[ v13 p707 ]
13:0707(116)CA
The decision of the Authority follows:
13 FLRA No. 116
U.S. ARMY ENGINEER CENTER AND
FORT BELVOIR
Respondent
and
U.S. DEPARTMENT OF THE ARMY
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1052
Charging Party
Case Nos. 3-CA-2908
3-CA-20133
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Cases to the Authority" in accordance
with section 2429.1(a) of the Authority's Rules and Regulations.
Upon consideration of the entire record in this case, including the
stipulation of facts and contentions of the parties, the Authority
finds:
The complaint in Case No. 3-CA-2908 alleges that the Respondent U.S.
Army Engineer Center and Fort Belvoir (hereinafter referred to as Fort
Belvoir) violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute) by refusing to bargain
over proposals submitted in connection with negotiations over the impact
and implementation of a new performance appraisal system. In Case No.
3-CA-20133, the complaint alleges that the Respondent Department of the
Army violated section 7116(a)(1) of the Statute by denying the Charging
Party an opportunity to bargain over the new performance appraisal
system prior to its implementation, thereby interfering with the
collective bargaining relationship between the Charging Party and Fort
Belvoir.
The record reveals that the Charging Party, the American Federation
of Government Employees, AFL-CIO, Local 1052 (the Union), exclusively
represents a unit of employees at Fort Belvoir. On or about April 15,
1981, the Department of the Army issued regulation AR 690-400, Chapter
430 (hereinafter referred to as AR 690-400), entitled "Department of the
Army General Performance Appraisal System," which was to be implemented
by component activities no later than October 1, 1981. Subsequent to
the issuance of this regulation, the Union and Fort Belvoir met for the
purpose of bargaining over the impact and implementation of the new
system. During the course of negotiations, the Union submitted two
proposals which were declared by Fort Belvoir to be in conflict with
provisions of AR 690-400. Fort Belvoir indicated that it could not
bargain on the proposals without first checking with the Department of
the Army. Thereafter, Fort Belvoir informed the Union that Respondent
Department of the Army had refused to waive the regulation so as to
permit For Belvoir to negotiate concerning the Union's two proposals.
Implementation of the performance appraisal system occurred on June 1,
1981.
The Respondents take the position that AR 690-400 constituted a bar
to negotiations on the proposals submitted by the Union within the
meaning of section 7117 of the Statute. /1/ Specifically, the
Respondents argue that AR 690-400 is a regulation of the Department of
the Army, a primary national subdivision of the Department of Defense,
and as such is not subject to negotiations because: the Union does not
hold exclusive recognition at the level of the primary national
subdivision; the Union does not hold exclusive recognition for a unit
which includes a majority of the employees affected by the regulation;
and no determination has been made by the Authority that no compelling
need exists for the regulation in question to bar negotiations on
conflicting proposals. In this latter connection, the Respondents
further argue that the Union had the option of filing a negotiability
appeal in which the issue of compelling need could have been resolved,
and that compelling need may not be litigated in an unfair labor
practice proceeding where the Union has failed to file a timely
negotiability appeal and where the General Counsel is excluded as a
party in compelling need determinations under section 7117 of the
Statute.
With regard to the assertion that compelling need issues may not be
litigated in unfair labor practice proceedings, the Authority has
recently decided to the contrary. In Defense Logistics Agency (Cameron
Station, Virginia) et al., 12 FLRA No. 86(1983), the Authority held as
follows:
(I)n exercising its statutory authority to resolve disputes
involving alleged unilateral changes in conditions of employment
where issues of negotiability are also raised, the Authority has
promulgated procedures which recognize a labor organization's
right to seek a resolution of the negotiability issues by filing
an unfair labor practice charge and a negotiability appeal and
which require the labor organization to select the forum in which
to proceed first. . . . Accordingly, . . . where a labor
organization selects the unfair labor practice forum with regard
to alleged unilateral changes in conditions of employment
affecting unit employees resulting from the issuance of a new
regulation or . . . modification of an existing regulation, and
agency management raises as an affirmative defense that it refused
to bargain on the basis that there is a compelling need for the
regulation in question, the compelling need issue must perforce be
decided in the unfair labor practice proceeding. Of course, an
agency which raises compelling need as an affirmative defense in
an unfair labor practice proceeding is required, as it would be in
a negotiability proceeding, to come forward with affirmative
support for that assertion. (Footnotes omitted.)
Thus, contrary to the Respondents' assertion, the Authority finds that
the issue of compelling need for AR 690-400 to bar negotiations on
conflicting proposals can, in fact, be litigated in the instant unfair
labor practice proceeding.
