Proposal 12 in Patent and Trademark Office II was negotiable only because it was limited to requiring that existing documentation be given to employees and did not require that written documentation be created. We find that the Authority's remarks that were made in conjunction with Proposal 12, and on which the Agency relies, represented only a statement of the scope of the proposal and the dispute before it and were not intended as a ruling on the negotiability of proposals requiring an agency to create written documents.
We note that proposals establishing otherwise negotiable procedures do not directly interfere with the right to assign work merely because they obligate the agency to assign someone to implement the procedures. See, for example, Patent and Trademark Office IV, 47 FLRA at 69-72. Thus, the fact that Provision 2 may require the Agency to assign the work of maintaining and creating documentation does not render it nonnegotiable.
Based on the foregoing, we conclude that Provision 2 does not directly interfere with management's rights to direct employees and to assign work to employees under section 7106(a)(2)(A) and (B) of the Statute and that it is negotiable as a procedure under section 7106(b)(2).
Provision 3 requires only that the documentation referred to in Provision 2 be shown to and, upon written request, provided to the subject employee. As with Provision 2, this provision is silent with respect to the consequences of any failure to comply with the requirements that adequate documentation be maintained and divulged to the subject employee. Insofar as Provision 3 reflects the requirements of Provision 2 that documentation be maintained and, if need be, created, we conclude, for the reasons expressed in our discussion of Provision 2, that Provision 3 does not directly interfere with management's rights to direct employees and assign work. Insofar as Provision 3 requires that documentation be shown or provided to the subject employees, we find that there is no basis for concluding that that requirement directly interferes with management's rights to direct employees and assign work.
We note that Provision 3 is distinguishable from the proposal in Office of Thrift Supervision, 44 FLRA 63, which prohibited the use of information that was not provided to the employee. Provision 3 places no prohibition on the use of information. We have previously held that the proper inquiry with respect to union proposals that require agencies to provide general information to employees is whether: (1) the information concerns conditions of employment; and (2) disclosure of the information violates any law or applicable regulation. See, for example, Patent and Trademark Office II, 39 FLRA at 813. Here, it cannot be contested that documentation underlying the evaluation of employee performance concerns conditions of employment. Further, the Agency makes no claim, and it is not otherwise apparent to us, that the disclosure of the documentation violates any law or applicable regulation.
Based on the foregoing, we conclude that Provisions 2 and 3 do not directly interfere with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute but, rather, are negotiable as procedures under section 7106(b)(2).
IV. Provision 4
Section 2g.
Staff Attorneys' performance evaluations shall take into account all job functions the Staff Attorney is expected to perform and the actual amount of time available (or not available) to perform those functions. Factors to be considered shall include, but are not limited to, leave, training, official time, prehearing conference activities, participation in AWS [Alternative Work Schedule] and other duties as assigned.
A. Positions of the Parties
1. Agency
The Agency states that if the Union had restricted its proposal to the first sentence, which addresses the manner in which performance requirements are applied to employees when they are evaluated under applicable performance standards, it would have agreed to the negotiability of this provision. It contends, however, that the second sentence, to which the first is linked, effectively prevents management from holding employees responsible for performance that is affected by the listed absences.
The Agency contends that under Provision 4 it is required to make adjustments in levels of productivity and timeliness that are expected of an employee based on factors such as those listed in the second sentence of the provision. Because the provision would require modification of the content of performance standards, the Agency asserts that it directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. In support of this assertion, the Agency cites National Treasury Employees Union and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Baltimore, Maryland, 39 FLRA 346, 357 (1991) and National Treasury Employees Union and Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, 34 FLRA 1000, 1006 (1990) (Office of Hearings and Appeals).
The Agency contends that this provision is not an appropriate arrangement because it excessively interferes with management's rights. While the Agency acknowledges that employees would benefit from having their performance expectations modified, it contends that this provision places severe restrictions on the Agency's ability to hold employees accountable for their performance. The Agency argues that like Proposals 2 and 3 in Patent and Trademark Office III, 41 FLRA at 812-16, these restrictions outweigh the benefits to employees.
