Case involves union proposal to prevent Customs and Border Protection from using an employee performance rating higher than “successful”. Ruling in favor of agency management could signal what's ahead for challenges to executive orders. Image: Andrey_Popov/Shutterstock.com

A federal appeals court has ruled that agencies do not have to negotiate over union proposals over the number of levels to be used in their employee performance rating systems.

The decision by the U.S. Court of Appeals for the District of Columbia Circuit dates to before the Trump administration’s issuance of executive orders to restrict the subjects over which agencies will agree to negotiate but is based on the same principle, that certain matters are at management’s sole discretion under federal labor law.


The case involved a proposal by the NTEU union in negotiations with Customs and Border Protection to have no performance rating level above “successful” while allowing for levels between that and “unsuccessful” at management’s discretion. The agency refused to bargain and the FLRA agreed, saying the proposal would interfere with management’s exclusive rights to assign work and direct employees.

The appeals court agreed that “that the number of rating levels in an employee appraisal system is inextricably tied to both the right to assign work and the right to direct employees. Both rights depend, for their effective exercise, on an agency’s ability to measure and evaluate its employees against pre-established performance standards.”

“Without this ability, an agency will be limited in making effective decisions about how (and to whom) to assign work or how to supervise and guide its employees. Because proposals restricting the number of performance ratings interfere with an agency’s ability to measure and evaluate its employees, then, they interfere with an agency’s nonnegotiable rights to assign work and direct employees,” the ruling said.

The decision could be a signal of what is to come as unions challenge various provisions of the executive orders first at the FLRA, following the court’s decision that such disputes must go there first rather than directly into the federal courts. Decisions by the FLRA in general are appealed to that same federal circuit court.