[ v18 p693 ]
18:0693(80)CA
The decision of the Authority follows:
18 FLRA No. 80
INTERNAL REVENUE SERVICE
KANSAS CITY SERVICE CENTER
KANSAS CITY, MISSOURI
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
AND NATIONAL TREASURY EMPLOYEES UNION
LOCAL CHAPTER 66
Charging Party
Cass Nos. 7-CA-1000
7-CA-1002
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices alleged in the consolidated complaint,
and recommending that it be ordered to cease and desist therefrom and
take certain affirmative action. The Judge further found that the
Respondent had not engaged in certain other alleged unfair labor
practices and recommended dismissal of the consolidated complaint as to
them. Thereafter, the Respondent filed exceptions to the Judge's
Decision. /1/
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, /2/ only to the
extent consistent herewith.
The Judge found that the Respondent violated section 7116(a)(1) and
(5) of the Statute by preventing the Union from bargaining effectively
concerning the impact and implementation of the Respondent's decision to
change certain conditions of employment. /3/ The Authority disagrees.
The record in the instant case reveals that the Respondent first
notified the Union, at a labor-management meeting held on August 28,
1980, of its decision to institute performance expectations by September
30, 1980, at the Kansas City Service Center. At this meeting the
Respondent discussed the general guidelines of the proposed performance
expectations with representatives of the Union in as much detail as
possible at that time, given that actual performance expectations had
not yet been formulated. The Respondent next met with the Union on
September 10, 1980, to provide the Union with additional information
concerning the changes in working conditions which was then available
and to reaffirm its intention to implement those changes by September
30, 1980. At this meeting the Respondent provided the Union with two
sample performance expectations, which were not applicable to any
particular work unit within the Kansas City Service Center, but which
were made available to the Union for general illustrative purposes. It
was further established that the actual performance expectations
applicable to particular work units at the Kansas City Service Center
were not available at the time of the September 10 meeting as it was the
Respondent's intention to allow individual supervisors to tailor the
sample performance expectations to fit the needs of their particular
units and this process had not yet been completed. The Union made no
request to bargain at this meeting. Finally, the record also indicates
that the Respondent and the Union met again on September 18, 1980 for
the purpose of further discussing the sample copies of the performance
expectations and that the Union failed to submit bargaining proposals at
that time.
Although the Judge found that the Respondent's failure to provide the
Union with the actual performance expectations applicable to particular
work units of the Kansas City Service Center prevented the Union from
bargaining effectively concerning the impact and implementation of the
changes, the Authority concludes that under the circumstances herein,
the sample performance expectations that the Union did receive at the
September 10 meeting were sufficient for purposes of negotiating impact
and implementation. In this regard, the General Counsel failed to
demonstrate that the Union was prevented from presenting proposals at
either of the September meetings described above based on the
information it did receive. Moreover, the Union's request for more
specific information with respect to actual performance expectations
could not have been provided inasmuch as individual supervisors had not
yet completed the task of tailoring the sample performance expectations
to fit the needs of their particular work units. Finally, the Authority
notes that when individual unit supervisors did eventually implement
performance expectations specifically tailored to their particular work
units, upon appropriate bargaining requests by the Union, the Respondent
discontinued implementation in those work units until a decision on the
negotiability of the requests was reached. Indeed, the record shows
that agreement between the Union and the Respondent has been reached
concerning the impact and implementation of the changes herein
subsequent to the filing of the instant consolidated complaint.
Therefore, on the basis of the foregoing record evidence, the Authority
concludes that the Respondent did not prevent the Union from bargaining
effectively under the circumstances herein and, accordingly, the
allegation that the Respondent violated section 7116(a)(1) and (5) of
the Statute shall be dismissed.
ORDER
IT IS ORDERED that the consolidated complaint in Case Nos. 7-CA-1000
and 7-CA-1002 be, and it hereby is, dismissed in its entirety.