As noted above, Chapter 430 of AR 690-400 constitutes the Department
of the Army's General Performance Appraisal System. Among its features,
the regulation provides that employees with current annual ratings of
"Highly Successful" will be credited with two years of additional
service for reduction-in-force purposes. The regulation also provides
that rating supervisors will discuss proposed appraisals with reviewers
(generally higher level management officials) prior to discussing such
appraisals with employees, and that employees then have an opportunity
to enter written comments on the appraisal prior to signature by
reviewing/approving officials. During the course of bargaining, the
Union advanced the following two proposals which were declared by Fort
Belvoir to be in conflict with AR 690-400:
1. That employees with current annual ratings of Highly
Successful not have any years added to creditable service for
reduction-in-force purposes.
2. That the rating supervisors prepare the appraisal, discuss
the appraisal with the employee, give the employee an opportunity
to comment in writing and sign the appraisal, and then for the
rating Supervisor to discuss the appraisal with the reviewer
and/or approving official. The approving official could then make
up a final appraisal but could not destroy the rater's appraisal.
Both the rater's appraisal and the final appraisal would be given
to the employee and filed in his official personnel file.
In the Authority's view, these proposals are within the duty to
bargain inasmuch as the Respondent's have failed to demonstrate that a
compelling need exists for those portions of AR 690-400 with which the
Union's proposals are in conflict and inasmuch as the proposals do not
otherwise appear to be inconsistent with law, rule or regulation. /2/
Thus, in Defense Logistics Agency, supra, the Authority stated that
where an agency raises compelling need as an affirmative defense in an
unfair labor practice proceeding, it is required to come forward with
affirmative support for that assertion. In the instant case, the record
is devoid of support for the mere assertion that a compelling need
exists for those portions of AR 690-400 to bar negotiations on the
Union's conflicting proposals. Accordingly, this contention of the
Respondents cannot be sustained.
Turning to the merits of the proposals, the Authority finds, with
regard to the first proposal, that entitlements to additional service
credit for reduction-in-force purposes is covered by 5 Cfr part 351.
/3/ More particularly, 5 CFR 351.504 distinguishes between agencies
which have not implemented performance appraisal systems meeting certain
legal and regulatory requirements, and those agencies which have
implemented such systems. In the former's situation, 5 CFR 351.504(b)
provides that employees who have an "Outstanding" rating shall receive 4
additional years of service, while employees whose performance rating is
between "Satisfactory" and "Outstanding" shall receive 2 additional
years. For those agencies which have implemented a performance
appraisal system, 5 CFR 351.504(c) provides that employees with an
"Outstanding" rating shall receive 4 additional years of service. It
further provides that agencies may assign to employees whose ratings
exceed the minimum performance standards, but are less than
"Outstanding" an amount of service credit ranging from 0 to less than 4
years. Unlike the former situation, then, the granting of additional
years of service to employees performing above the minimum level but
less than the outstanding level is a discretionary matter within the
purview of agency management where performance appraisal systems are in
place. In the instant case, the Union was seeking to negotiate a
proposal which was to take effect after implementation of AR 690-400.
/4/ In such circumstances, the Authority finds that the proposal
pertained to a discretionary matter under the provisions of 5 CFR
351.504(c) and was, therefore, within Fort Belvoir's duty to bargain.
/5/
As to the Union's second proposal, which would permit an employee to
discuss and sign an appraisal prior to having it reviewed by a reviewing
or approving official, the Authority finds that it constitutes a
negotiable procedure under section 7106(b)(2) of the Statute, /6/ and
would not interfere with management's section 7106(a) rights to direct
employees or assign work. National Federation of Federal Employees and
Department of the Army, Fort Monmouth, New Jersey, 13 FLRA No. 75(1983).
/7/ Therefore, this proposal was also within Fort Belvoir's duty to
bargain. /8/
As previously noted, Fort Belvoir declared the two proposals to be in
conflict with AR 690-400 and indicated that it could not negotiate with
regard thereto unless it first obtained a waiver from the Department of
the Army. After such waiver was refused, Fort Belvoir informed the
Union that the Department of the Army would not waive AR 690-400 so as
to permit Fort Belvoir to bargain. In the Authority's view, while Fort
Belvoir was obligated to bargain over the proposals, /9/ the record
indicates that it was prevented from doing so by direction of the
Department of the Army which refused to waive those portions of AR
690-400 with which the proposals were alleged to be in conflict. It has
been previously held that the acts and conduct of higher level agency
management may constitute an unfair labor practice where such conduct
prevents agency management at the level of exclusive recognition from
fulfilling its bargaining obligation under the Statute. /10/ In the
circumstances of this case, the Authority finds that the Department of
the Army improperly interfered with the bargaining relationship between
Fort Belvoir and the Union. However, inasmuch as the complaint did not
allege a separate violation of section 7116(a)(5) of the Statute against
the Department of the Army, no such violation may be found.
