16:0749(105)CA - Treasury, IRS, Philadelphia Service Center and NTEU and NTEU Chapter 71 -- 1984 FLRAdec CA
[ v16 p749 ]
16:0749(105)CA
The decision of the Authority follows:
16 FLRA No. 105
U.S. DEPARTMENT OF TREASURY
INTERNAL REVENUE SERVICE
PHILADELPHIA SERVICE CENTER
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
AND NTEU, CHAPTER 71
Charging Party
Case Nos. 23-CA-194
23-CA-368
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding finding that the Respondent had not engaged in
the unfair labor practices alleged in the consolidated complaint, and
recommending that the complaint be dismissed in its entirety.
Thereafter, the General Counsel filed exceptions to the Judge's
Decision, and the Respondent filed an opposition to the General
Counsel's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order, as modified herein.
In Case No. 23-CA-194, involving the Activity's Processing Division,
the Judge concluded that the Respondent did not violate section
7116(a)(1) and (5) of the Statute /1/ because its notice of its decision
to implement "performance expectations" was adequate for the Union to
have an opportunity to demand bargaining over impact and implementation,
a well-established right, /2/ and that the Union had not made such
demand or proposals prior to implementation. Thus, at the time the
Union was given the proposed performance expectations, it was told they
would be implemented the next week. The Union president replied that
she wanted to look them over prior to any negotiations. However, when
the Respondent began implementation six days later, no demand or
proposals had been made. In the Authority's view, as it was clear that
implementation was forthcoming, and occurred toward the end of the next
week as predicted, the Union had adequate notice to request bargaining
or at least to request more time to respond, if necessary. Accordingly,
the Authority cannot find that the Respondent's implementation of the
performance expectations violated the Statute, and the complaint in Case
No. 23-CA-194 shall be dismissed. /3/
In Case No. 23-CA-368, the Judge found that the Respondent did not
violate section 7116(a)(1) and (5) of the Statute by refusing to bargain
with the Union over its implementation of proposals concerning
performance expectations at the Taxpayers Service Division, prior to
implementation on July 2, 1979. Rather, the Judge found that the
Respondent was not obligated to negotiate over the proposals. While the
Authority adopts the Judge's conclusion that all of the proposals are
nonnegotiable, it does so for different reasoning with respect to his
findings on "Minimum Adverse Action Procedures." The Judge found that
this proposal required the Respondent to take up to 10 sequential steps,
which included mandatory training and reassignment, that could take up
to 580 days before it could remove an employee from employment. This
delay he found would violate management's rights inasmuch as it would
render ineffective any decision to remove an employee for not achieving
expectations and thereby would prevent management from acting to remove
employees. /4/ The Authority finds this proposal to be substantially
identical to Proposal 3 in American Federation of Government Employees,
AFL-CIO, Local 1708 and Military Ocean Terminal, Sunny Point, Southport,
North Carolina, 15 FLRA No. 1 (1984) (issued subsequent to the Judge's
Decision). In that case the Authority held the proposal to be outside
the duty to bargain because it interfered with management's rights under
section 7106(a) of the Statute to assign employees, by requiring their
assignment to training and their reassignment from their current
positions to other like-graded positions. In this regard, the Authority
held that the effect of the proposal would be to condition the exercise
of specified management rights on the prior exercise of others. For the
reasons expressed in Military Ocean Terminal, Sunny Point, Southport,
North Carolina and the cases cited therein, the Authority finds that the
Union's proposal herein on "Minimum Adverse Action Procedures" is
outside the duty to bargain. Accordingly, the Authority finds that the
Respondent did not violate section 7116(a)(1) and (5) of the Statute in
Case No. 23-CA-368.
ORDER
IT IS ORDERED that the consolidated complaint in Case No. 23-CA-194
and 23-CA-368 be, and it hereby is, dismissed in its entirety.
Issued, Washington, D.C., December 10, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
U.S. DEPARTMENT OF TREASURY
INTERNAL REVENUE SERVICE
PHILADELPHIA SERVICE CENTER
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
AND NTEU, CHAPTER 71
Charging Party
Case No.: 23-CA-194
23-CA-368
Thomas E. Crowe, Esq.
For the Respondent
Margaret Ann Sipser, Esq.
W. Lee Mingledorff, Esq.
For the General Counsel
Richard Landis, Esq.
For the Charging Party
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to an Order Consolidating Cases, Complaint and Notice of
Hearing issued on March 30, 1981 by the Regional Director for the
Federal Labor Relations Authority, New York, N.Y. Region, a hearing was
held before the undersigned on July 15, 1981 at Philadelphia,
Pennsylvania.
This proceeding arose under the Federal Service Labor-Management
Relations Statute, 5 U.S.C. 7101, et seq. (hereinafter called the Act).
A charge in Case No. 3-CA-194 was filed on May 7, 1979 by National
Treasury Employees Union and NTEU, Chapter 71 (herein called the Union)
against U.S. Department of Treasury, Internal Revenue Service (herein
called the Respondent). Thereafter, in Case No. 3-CA-368 a charge was
filed on July 25, 1979 by the aforesaid Union against said Respondent.
/5/
The complaint alleges, in substance, that: (a) Respondent
unilaterally implemented performance standards in its Receipt and
Control Branch on or about February 8, 1979; in its Examination Branch
on or about February 12, 1979; and in its Input Perfection Branch on or
about February 13, 1979-- all without affording the Union an opportunity
to negotiate regarding impact and procedures for implementing this
change in working conditions; (b) Since June 25, 1979 Respondent has
refused to negotiate concerning the impact and procedures for
implementing issuance of performance standards for unit employees in the
Taxpayer Relations Branch, Research Branch, and Exempt Organization
Branch; (c) On or about July 2, 1979 Respondent unilaterally
implemented performance standards for employees in the Taxpayer,
Research, and Exempt Organization Branches without negotiating with the
Union concerning the impact and procedures for implementing this change
in working conditions. The foregoing conduct was alleged in the
complaint to violate Sections 7116(a)(1) and (5) of the Act.
Respondent's answer, dated April 24, 1981, denied the commission of
any unfair labor practice. In respect to the allegations set forth in
(a), supra, it alleged that Respondent did afford the Union an
opportunity to negotiate as to the impact and implementation of
performance standards in the named branches. In respect to the
allegations set forth in (b) and (c), supra, it denied a failure or
refusal to negotiate impact and implementation of the standards in the
named branches, and also denied unilateral implementation thereof
without affording the Union an opportunity to negotiate same.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed with the
undersigned which have been duly considered. /6/
Upon the entire record herein, from my observations of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the Union has been the collective
bargaining representative of Respondent's professional and
non-professional employees at the Philadelphia Service Center.
2. Both the Union and Respondent are parties to a Multi-Center
Agreement which was executed on July 18, 1975. This agreement continues
in effect and was effective at all times material herein.
Article I, section 1 provides that all certified units of
professional employees of the various Centers, including Respondent's
Service Center, shall be covered under the agreement.