2. Union
In the petition the Union states:
The terms "take into account" and "to be considered" are meant to be interpreted in a manner consistent with the way the Authority has defined these terms in case law. Therefore, an evaluation will be based, at least in part, on all job functions the employee is expected to perform and the amount of time available to perform those functions.
Petition at 3.
The Union denies that this provision requires the Agency to make adjustments or changes in performance expectations and contends that it requires the Agency to consider the identified factors, which could limit an employee's ability to meet performance standards. The Union states that it is not the intent of this provision "to grant a reprieve to employees who participated in any of the above activities without management's approval." Response at 8.
The Union asserts that this provision is an appropriate arrangement negotiable under section 7106(b)(3) of the Statute. In this regard, the Union argues that the benefits that this provision affords employees outweigh the burden on the Agency. The Union points out that the impact of a negative evaluation is great and can affect promotion potential and even continued employment. The Union asserts that "while employees do have control over whether to take leave, official time, or AWS, they also have an entitlement to do so." Id. The Union argues that if the Agency approves such use of employee time, it is making a determination that the work can get done despite the use of the time and "[f]or management to then use this time against an employee would be unconscienable [sic]." Id. The Union maintains that employees do not have control over training, prehearing conference activities, and other duties as assigned.
The Union contends that requiring the Agency merely to consider the identified factors in an evaluation places no more than a minimal burden on the Agency's right to assess employee performance. The Union asserts that this provision offers great benefits to employees by ensuring that they will not be penalized when they avail themselves of rights and benefits such as leave, official time, and AWS, and that they will not be evaluated negatively for things beyond their control. The Union contends that the balance in this case favors finding this provision negotiable. The Union contends that this provision is indistinguishable from Proposal 1 in Customs Service, 40 FLRA 570, which the Authority found was negotiable as an appropriate arrangement.
B. Analysis and Conclusions
As we discussed in conjunction with Provision 1, the establishment of critical elements and performance standards are among the ways that management supervises employees and determines the quantity, quality, and timeliness of work required of employees and, consequently, constitutes an exercise of management's rights to direct employees and assign work. See, for example, Public Debt, 3 FLRA at 775-76. Proposals or provisions that restrict an agency's authority to determine the content of performance standards directly interfere with management's rights to direct employees and assign work. See, for example, National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Western Region, 42 FLRA 964, 975-77 (1991) Food and Nutrition Service). On the other hand, provisions that concern only the application of performance standards do not directly interfere with management's rights to direct employees and assign work. See, for example, National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 846 (1990). Accordingly, the task in deciding the negotiability of a provision similar to Provision 4 "'is primarily one of determining, based on the record, whether [it] concern[s] substantive matters, such as the content of performance standards and critical elements, or whether [it] concern[s] the application of those standards and elements and other nonsubstantive matters such as procedures.'" Food and Nutrition Service, 42 FLRA at 974 (brackets in original, quoting Patent and Trademark Office I, 25 FLRA at 387).
Even though it may be couched in terms of application, a provision nonetheless directly interferes with management's rights to direct employees and assign work if it prescribes substantive criteria that govern the content of performance standards. See Food and Nutrition Service, 42 FLRA at 981. Similarly, provisions couched in terms of application that require an agency to change or adjust its performance expectations in light of specified factors directly interfere with management's rights to direct employees and assign work because they constitute a substantive limitation on an agency's ability to determine the content of performance standards. See, for example, Veterans Affairs, Portland, 46 FLRA at 1171-72.
Provision 4 requires that performance evaluations shall "take into account" all of an employee's job functions and the actual amount of time available, or not available, to perform them, and further specifies certain factors that are "to be considered."
In Office of Hearings and Appeals, 34 FLRA at 1005-06, we discussed the meaning and significance of the terms "take into account" and "consider." We held that the "phrase 'to take into account' . . . connotes that management's decision will be based, at least in part, on the specified factors." Id. at 1006. The term "consider," on the other hand, "connotes that management will review the specified factors but will remain free to base its decision on grounds other than those factors." Id. at 1005-06.