Issued, Washington, D.C., June 21, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Megan Yearout, Esquire
For the Respondent
John J. Rubin, Esquire
For the General Counsel
M. Kathryn Durham, Esquire
For the Charging Party
Before: BURTON S. STERNBURG, Administrative Law Judge
DECISION
Statement Of The Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, Section 7101,
et seq., and the Rules and Regulations issued thereunder, Fed. Reg. Vol.
45, No. 12, January 17, 1980, 5 C.F.R. Chapter XIV, Part 2411, et seq.
Pursuant to charges filed on February 9, 1981, by the National
Treasury Employees Union and National Treasury Employees Union Local
Chapter 66, (hereinafter called the NTEU or Union), a Consolidated
Complaint and Notice of Hearing was issued on March 31, 1981, by the
Regional Director for Region VII, Federal Labor Relations Authority,
Kansas City, Missouri. The Consolidated Complaint alleges in substance
that the Internal Revenue Service, Kansas City Service Center, Kansas
City, Missouri, (hereinafter called the IRS or Respondent), violated
Sections 7116(a)(1), (5) and (8) of the Federal Service Labor-Management
Relations Statute, (hereinafter called the Statute), by virtue of its
actions in (1) "unilaterally implementing changes in performance and
dependability expectations (performance standards)" without first giving
the Union prior notice of the changes and the opportunity to request
bargaining with respect to impact, implementation, and the form of
employee participation in the establishment of said performance
standards; and (2) refusing to furnish the Union the historical data
relied upon by Respondent in establishing the performance standards.
A hearing was held in the captioned matter on June 18, 1981, in
Kansas City, Missouri. All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The General Counsel and
Respondent submitted post-hearing briefs on August 24, 1981, which have
been duly considered.
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
Respondent's Kansas City Service Center, which employs several
thousand individuals, is responsible for processing the tax returns
emanating from four mid-western states. NTEU, Chapter 66 has been the
exclusive representative of Respondent's non-supervisory employees since
1973. On August 31, 1977, the NTEU, of which Chapter 66 is a
constituent local, was certified as the exclusive representative in a
consolidated unit of all Respondent's Service Centers throughout the
United States, including Kansas City.
The work performed by the employees at the Kansas City Service Center
falls into two categories, measured or unmeasured work. Measured work
is work which by its nature can be measured in terms of numbers and
quality produced during a given span of time. Unmeasured work, on the
other hand, is work which by its nature "doesn't lend itself to easy
measurement". More than fifty percent of the employees at the Kansas
City Service Center perform measured work. /4/
Prior to August of 1980, Respondent had in effect written quantity
and quality expectations for an unspecified number of its units wherein
measured work was performed. Other unspecified units were working under
expectations which had been delivered verbally by the respective
supervisors; and still other unspecified units were performing measured
work with no quantity or quality expectations at all.
In mid-July, 1980, the Director of the Service Center decided that
the concept of written performance expectations should be expanded to
cover the entire work force of the Kansas City Service Center,
irrespective of the type of work performed. The performance
expectations for the unmeasured work was to consist of a verbal written
summary of the work to be performed and the proper manner to be utilized
in performing the work. Measured work on the other hand was to consist
of numerical expectations with respect to quantity and quality. /5/
On August 28, 1980, a regular bi-monthly Labor-Management Relations
Committee meeting was held. In addition to discussing several agenda
items submitted by the Union, the Respondent, for the first time,
informed the Union that it intended in the near future to update
existing expectations and establish new expectations for all work
performed by the employees at the Service Center. Thus, the minutes of
the meeting, which were signed by Ms. Elizabeth Conway, Chief, Personnel
Branch and Management Spokesperson and Ms. Anne Eckstein, NTEU Chapter
66 President, described the discussion of the performance expectation as
follows:
1. Performance Expectations
Management stated that performance expectations would soon be
issued in all areas of the Service Center. Many areas already
have such expectations established and all will be reviewed at
least quarterly once they are established. Management stated
these expectations would be issued for the purpose of improving
communications between managers and employees about what is
expected of them. Management stated these would be used in
granting or denying Within-Grade Increases and career ladder
promotions and would also be used as a basis for incentive awards
as well as for determining the appropriateness of adverse actions
based on poor performance. Management stated the issuance of
these expectations would not modify the requirements of the
Multi-Center Agreement in any way and did not constitute
establishment of a performance appraisal system or critical job
elements which are to be established under the Civil Service
Reform Act.