Article 32, entitled Adverse Actions, sets forth procedures to be
followed when an employee is the subject of an adverse action. The
latter term is defined to be "a reduction in grade or pay, a removal, a
suspension for more than thirty (30) days, or a furlough of a permanent
employee without pay". Under this Article it is provided, inter alia,
that specific written notice be given the employee of the charges
against him; that he be afforded the opportunity to respond with
supporting data; that the employee may appeal the Employer's decision
on any basis allowed by applicable law and regulations".
The negotiated agreement also contains a grievance procedure (Article
33) which, under Section 2A, covers requests for personal relief in
matters involving personnel policies, practices and working conditions.
Section 2B provides that "this procedure will be the only procedure
available to bargaining unit employees for the processing and
disposition of grievances covered by A above". The grievance procedure
also sets forth detailed steps to be followed in the submission of a
grievance, as well as provisions for, and methods of, appealing
decisions rendered by a supervisor. Under Section 6 thereof the
decision of the latter is appealable, via appeals from various higher
level decisions, to the Center Director and finally to advisory
arbitration. /7/
3. In October, 1978 management at the Philadelphia Service Center
embarked on a program to implement performance expectations in the Data
Conversion Branch of the Center. This involved numerical production and
quality standards so that the individual performance of employees could
be measured. Initially, the expectations had been reached by setting up
a goal based on a national average for all Service Centers.
4. Negotiations were held between management and the Union
concerning the implementation of these standards, and the parties met on
November 3, 1978. The purpose of the performance expectation was
explained, and the Union expressed concern that employees could be
adversely affected for minimal failure to reach expectation. Management
reassured the Union that no rigid adherence to numbers was planned and
that a range of performance would be acceptable. The parties met again
on November 17, 1978 at which time the employer's representatives
explained the mathematical process used in arriving at the expectations.
The Union's proposals were discussed, and it was agreed that the
performance expectations would be initiated as a probationary period for
the quarter, beginning November 27, 1978. Another meeting was held on
December 8, 1978 at which time management agreed to certain items of
concern to the Union, and the latter was satisfied with the
implementation of the expectation for the trial period. /8/
5. On February 1, 1979 Union President Eleanor Hudson, along with
Sean Rogers, the Union's attorney, happened to meet James Concannon,
Assistant Personnel Officer of Respondent, in the lobby of the Service
Center. /9/ Concannon told the union representatives that management
wanted to implement performance expectations in three other branches of
the Center: Receipts and Control Branch, Examination Branch, and Input
Perfection Branch-- all within the Processing Division.
Different versions are presented as to what other statements were
made by the said individuals on that date. Thus, Rogers testified
Concannon said Respondent wanted to implement performance expectations
in three other named branches, and that the Union attorney remarked he
wanted to bargain. Further, Concannon allegedly replied that Respondent
took the position the substance is not negotiable and that Rogers had
known about this for some time. Whereupon the Union attorney, as he
testified, retorted that "wiser minds than us will decide that, but
right now we want to bargain".
Hudson's testimony reveals that on February 1, 1979, /10/ in the
lobby of the Center, Concannon told Rogers management was planning to
implement performance expectations in other areas of the Center; that
Roger said he wanted to negotiate the substance and impact and
implementation of those standards. She also testified there was no
response by Concannon to Rogers' statement in this regard.
According to Concannon, he excountered both union representatives in
the lobby on February 1, and commented that Respondent wanted to put
performance expectations into effect in the Processing Division. The
Assistant Personnel Officer further testified Rogers commented there was
a disagreement between the Union's National Office and IRS' National
Office regarding the negotiability of these standards. Concannon also
stated that no demand was made by the Union to bargain.
Upon a careful review of the record herein I am persuaded that, on
February 1, management representative Concannon did notify the Union
representative Rogers and Hudson that Respondent wanted to implement
performance expectations in the three branches, heretofore named, of the
Data Processing Division. Further, I find that Rogers did tell
Concannon the Union desired to negotiate or bargain in regard thereto.
/11/ Concannon did reply, I find, that there had always been a
disagreement between the national offices of both the Union and
Respondent as to the negotiability of these standards; that Respondent
took the position the substance is not negotiable. /12/
6. The following day, February 2, Concannon called Hudson to meet
with the branch chiefs of the areas in which the performance
expectations would be implemented. At the meeting on that date Hudson
was given a copy of the proposed standards. Record facts show that the
union representative told management she was present merely to receive
the performance expectations; that she couldn't discuss or negotiate
the standards; and that she wanted to look them over prior to any
negotiations.
A conflict of testimony prevails as to whether Respondent's official
informed the Union agent as to when the expectation would be
implemented. Concannon testified he stated at the meeting that they
would be put into effect next week. John Sawatchi, Chief of Receipts
and Control, testified that Hudson was informed at the February 2
meeting that the standards would be issued shortly-- as soon as
possible. Hudson's testimony reflects she was given no implementation
date for the expectations. However, other testimony in the record tends
to belie Hudson's statement in this regard. Thus, Rogers testified
Hudson called him on Monday, February 5 to report that she received the
proposed standards at the February 2 meeting; that she didn't bargain
or make any proposals. With respect to Hudson's being informed by
Concannon as to the date of implementation, the record reflects Rogers
testified as follows:
A. She (Hudson) had not requested to negotiate at the meeting
on the 2nd.
Q. I am sorry-- the 2nd-- and she knew that those performance
expectations were going to be handed out on the 5th; is that
right? They told her on Monday. (Feb. 2).
A. Yes".
Note is also taken of the fact that Concannon reduced to writing a
summary of the aforesaid meeting on February 2; that he referred
therein to Hudson's being notified at the meeting that the "Examination
Branch would implement on February 5, 1979". Accordingly, I am
persuaded Hudson was advised at the meeting on February 2 that the first
implementation of the performance expectations would occur the following
week.
7. Respondent issued the standards to employees, and implemented
same, as follows: in the Receipt and Control Branch on February 8, in
the Examination Branch on February 12; in the Input Perfection Branch
on February 13.
8. On February 16 Rogers and Hudson met with Raymond Keenan,
Assistant Director of the Service Center, and Chief of Personnel
Stalinten. Questions were posed by the Union representatives as to
management's right to develop and implement production standards, as
well as its right to do so unilaterally. Keenan stated that Respondent
had the right to do so and he would not bargain as to such right. In
respect to impact and implementation, he told Rogers the Union "had some
rights there"; that he would be happy to discuss any recommendation or
proposals of the Union in regard thereto. The record reveals Rogers
remarked that the Union wanted to negotiate but management didn't allow
it much time. Upon Keenan's retorting that no written proposals were
received from the Union, Rogers replied that the Union did not receive
anything in writing prior to February 2 indicating Respondent would put
the standards into effect. Keenan told the bargaining representatives
it was never his intention to act without the Union's knowledge of
Respondent's plans regarding the standards; that since no word was
received from the Union, management went ahead and implemented the
expectations. The Assistant Director further testified that the major
issue was over the substance-- the issue of whether Respondent had the
right to establish the standards.