Here, the Union has stated that under this provision "an evaluation will be based, at least in part, on all job functions the employee is expected to perform and the amount of time available to perform those functions." Petition at 3. Elsewhere, the Union claims that this provision would "not require management to make adjustments or changes in performance expectations for the reasons listed." Response at 8. However, the Union also describes this provision as requiring the Agency to weigh the amount of time an employee has to perform his or her work, as limited by the factors listed in the provision, in order to ensure that the employee is neither penalized for availing himself or herself of statutory benefits such as leave nor negatively evaluated based on matters beyond their control.
If the provision is to have the effect both of requiring that the evaluation of an employee be based at least in part on the matters specified by the provision and ensuring that employees are neither penalized nor evaluated negatively because of other demands on their time, it necessarily requires that the Agency adjust its performance expectations to allow for those competing demands on the employee's time.
We find that this provision, as explained by the Union, requires management to base its assessment of employee performance, at least in part, on factors such as those listed in the provision. Consequently, we conclude that this provision requires the Agency to change or adjust its performance expectations in light of those factors and, thereby, constitutes a substantive limitation on the Agency's ability to determine the content of the standards. See Veterans Affairs, Portland, 46 FLRA at 1171-72; Customs Service, 40 FLRA at 579-83. Accordingly, Provision 4 directly interferes with management's rights to direct employees and assign work.
In reaching this conclusion, we note that the language in Provision 4 is similar to that in Section 4.G. in Patent and Trademark Office I. Section 4.G. was intended to require management, when evaluating employees under a performance standard for "production constancy" to take into account all the other job functions assigned to employees and to make allowances for the amount of time that such additional functions take away from the time that employees are able to devote to achieving "production constancy." The Authority concluded that Section 4.G. concerned only the application of performance standards and did not concern or restrict the content of the standard.
Insofar as the analysis concerning Section 4.G suggests that proposals that require an evaluation to take into account, or make allowances for, specific factors and circumstances do not directly interfere with management's rights to direct employees and assign work, it is inconsistent with other decisions. See, for example, Veterans Affairs, Portland, 46 FLRA at 1171-72; Customs Service, 40 FLRA at 579-83. Moreover, such analysis does not recognize that a requirement that an evaluation take into account, or make allowances for, particular matters, necessarily requires that corresponding adjustments be made in the performance expectations that constitute the content of the relevant performance standard. Consequently, the Authority's decision concerning Section 4.G. in Patent and Trademark Office I will no longer be followed. Rather, where a proposal or provision dictates that an evaluation be based, at least in part, on specified factors and circumstances and necessarily requires an adjustment in performance expectations to accommodate those factors and circumstances, we will find that such proposals and provisions directly interfere with management's rights to direct employees and assign work.
We now turn to the question of whether this provision is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute notwithstanding the fact that it directly interferes with management's rights to direct employees and assign work. As we discussed in conjunction with Provision 1 above, to determine whether a provision constitutes an appropriate arrangement, we apply the analytical framework that was set forth in KANG. Under the KANG analysis we first determine whether this provision constitutes an arrangement for employees adversely affected by the exercise of management's rights.
An employee's performance appraisal is management's pronouncement on the quality of the employee's performance for the rating period. As discussed in conjunction with Provision 1, above, an employee's performance appraisal has far-reaching consequences for the employee's employment relationship. To reiterate, the rating that an employee receives is one factor used in determining whether the employee will undergo separation, demotion, or reassignment during a RIF. An employee's performance appraisal can also be determinative of the employee's success in competing with other employees for promotions and other career enhancement opportunities. As we have pointed out, an employee's performance appraisal can also determine whether the employee is eligible for performance awards and the monetary payments that they bring.
An employee's summary rating and the ratings assigned to performance elements will affect the employee's standing relative to other employees with whom the employee is competing for retention or for career opportunities such as promotions. In addition, judgments of an employee's standing relative to other employees with whom he or she will compete for career opportunities may also be influenced by the nature of any narratives that accompany those ratings. For example, if two employees have the same ratings but the narrative concerning one employee is more laudatory than that concerning the second employee, the first employee is likely to enjoy a competitive advantage. In sum, the effect of all aspects of an appraisal on the employee's career is pervasive and performance appraisals "will surely have adverse effects on some employees." United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1071 (D.C. Cir. 1992).
