The Department of Justice, Federal Bureau of Prisons(FBOP), Federal Prison Camp, Duluth, Minnesota (Employer) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, between it and Local 3935, American Federation of Government Employees, AFL-CIO, (Union). After an investigation of the request for assistance, which concerns the Employer’s attempt to change a practice regarding how work performance feedback is given to certain employees, the Panel directed the parties to mediation-arbitration via teleconference with the undersigned. Accordingly, on January 23, 2002, a mediation-arbitration proceeding by telephone was conducted with representatives of the parties. During mediation, various options for settling the dispute were discussed, but a voluntarily resolution was not achieved. The parties provided final offers at the start of the arbitration phase of the proceeding and presented oral arguments in support of their positions. Subsequently, each side also submitted post-hearing briefs. The entire record in this matter has now been considered, including the parties’ final offers, arguments, documentary evidence and post-hearing submissions.⁽¹⁾

    The Employer operates a minimum-security prison facility for over 540 male inmates. The Union represents approximately 80 bargaining-unit employees who are part of a nationwide consolidated unit of about 24,000. At the national level, the parties are covered by a master collective-bargaining agreement (MCBA) which was to have expired on March 8, 2001, but has been extended until a successor is implemented. At the local level, a supplemental agreement is in effect which runs concurrently with the MCBA.

    The most prevalent position in the bargaining unit is corrections officer; this dispute, however, affects four bargaining-unit employees who hold the position of case manager (CM). CMs, among other things, are responsible for reporting to the courts about inmates, setting up treatment plans, evaluating inmates for furlough, and conducting disciplinary hearings. They receive guidance and input on their performance from the case manager coordinator (CMC), a non-supervisory management position. In accordance with Program Statement (PS) 3510.08, Role of Case Management Coordinator, issued on June 16, 1997, one of the functions of the CMC is to provide Unit Managers/Rating Officials (UMs/ROs), who officially supervisor CMs, written information on at least a quarterly basis regarding the work performance of CMs. According to the position description for a CMC, this information "shall be in memorandum format and will ordinarily be incorporated into the final performance evaluation." Furthermore, the CMC is "encouraged to provide frequent and constructive information regarding [CM] performance. The [UM/RO] shall discuss all performance log information with the affected [CM] that is based in part or fully upon information provided by the [CMC]."

ISSUE AT IMPASSE

    The parties essentially disagree over whether the CMC should continue to be required to provide the quarterly performance memoranda to the CMs, and to offer the CMs the opportunity to discuss them, prior to forwarding the memoranda to the UMs.⁽²⁾

1. The Employer’s Position

The Employer proposes the following wording:

When the [CMC] provides a copy of the quarterly performance memorandum to the [UM/RO], in accordance with [PS] 3510.08, Role of the CMC, the [CM] will receive a courtesy copy of the CMC memorandum in accordance with national policy regarding release of information.

The Arbitrator "should decline to assert jurisdiction and order the Union to withdraw its final proposal" for a number of reasons. The Employer should not be obligated "to open negotiations at the local level" because the proposal "deviates from" FBOP-wide policy. In this regard, PS 1221.66, Directive Management Manual, "prohibits parties at the local level from negotiating a change in any [PS]." The former Associate Warden’s 1999 Memorandum changed the policy set forth in PS 3510.08 by indicating who else, in addition to the UM, would receive a copy of the CMC’s written information. The former Associate Warden had no authority to deviate from PS 3510.08, however, because PS 1221.66 specifies that only the Director of the FBOP may approve changes to PSs. The 1999 Memorandum, therefore, "is not binding" on the Employer, nor are the parties empowered to negotiate a change in existing PSs "by means of, among other things, the Union’s proposal in this case."

    The Union’s proposal also impermissibly interferes with management’s internal decision-making process. The CMC’s written information regarding each CM’s performance is a "pre-decisional document." The proposal, however, would allow CMs to "improperly interject by contesting the pre-decisional document before a final decision (performance log entries) is made" by the UM. Such impact on internal management discussions and deliberations between the CMC and the UM on pre-decisional documents, and the disclosure of the CMC’s written information to bargaining-unit employees "at any time" prior to the UM’s issuance of a performance log entry, is "prohibited by law within the meaning of 5 U.S.C. § 7114(b)(4)" of the Statute. In this connection, § 7114(b)(4) gives the Employer a statutory right to determine whether a "particularized need" has been established entitling CMs to the CMC’s written information. The Union’s final proposal "interferes with the Employer’s statutory right to know what would be the particularized need when an employee makes a valid request for the [CMC’s] written information."