9. By letter dated March 9 the Union advised Respondent that the
implementation of the performance expectations by management was
unilaterally undertaken; that the Union demanded rescission thereof and
that management negotiate on substance, impact and implementation of
such expectations.
10. Respondent's representative, Acting Director Keenan, replied in
a letter dated April 11 to the Union's demands as aforesaid. Keenan
stated that the implementation with respect to Receipt and Control,
Input Perfection, and Document Analysis Branches was explained to the
Union President on February 2, and a copy of the written message to be
distributed to employees informing them of the expectations was given to
her at that time. Respondent's representation wrote further that he
considered the notice to the Union was sufficient; that the demand to
negotiate received on March 13, was untimely; that management would not
rescind the standards but would discuss any problems the Union felt
warranted consideration.
11. In a meeting between the parties, which took place on May 4,
management gave the Union representative copies of performance
expectations for the Taxpayers Service Division. These standards were
to be implemented at, and involved, three branches thereof: Taxpayer
Relations, Research, and Exempt Organization. Whereupon Rogers told
Keenan that the Union wanted to bargain; that he would give management
a written demand but wanted to look over the expectations and talk to
the employees. Keenan stated he wanted proposals from the Union within
about two weeks. Since Rogers desired more time to study the standards
and meet with employees, it was agreed the Union would submit proposals
by June 8.
12. The "Performance Expectations" to be issued to the employees of
the Taxpayers Service Division, as applicable to the three branches, set
forth, inter alia, as follows: (a) that the past gauging of performance
by a "peer group average" method was disadvantageous since it did not
provide objective performance goals; (b) management has developed a
technique for measuring performance against a predetermined set of
individual minimum performance expectations; (c) the expectations will
be expressed in terms of "items per hour" and "acceptable quality
standards"; /13/ (d) successful performance regarding performance
expectations will be a major factor in determining annual performance
ratings, within grade increases and all non-competitive actions; (e)
the new approach would not change the local awards program.
13. By letter dated May 16 Rogers wrote Director Norman Morrill that
the Union demands negotiations on the substance, impact and
implementation of the performance expectations proposed for all the
branches where they were put into effect, including the Taxpayer
Relations, Research, and Exempt Organizations Branches.
14. Keenan sent a letter dated May 21 to Union President Hudson
notifying her that Respondent intended to "establish expectations" /14/
for Research, Taxpayer Relations, and Exempt Organization Branches of
the Taxpayer Services Division on June 11. Further, he stated therein
that management would discuss with the Union any adverse impact of the
expectations in terms of specific proposals it submitted in writing for
negotiation.
15. Concannon replied to the May 16 demand for bargaining by the
Union in a letter dated May 30 addressed to Rogers. The management
official repeated Respondent's willingness to discuss the impact and
implementation procedures regarding performance expectations in the
Research, Taxpayer Relations and Exempt Organization Branches upon
receipt of specific proposals concerning them. He stated that the
substance thereof is non-negotiable under Section 7106(a) of the Act.
Further, Concannon repeated Respondent's contentions that the request to
bargain regarding the Processing Division standards was untimely; that,
as to the Data Conversion Branch, the expectations were thoroughly
discussed prior to implementation.
16. In a letter dated June 8 Union President Hudson sent Keenan the
proposals of the Union in respect to the performance expectations for
the Taxpayer's Service Division. The salient and principal proposals
were as follows:
(a) IV. ESTABLISHING PERFORMANCE EXPECTATIONS
No performance expectation shall be established for any
position at the PSC unless and until NTEU, Chapter 71 has been
informed in advance in writing of the expectation and has agreed
that the particular expectation is attainable and reasonable.
Once both parties agree to the proper level for a performance
expectation it may be implemented by the PSC. If at anytime
either party finds an expectation is not attainable it will be set
aside and a new expectation will be established by mutual
agreement.
(b) V. APPEALS OF PERSONNEL ACTIONS
Appeals of any and all personnel actions, adverse or otherwise
from any and all issues involving performance expectations shall
be processed through the provisions of the existing negotiated
grievance procedure found in the Multi-Center Agreement II,
Article 33 and 34.
(c) VI. MINIMUM ADVERSE ACTION PROCEDURES
The PSC will follow the following minimum steps before
instituting any removal action. The PSC may offer more rights to
an employee in individual cases, but must offer at least these
rights to each employee before taking a removal action.
1) When first an employee fails to achieve expectations, he/she
shall receive notice of the performance expectations applicable to
his or her job and any and all such optional counselling and
training as the employee may request.
2) If after 30 days the subject employee still fails to achieve
expectations, he/she shall receive a reasonable amount of
mandatory training and counselling on how to achieve expectations.
3) If after 30 days after the completion of mandatory training
and counselling the employee still fails to achieve expectations,
he/she shall be placed on performance probation. The employees
work performance shall be monitored weekly and the employee shall
be counselled weekly until he/she achieve expectations.
4) If after 60 days of performance probation the employee still
fails to achieve expectations, he/she shall be offered another
less demanding available position in PSC without reduction in
grade or pay.
5) If after 60 days in this alternate position or if no such
alternate position is available and the employee is still not
achieving expectations, then he/she will be offered another less
demanding, available position which may be at a reduced grade.
6) If after 60 days in this reduced alternate position or if no
such reduced alternate position is available and the employee is
still not achieving expectations, then he/she may be disciplined
at the level of oral admonishment. The Agency shall continue with
performance probation counselling and to search for either an
alternate position or an alternate reduced position, respectively.
7) If after 60 days from the date of the oral admonishment, the
employee still fails to achieve expectations, then he/she may be
disciplined at the level of a written reprimand. The Agency shall
continue with performance probation counselling and to search for
either an alternate position or an alternate reduced position,
respectively.
8) If after 60 days from the date of the written reprimand, the
employee still fails to achieve expectations, then he/she may be
disciplined at the level of no more than a seven work day
suspension. The Agency shall continue with performance probation
counselling and to search for either an alternate position or an
alternate reduced position, respectively.
9) If after 60 days from the date of the written reprimand, the
employee still fails to achieve expectations, then he/she may be
disciplined at the level of no more than a fourteen work day
suspension. The Agency shall continue with performance probation
counselling and to search for either an alternate position or an
alternate reduced position, respectively.
10) If after 60 days from the date of the fourteen day
suspension, the employee still fails to achieve expectations, then
he/she will be offered the opportunity to resign without negative
comment on the employees SF 50. This offer shall also be
available to an employee who is the subject of proposed discipline
in either item 8 or 9 above. If an employee does not accept this
opportunity to resign within a reasonable time, he/she may be
disciplined at the level of removal.
(d) VII. AWARDS
Any employee who meets or exceeds performance expectations
shall be eligible for awards. Awards shall be determined by their
nature and size and set by mutual agreement of a joint NTEU,
Chapter 71 and PSC Awards Committee. This Awards Committee shall
consist of one delegate from NTEU, Chapter 71 and one delegate
from PSC.