More particularly, if an employee is held to performance expectations that do not take into account the various competing demands on the employee's time, it is reasonably foreseeable that the employee's appraisal will be detrimentally affected and, as a consequence, the employee's potential for career progression, eligibility for awards, and even continued employment will be diminished. We stress that such consequences do not occur only when employees are rated less than fully successful. Nor are employees adversely affected in this manner only when their appraisals are lowered from those of previous periods. Rather, we conclude that an appraisal at any level that provides a less favorable view of the quality of an employee's performance than is warranted by the employee's actual performance can unfairly handicap the employee's career progression. In our view, an appraisal containing a narrative that does not discuss fairly the appraised employee's work can adversely affect the employee's career even when the employee has been rated at the highest level. For example, an employee who is rated at the exceptional level could lose the opportunity for a competitive promotion, based solely on negative comments in a narrative accompanying his or her performance appraisal that would have been written differently had competing demands on the employee's time been taken into account. Thus, we find that the potential adverse effects that can flow from a failure to allow for competing, legitimate demands on employees' time when evaluating their performance are more than hypothetical and speculative. See West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1012 (1990) (purely speculative or hypothetical concerns are excluded from being considered as arrangements). That is, the adverse impact that Provision 4 seeks to ease is reasonably foreseeable.
In Minerals Management Service v. FLRA, 969 F.2d at 1162, the court noted that the Authority had failed to consider whether "the balm provided by the proposal would be administered only to hurts arising from the [drug testing] program, and to employees suffering such harm." Without deciding how we will apply Minerals Management Service v. FLRA in all cases, we conclude that Provision 4 targets a specific "hurt" that is reasonably foreseeable. Specifically, this provision addresses the problem faced by employees when they are subjected to performance expectations that do not allow for competing, legitimate demands on their time that limit the time available to them to perform evaluated work. Put another way, this provision is concerned with employees who are subject to performance expectations that are based on unrealistic or inaccurate estimates of the time available to meet them. The provision's purpose is to ease the harm that that circumstance could cause to an employee's performance appraisal and, by extension, to the employee's career. By virtue of the fact that Provision 4 is limited to addressing a specific, identified hurt, we find that this provision necessarily targets employees who are subject to that hurt and would operate to benefit only those employees.
We acknowledge that on its face this provision includes within its scope employees who may not suffer an adverse effect as a consequence of being subjected to performance expectations that make no allowances for competing demands on their time. That is, some employees may have minimal or no such demands on their time. Also, the extent to which those competing demands actually would result in a less favorable performance appraisal will vary among employees. Certainly, it is difficult to say that any employee whose performance appraisal suffers no negative effect because of competing demands on his or her time incurs any adverse effect. However, the whole point of this provision is to help or benefit those employees who are or would be adversely affected by the circumstances addressed by the proposal. The impact of this provision with regard to those employees who would suffer no adverse effect is neutral. The inclusion of these latter employees within the scope of this provision is purely incidental to the fact that every employee in the unit has the potential to come within the class of employees who would be adversely affected by the circumstances addressed by the provision.
We find that the thrust of this provision is to alleviate reasonably foreseeable adverse effects on employees. In this regard, it is limited to requiring that the Agency take into account certain factors that could limit an employee's ability to meet performance standards. As emphasized by the Union, this provision seeks to protect employees from being penalized by less favorable performance appraisals as a consequence of the fact that they engaged in legitimate activities such as taking leave, using official time, participating in AWS, or were subject to other competing demands on their time because of factors beyond their control. We disagree with our dissenting colleague's suggestion that we have improperly interpreted Provision 4 in identifying the adverse effects that the provision is designed to ameliorate. Under the analytic framework first established in KANG, the Authority consistently has determined the intended meaning of a proposal by examining the entire record, including the union's stated intent. 21 FLRA at 31. See also National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 840-41 (1990) (Authority reiterated that in determining whether a proposal constitutes an appropriate arrangement, it will evaluate the facts and circumstances in each case in its examination of the effects or foreseeable effects on employees that flow from the exercise of management rights, and how those effects are adverse). We have done no more here.