The Union asked how these expectations will affect ISEP and
promotions. Management responded that these expectations do not
affect evaluations based on ISEP nor do they affect evaluations
prepared under the negotiated agreement for internal promotion
announcements.
Management stated expectations would be issued by September 30,
1980. Management also stated plans were not completely finalized
but would be shared with NTEU when they are finalized.
Representatives of the Respondent and the Union, pursuant to a
request by the Respondent, met on or about September 10, 1980. At this
meeting, Mr. William Bridges, Assistant Director of the Service Center,
presented to the Union representatives in attendance, i.e. Ms. Eckstein,
Union President and Mr. Ray Williams, Chief Steward, two sample copies
of the new expectations which were going to be distributed to the
managers who were responsible for supervising the various areas of the
Service Center. The samples were not applicable to any particular area
of the Service Center and indicated that new or returning employees
would be expected to achieve a certain percentage of the expectations
established for any particular area or job. Moreover, the samples did
not set forth any numerical quantity and quality expectations.
Other than questioning the percentages appearing on the samples for
new or returning employees, the Union made no request to bargain since
they were not prepared for the presentation and had not had an
opportunity to study the samples, which as noted above, were not
applicable to any specific unit. The meeting ended with the Union
stating it would get back in touch with the Respondent after it had an
opportunity to go over the information set forth in the samples.
On September 18, 1980, James Blase, a labor relations officer, met
with Mr. Williams and Ms. Eckstein for purposes of further discussing
the sample copies of the new expectations. During the course of the
discussion the Union raised a number of its concerns with the new
expectations and Mr. Blase attempted to assuage or pacify the Union and
supply answers to various questions propounded by the Union. The
meeting ended with the Union expressing dissatisfaction with the answers
given by Mr. Blase and inquiring whether or not the Respondent intended
to bargain with the Union over the expectations. Mr. Blase, according
to a memorandum to the file dated September 19, 1980, informed the Union
that negotiations would depend on the Union's proposals.
Beginning on or about September 18, 1980, and continuing through
approximately October 1, 1980, Respondent without any further discussion
or notice to the Union implemented new or revised production
expectations in some 26 units of the Service Center where measured work
was being performed. The production expectations made provision for new
and/or returning employees to work up over a period of time to 100% of
the performance expectations. Upon receiving the expectations in the
respective units, the Union's Chief Steward immediately directed a form
letter to the respective unit supervisors which requested substance,
impact and implementation bargaining; that any implementation of the
expectations be rescinded; and that the Union be provided all the
historic information relied upon "to arrive at the quantity and quality
percentages." /6/
On October 10, 1980, Respondent directed a memorandum to Ms. Eckstein
and Mr. Williams in response to their requests to negotiate the
expectations implemented in some 26 individual units. The memorandum
pointed out that during a meeting on October 1, 1980, management had
indicated that while the performance expectations were non-negotiable it
welcomed feedback from the Union concerning any specific problems in
connection with the expectations. The memorandum went on to encourage
such feedback and point out that the expectations were not part of the
performance appraisal system required under the Civil Service Reform Act
of 1978 which would be developed on a National level. Additionally, the
memorandum indicated that there would be no deferral of implementation
and that the Union's request for information underlying the expectations
was denied since the information related to the substance of the
expectations which Respondent considered to be outside the scope of
bargaining.
The closing paragraph of Respondent's October 1, 1980, letter
acknowledged that there may be impact and implementation proposals which
may be negotiable and requested that the Union submit such proposals by
October 17, 1980.