    By designating the CMC as the particular management official with the specific task of discussing his/her written performance information with the CM, the Union’s proposal additionally is inconsistent with the Employer’s right to assign work, under § 7106(a)(2)(B) of the Statute. While this "defect" can be "cured" simply by requiring "management" (as opposed to the CMC) to discuss the CMC’s written information "if approached by [CMs] within 7 calendar days of receipt of such written information obtained through a valid request made under the provisions of 5 U.S.C. § 7114(b)(4)," PS 3510.08 "already designates or prescribes such task to the [UM]." It also makes clear that the UM is responsible for discussing "all" performance log information. Moreover, Article 9, Section a., of the parties’ MCBA permits negotiations over local supplemental agreements only where the "provisions being negotiated locally do not make changes in policy." Thus, the Employer "should not be obligated by the Arbitrator to open negotiations at the local level" on PS 3510.08 (which PS 1221.66 establishes is a "policy") because the Union’s final proposal "will make changes in policy." Finally, all negotiations at the local level must be consistent with statutes, PSs, and the MCBA, the provisions of which "are meant to be adhered to. If not adhered to or applied when considering the Union’s proposal, those provisions would be meaningless."

2. The Union’s Position

The Union’s proposal is as follows:

When the [CMC] provides a copy of the quarterly performance memorandum to the [UM/RO], in accordance with [PS] 3510.08, Role of the CMC, the [CM] will receive a courtesy copy of the CMC memorandum at the same time.

[CMs] will, at their discretion, have 7 calendar days to approach the CMC to discuss the memorandum before the memorandum is used officially and discussed by the [UM] with the [CMs].

In the alternative, it proposes that "the current practice remain as status quo." The 1999 Memorandum "was agreed to by both parties as an Informal Resolution to a grievance." It established a procedure, in effect now for more than 2 years, for the CMC "to provide and discuss performance memorandums" with CMs, which fosters "open communication between the parties involved."⁽³⁾ The practice "causes no harm to the agency nor does it interfere with any of management’s rights under the Statute." Contrary to the Employer’s position, it "does not prohibit management from discussing performance issues in any way, nor does it deviate from [PS 3510.08] because all provisions of the policy are still followed."

    The Employer has provided no factual evidence or documents to support its claim that the Union knew about the implementation of PS 3510.08 prior to July 1997. In this regard, the parties’ 1993 MCBA permits negotiations subsequent to the issuance of policies, so "the Union may not have ‘known’ about this policy prior to issuance and could only invoke negotiations afterward." There also is no evidence that the Union "accepted" this policy. The parties’ current MCBA permits negotiations prior to the implementation of policies, which is what the Union insisted on when the Employer decided to change the past practice in February 2001. The Union also was entitled to invoke local negotiations over this matter under 5 U.S.C. § 7106(b)(2) and (3) because the Employer’s newly-proposed procedures concerned a change in conditions of employment.⁽⁴⁾

    The Employer is in error when it contends that either the current practice, or the Union’s final offer: (1) involve a pre-decisional document and impermissibly require access to internal management discussions and deliberations; (2) are contrary to policy; (3) conflict with management’s statutory rights under § 7114(b)(4); and (4) interfere with management’s right to assign work, "under § 7106(a)(2)(A)&(B) of the Statute." The Union’s final proposal does not request "access to management’s discussions and deliberations, but only to the document which is generated, and at the same time it is being submitted to the rating official." Nor does it "detract from or replace" PS 3510.08, mandate management to change the document as a result of any discussion between the CMC and the CM, or limit the gathering of information necessary to make determinations in the CM’s performance log by the UM. Concerning the Employer’s interpretation that § 7114(b)(4) gives management a statutory right to determine whether a particularized need has been established for the CMC’s written information, "the Union considers this point moot." Finally, as to the Employer’s contention that the 1999 Memorandum and the Union’s final proposal interfere with its right to assign work, the FLRA has held that "proposals establishing otherwise negotiable procedures do not directly interfere with the right to assign work just because they obligate the agency to assign someone to implement the procedure."⁽⁵⁾