We note that it is virtually impossible to predict in advance the actual effects of competing demands on an employee's performance appraisal. We do not find that it is necessary for the provision to be so precisely tailored that it predicts and pinpoints only those employees who would actually suffer a less favorable performance appraisal as a result of competing, legitimate demands on their time in order for it to qualify as an arrangement. We find that it is sufficient that this provision is limited in its scope to easing a specifically identified hurt that poses a threat to employees generally and that, consequently, it is sufficiently tailored to qualify as an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute notwithstanding the fact that some employees may escape actual harm. See id. at 1163 (the court specifically disavowed a holding that "appropriate arrangements" must target in advance the specific individual employees who will be adversely affected). Therefore, we find that, applying the principles articulated in Minerals Management Service v. FLRA, this provision is "tailored to benefit or compensate those employees" suffering a potential adverse effect. Id. at 1162.
We find that Provision 4 is intended as an arrangement for employees whose evaluations would be negatively affected as a result of a failure to consider the full scope of employment-related demands on the time for which they are held accountable for performance evaluation purposes; thus, it is an arrangement for employees who are adversely affected by management's exercise of its rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See, for example, Veterans Affairs, Portland, 46 FLRA at 1173. Compare Veterans Administration, Memorial Affairs, 40 FLRA at 685-86 (proposals that are intended to eliminate the possibility of an adverse effect may constitute arrangements for adversely affected employees within the meaning of section 7106(b)(3) of the Statute).
Next, we consider whether the proposed arrangement is appropriate or whether it excessively interferes with management's rights. Under the KANG analysis, this requires a determination of whether the negative impact of the provision on management's rights is disproportionate to the benefits conferred on employees.
This provision offers a significant benefit to employees by requiring that their performance evaluations be based on the amount of time actually available to them to perform the work on which they are being evaluated. Thus, this provision protects employees from performance demands that are based on an inflated assessment of the amount of time available to meet those demands. This provision serves to minimize the extent to which competing, legitimate demands on an employee's time have a negative impact on the employee's evaluation.
Under this provision the Agency retains the right to determine which aspects of an employee's work will be evaluated and what performance requirements relating to quantity, quality, and timeliness will be placed on the employee, provided that appropriate allowance is made for competing demands on the employee's time. The provision does not prescribe the specific weight that must be given the matters that the provision requires management to take into account. Thus, the provision requires management to do no more than what is reasonable when evaluating an employee's work. Nor does the provision require the Agency to make allowances for time spent in any activities that it has not approved.
We disagree with the Agency that this provision places a severe restriction on its ability to hold employees accountable for their performance. The Agency remains free to hold employees accountable for their performance; it is required only to make an appropriate allowance for competing, legitimate time demands that affect the amount of time available for the performance of work on which the employee is evaluated. Compare Patent and Trademark Office III, 41 FLRA at 815 (provisions that effectively prohibit any formal evaluation of work performed during a specified period severely hamper the agency's ability to hold employees accountable for work performed during that period). We find that the burden placed on management's right to direct employees and assign work is slight.
On balance, we conclude that the benefits afforded employees by Provision 4 outweigh the burden on management's rights to direct employees and assign work. Accordingly, Provision 4 does not excessively interfere with management's rights and is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. See Veterans Affairs, Portland, 46 FLRA at 1172-74; Customs Service, 40 FLRA at 582-83.