(e) PERFORMANCE EXPECTATIONS
2. An employee's inability to successfully meet performance
standards, alone, shall not be determinative of:
a. An employee's annual performance rating,
b. An employee's performance for within-grade increases and
c. All non-competitive promotions.
3. Acceptable level of competence determinations and annual
performance ratings will be made in a fair and objective manner
and will be made only on the basis of the work requirements of the
particular position or specific work standards as may have been
established by the employer for the position; provided, however,
that a determination that an employee is not performing at an
acceptable level of competence will not be used to dispose of
questions of misconduct.
4. Performance expectations will be reviewed and adjusted in
January, July and October. The NTEU shall be notified
sufficiently in advance to prepare independent analysis and
participate in these periodic reviews and adjustments.
5. No performance expectation may be established unless it is
based upon an already achieved reasonable level of performance.
Recognizing the unique qualities of individual employees, and such
performance expectation shall be no more than a guide for
supervisory personnel and thereby serve as a counseling tool only.
17. The implementation date of June 11 was delayed so Respondent
could study the Union's proposals. By letter dated June 25, Director
Morrill wrote Hudson that the Union's proposals would limit management's
right to establish the level of expectation and to remove or reduce
employees in grade; that as to the procedures to be used in processing
actions and the appeal rights available, no change occurred with the
publication of the expectations; that Respondent would not negotiate
regarding the substance of the expectations, already existing
procedures, or the right to take adverse action. The letter also
indicated the standards would be implemented on July 2. /15/
18. In an attempt to clarify his letter of June 25, Morrill wrote
Hudson again on June 29 confirming Respondent's refusal to negotiate the
substance of performance expectations, the right to take adverse action,
or already existing procedures.
19. Record facts disclose that prior to the implementation of
performance expectations, it was not customary to adopt adverse action
procedures when employees performed poorly or at low levels of
production. Employees who performed unacceptably were downgraded
voluntarily, although they would be offered a higher step than if action
was to be taken against them. Subsequent to the adoption of the
performance expectations the procedure formerly adhered to was
discontinued.
20. As a result of the implementation of performance expectations in
all branches, some employees were adversely affected. Thus, there were
individuals who were denied within grade increases; some were removed
from their positions and others were downgraded-- all for failure to
meet performance standards. /16/
CONCLUSIONS
It is asserted by the General Counsel that Respondent ran afoul of
the Act herein in two essential respects: (a) the implementation of the
performance expectations by management in the three branches (Receipt
and Control, Examination, and Input Perfection) of the Processing
Division on February 8, 12, 13, 1979 respectively was unilateral in
nature; that the standards were implemented without affording the Union
an opportunity to bargain regarding their impact and the procedure to be
followed. By so doing, it is insisted, Respondent did not meet its
obligation to bargain and violated Sections 7116(a)(1) and (5) of the
Act; (b) management, since June 25, 1979, also refused to bargain
regarding the impact and procedures for implementing performance
standards in the three branches (Taxpayer Relations, Research, and
Exempt Organization) of the Taxpayer Service Division; and the said
standards were unilaterally implemented on or about July 2, 1979 without
affording the Union an opportunity to negotiate regarding its impact and
procedure, thereby failing to meet its obligation to bargain and
violating Sections 7116(a)(1) and (5) of the Act.
(a) It is a well entrenched principle in the public sector that,
despite management's right to make certain decisions as to personnel
practices, practices, or working conditions, it has certain obligations
with respect to the impact and implementation of actions taken in regard
thereto. Thus, it must provide the bargaining representative reasonable
notice of the proposed action, and thereby afford the representative an
opportunity to bargain with respect to its impact and implementation.
Internal Revenue Service (IRS) and Brooklyn District Office, IRS, 2 FLRA
No. 76; Federal Railroad Administration, 4 A/SLMR 497. By the same
token, a duty revolves upon the union, after it has received such
notification, to request negotiations or bargaining as to the impact and
implementation of management's contemplated action. A failure to do so
will exculpate the agency from blame for refusing to bargain regarding
action taken concerning working conditions. Department of Health,
Education and Welfare, Social Security Administration, BRSI,
Northeastern Program Service Center, 8 A/SLMR 188.
In the case at bar both parties focus considerable argument on the
events which occurred on February 1 at the Service Center. With respect
to the conversation in the lobby on that date concerning the performance
expectations, I am not persuaded that Respondent's advertence thereto
constituted proper notification of its proposed institution of
performance expectations. Management's representative Concannon and the
union agents met casually that day at the Center. No meeting was
scheduled to discuss the proposed action. Further, Respondent's
official confined his notification to stating that the employer wanted
to implement the standards in the designated branches of the Processing
Division. No specifics were forthcoming since Concannon intended to
present the bargaining agent with details of the expectations.
Note is taken of the decision in Jacksonville District, Internal
Revenue Service, Jacksonville, Florida, 7 A/SLMR 758 where, at a meeting
between representatives of management and the Union, a passing reference
was made to a proposed change in a testing program. It was mentioned at
the meeting that quality control would be achieved, in part, through a
series of pre-tests and post-tests. It was held that the agency failed
to give adequate notice to the Union of a change in the testing program
to enable the bargaining representative to bargain in a meaningful
manner regarding its impact and implementation. The passing reference
to the new testing plans was not precise nor sufficiently detailed.
In the case at bar Respondent did announce on February 1 its
intention to put into effect performance standards. However, it gave no
particulars to the Union nor did it state when they would be enforced.
In the case of Department of the Treasury, Internal Revenue Service,
Indianapolis, Indiana, A/SLMR No. 909 a similar notification was held
deficient. The agency therein informed the bargaining agent of its
intention to reinstate security restrictions. It gave, however, no
indication as to when this would occur nor other details in regard
thereto. It was held that such notice did not afford the Union a
reasonable opportunity to bargain over the procedures or impact of its
decision.
Based on the foregoing, I conclude that Respondent's reference in the
lobby on February 1 to its "wanting" to implement performance
expectation was not sufficiently precise so as to constitute adequate
notification; that it did not, on that date, comply with its obligation
to afford the Union specific notice of its intention and provide it with
an opportunity to bargain under the Statute.
Notwithstanding its failure to give adequate notification to the
Union herein on February 1, it is apparent that the employer did fulfill
its obligation in this regard on the following day. Thus, on February 2
management presented Union President Hudson with a detailed copy of the
proposed standards, and Concannon told Hudson that they would be
implemented next week. I am satisfied, and conclude, that Respondent
gave specific notice to the Union on February 2 as to its proposed
standards.
In order to establish a refusal to bargain on the part of an employer
who institutes changes or new procedures in working conditions, the
bargaining agent is obliged to request negotiations when it has been
provided ample notification thereof. This well grounded rule has been
followed by decisional law in the public sector, and a failure to make
such request or demand with absolve an employer from any alleged
violation in that regard under the Statute. U.S. Department of Air
Force, Air Force Systems Command, Electronic System Division, Hanscom
AFB, 5 FLRA No. 88. Where management notifies the Union of a
forthcoming change, it is incumbent on the latter to avail itself of
this opportunity and request to meet and confer or be granted additional
time to consider proposed changes. Department of the Navy, Portsmouth
Naval Shipyard, A/SLMR No. 508.
