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2 FLRA NO. 55

American Federation of Government Employees, AFL - CIO, Local 1617 and Department of the Air Force, Headquarters, Air Force Logistics Command, Kelly Air Force Base, Texas, Case No. 0-NG-39. The union sought to negotiate on the subject of certain activity guidance to supervisors concerning their appraisal of subordinates. The activity responded by stating that the matter was nonnegotiable. The union filed an unfair labor practice charge against the activity and, subsequently, a negotiability appeal. The Authority determined that to the extent the instant case arose out of an alleged unilateral change coupled with a refusal to bargain and a defense, essentially, that no change had occurred, the proper forum in which to raise such issues was not a negotiability appeal but, rather, an unfair labor practice proceeding pursuant to section 7118 of the Statute. The Authority concluded that the union's negotiability appeal did not present issues that the Authority could appropriately resolve under section 7117 of the Statute and part 2424 of its rules and regulations, and therefore dismissed the appeal.  [ v2 p407 ]

 

January 9, 1980

Mr. Ronald D. King, Director
Contract and Appeals Division
American Federation of Government
  Employees, AFL-CIO
1325 Massachusetts Avenue, NW.
Washington, D.C. 20005

Re:  American Federation of Government
     Employees, AFL-CIO, Local 1617
     and Department of the Air Force,
     Headquarters, Air Force Logistics
     Command, Kelly Air Force Base,
     Texas, Case No. 0-NG-39

 

Dear Mr. King:

Reference is made to your petition for review filed on behalf of the union, the agency's statement of position and the union's response thereto, in the above-entitled case. For the reasons stated below, the Authority has determined that the petition for review must be dismissed.

The basic facts, as set forth in the record, are as follows: By letter dated March 7, 1979, Headquarters, Air Force Logistics Command, Kelly Air Force Base, Texas (the activity) notified American Federation of Government Employees, AFL - CIO, Local 1617 (the union), that the activity had reminded its supervisors of their "responsibilities to realistically appraise their subordinates ... by distributing to (supervisors) the attached guidance" entitled the "1979 Appraisal/Evaluation Guide." The union's return letter dated March 9 stated that the activity's guidance to its supervisors "... change(s) past practice ... and has a direct impact on (u)nit (e)mployees ...," and requested negotiations on the subject. In its letter of response dated March 15, the activity took the position that "the matters contained within our letter of 7 Mar 1979 are not negotiable." On March 20, the union filed an unfair labor practice charge with the Authority's Dallas Regional Office (docket no. 6-CA-32) alleging that the activity had implemented a new regulation regarding the procedures for accomplishing supervisory appraisals and evaluations of unit employees without negotiating with the union, thereby violating sections 7116(a) and 7117 of the Statute. Several weeks later, on April 9, the union filed the instant negotiability appeal in which it advised the Authority of the pending unfair labor practice proceeding and expressed its belief that management's appraisal and evaluation instructions to supervisors "impact upon 'conditions of employment' ... (and) at least some of the material is of a mandatory nature for bargaining."

In its statement of position, the agency contends, inter alia, that the "1979 Appraisal Evaluation Guide simply reminds rating officials of existing  [ v2 p408 ] evaluation standards, solicits their support in maintaining the integrity of the existing standards, and does not change existing working conditions." Hence, according to the agency, no charge in "conditions of employment" has occurred requiring collective bargaining. In any event, the agency asserts, the union is essentially alleging a failure or refusal to bargain which is more appropriately resolved in an unfair labor practice proceeding. In its response, the union argues that, whether described as a "get tough" policy to have the supervisors lower the appraisal scores of unit employees or as a "new scheme for appraisals which substantially deviates from previous practice," the "prerequisite to implementation is bargaining upon demand."

In the Authority's opinion, the union's petition for review herein must be dismissed. Thus, based upon the record in this case, it is clear that the essence of the contentions and arguments of the parties principally relates to whether, under the particular circumstances here presented, the activity has unilaterally changed a past practice and established a new working condition with regard to supervisory appraisals and evaluations of bargaining unit employees. It does not, however, focus on issues appropriate for resolution under the procedures set forth in section 7117 of the Federal Service Labor - Management Relations Statute (Statute) and part 2424 of the Authority's Rules and Regulations concerning whether particular union proposals are themselves nonnegotiable, i.e., inconsistent with law, rule or regulation. 1 Rather, the substance of the union's allegations concerns unfair labor practice issues which would be appropriate for resolution under the procedures set forth in section 7118 of the Statute (92 Stat. 1707-8). See American Federation of Government Employees, AFL - CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, Case No. 0-NG-55, 2 FLRA No. 19 (Dec. 5, 1979), Report No., and National Federation of Federal Employees, Local 1141 and Department of the Interior, Bureau of Mines, Albany Metallurgy Research Center, Albany, Oregon, Case No. 0-NG-80, 2 FLRA No. 28 (Dec. 13, 1979), Report No..

That is, to the extent that the instant case arose out of an alleged unilateral change coupled with a refusal to bargain and a defense, essentially, that no change has occurred, the proper forum in which to raise these issues is not a negotiability appeal, but would be an unfair labor practice proceeding pursuant to section 7118 of the Statute. In this regard, resolution of the instant dispute is dependent upon the resolution of factual issues related to the parties' conduct. Such factual determinations can best be accomplished through use of the investigatory and formal hearing procedures set forth in part 2423  [ v2 p409 ] of the Authority's Rules and Regulations which govern unfair labor practice proceedings (44 Fed. Reg. 44760 et seq. (1979)). 2

Based on the foregoing, your negotiability appeal does not present issues that the Authority can appropriately resolve under section 7117 of the Statute and part 2424 of its rules and regulations. Accordingly, your appeal is dismissed.

 

Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, Member

FEDERAL LABOR RELATIONS AUTHORITY

 

 [ v2 p410 ]

FOOTNOTES

Footnote 1 In this regard, 2424.1 of the Authority's Rules and Regulations (44 Fed. Reg. 44765 (1979)), which sets forth conditions governing review of negotiability issues, states in pertinent part as follows: The Authority will consider a negotiability issue under the conditions prescribed by 5 U.S.C. 7117(b) and (c), namely: If an agency involved in collective bargaining with an exclusive representative alleges that the duty to bargain in good faith does not extend to any matter proposed to be bargained because, as proposed, the matter is inconsistent with law, rule or regulation, the exclusive representative may appeal the allegation to the Authority ....

Footnote 2 In this regard, as previously noted (supra p. 1), the union has filed an unfair labor practice charge with the Authority's Dallas Regional Office regarding the activity's alleged unilateral implementation of a new regulation on the procedures for supervisory appraisals and evaluations of bargaining unit employees. The unfair labor practice proceeding is currently pending.

 

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