V. Order
The petition for review is dismissed insofar as it concerns Provision 1. The Agency shall rescind its disapproval of Provisions 2, 3 and 4.(5)
Member Armendariz, Concurring in Part and Dissenting in Part
I agree with my colleagues that Provision 1 is nonnegotiable and that Provisions 2 and 3 are negotiable. I also agree with their rationale in coming to those determinations to the extent that their rationale is consistent with the views expressed below. Moreover, I agree with the Majority, for the reasons stated by them, that Provision 4 directly interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. However, because I would not find that Provision 4 constitutes an arrangement within the meaning of section 7106(b)(3) of the Statute, I cannot join with my colleagues in finding that Provision 4 is negotiable as an appropriate arrangement.
The issue of whether a provision constitutes an arrangement under section 7106(b)(3) of the Statute has been the subject of two recent court decisions. In United States Department of Justice, Immigration and Naturalization Service v. FLRA, 975 F.2d 218 (5th Cir. 1992) (INS) and United States Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992) (Minerals Management), the courts concluded that various proposals were not arrangements for employees adversely affected by the exercise of management's rights within the meaning of section 7106(b)(3) of the Statute because the proposals were not tailored to benefit or compensate only those employees suffering adverse effects flowing from some management action that comes within the ambit of management's rights.
Specifically, in Minerals Management the court held that "the plain language of [section] 7106(b)(3) [of the Statute] demands that the FLRA assure that arrangements are tailored to address only those employees adversely affected by a management action." Minerals Management, 969 F.2d at 1162 (emphasis added); see INS, 975 F.2d at 226. Further, the court went on to state that section 7106(b)(3) of the Statute unambiguously applies "only when the proposed arrangement is tailored to benefit or compensate those employees suffering those adverse effects." Minerals Management, 969 F.2d at 1162 (emphases added); see INS 975 F.2d at 226. The court stated that by failing to apply section 7106(b)(3) of the Statute in this manner "[the Authority] acted contrary to law." Minerals Management, 969 F.2d at 1162; see INS 975 F.2d at 226.
This is the first case in which the Authority has taken the opportunity to address Minerals Management and INS. For the reasons articulated by the courts in Minerals Management and INS, I conclude that in order for a proposal or a provision to constitute an arrangement within the meaning of section 7106(b)(3) of the Statute, it must be narrowly tailored to apply only to those employees who are adversely affected by the exercise of a management right. In my view, although the Majority appears to adopt Minerals Management, its expansive interpretation of Minerals Management is inconsistent with the court's decision. The Majority's insistence that it is applying Minerals Management is unconvincing. In its approach to Minerals Management, the Majority simultaneously fails to provide guidance to practitioners in the Federal sector and fails to hit the mark. In this regard, the Majority states: "[w]ithout deciding how we will apply [Minerals Management] in all cases, we conclude that Provision 4 targets a specific 'hurt' that is reasonably foreseeable [and that Provision 4] is concerned with employees who are subject to performance expectations that are based on unrealistic or inaccurate estimates of the time available to meet them." Majority Opinion, slip op. at 22.
The Majority's conclusion that Provision 4 constitutes an arrangement is based on the following rationale: "the thrust of this provision is to alleviate reasonably foreseeable adverse effects on employees[,]" and the "provision seeks to protect employees from being penalized by less favorable performance appraisals as a consequence of [competing demands on their time]" Id., slip op. at 23 (emphases added). This rationale, however, is not consistent with the standard articulated in either Minerals Management or INS. The standard articulated by the courts in Minerals Management and INS does not relate to the thrust or concern of a provision, but, rather, relates to whether the provision benefits or compensates only those employees who suffer adverse effects flowing from the exercise of a management right.
Moreover, contrary to the Majority's insistence, Provision 4 does not identify the "hurt" that the Majority alleges the provision is "concerned" with. Rather, it is the Majority's interpretation of Provision 4 which identifies the "hurt" that the provision is "concerned" with. By reading this "hurt" and "concern" into Provision 4, the Majority is looking beyond the plain meaning of the provision.
