NTEU's Update on FDA Performance Management Program

1. NTEU Chapters 229, 272 & 282 Present A Lunch n Learn Update On FDA Performance Management Program (PMP) ♦ NTEU’s Responses to HHS’ Proposed Performance Management Administration Plan (PMAP)

2. Presented Tuesday, February 12, 2008 At Parklawn Bldg., Rockville, MD By Wendy Lucas Pisman NTEU Assistant Counsel DC Field Office

3. What’s the Big Deal About PMAP? In December 2005 HHS Notified NTEU that it wanted to implement Mid-Term bargaining over implementation of a new Performance Management System/Program beginning early January 2006. NTEU timely requested to bargain over HHS’ intent to implement a new PMAP. In March 2006 NTEU and HHS signed a Memorandum of Understanding (MOU) over when and how the proposed PMAP could be implemented.

4. Performance Management Appraisal Program (PMAP) History In the MOU the parties agreed to DHHS’ implementation of its PMAP program with limited changes in the immediate future (i.e., in 2006), both of which constitute an exercise of management’s rights. The two changes were: • Implementation of a four-tier appraisal system; and • An appraisal cycle on a calendar year rather than fiscal year cycle The MOU further provided that:

5. Performance Management Appraisal Program (PMAP) History • HHS would stagger the implementation of the new PMAP four-tier structure as follows: OS/AoA - January 1 through March 31, 2006 ACF - July 1 through September 30, 2006 FDA, HRSA, SAMHSA - October 1 through December 31, 2006 For FDA, the new 4-tier structure will be implemented after the completion of bargaining the consolidated contract, but no later than November 1, 2006." (PMAP MOU, ¶ 2). • Employees would not be evaluated under the new system prior to December 2006;

6. Performance Management Appraisal Program (PMAP) History • Effective January 2007, the Department would change the minimum appraisal period from 120 days to 90 days; and • That all other issues associated with the PMAP (including awards, procedures, self-appraisals, etc.) will be bargained during the consolidated contract negotiations in accordance with law, rule and regulation (PMAP MOU, ¶ 6).

7. Performance Management Appraisal Program (PMAP) History On July 7, 2006 NTEU filed the first of two (2) National Grievances against HHS alleging that HHS had violated the terms of the MOU. The first National Grievance alleged that: On or about June 21, 2006, NTEU learned that HHS had begun full scale implementation of the PMAP in several of the HHS OPDIVs, including the Office of the Secretary (OS), in violation of PMAP MOU ¶ 2 and ¶ 6, several articles in the parties Negotiated Agreement and 5 USC 7116(a).

8. Performance Management Appraisal Program (PMAP) History On July 7, 2006 NTEU filed the first of two (2) National Grievances against OS alleging that: On or about June 21, 2006, NTEU learned that HHS had begun full scale implementation of the PMAP in several of the HHS OPDIVs, including the Office of the Secretary (OS), in violation of the PMAP MOU ¶ 2 and ¶ 6, several articles in the parties’ Negotiated Agreement and 5 USC 7116(a). The National Grievance also emphasized that the MOU explicitly required the Agency to continue to adhere to the terms of the individual Negotiated Agreements on performance management systems and awards would remain in force other than the change to the 4-tier system, the change over of the rating period from calendar year to fiscal year and the 120 day to 90 day minimum rating period.

9. Performance Management Appraisal Program (PMAP) History On November 20, 2006 NTEU filed the second National Grievance alleging that FDA had: Implemented the entire PMAP program (including issues/areas which NTEU had the right to bargain over under law and which NTEU had reserved the right bargain over in the MOU) in violation of the MOU (MOU ¶ 2 and ¶ 6), several articles in the parties Negotiated Agreement and 5 USC 7116(a). FDA had required employees to attend training sessions over PMAP and provided employees information on mid-year review processes and final ratings processes that were being bargained over by the parties; and

10. Performance Management Appraisal Program (PMAP) History That during these training sessions FDA had also advised employees that it would be implementing a new awards program in conjunction with PMAP and told employees the percentage of salary ranges plus the correlation of salary to award amounts. The National Grievance also emphasized that the MOU explicitly required the Agency to continue to adhere to the terms of the individual Negotiated Agreements on performance management systems and awards would remain in force other than the change to the 4-tier system, the change over of the rating period from calendar year to fiscal year and the 120 day to 90 day minimum rating period.

11. Where We Are Now NTEU & HHS are still bargaining over the “One” HHS Consolidated National Agreement. The Parties have over 93 issues which are still on the table The Performance and Award Articles are included in the 93 issues.

12. Performance Management Appraisal Program (PMAP) History Both of the National Grievances alleged that HHS’ implementation of the entire PMAP, instead of the three provisions agreed to in the MOU constituted bad faith bargaining, which is an Unfair Labor Practice (ULP). Several of the HHS NTEU Chapters also filed Institutional Grievances.

13. Performance Management Appraisal Program (PMAP) History The parties agreed to hold both National Grievances in abeyance until completion of negotiations on the One HHS Consolidated Contract.

