Performance Management & Negotiability Issues FAQ
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 Labor Relations Group, Center for Workforce Relations and Accountability, 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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Are 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. |
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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. |
Frequently Asked Questions