On November 7, 1980, /7/ the Union submitted a number of proposals
concerning the performance expectations. The Union's proposals dealt,
in the main, with the percentage production expectations assigned to new
or returning employees. Additionally, the Union renewed its request for
the "historical" data relied upon by management to arrive at the hourly
production rates. The Union proposed that a new employee be allowed six
months to arrive at 100% of expected level while returning employees be
allowed four weeks to arrive at 100% of expected levels.
On November 17, 1980, Respondent responded to the Union's November 7,
1980, letter and informed the Union that its proposals went to substance
and hence were non-negotiable. The Respondent further informed the
Union that it intended to continue implementation of the expectations
beginning November 24, 1980.
On December 10, 1980 and December 18, 1980, various representatives
of the Union, by separate letters, renewed the Union's request for the
information underlying the production expectations. Both requests were
subsequently denied by the Respondent on the ground that the information
pertained to matters outside the scope of collective bargaining and, as
such, the Respondent was under no obligation to supply same.
The record reveals that the performance expectations were
subsequently utilized or relied upon by Respondent as a ground for
demoting an employee to a lower grade.
The record further reveals that the IRS and NTEU had been negotiating
performance standards and critical elements within the meaning of
Section 4302 of the Civil Service Reform Act (CSRA), on a National
basis. The record also reveals that the parties entered into an
agreement with respect to "employee participation" in April of 1981.
According to the uncontested testimony of Ms. Conway, Chief of the
Personnel Branch, the printouts, etc., which comprise the "historical"
data requested by the Union, occupy about "90 cubic feet of space".
Discussion and Conclusions
The General Counsel in both his opening remarks and post-hearing
brief makes it clear that the alleged Section 7116(a)(1) and (5)
violation of the Statute is predicated solely upon Respondent's action
in unilaterally implementing changes in the employees' performance
expectations without first notifying the Union and affording it a
meaningful opportunity to bargain, at least, with respect to impact and
implementation. /8/ Additionally, relying primarily on the Authority's
decision in National Treasury Employees Union, 3 FLRA No. 119, the
General Counsel takes the position that performance expectations are in
fact performance standards within the meaning of Section 4302 of the
CSRA and, accordingly, the Union is also entitled to bargain over the
form of employee participation in the establishment of such performance
standards. As a further alternative position, the General Counsel,
relying on the Authority's decision in Internal Revenue Service and
Brookhaven Service Center, 4 FLRA No. 30, argues that the substance of
the expectations is negotiable. Finally, the General Counsel takes the
position that the Union is entitled to the information underlying the
numerical expectations announced at various times by the Respondent.
The Respondent on the other hand takes the position that the
expectations are not equivalent to the performance standards and
critical elements encompassed by Section 4302 of the CSRA, that the
Authority's decision in Internal Revenue Service and Brookhaven Service
Center, supra, does not make the substance of performance expectations
negotiable, and that it did give the Union adequate notice of its
decision to change or install new performance expectations. Lastly,
Respondent takes the position that inasmuch as the Union was not
entitled to bargain over the substance of Respondent's expectations, it,
the Respondent, was under no obligation to supply the historical data
requested by the Union.
Based upon the record as a whole and particularly the uncontested
testimony of Ms. Conway, Chief of the Personnel Branch, I can not find,
as urged by the General Counsel, that the performance expectations
established or changed during the period September 18 1980 through
October 1, 1980, amounted to "performance standards" within the meaning
of Section 4302 of the CSRA. Thus, the record indicates that a number
of similar performance expectations had been in force prior to the
passage of the CSRA and that the parties were negotiating, on the
national level, the ground rules for the participation of the Union in
the establishment of the production standards and critical elements
mandated by Section 4302 of the CSRA. Accordingly, the Authority's
decision in National Treasury Employees Union, supra, is not applicable
to the unilateral changes alleged herein as a violation, and the
Respondent is therefore under no obligation to bargain with the Union
concerning the form of employee participation in the establishment of
the production expectations.