Nevertheless, the Authority finds that such interference with the
bargaining relationship had the effect of undermining the status of the
exclusive representative selected by unit employees, thereby improperly
interfering with, restraining or coercing employees in the exercise of
their rights under the Statute, in violation of section 7116(a)(1).
Thus, section 7102(2) of the Statute provides that employees have the
right "to engage in collective bargaining with respect to conditions of
employment through (their) representatives . . .." Where the Department
of the Army improperly interfered with this right, its conduct therefore
violated section 7116(a)(1) of the Statute. However, no violation will
be found against Fort Belvoir which acted solely at the direction of the
Department of the Army in refusing to negotiate over the Union's
proposals. /11/ Accordingly, this portion of the complaint shall be
dismissed.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, it is hereby ordered that
the Department of the Army shall:
1. Cease and desist from:
(a) Improperly interfering with the rights of unit employees by
directing the U.S. Army Engineer Center and Fort Belvoir not to bargain
with the American Federation of Government Employees, AFL-CIO, Local
1052, the employees' exclusive representative.
(b) In any like or related manner interfering with, restraining or
coercing employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request of the American Federation of Government Employees,
AFL-CIO, Local 1052, permit the U.S. Army Engineer Center and Fort
Belvoir to bargain on the two proposals which were declared to be in
conflict with the Department of the Army regulation, AR 690-400, Chapter
430, entitled "Department of the Army General Performance Appraisal
System."
(b) Post at all facilities within the U.S. Army Engineer Center and
Fort Belvoir, copies of the attached Notice on forms to be furnished by
the Federal Labor Relations Authority. Such forms shall be signed by
the Secretary of the Army, or his designee, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
insure that such Notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint in Case No. 3-CA-2908 be,
and it hereby is, dismissed.
Issued, Washington, D.C., January 31, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL
LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES
THAT:
WE WILL NOT improperly interfere with the rights of unit employees by
directing the U.S. Army Engineer Center and Fort Belvoir not to bargain
with the American Federation of Government Employees, AFL-CIO, Local
1052, the employees' exclusive representative.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce any employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request of the American Federation of Government
Employees, AFL-CIO, Local 1052, permit the U.S. Army Engineer Center and
Fort Belvoir to bargain on the two proposals which were declared to be
in conflict with the Department of the Army regulation, AR 690-400,
Chapter 430, entitled "Department of the Army General Performance
Appraisal System."
(Activity)
Dated: . . .
By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region III, Federal Labor Relations Authority, whose address
is: 1111 18th Street, Rm. 700, P.O. Box 33758, Washington, D.C.
20033-0758 and whose telephone number is: (202) 653-8507.
--------------- FOOTNOTES$ ---------------
/1/ Section 7117 of the Statute provides, in pertinent part, as
follows:
Sec. 7117. Duty to bargain in good faith; compelling need; duty to
consult
* * * *
(a)(2) The duty to bargain in good faith shall, to the extent not
inconsistent with Federal law or any Government-wide rule or regulation,
extend to matters which are the subject of any agency rule or regulation
referred to in paragraph (3) of this subsection only if the Authority
has determined under subsection (b) of this section that no compelling
need (as determined under regulations prescribed by the Authority)
exists for the rule or regulation.
(3) Paragraph (2) of the subsection applies to any rule or regulation
issued by any agency or issued by any primary national subdivision of
such agency, unless an exclusive national subdivision represents an
appropriate unit including not less than a majority of the employees in
the issuing agency or primary national subdivision, as the case may be,
to whom the rule or regulation is applicable.
(b)(1) In any case of collective bargaining in which an exclusive
representative alleges that no compelling need exists for any rule or
regulation referred to in subsection (a)(3) of this section which is
then in effect and which governs any matter at issue in such collective
bargaining, the Authority shall determine under paragraph (2) of this
subsection, in accordance with regulations prescribed by the Authority,
whether such a compelling need exists.
