Performance
Management & Negotiability Issues FAQs
Federal agencies are required to negotiate
implementation and impact issues when establishing new
appraisal programs. Some frequently asked questions about
appraisal program negotiation include:
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How
does the flexibility that the performance
management regulations allow affect
negotiability? |
| As a general
principle, when agency discretion over a
condition of employment of bargaining unit
employees is increased by the removal of a
Governmentwide requirement or restriction, and
that increased discretion is not reserved to
management by section 7106 title 5, United States
Code, there is a duty to bargain on how the
agency will exercise that discretion. Even when
the decision is reserved to management by its
section 7106 rights, there is a duty to give
notice to the union and, upon request, bargain on
the impact and implementation of the otherwise
protected decision. For further information, see
the OPM labor-management relations guidance
bulletin, Labor Relations Case Law on
Performance Management, March 1996, which may
be obtained from OPM's Center for Partnership and
Labor-Management Relations at 202-606-2930. |
 
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|
Is
the establishment of performance standards
negotiable? |
| No. Bargaining
performance standards interferes with
management's rights to direct employees and
assign work and is therefore nonnegotiable. |
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|
Will
the pattern of summary levels an appraisal
program uses be negotiable? |
| No. The number of
summary levels is an exercise of management
rights and not subject to collective bargaining.
However, given the relevance of employee
involvement to program acceptance, a decision
about a program's pattern of summary levels,
assuming the agency system permits some
flexibility, might be approached through
partnership. |
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|
The
1995 employee appraisal regulations removed the
Governmentwide requirement for higher-level
review of employee performance plans. Doesn't
this make performance standards negotiable? |
| The rulings in case
law that performance elements and standards are
nonnegotiable are based on management's rights to
direct employees and assign work, through the
establishment of performance plans, not on the
previous regulatory requirement for higher-level
review. Removing that requirement does not alter
these management rights in any way. |
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|
Does
an agency have to negotiate implementation of
appraisal program changes with its union? |
| If the proposed
program covers bargaining unit employees, at the
very least the agency is obligated to notify the
union and afford it the opportunity to negotiate
on the impact and implementation of the appraisal
program. But apart from the agency's legal
requirements, the Office of Personnel Management
encourages agencies to approach any program
design in a spirit of partnership. We also
recommend involving non-bargaining unit employees
the program may cover. |
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|
Does
the Office of Personnel Management think that the
performance crediting provisions in the reduction
in force regulations are negotiable? |
| No. In giving
agencies some discretion on performance
crediting, the reduction in force regulations
make clear that whatever decision is made, it
must be uniformly and consistently applied
throughout the competitive area. Since
competitive areas normally contain employees that
are not in the bargaining unit, there is no duty
to bargain on otherwise negotiable proposals that
are aimed at the entire competitive area, as that
would be tantamount to negotiating with the union
the conditions of employment of non-bargaining
unit employees. The limited discretion agencies
have regarding crediting is reserved to
management by section 7106 of title 5, United
States Code. But, as we indicated previously, the
Office of Personnel Management encourages
agencies to approach program design in a spirit
of partnership. |
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