General Counsel argues that Rogers made a demand on February 1 when
he met Concannon in the lobby and the latter referred to the
expectations. Having concluded that Respondent did not give adequate
notification to the Union on that date of its proposed standards, I find
it difficult to determine that a demand to negotiate was made by Rogers
at that time. Since no particulars were mentioned and no time of
implementation was specified, the statement by the Union attorney that
he wanted to bargain over any standards which might be effected was, in
my opinion, anticipatory or inchoate in nature. It could not relate to
nor be based upon a proper notice of action to be taken by management,
nor did it specify that the Union desired to bargain as to either the
procedures or the impact of such expectations. See Department of
Health, Education and Welfare, Social Security Administration, BRSI,
Northeastern Program Service Center, supra, where the complaint was
dismissed since no evidence appeared that the Union requested bargaining
on impact and implementation.
Consideration must be given as to whether, in any event, the Union
herein was afforded, on February 2, a reasonable opportunity to demand
bargaining on the performance standards. Record facts reveal the
expectations were implemented on February 8, 12, 13 in the respective
branches of the Processing Division. While General Counsel insists the
Union was not afforded sufficient time to study the proposed standards,
I am constrained to find to the contrary. About six days elapsed
between the date the expectations were provided Hudson and their
implementation in the Receipt and Control Branch; ten days passed
before they were implemented in the Input Perfection Branch.
Nevertheless no proposals were submitted by the Union prior to
implementation, and no demands for negotiations were made until March
9-- one month after Respondent gave the Union specific notification,
along with a copy, of the performance expectations. A case arising in
the public sector held that a union had been afforded ample opportunity
to request bargaining were it learned of a planned change in work hours
five days in advance thereof. Southeast Exchange Region of the Army and
Air Force Exchange Service, Rosewood Warehouse, Columbia, S.C., A/SLMR
No. 656. /17/
In the instant case Union president Hudson expressly declared to
Concannon on February 2 that she was not present at the meeting to
negotiate or discuss the expectations; that she was there merely to
receive the written standards which management proposed to implement.
Thus, except for the incipient request made on February 1-- which I have
rejected as a proper and sufficient demand to bargain-- the Union herein
has failed to make a proper negotiating demand prior to the
implementation of the standards. Moreover, I am constrained to conclude
that the interim periods of six, ten, and eleven days between
notification and implementation afforded the Union herein ample
opportunity to request that Respondent meet and negotiate with respect
to the impact and implementation of such performance expectations.
Accordingly, I conclude that since no such demand was made after
February 2 and prior to implementation, Respondent did not violate
Section 7116(a)(1) and (5) of the Act when it put the standards in
effect in the Processing Division. See Department of the Army, U.S.
Military Academy, West Point, N.Y., A/SLMR No. 1138.
(b) In respect to the implementation of the performance standards in
the Taxpayer Service Division, Respondent concedes it refused to bargain
regarding the written demands by the Union sent to the employer on June
8. It takes the position, however, that the proposals were either
non-bargainable under the Act, or were not impacted upon by the
expectations, or involved no changes allowing for mid-term negotiations
under the contract.
The Authority has issued several cases which discussed in depth the
obligation by an agency to bargain concerning proposals by a union where
performance expectations are developed and implemented by management.
See Office of Personnel Management, Washington, D.C., 3 FLRA No. 120;
Department of the Treasury, Bureau of the Public Debt, 3 FLRA No. 119.
Both of these cases, which involve decisions on negotiability issues,
make it clear that an agency is not obliged to bargain over union
proposals which require negotiation as to the establishment and content
of performance standards. Despite the fact that the Civil Service
Reform Act provides, under 5 U.S.C. 4302, that each agency shall develop
performance appraisal systems and encourage employee participation in
establishing same, the identification of critical elements and the
establishment of standards are not negotiable. Proposals of this
nature, which could concern the quantity, quality, and timeliness of an
employee's production, would interfere with management's rights under
Section 7106 of the Act. Under this section management has the express
right, inter alia, to assign and direct the work of its employees.
Proposals which require the bargaining agent to approve performance
standards, or involve modification of the standards established by the
agency, infringe upon such management rights set forth in Section 7106.
Nevertheless, the cited cases also make it clear that an agency
cannot refuse to bargain on any and all matters which pertain to
performance expectations. Thus, management can be called upon to
negotiate proposals dealing with the form of employee participation in
establishing the standards. In addition, the employer must bargain
regarding the procedures related to the identification of critical
elements and the establishment of performance standards, as well as
appropriate arrangements for employees adversely affected by actions
taken under those standards. Further, an employee, against whom
disciplinary action has been taken for unacceptable performance, has the
right to challenge this action under appellate procedures or the
negotiated grievance procedure.
In the case at bar the Union submitted various proposals which it
requested should be the subjects of bargaining before the Respondent
implemented the performance expectations in the Taxpayer Service
Division. These form the basis of the pending dispute between the
parties as to their negotiability and the justifications of Respondent's
refusal to bargain in regard thereto. It is thus necessary to examine
those demands to determine whether they may be deemed management rights
within the meaning of Section 7106 of the Statute. They are as follows:
/18/
1. "ESTABLISHING PERFORMANCE EXPECTATIONS"
The substance of this proposal requires that both the Union and
management agree on the performance standard to be established. A level
of expectation, under this provision, must be sanctioned by the
bargaining agent before it could become a standard of performance.
Levels of performance may comprise the quantity and quality of work
needed from employees to achieve the agency's function and its mission.
In Office of Personnel Management, 7 FLRA No. 88 the Authority decided
that a proposal which requires performance standards and critical
elements to be "agreed to" is non-negotiable. Consistent with its
holding in Bureau of Public Debt, supra, the Authority concluded that
such a proposal flies in the face of Section 7106(a)(2)(A) and (B) of
the Act. In the instant case the Union's proposal, as set forth above,
calls for agreement by both parties as to the proper level of
expectations. It thus infringes upon management's right to establish
the standards-- and thereby assign and direct the work of the employees
provided under the Statute. Further, it interferes with the employer's
right to identify the critical elements which are essential to a proper
performance of the job by the employee. To preclude the implementation
of a performance expectation, unless the Union is in accord with its
attainability and reasonableness, is equatable with making the
bargaining agent a partner in establishing the standard. Accordingly, I
conclude management was not obligated to bargain regarding this
proposal; and its refusal to do so was not violative of Section
7116(a)(1) and (5) of the Act.
2. "APPEALS OF PERSONNEL ACTIONS"
It is argued by General Counsel that this proposal, along with other
proposals as hereinafter mentioned, deal with provisions for employees
adversely affected by the performance expectations. As such, this
demand allegedly falls within the ambit of bargainable matters involving
such standards, as set forth in Bureau of the Public Debt and Office of
Personnel Management, supra.
