HOW TO STOP PERFORMANCE STANDARD CHANGES
While death and taxes may be the more commonly recognized guarantees of life, not far behind are changes in performance standards. Employees everywhere can count on managers trying to change their expectations, even if only in subtle ways, e.g., during a group discussion, employee annual reviews, e-mail messages, and daily feedback. Here is what unions can do about that.
First of all, unions can demand to bargain over the changes whether they are made through formal official changes to the written critical elements and performance standards, the more subtle methods listed above, or even just through how a new manager applies the existing standards and practices. A change is a change—and generally that means management cannot change employee performance expectations without giving the union specific notice of what it is doing and a chance to demand bargaining before implementation. The following cases provide good discussions of the core principle:
- AFGE, 60 FLRA 620 and NTEU, 4 FLRA 185. But our favorite precedents are:
- AFGE, 63 FLRA 406- management cannot make performance expectation changes even indirectly, such as by providing less training;
- NFFE, 43 FLRA 434- even a simple attempt to “clarify” an existing standard could be a change;
- AFGE, 40 FLRA 1147- even a reduction in staffing that shifts more work to the remaining employees or that effectively modifies their standards was illegal.
If a manager is foolish enough to make a change without notifying the union, the union has up to six months to file a ULP charge with FLRA alleging a unilateral change. It can also file a grievance claiming the same thing so long as the union complies with the grievance filing deadlines. The penalties for changing standards illegally are very substantial. For example, FLRA or an arbitrator could order any of the following:
- post a notice admitting it violated law,
- reinstate the former standards, redo any employee evaluations based on the illegal standard,
- grant employees retroactive promotions or performance awards based on defective or tainted evaluations, and
- award the union attorney fees.
The second approach to slowing down, blocking or just refining a performance expectation change is to demand the data management relied upon to decide a change was necessary. In CREA, IFPTE, 63 FLRA 515, the union asked management for the copies of the studies that led it to propose a RIF, even though the union could not negotiate over the substance of the decision to RIF. FLRA ordered management to reveal the studies using the following rationale:
In this clarified request, the Union stated that it was seeking the information to determine:
(1) whether [the Agency] made an effort to accomplish a RIF through attrition (see Article XVIII Section 8); and (2) whether [the Agency] made a responsible effort to avoid downgrading employees as a result of technological changes (see Article XL Section 2.F). [The Union] will use th[e] information to evaluate whether to file and to support grievances alleging violations of the CBA …. [The Union] also needs this information to determine the types of impact and implementation proposals to make related to the RIF, including to evaluate and negotiate a cost-effectiveness study proposal. . . .The Arbitrator found that the request inquired about whether the Agency had determined to conduct a RIF through attrition. The Arbitrator determined that such information was necessary for the Union to “police the agreement[,]” to the extent that the Agency had determined to RIF employees through attrition, and to assess whether the Agency had sought to avoid downgradings, and to make determinations concerning a potential grievance. Id
The Arbitrator’s factual findings establish that the Union’s request complies with the standard set forth in IRS, Wash., D.C. First, the request articulates that it seeks the information in order to resolve whether the Agency had determined to conduct a RIF through attrition, a RIF that the Agency had stated “unequivocally … [would] take place in the future if any employees remain.” Award at 34. Further, as noted in the request, the Union’s reference to Article XVIII, Section 8 serves only to reinforce its assertion, as that Article deals directly with the Agency’s ability to accomplish a RIF through attrition. See Joint Exhibit 5. Second, by citing to particular contract language, the Union also notified the Agency that, as the Arbitrator phrased it, the Union sought to “police the agreement[.]” Id. at 34. The Union thus articulated, with specificity, why it needed the information including the uses to which it will put the information, and the connection between those uses and the Union’s representational responsibilities under the Statute. Therefore, the Union established a particularized need for the information under § 7114(b)(4) of the Statute.
Unless, we are terribly wrong, we at FEDSMILL.com believe that in most cases the basis for a change in performance standards will be the whim of some manager pursuing an award, promotion or other accolade. While FLRA and every other law we know of considers that a legitimate basis for managers to demand more from employees, wouldn’t it be nice to see employee reaction when the managers has to admit that?
(Originally posted July 15, 2012)