I further find, again contrary to the position of the General
Counsel, that the substance of the performance expectations is not a
negotiable item. Thus, the Authority in National Treasury Employees
Union, supra, made it clear that the levels of output and the quality of
work product fall within the rights accorded management to direct
employees under Section 7106(a)(2)(A) and assign work under Section
7106(a)(2)(B) of the Statute. The subsequent decision in Internal
Revenue Service and Brookhaven Service Center, supra, does not call for
a contrary conclusion. In this latter case the Authority made it clear
that its decision was confined solely to the particular facts of the
case and that while it was finding that a Union proposal concerning the
procedure to be utilized in setting production expectation was
negotiable, it was not holding "that any proposal concerned with the
subject of procedures used to determine acceptable levels of performance
would be within the duty to bargain".
In American Federation of Government Employees, AFL-CIO, Local 3656
and Federal Trade Commission, Boston Regional Office, 5 FLRA No. 70, the
Authority reiterated its position that Section 7106(a)(2)(A) and Section
7106(a)(2)(B) make the content of performance standards non-negotiable.
In this case the Authority reemphasized that, under Section (b)(2) and
(3), an agency has however, the duty to bargain on the procedures
management will observe in, and on appropriate arrangements for
employees adversely affected by, the establishment of performance
standards by agency management.
With the above principles, findings and conclusions in mind, I now
turn to the basic facts underlying the General Counsel's contention that
the Respondent violated Section 7116(a)(1) and (5) of the Statute.
The record reveals, and there does not appear to be any dispute, that
the Respondent for a number of years had in effect written and/or oral
performance expectations in a number of its units where measurable work
was performed. The record further indicates that in other units where
measurable work was performed no such standards existed.
On August 28, 1980, Respondent announced for the first time its
intention to issue written performance expectations for all of its
units. Thereafter, Respondent again met with the Union on or about
September 10, 1980, and presented to the Union two sample copies of
expectations which were going to be distributed to the various managers
who would then be responsible for drafting expectations. Neither of the
two samples were applicable to any particular unit. Thereafter, without
any further meaningful discussion Respondent proceeded to implement
performance expectations in some twenty-six units without first giving
the Union either notice or copies of the new or revised performance
expectations and allowing the Union the opportunity to request impact
and implementation bargaining.
All parties agree that as a general rule it is incumbent upon an
agency to give the exclusive representative of its employee prior notice
of any contemplated change in conditions of employment and allow such
representative the opportunity to request, at least, impact and
implementation bargaining.
Respondent takes the position that it was not under any obligation to
give such notice as its action was mere extension of an existing
practice, and that in any event, it did give the Union adequate notice
of its decision to implement performance expectations and allow it the
opportunity to request impact and implementation bargaining.
I cannot agree with Respondent's position. The law is settled that a
substantial change in conditions of employment necessitates impact and
implementation bargaining. Here, although not all the changes in
performance expectations are set forth in the record, the credited
testimony of Mr. Williams establishes that performance expectations were
indeed set for a number of units where there were no past written or
oral performance expectations. In such circumstances, Respondent was
obligated to give the Union notice and an opportunity to bargain over
impact implementation. This it did not do.
Respondent's announcement of its decision to institute performance
expectations and the presentation of two sample performance
expectations, which were not applicable to any particular unit, falls
short of the duties imposed by the Statute. In order to conduct
meaningful negotiations a union must know with some sort of
particularity what it is to bargain over. Until it is faced with
specific changes in conditions of employment, how can it determine if
there is a substantial impact over which it might want to formulate
bargaining proposals. The Union is entitled to specifics not
generalities. Having failed to give the Union actual copies of the
respective performance expectations prior to instituting same during the
period September 18 through October 1, 1980, I find that the Respondent
violated Section 7116(a)(1) and (5) of the Statute.
Finally, with regard to the alleged Section 7116(a)(8) violation
predicated upon the Respondent's admitted failure to honor the Union's
requests for all the historical data underlying the new or modified
performance expectations, I cannot agree that the Union is entitled to
all the historical data relied upon by Respondent in setting the new or
revised performance expectations. Thus, according to Section 7114(b)(4)
of the Statute, an agency is only required to furnish data:
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining.