While it is true that this proposal refers to adverse actions
resulting from the implementation of the performance standards, it must
be viewed in light of the statutory language regarding procedures for
filing grievances. Thus, Section 7121(e)(1) of the Statute, entitled
"Grievance Procedures", professes in pertinent part as follows:
"Matters covered under Sections 4304 and 7512 of this title
which also fall within the coverage of the negotiated grievance
procedure may, in the discretion of the aggrieved employee, be
raised either under the appellate procedures of section 7701 of
this title or under the negotiated grievance procedure, but not
under both . . . ."
Under this statutory provision an aggrieved employee is given certain
options provided the matter, concerning which he is aggrieved, is
covered by both Section 4303 of the Civil Service Reform Act and the
negotiated grievance procedure. In such instances he may raise any
action taken against him for unacceptable performance, as outlined in
4303, by appealing to the Merit System Protection Board /19/ or by
filing a grievance under the negotiated agreement between the union and
the agency.
In the case at bar it would appear that any adverse action taken
against an employee by Respondent based on his failure to achieve
performance expectation would constitute a 'matter' within the language
of Section 7121(e)(1) of the Act. This is so because Section 4303 of
the Civil Service Reform Act, entitled "Actions based on unacceptable
performance", deals with disciplinary acts which may be taken against an
employee for such unsatisfactory work performance. An individual
employee who fails to achieve the performance standards set by
Respondent, and is disciplined therefor, may come within the coverage of
Section 7121(e)(1) of the Act. Thus, if a negotiated grievance
procedure exists covering such discipline for failure to meet
performance expectations, the employee may, under 7121, exercise his
options by filing an appeal to the MSPB or filing a grievance under the
contract.
Turning to the negotiated agreement between the parties herein, I am
persuaded that the document does cover adverse actions taken against an
employee based on unacceptable performance. Under Article 32 (Adverse
Actions) of the agreement provision is made for disciplinary conduct
towards employees. Section 1A thereof states that "an adverse action,
for the purpose of this Article, is defined as a reduction in grade or
pay, a removal, a suspension for more than thirty (30) days, or a
furlough of a permanent employee without pay". That this Article is
intended to cover adverse actions resulting from unacceptable
performance is apparent from the wording in Section 5 thereof. The
latter section bespeaks of instances where an employee who is the
subject of adverse action for reasons of inefficiency files for
disability retirement. Further, Article 33 (Grievance Procedure)
contains detailed provisions and processing grievances covering
"personnel policies, practices and matters affecting working
conditions". Thus, I would construe the negotiated grievance procedure,
together with the provisions regarding adverse actions taken against
employees, as covering a matter involving disciplinary action directed
toward an employee for unacceptable work performance or a failure to
meet performance expectations. /20/
In the instant case, the Union proposal requires that the employee
process all appeals from adverse actions, which result from a failure to
meet performance standards, through the contractual grievance procedure.
As such, the provision runs counter to Section 7121(e)(1) of the Act
which affords an option to the aggrieved employee to take such route or
appeal to the MSPB under 4303, as aforesaid. Therefore, since the
proposal would violate 7121(e), it would not be within the duty of the
Respondent to bargain. Accordingly, I conclude the agency herein did
not violate Section 7116(a)(1) or (5) by refusing to negotiate as to
this proposal.
3. "MINIMUM ADVERSE ACTION PROCEDURES"
This proposal sets forth ten different steps which management must
take before it can remove an employee from his position for failure to
meet performance expectations. The prescribed course of conduct
proposed by the Union calls for such mandatory actions by the Respondent
before the employee may be removed, such as (a) counselling and having
the deficient employee, (b) placing him on probation and counselling him
until he achieves the expectations, (c) offering him a less demanding
position without reduction in pay, (d) offering him such a position with
a reduction in pay, (e) oral admonishment, (f) written reprimand, (g) a
seven day suspension, (h) a fourteen day suspension, (i) an opportunity
to resign. In each instance a specific number of days must elapse (30
or 60 days as specified) before the next adverse action may be taken
against the employee-- and then only if the individual still fails to
achieve the expectations.
In respect to this proposal, the central issue is whether it
conflicts with a management right provided in Section 7106(a)(2)(A) of
the Act. The latter section provides, in pertinent part:
7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
(b) in accordance with applicable laws--
(A) . . . to suspend, remove, reduce in grade or pay, or take
other disciplinary action against such employees.
This statutory provision preserves the right of management to
discipline an employee. Any proposal which would prohibit such
disciplinary action by the employer would be contrary to the aforesaid
section of the statute. As such it would not be a bargainable matter.
See, Internal Revenue Service, 6 FLRA No. 88. In the case at bar I am
satisfied that the collective adverse actions imposed by the Union would
affect Respondent's authority to discipline employees. Each sequential
step advocated by the bargaining agent involved another adverse action,
i.e. discipline, which must be taken by management when an employee
fails to achieve the performance standards. Respondent may not, at its
discretion, exercise its right to remove the employee until it has
undertaken the disciplinary action set forth by the Union. The
imposition by the latter of the adverse actions which must be taken by
the employer would necessarily operate as a restraint upon management's
right to effect its disciplinary authority. In essence, the Union is
compelling Respondent to discipline the employee (who fails to achieve
the standards) in the manner specified by the bargaining agent. This
imposition of discipline is, in my opinion, scarcely consistent with
Section 7106(a)(2)(A) of the Act. Further, as a practical matter, it
renders ineffective any decision to remove an employee for not achieving
the expectations. An inordinate amount of time will pass before the
employer is enabled, under this proposal, to terminate the individual.
At least 580 days must pass before Respondent could remove an employee
for failing to meet the standards.
In Internal Revenue Service, supra, the union therein proposed that
no employee could be disciplined as long as the individual was an active
participant in a recognized drug/alcoholism program; and it further
proposed that any disciplinary action be stayed if the employee entered
such program. The Authority concluded these proposals were inconsistent
with the agency's authority to discipline employees under 7106(a)(2)(A)
of the Act. While I recognize that the Respondent herein is not wholly
precluded from disciplining employees who do not achieve the
expectations, the proposals in the instant case do restrict the exercise
of certain adverse action toward the individual. The preclusion is, in
reality, one of degree since the employer may not remove an employee
upon the failure of the latter to perform as required. Based upon the
foregoing, I am constrained to conclude the said proposals involving
minimum adverse action procedures do conflict with Section 7106(a)(2)(A)
of the Act; that the duty to bargain does not extend thereto; and that
Respondent did not violate Section 7116(a)(1) and (5) of the Statute for
refusing to negotiate with regard thereto.
4. "AWARDS"
The Union has proposed that any employee who meets or exceeds
performance expectations shall be eligible for awards. Further, its
proposal states that awards shall be determined by their nature and
size; that they be set by an Awards Committee composed of a delegate
from the Union and a delegate from the Service Center.