(2) For the purpose of this section, a compelling need shall be
determined not to exist for any rule or regulation only if --
(A) the agency, or primary national subdivision, as the case may be,
which issued the rule or regulation informs the Authority in writing
that a compelling need for the rule or regulation does not exist; or
(B) the Authority determines that a compelling need for a rule or
regulation does not exist.
(3) A hearing may be held, in the discretion of the Authority, before
a determination is made under this subsection. If a hearing is held, it
shall be expedited to the extent practicable and shall not include the
General Counsel as a party.
/2/ See, e.g., Association of Civilian Technicians, Pennsylvania
State Council and The Adjutant General, Department of Military Affairs,
Commonwealth of Pennsylvania, 3 FLRA 50(1980).
/3/ 5 CFR 351.504 provides, in pertinent part, as follows:
Sec. 351.504 Credit for performance.
(a) Each employee's performance rating of record on the date of
issuance of specific reduction in force notices shall determine the
employee's entitlement to additional service credit for performance
under this section.
(b) An agency that has not implemented a performance appraisal system
meeting all the requirements of 5 U.S.C. 4302 and Part 430 Subpart B of
this title, and assigns summary adjective performance ratings, shall
credit the following employees with additional service, which is added
to each employee's creditable service under this part:
(1) Each employee who has an "Outstanding" performance rating shall
receive 4 years of additional service; and
(2) Each employee who has a performance rating between "Satisfactory"
and "Outstanding" shall receive 2 additional years of service.
(c) An agency that has implemented a performance appraisal system
meeting all the requirements of 5 U.S.C. 4302, and Part 430 Subpart B of
this title, is responsible for using employee performance appraisals to
credit employees with additional service toward retention standing.
This additional service is added to each employee's creditable service
under this part. Each employee who has an "Outstanding" or highest
appraisal under the agency's system, shall receive 4 additional years of
service. Each employee whose performance meets, but does not exceed,
the established minimum performance standards for the critical elements
of his or her position shall be credited with no additional years of
service. Agencies may use employee performance appraisals to assign
other employees whose performance exceeds that established minimum
performance standards for the critical elements of the position, but is
less than "Outstanding" or the highest equivalent appraisal under the
agency's system, an amount of service credit ranging from 0 to less than
4 years.
Each agency is responsible for ensuring that these provisions are:
(1) Consistent with Part 430 Subpart B of this title; and
(2) Uniformly and consistently applied in any one reduction in force.
/4/ There was no evidence in the record to suggest that the proposal
was to take effect prior to implementation of the performance appraisal
system and, therefore, the Authority need not address whether such a
proposal would have conflicted with the provisions of 5 CFR 351.504(b).
/5/ National Treasury Employees Union, Chapter 6 and Internal Revenue
Service, New Orleans District, 3 FLRA 748(1980).
/6/ Section 7106(b)(2) of the Statute provides, in pertinent part, as
follows:
Sec. 7106. Management rights
* * * *
(b) Nothing in this section shall preclude any agency and any labor
organization from negotiating --
* * * ,0 *
(2) procedures which management officials of the agency will observe
in exercising any authority under this section(.)
/7/ See generally Department of the Treasury, Bureau of the Public
Debt. 3 FLRA 769(1980), at 779-780.
/8/ The Authority notes that the Office of Personnel Management has
caused to be published in 48 Fed. Reg. 49, 478-81(1983), a regulation
originally intended to become effective November 25, 1983, but not yet
effective as of the date of this Decision and Order. Such regulation,
at Sec. 430.204(o), provides as follows:
(o) Periodic performance ratings and performance based personnel
actions shall be reviewed and approved by a supervisor or manager at a
higher level than the appraising official. Performance ratings shall be
in writing and shall be provided to the employee. Performance ratings
may not be communicated to employees prior to approval by a higher level
reviewer.
If and when such Government -- wide regulation, (See American
Federation of State, County and Municipal Employees, AFL-CIO, Local 2027
and Action, Washington, D.C., 12 FLRA No. 128 (1983) (Proposal 2),
becomes effective, it appears that the instant proposal could
potentially be inconsistent with the last sentence of the quoted
section.
/9/ See Veterans Administration, Veterans Administration Regional
Office (Buffalo, New York), 10 Flra no. 35(1982).
/10/ See Defense Logistics Agency, supra; Department of Health and
Human Services, Social Security Administration, Region VI, and
Department of Health and Human Services, Social Security Administration,
Galveston, Texas District, 10 FLRA No. 9(1982); and Department of the
Interior, Water and Power Resources Service, Grand Coulee Project, Grand
Coulee, Washington, 9 FLRA No. 46(1982).
/11/ Id.