N.L.R.B. v. Federal Labor Relations Authority
| Decision Date | 31 August 1993 |
| Docket Number | No. 91-1608,91-1608 |
| Citation | 2 F.3d 1190 |
| Parties | 144 L.R.R.M. (BNA) 2129, 303 U.S.App.D.C. 221, 126 Lab.Cas. P 10,835 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent, National Labor Relations Board Union, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review and Cross-Application for Enforcement of an Order of the Federal Labor Relations Authority.
Robert M. Loeb, Atty., U.S. Dept. of Justice, Washington, DC, argued the cause for petitioner. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen., and William Kanter, Atty., U.S. Dept. of Justice, Washington, DC.
Wendy B. Bader, Attorney, Federal Labor Relations Authority ("FLRA"), Washington, DC, argued the cause for respondent. With her on the brief were David M. Smith, Sol., and Arthur A. Horowitz, Associate Sol., FLRA, Washington, DC. William E. Persina and Pamela P. Johnson, Attys., FLRA, Washington, DC, also entered appearances for respondent.
Joseph V. Kaplan, Silver Spring, MD, entered an appearance for intervenor N.L.R.B. Union.
Before MIKVA, Chief Judge, and WALD and BUCKLEY, Circuit Judges.
Opinion PER CURIAM.
The National Labor Relations Board petitions for review of a decision and order of the Federal Labor Relations Authority requiring that the NLRB bargain over a proposal advanced by the National Labor Relations Board Union. The FLRA determined that the proposal, which would require the NLRB to change the manner in which it conducts employee performance appraisals, was negotiable as an "appropriate arrangement[ ] for employees adversely affected by the exercise of" management rights. Because we find that the proposal is not sufficiently tailored to redress the harms suffered by the particular employees who are in fact adversely affected by the performance appraisal process, we grant the petition for review and deny the FLRA's cross-petition for enforcement of its order.
This case arises under Title VII of the Civil Service Reform Act of 1978, commonly known as the Federal Service Labor Management Relations Statute ("Statute"). 5 U.S.C. Secs. 7101-35 (1988). The Statute confers on federal employees the right "to engage in collective bargaining with respect to conditions of employment through representatives chosen by [the] employees." Id. Sec. 7102(2). To effectuate this right, the Statute requires each agency to "negotiate in good faith" with the exclusive representative of its employees "for the purpose[ ] of arriving at a collective bargaining agreement." Id. Sec. 7114(a)(4).
The range of subjects over which agencies are required to bargain is not unlimited. In particular, 5 U.S.C. Sec. 7106 establishes certain "management rights" that are exempt from the negotiation process. In relevant part, that section provides:
(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency--
....
(2) in accordance with applicable laws--
(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;
(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted;
....
(b) Nothing in this section shall preclude any agency and any labor organization from negotiating--
....
(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.
Id. Sec. 7106(a), (b).
To assess whether proposals impinging upon management rights under section 7106(a) should nonetheless be considered negotiable under section 7106(b)(3) as appropriate arrangements for adversely affected employees, the FLRA has, since 1986, applied the two-part test articulated in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 F.L.R.A. 24 (1986) ("KANG "). Under the KANG test, which was developed in response to this court's decision in American Federation of Government Employees, Local 2782 v. FLRA, 702 F.2d 1183 (D.C.Cir.1983) ("Local 2782 "), "the Authority will first examine the record in each case to ascertain as a threshold question whether a proposal is in fact intended to be an arrangement for employees adversely affected by management's exercise of its rights." KANG, 21 F.L.R.A. at 31. At this stage, the burden is on the union to "articulate how employees will be detrimentally affected by management's actions and how the matter proposed for bargaining is intended to address or compensate for the actual or anticipated adverse effects of the exercise of the management right or rights." Id.
Assuming that the proposal qualifies as an "arrangement," the second step is for the FLRA to evaluate whether the arrangement "is inappropriate because it excessively interferes" with the exercise of management's rights. Id. This is accomplished "by weighing the competing practical needs of employees and managers," id. at 31-32, an open-ended balancing analysis that may include consideration of such factors as "the nature and extent of the impact experienced by the adversely affected employees" and "the nature and extent of the impact on management's ability to deliberate and act pursuant to its statutory rights." Id. at 32-33; see generally Overseas Educ. Ass'n, Inc. v. FLRA, 961 F.2d 36, 39-40 (2d Cir.1992) ().
The present dispute has its origins in a change in the NLRB's approach to conducting performance appraisals of professional and clerical employees in its field offices. Under the "old" system, an employee's immediate supervisor would prepare a written appraisal discussing the employee's performance and recommending specific ratings for each critical and noncritical element of the employee's position. The supervisor would then meet with the employee to discuss the appraisal. Thereafter, the supervisor would forward his evaluation to higher-level officials in the regional office, each of whom would supply comments and an assessment of the employee's performance. Next, the appraisals would be reviewed by the regional director, who would also provide an evaluation of the employee. The employee would then receive copies of the various assessments and have an opportunity to comment on them before they were finalized and sent to the Board's D.C. headquarters.
Under the "new" review process, the appraising officials and the regional director meet in advance to determine the performance rating each employee will receive. Once the regional director, who is now the sole "reviewing official," determines the outcome of the appraisal, a written report is prepared and furnished to the employee in "one voice"; that is, without dissenting opinions.
During collective bargaining negotiations with the NLRB, the Union sought to open up the Board's performance appraisal process. Specifically, it made the following proposal:
(1) An employee's appraising official(s) shall prepare in writing an independent evaluation of an employee's performance and recommend specific performance standard ratings on each of the employee's critical and, as applicable, noncritical elements, and forward the same to the employee's designated reviewing official(s). Such evaluation will not contain a summary rating nor constitute a rating of record.
(2) Option 1. An employee's appraising official(s) shall provide a copy of an employee's evaluation and recommendations to the employee and discuss it with the employee before the appraising official(s) forwards the same to the appropriate reviewing official(s) for further action.
Option 2. [note--to be considered only if option 1 is determined to violate 5 C.F.R. Sec. 430.206(c) ].
Once an employee's reviewing official(s) has (have) acted upon the written evaluation of performance and recommendations by the employee's appraising official(s), derived a summary rating, and conferred a rating of record, the employee shall be provided copies of the appraisal documents prepared by the appraising and reviewing officials.
The NLRB refused to bargain over the Union proposal on the ground that it impermissibly infringed upon the rights reserved to management under 5 U.S.C. Sec. 7106(a). The NLRB also claimed that the proposal was inconsistent with 5 C.F.R. Sec. 430.206(c) (1993), which provides in relevant part:
(c) Higher level review. Ratings of record and performance-based personnel actions shall be reviewed and approved by a person(s) at a higher level in the organization than that of the appraising official. Ratings of record may not be communicated to employees prior to approval by the final reviewer. This does not preclude communication about appraisal of performance between a supervisor and an employee prior to the determination of the rating of record. Ratings of record must be approved by the official with the responsibility for managing the performance awards budget within the agency.
5 C.F.R. Sec. 430.206(c); see 5 U.S.C. Sec. 7117(a) ().
The Union appealed to the FLRA for review of the NLRB's refusal to negotiate. In a decision and order issued on October 31, 1991, the FLRA agreed with the NLRB that Option 1 of section (2) was non-negotiable because it was inconsistent with the 5 C.F.R. Sec. 430.206(c) prohibition on communicating an employee's rating of record "prior to approval by...
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