It is argued by the Respondent that its award procedure was not
changed by management when it instituted these expectations. An
examination of the negotiated agreement fails to reveal any award system
covering the awards for work performance. Article 7, Section 2 provides
for achievement awards in performing higher grade dates. But this
provision relates to temporary assignments of employees to work on
positions which may be different or higher graded than his regular
position. As such, I find it inapplicable herein.
Regulations have been promulgated when do govern incentive awards for
government employees. Chapter 451 (Incentive Awards) of the Federal
Personnel Manual (FPM) sets forth various provisions regulating the
granting of awards. These regulations cover awards linked with
performance appraisal systems. /21/
It is noted that it is the purpose of the Incentive Award program, as
set forth under 451.1-2 of the FPM, to reward employees whose job
performances are substantially above normal job requirements. Moreover,
under 451.1-4 it is provided that agencies shall design awards program
that will recognize special acts or services that substantially exceed
normal standards expectations. It thus appears that the awards
sanctioned under the government-wide regulations are for services beyond
the normal requirements as expectations of the employee. The FPM
bespeaks of superior performance as a prerequisite for an award
involving work performed. The Union herein has proposed granting awards
to employees who meet or exceed performance standards. Granting an
award to an employee who performs at the level of competence required
would be inconsistent with the spirit and language of the aforesaid
regulations. The latter makes no provision for granting awards to
employees who merely meet the performance expectations.
In Bureau of the Public Debt, supra, the union therein proposed that
the standard for eligibility to receive within-grade increases for
certain clerks should be the same as the standard of performance for job
retention. The Authority concludes this proposal was inconsistent with
an OPM regulation 531.407 (Work of an acceptable level of competence).
The regulation requires that a performance level sufficient to receive a
within-grade increase must exceed the level which is merely adequate for
job retention. Thus, the proposal was deemed outside the duty to
bargain. While not involving an incentive award, the cited case is
supportive of the view that, when the regulation limits granting
benefits to employees whose work performance exceeds the expected level
of competence, a proposal which grants awards to individuals who just
meet such level would be non-negotiable. I so conclude.
Note is also taken of the language in 451.3-3 of the FPM which
recites that "the decision to grant or not to grant an award . . . is a
management prerogative, thus, is not grievable". Under the language
submitted by the Union herein, management could not grant awards without
consent of the delegate representing the bargaining agent. As proposed
by the Union, awards must occur by mutual agreement of both parties. It
would appear to the undersigned that this proposal flies in the face of
the regulation cited above. The express declaration, as set forth in
the agency-wide regulation, would confine to management the decision as
to granting or denying an incentive award. Concurrence by the Union, or
its determinative, with respect to bestowing awards is not within the
framework of the regulation as aforesaid.
Based on the foregoing, I conclude the Union proposal with respect to
Awards is non-negotiable-- that Respondent did not violate Sections
7116(a)(1) and (5) by refusing to bargain regarding such proposal.
5. INABILITY TO MEET STANDARDS AS NOT DETERMINATIVE OF RATINGS,
WITHIN-GRADE INCREASES, NON-COMPETITIVE PROMOTIONS
It is proposed by the Union that an employee's inability to
successfully meet performance standards should not be determinative of:
(a) his annual performance rating, (b) his performance for within-grade
increases, and (c) non-competitive promotions. In other words, if the
employer adheres to this proposal, an employee would still be eligible
for-- and possibly entitled to-- a satisfactory rating, a within-grade
increase, or a promotion despite his failure to meet performance
expectations.
The thrust of the FPM, as it relates to rewarding employees for work
performance, refers to achievements beyond the norm set up for
performing duties. As hereinbefore noted, the Authority found a union
proposal, which would allow within-grade increases based on a standard
of performance similar to that needed for job retention, as inconsistent
with regulation 531.407. Under the latter an employee is obliged to
exceed the level of acceptable competence. Under the proposal herein,
an employee could be considered for a within-grade increase if he did
not even meet the performance standards. This would run counter to the
agency-wide regulation and, under the Bureau of Debt case, supra, is not
a bargainable matter under the Act.
Further, as I read the provisions regarding the establishment of
Performance Ratings under FPM Section 430.201 et seq., and the
provisions regarding Promotion in Chapter 335 thereof, no satisfactory
rating or promotion is warranted when an employee fails to at least meet
performance standards. The impact of the Union's proposals under
consideration allows an employee to obtain such a rating, or promotion,
even though he fails to meet the standards. Such a conclusion renders
the standards ineffective and inoperative. Adoption of this proposal is
tantamount to permitting the establishment of the expectations, but
denying the use thereof. In such a posture, this proposal is
non-negotiable, and I conclude Respondent has not violated Sections
7116(a)(1) and (5) by refusing to bargain concerning same.
6. ACCEPTABLE LEVELS OF COMPETENCE DETERMINATIONS
This proposal is listed on the separate page entitled "PERFORMANCE
EXPECTATIONS" of GC Exhibit 18 as item number 3. It is the verbatim
wording found in Article 9. Section 1 of the negotiated agreement which
exists between the Union and Respondent. Hence, I found no obligation
existed on the part of management to bargain in respect to this
proposal.
7. REVIEW AND ADJUSTMENT OF PERFORMANCE EXPECTATIONS /22/
The Union has proposed that performance expectations be reviewed and
adjusted in January, July and October; that NTEU shall be notified
sufficiently in advance to prepare independent analysis and participate
in those periodic reviews and adjustments.
It would appear that, under this proposal, the bargaining agent seeks
to confer three times per year regarding the adjustment of the standards
established by Respondent. While I would find nothing inconsistent with
the Statute or regulations in the proposed review of the standards, the
language employed by the Union suggests something more than a periodic
examination of the expectations. Under this proposal the bargaining
agent advocates an adjustment of the standards in the months mentioned
by it. Further, the Union proposed that it participate in the
adjustment. The latter term, in my opinion, connotes a change or
alteration in the expectations. In Office of Personnel Management, New
York Regional Office, 7 FLRA No. 77 the union proposed that it
"participate on an equal basis in the development or revision of all
measures of performance and studies . . . ." The Authority held this
proposal to be outside the duty to bargain under 7106(a)(2)(A) of the
Act. It is true that the proposal in the instant matter does not refer
to the "development" of the standards. However, it contemplates
adjustments thereto, which I perceive as being equAtable with
"revisions" to the expectations. Thus, under the cited case the Union
would not be permitted to participate in adjusting or revising the
standards, and management should not be obligated to bargain concerning
this proposal. Hence, I find no violation of Section 7116(a)(1) and (5)
of the Act in Respondent's refusal to negotiate in respect thereto.
5. BASIS OF ESTABLISHMENT OF PERFORMANCE EXPECTATION-- ITS USE
AS A
GUIDE AND COUNSELING TOOL /23/
This proposal requires that the performance expectation not be
established unless it be based upon an "already achieved reasonable
level of performance; that it be no more than a guide for supervisory
personnel and used only as a counseling tool.