In this regard, the Majority extrapolates the statement that "the effect of all aspects of an appraisal on the employee's career is pervasive and . . . 'will surely have adverse effects on some employees'" into a conclusion that adverse effects will invariably flow from the failure of a performance appraisal to take into account competing demands on an employee's time. Majority Opinion, slip op. at 21 (quoting United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1071 (D.C. Cir. 1992) (IRS)). While a performance appraisal that fails to take into account competing demands on an employee's time could produce detrimental results, such an appraisal could also be neutral and have no effect at all upon the performance appraisal. Moreover, failure to consider the lack of competing demands upon an employee's time may even lead to a more favorable appraisal than an employee would have received had the employee's lack of competing time demands been considered. Thus, a proposal addressed only to an agency's failure to take competing demands on an employee's time into account would apply to employees who were not adversely affected.
Moreover, I am troubled by the following statement made by the Majority regarding what constitutes an adverse effect: "we conclude that an appraisal at any level that provides a less favorable view of the quality of an employee's performance than is warranted by the employee's actual performance can unfairly handicap the employee's career progression." Majority Opinion, slip op. at 22. As an example of a possible adverse effect that could result from a rating which did not take into account competing demands on an employee's time, the Majority hypothesizes that an employee that has been rated at the highest level, i.e. "Exceptional," could lose an opportunity for a competitive promotion based solely on a narrative that contains a less favorable view of the quality of the employee's performance than would result following application of this Provision. However, contrary to the Majority's conclusion, such an adverse effect is not reasonably foreseeable, nor will it invariably flow from the failure of a performance appraisal to take into account competing demands on an employee's time. In my view, the Majority's conclusion in this regard is highly speculative and totally unsupported by the record.
As I interpret Minerals Management and INS, in order for a proposal or a provision to constitute an arrangement within the meaning of section 7106(b)(3) of the Statute, it must be narrowly tailored so as to benefit or compensate only those employees who would suffer an identifiable adverse affect as a result of an exercise of a management right. As so interpreted, I would apply Minerals Management and INS to determine whether a proposal constitutes an arrangement under section 7106(b)(3) of the Statute. Moreover, consistent with IRS, I would not require that a proposal or provision target in advance the specific individual employees who would be adversely affected in order to constitute an arrangement. However, I would require that a proposal or provision be tailored in such a fashion that it would benefit only those employees suffering the adverse effects complained of or anticipated.
In the instant case, Provision 4, on its face, includes within its scope employees who may not suffer an adverse effect as a consequence of being subjected to performance expectations that do not make allowance for competing demands on their time. As noted above, Provision 4 would apply as well to employees who would not suffer any adverse effect and to employees who could have a more favorable appraisal than would otherwise have been received had the employee's lack of competing time demands been considered. Accordingly, consistent with Minerals Management and INS, I would find that Provision 4 does not constitute an arrangement within the meaning of section 7106(b)(3) of the Statute.
For the reasons set forth above, I would find that, inasmuch as Provision 4 directly interferes with management's rights to direct employees and assign work and does not constitute an arrangement, it is nonnegotiable.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. The separate opinion of Member Armendariz, concurring in part and dissenting in part, appears at the end of this decision.
2. The Union has withdrawn a fifth provision, which was included in the petition, and that provision will not be considered further.
3. The application of this part of the analytical framework has been the subject of some recent court decisions. In United States Department of Justice, Immigration and Naturalization Service v. FLRA, 975 F.2d 218 (5th Cir. 1992) and United States Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992), the courts concluded that various proposals were not negotiable as appropriate arrangements for adversely affected employees because they were not tailored to benefit or compensate those employees suffering adverse effects flowing from some management action that comes within the ambit of management's rights. In United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068 (D.C. Cir. 1992), the court held that nothing in section 7106(b)(3) of the Statute requires a union proposal to target in advance the specific individual employees who will be adversely affected in order to constitute an arrangement. The court also rejected the argument that a proposal constitutes an arrangement only if it is intended to mitigate the adverse effects of a management right after the right has been exercised.
4. Specifically, an employee whose performance is determined to be unacceptable on one or more critical elements is subject to reduction in grade or removal. See 5 C.F.R. § 432.106. An employee whose performance rating is less than fully successful is subject to having his or her within-grade increase withheld. See 5 C.F.R. § 531.404.
5. In finding that these provisions are negotiable, we make no judgments as to their merits.