Inasmuch as the substance of the performance expectations is not
within the scope of the bargaining obligation, Respondent is not
required to supply the data underlying same. However, since the
Respondent is under an obligation to bargain with the Union over the
impact and implementation of the new or modified performance
expectations, it is required to supply to the Union all the information
in its possession which is "reasonably available and necessary for full
and proper discussion" of the impact and implementation issues.
In this latter context, the record is barren of any evidence
indicating how any part of the "historical data" relied upon by the
Respondent in setting the performance expectations bears any
relationship to the impact and implementation discussions or
negotiations mandated by the Statute. In the absence of a showing that
the historical data is necessary for a full and proper discussion,
understanding, and negotiation of the impact and implementation issues,
I cannot conclude, as urged by the General Counsel, that Respondent
violated Section 7116(a)(8) of the Statute by refusing to make the
historical data available. /9/ Cf. Director of Administration,
Headquarters, USAF, 6 FLRA No. 24.
Aside from the above considerations, I question the validity of the
Union's request for the information. While a union does not have to be
specific with regard to each and every bit of information requested for
purposes of fulfilling its representational duties, it has to do more
than merely demand "all historical data" relied upon by Respondent in
setting the performance expectations. Thus, I find that it is incumbent
upon the Union to designate with some particularity the subjects it
wishes to discuss and the relationship of the designated material to
such discussion. In the absence of a more definite description of the
information desired and a showing of a relationship to the mandatory
subject of bargaining, the Respondent does not violate the Statute by
denying a union's general, comprehensive, unspecific demand for
information.
Having found and concluded that the Respondent violated Sections
7116(a)(1) and (5) of the Statute by virtue of its actions in
instituting new or revised performance expectations during the period
September 18, 1980 through October 1, 1980, without first giving the
Union notice and allowing the Union the opportunity to negotiate
concerning the procedures to be utilized in implementing the performance
expectations and their impact on adversely affected employees, I
recommend that the Authority issue the following order designed to
effectuate the purposes of the Statute.
ORDER
Pursuant to Section 7118(a)(7)(A) of the Federal Service
Labor-Management Relations Statute, 5 U.S.C.Section 7118(a)(7)(A), and
Section 2423.29(b)(1) of the Rules and Regulations, 5 C.F.R.Section
2423.29(b)(1), the Authority hereby orders that the Internal Revenue
Service, Kansas City Service Center, Kansas City, Missouri shall:
1. Cease and desist from:
(a) Instituting new or reviewed production expectations in the
Kansas City Service Center without first notifying the National
Treasury Employees Union and affording it the opportunity to meet
and confer, to the extent consonant with law and regulations,
concerning the procedures to be observed in implementing such
performance expectations, and their impact on adversely affected
employees.
(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 Federal Labor Management Relations Statute:
(a) Rescind and withdraw the performance expectations which
were instituted during the period September 18, 1980 through
October 1, 1980, without first giving the National Treasury
Employees Union prior notice of same and affording it the
opportunity to meet and confer, to the extent consonant with law
and regulations, concerning, the procedures to be observed in
implementing such performance expectations, and their impact on
adversely affected employees.
(b) Notify the National Treasury Employees Union prior to the
installation of any new or revised performance expectations, and
upon request, consult and negotiate with such labor organization,
to the extent consonant with law and regulations, concerning the
impact and implementation of such new or revised performance
expectations.
(c) Post at its Kansas City Service Center, Kansas City,
Missouri, copies of the attached notice marked "Appendix", on
forms to be furnished by the Federal Labor Relations Authority.
Upon receipt of such forms they shall be signed by the Director of
the Service Center and they shall be posted for 60 consecutive
days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. The Director of the
Service Center shall take reasonable steps to insure that such
notices are not altered, defaced, or covered by any other
material.