The Office of Personnel Management has defined the term "performance
standard" as the expressed measure of the level of achievement
established by management for the duties and responsibilities of a
position or group of positions. /24/ These standards are then utilized
by management in determining the quality, quantity, and timeliness of
work required of employees. The particulars proposed herein would place
a limitation upon the establishment by management of the performance
expectation. It does not relate to procedures to be observed by
management in exercising its authority, but goes to the institution of
the standards. The development of the latter is not only a
responsibility of management under 5 U.S.C. 4302. It is also an
integral part of its right to assign and direct the work of employees
under 7106(a)(2)(B) of the Act. In the case at bar the Union would
restrict the establishment of the standard to one already achieved. If
adopted, this proposal would interfere with anagement's right to
establish the expectation, /25/ and thus be outside the duty to bargain.
See Bureau of the Public Debt, supra.
Further, it is proposed by the Union that the performance
expectations be used only as a guide for supervisors, and that they
serve merely as a counseling tool. Both the LSRA and the FPM reflect
that the performance standards are to have a wider use than advocated by
this proposal. All within-grade increases, awards, and promotions are
based on the performance by employees. Under the limitation set forth
by the Union, the standards would lose their efficacy, have no especial
significance in determining action to be taken regarding employees, and
would render meaningless their establishment. Apart from infringing
upon management's right to direct employees, and assign work to them,
under Section 7106 of the Act, the prohibitive use of these expectations
is inconsistent with the legislative directives and the agency-wide
regulations.
Accordingly, I conclude this particular proposal does not form the
subject of mandatory bargaining, and Respondent did not violate the Act
by failing to negotiate in this regard.
The cases cited by the undersigned herein do acknowledge that, in
respect to performance standards, there is-- and must be-- areas which
require management to bargain thereon. Certainly there may be matters
which the Union, in the case at bar, is entitled to demand Respondent
negotiate in regard to the performance expectations. However, I am
constrained to conclude that, as framed, the proposals herein are
inconsistent with the obligations imposed on management under the
Statute and the Regulations. They neither deal with procedures to be
observed leading to the standards or this implementation, nor to proper
adverse effects upon employees.
In view of the foregoing, I conclude Respondent by failing and
refusing to negotiate the impact and implementation of its performance
expectations issued in the Data Processing Division on February 8, 12,
and 13, 1979 did not violate Sections 7116(a)(1) and (5) of the Act:
that Respondent did not so violate the Act by refusing to bargain
regarding the Union's performance expectations proposals as to the
Taxpayers Service Division submitted on June 8, 1979, nor did it violate
the Act by its implementation on July 2, 1979 of such performance
expectations for said Taxpayers Service Division without negotiating
with the Union regarding the latter's proposals concerning said
standards. Accordingly, I recommend the complaint in Case No. 23-CA-194
be dismissed in its entirety.
WILLIAM NAIMARK
Administrative Law Judge
Dated: February 26, 1982
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (5) provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
* * * *
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/2/ See, e.g., Internal Revenue Service (District, Region and
National Office Unit and Service Center Unit), 10 FLRA 326 (1982).
/3/ See General Services Administration, 15 FLRA No. 6 (1984).
/4/ The Authority disagrees with the Judge's findings that the delay
Respondent would incur in removing employees could prevent it from
acting at all. In this regard, it is well established that delay does
not prevent management from ultimately taking removal actions against
employees. American Federation of Government Employees, AFL-CIO, Local
1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort
Dix, New Jersey, 2 FLRA 153 (1979), enf'd sub nom. Department of Defense
v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981),
cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).
/5/ The charge in Case No. 3-CA-368 also named the Philadelphia
Service Center as the particular location involved.
/6/ Subsequent to the hearing Respondent's counsel notified the
undersigned in writing that a significant error appeared on page 109 of
the transcript: Line 12 on page 109 should reflect the correct date as
June 11, 1979 and not July 11, 1979. The undersigned will treat the
notification as a motion to correct the transcript. Accordingly, the
motion is granted, and the transcript is corrected as follows: The date
July 11, 1979 appearing on Line 12 of page 109 is changed to June 11,
1979.
/7/ Article 34 contains a detailed procedure for arbitration of
decisions which may be so appealed.
/8/ The performance expectations for the Data Conversion Branch were,
in fact, implemented on November 27, 1978.
/9/ These individuals were participants in the meetings which took
place in 1978, as heretofore described.
/10/ Unless otherwise indicated, all dates hereinafter mentioned
occur in 1979.
/11/ While Hudson testified that Union attorney Rogers told Concannon
the Union wanted to bargain also over the impact and implementation of
the standards, I make no such finding. Such testimony is at odds with
Rogers' version, as well as Concannon's, of what was said by the Union
attorney.
/12/ The testimony of Hudson reflects that no response was made by
Concannon to Rogers' statement concerning the Union's desire to bargain
regarding the performance expectation. In view of the contrary
testimony of both Rogers and Concannon, Hudson is discredited in this
regard.
/13/ The Expectations for the Taxpayer Relations Branch stated that
there were other expectations dealing with such areas as case
management, use of average listings, and compliance with Rules of
Conduct and Security.
/14/ The letter identified the expectations as those given to the
Union on May 4.
/15/ The performance expectations were implemented in the Taxpayer
Service Division on that date.
/16/ Testimony to this effect adduced by the General Counsel was not
rebutted or contradicted by Respondent.
/17/ Respondent in the cited case failed to give formal notice of a
change in work hours. However, the bargaining agent was made aware of
the contemplated change at a meeting and the matter discussed thereat.
Thus, it was concluded that the union had reasonable notice and
opportunity to request bargaining as to procedures involved and the
impact of the decision.
/18/ The proposals made by the Union to Respondent are not quoted
verbatim. Set forth herein is the substance of each principal demand
and a summarization thereof.
/19/ 5 U.S.C. 7701.
/20/ Note has been taken of Case No. O-PS-2, Interpretation and
Guidance, 2 FLRA No. 32 which states that parties may continue to
maintain negotiated grievance procedures negotiated under Executive
Order 11491, as amended despite Section 7121 of the Act. It is also
noted that Article 33, Section 2B of the contract herein provides that
the grievance procedure will be the only procedure available to
employees for processing of grievances under that Article. I do not
construe this provision as precluding the aggrieved employee from
resorting to appellate procedures (MSPB) when adverse action has been
taken against him for not meeting performance standards. Such a
recourse is outside the contract and beyond the limitation power of the
parties. Further, I do not believe that Case No. O-PS-2 was intended to
permit applicability of a negotiated grievance procedure-- even if it
did limit an employee's rights-- where changes are made in working
conditions or terms of employment (not provided for in the agreement)
subsequent to the execution of such agreement.
/21/ Federal Personnel Manual Bulletins 451-21, June 17, 1980, and
July 3, 1980.
/22/ Item No. 4 on separate page of GC 18 entitled "Performance
Expectations".
/23/ Item No. 5 on separate page of GC 18 entitled "PERFORMANCE
EXPECTATIONS".
/24/ 5 C.F.R. 430.202(d) and (e).
/25/ In its brief General Counsel recites that a basic objective of
the Union was to have the performance standards bilaterally established.