14. Where We Are Now The Parties submitted their position statements on the 93 issues to the Arbitrator on 28 Jan 08 The next step in accordance with the Parties’ Ground Rules would be that the Arbitrator issue his recommendations on each of the 93 issues; however, HHS has asked for a conference to discuss concerns over the filing procedures HHS has continued its roll out of the PMAP as described in the Agency regulation

15. How to Get the Latest Info on HHS Negotiations • As a member you can go to www.NTEU.org Register (creating your own User ID) • Login Select Members Only • Go to Agency News Section and Select DHHS (it will route you to http://www.nteu.org/Members/HHS.aspx • Read all of the latest info relating to HHS

16. Where We Are Now Employees have received performance standards using the 4 tier HHS PMAP Employees performance cycles are now calendar year as opposed to fiscal year Employees have received or will be receiving their first ratings under the HHS PMAP HHS has indicated informally in some OP/Divs and formally in other OP/Divs that it will not be complying with the negotiated Performance Awards procedures/processes

17. Where In the Negotiated Agreement are the Rules for the Employee Performance Management System The rules for the Employee performance standards, appraisals, and awards are found in 2006 MOU, the Performance Management and Awards Articles of the parties’ Negotiated Agreements and HHS Instructions 430-4-80 and 430-7

18. If There is a Conflict Between the Language in Negotiated Agreement or HHS Instruction 430-7 Which Document Wins? All of NTEU’sNegotiated Agreements with HHS have anArticle that provides that if there is a specific conflict between the National Agreement and any rule or regulations the language in the Negotiated Agreement governs.

19. Differences between the PMAP and the Negotiated Performance Management & Awards Articles Some of the major changes between the Negotiated Performance Management Articles and the PMAP include: • Progress reviews are required under both plans, however, the difference is that Negotiated Agreement requires that employees receive all progress reviews writing but the PMAP only requires reviews to be reduced to writing only when an employee receives a “Less Than Fully Satisfactory” rating. The same is true for Summary Ratings. • The existing Negotiated Agreements have contract language that must be used by the Agency when it issues Performance Awards and includes Union involvement/input during the awards recommendation processes. Whereas the PMAP is silent with regard to Union/bargaining unit involvement in the awards process.

20. Since HHS is Implementing the PMAP What Should I Do? • Know your rights and responsibilities as defined by the Negotiated Agreement , law, rule and regulation. • Remember that with the exception of the 3 agreed upon changes (i.e., 4-tier system, calendar year rating cycle, and 90 day minimum rating period) the existing Articles of the Negotiated Agreement concerning Performance Management procedures and Awards processes are still in effect . • Know what rights and processes you have under your OpDivs’ Negotiated Performance Management Article

21. Since HHS is Implementing the PMAP What Should I Do? • Employees should participate in the performance plan creation process because it will help you be able to document what if any issues/concerns you have about the plan. • Employees should reduce their concerns, questions, suggestions, etc. , regarding the proposed performance plan to writing and provide them to their supervisor. • Employees should sign the plan and/or performance rating indicating the date of receipt.

22. Since HHS is Implementing the PMAP What Should I Do? • Employees may also indicate in writing that their participation is not to be construed as a concession that the agency has legally implemented the plan, but that they're participating to protect themselves.  • Employees should regardless of their participation keep record/notes of how they are negatively impacted by the new system. • Engage proactively in the performance rating process (i.e., provide your supervisor with your accomplishments for the rating period in accordance with the Negotiated Agreement, rebuttal submission after receipt of rating, and/or file a grievance, etc.).

23. Since HHS is Implementing the PMAP What Should I Do? When in doubt contact your Steward or your Chapter Union Office.

24. ACF Contract Articles • Article 3 - Effect of Law and Regulation • Article 5 - Employee Rights and Responsibilities • Article 11 - Performance Management and Awards • Appendix 2 - Article 11 - Performance Appraisal • Appendix 2A - Article 11 - Performance, Incentive and Suggestion Awards • Article 47 - Grievance Procedure

25. FDA Contract Articles • Article 4 - Effect of Law and Regulation • Article 5 - Employee Rights and Responsibilities • Article 27 - Performance and Incentive Awards • Article 30 - Performance Management Program • Article 45 - Grievance Procedures

26. HRSA Contract Articles • Article 2 - Effect of Law and Regulation • Article 4 - Employee Rights and Responsibilities • Article 8 - Grievance Procedure • Article 31 – Awards • Article 43 - Employee Performance Management System

27. OS/AoA/PSC Contract Articles • Article 2 - Effect of Law and Regulation • Article 4 - Employee Rights and Responsibilities • Article 31 - Grievance Procedure • Article 50 – Rewards and Recognition • Article 49 - Performance Assessment

28. SAMHSA Contract Articles • Article 6 - Effect of Law and Regulation • Article 7 - Employee Rights and Responsibilities • Article 45 - Grievance Procedure • Article 28 – Awards • Article 30 - Performance Management Program

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