(d) Notify the 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 HEREBY FURTHER ORDERED that the remaining allegations of the
complaint, which have been found supra not to be violative of the
Statute, be, and hereby are dismissed.
BURTON S. STERNBURG
Administrative Law Judge
Dated: September 24, 1981
Washington, D.C.
APPENDIX
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 institute new or revised performance expectations without
first providing to the National Treasury Employees Union and National
Treasury Employees Union Local Chapter 66, the exclusive representative
of our bargaining unit employees, adequate advance notice and a
meaningful opportunity to bargain consonant with law and regulations,
concerning the procedures to be observed in implementing such
performance expectations, and the impact of the performance expectations
on adversely affected employees.
WE WILL NOT, in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL rescind and withdraw the performance expectations which were
instituted during the period September 18, 1980 through October 1, 1980,
without first giving advance notice to the National Treasury Employees
Union and National Treasury Employees Union Local Chapter 66 of the
performance expectations, and affording it the opportunity to meet and
confer, to the extent consonant with law and regulations, concerning,
the procedures to be observed in implementing the performance
expectations, and their impact on adversely affected employees.
WE WILL in the future notify the National Treasury Employees Union
and the National Treasury Employees Union Local Chapter 66 to the
installation of any new or revised performance expectations, and upon
request, consult and negotiate with such labor organization, to the
extent consonant with law and regulations, concerning the impact and
implementation of such new or revised performance expectations.
(Agency or Activity)
Dated: By: (Signature)
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 question concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director for the Federal Labor Relations Authority, Region VII,
whose address is: Suite 680, City Center Square, 1100 Main Street,
Kansas City, Missouri, 64105 and whose telephone number is: (816)
374-2199.
--------------- FOOTNOTES$ ---------------
/1/ The General Counsel Exceptions were untimely filed and therefore
have not been considered.
/2/ In adopting the Judge's dismissal of an allegation that
Respondent violated section 7116(a)(1) and (8) of the Statute by failing
to supply certain data to the Union, the Authority notes that no timely
exceptions were filed to such dismissal.
/3/ In so concluding, the Judge found that a substantial change in
conditions of employment necessitates impact and implementation
bargaining. The Authority emphasizes that such duty to bargain arises
where an agency, in exercising a management right under section 7106 of
the Statute, changes conditions of employment of unit employees, if such
change results in more than a de minimis impact upon unit employees or
such impact is reasonably foreseeable. U.S. Government Printing Office,
13 FLRA 203 (1983) and Department of Health and Human Services, Social
Security Administration, Chicago Region, 15 FLRA No. 174 (1984).
/4/ The record reveals that there are approximately 50 different
units at the Kansas City Service Center. The work of over 25 of these
units is considered or classified as measured work.
/5/ In line with the Director's decision to establish expectations
for all jobs, a committee of managers was formed for purposes of
reviewing the existing expectations and establishing guidelines for the
setting of expectations by first line supervisors for jobs where no
expectations had previously existed.
/6/ The record indicates that the expectations were based upon the
past performance records of the employees in the respective
classifications.
/7/ It appears that the Respondent extended the deadline for
proposals from October 17 to November 7, 1980.
/8/ Thus, according to General Counsel, the violation occurred
between September 18 and October 1, 1981, and any evidence bearing on
events subsequent thereto, was for purposes of showing impact.
/9/ The record indicates that the Union wanted to negotiate over the
time and percentages set forth in the performance expectations for new
and/or returning employees. Had no provision been made in the
performance expectations for this group of employees, such time and
percentage factors would appear to be a required impact and
implementation item. However, since Respondent has seen fit to include
standards for this group in the new expectations, any demand for
bargaining thereover would be tantamount to a request for substance
bargaining, which, as noted above, is not required.
/10/ Inasmuch as a status quo ante remedy would not work an undue
hardship upon Respondent or significantly disrupt its operation, I shall
order that the performance expectations be rescinded. Cf. San Antonio
Air Logistics Center (AFLC), Kelly AFB, Texas, Texas, 5 FLRA No. 22.