    Having carefully considered the arguments and evidence presented in this case, the parties shall be ordered to adopt a modified version of their current practice to resolve their dispute. By way of background, the parties were instructed during a preliminary conference call conducted on January 17, 2002, and again at the start of the mediation-arbitration proceeding, that the following standard would be applied in evaluating the merits of the parties’ dispute: The party attempting to change the status quo (in this case, the Employer) would bear the initial burden of demonstrating why the current procedure should be replaced, including evidence of practical difficulties it had encountered which support a change. In the course of the proceeding, the Employer was reminded of this burden, but only mustered two unpersuasive allegations of practical difficulties: (1) the current practice permits CMs to interfere with the ability of management officials to communicate with each other (i.e., CMs hold the "ace" card if the CMC and UMs should disagree over CMs’ performance); and (2) continuation of the current practice would have grave consequences for other FBOP facilities, whose local unions would attempt to negotiate similar policies throughout the country. The first allegation is unpersuasive because the Employer admits that the current practice does not prevent management officials from communicating among themselves either before, during, or after the quarterly memoranda are submitted by the CMC to the CMs or the UMs; the second, because the Employer could cite no examples of other FBOP facilities where local unions had requested to negotiate this matter, even though the practice already has been in effect for over 2 years.⁽⁶⁾

    After failing to provide compelling reasons to support the merits of the change it proposes during the mediation-arbitration proceeding, the Employer chose in its post-hearing brief to exercise its right to challenge the Arbitrator’s continued jurisdiction in the case. Its contentions in this regard fall into two broad categories. The first is based on arguments that the current practice deviates from internal FBOP regulations and that, therefore, the former Associate Warden responsible for issuing the 1999 Memorandum had no authority to do so. The Employer also refers to a provision of the parties’ MCBA to support this category of jurisdictional argument. Essentially, the Employer is contending that it has never had an obligation to bargain over the change in past practice it proposed in February 2001.⁽⁷⁾ In addressing this contention, it must first be noted that neither party questions the existence of the past practice. In such circumstances, the general principle established by the FLRA is that, where a past practice has ripened into a condition of employment, employers must fulfill their bargaining obligations before any change can be made.⁽⁸⁾ While the Employer also appears to allege that the past practice in question does not concern a condition of employment, for the reasons provided below in connection with the Employer’s second category of jurisdictional argument, such allegation must be rejected. Therefore, in the normal case, the Employer’s claim that it has no duty to bargain over its proposed change also would have to be rejected.

    In 1999, however, the FLRA issued a decision which recognized an exception to the general principle stated above.⁽⁹⁾ In Rocky Mountain Area, the FLRA adopted the recommendations of a former Chief Administrative Law Judge (Judge) dismissing a complaint that the agency had violated section 7116(a)(1) and (5) of the Statute when it unilaterally changed a past practice without negotiating with the exclusive representative of its employees. The Judge found that the agency did not violate the Statute because the disputed past practice was inconsistent with a nationwide collective bargaining agreement, provisions of which the Judge interpreted as: (1) specifically conflicting with the practice in question and (2) specifically prohibiting any local parties from agreeing to modify the terms of the national agreement by means of a local supplemental agreement. While the Employer in the instant case cites no FLRA decisions in support of its position, the circumstances described in Rocky Mountain Area bear a facial similarity to those here. In this regard, assuming the current practice can be construed in some manner as a local supplemental agreement between the parties, the Employer argues that it is inconsistent with Article 9, Section a. of the parties’ MCBA, which it interprets as permitting negotiations over local supplemental agreements "provided that provisions being negotiated locally do not make changes in policy." Thus, it is necessary to assess whether, on the basis of the FLRA’s decision in Rocky Mountain Area, the Employer’s arguments in this case establish an exception to the general principle that an employer must fulfill its bargaining obligations before any change can be made to a past practice that has ripened into a condition of employment. If the answer is in the affirmative, it also would be necessary to decline to retain jurisdiction over the parties’ dispute.

    The introductory paragraph of Article 9 of the parties’ MCBA states, in pertinent part, that "in no case may local supplemental agreements conflict with, be inconsistent with, amend, modify, alter, paraphrase, detract from, or duplicate this Master agreement except as expressly authorized herein." This wording is substantively identical to the contract provision cited by the Judge in Rocky Mountain Area. To establish the Employer’s right to unilaterally change the parties’ past practice, however, there must be an additional provision in the MCBA which specifically conflicts with that practice. This is where the analogy with Rocky Mountain Area breaks down. The Employer cites no provision of the MCBA, nor is one otherwise apparent, specifically conflicting with the practice in question.⁽¹⁰⁾ In this regard, the only provision of the MCBA which it points to, Article 9, Section a., appears to address the circumstances under which local parties may mutually elect to execute new signatures and dates if neither desires to renegotiate their local supplemental agreement. Far from supporting the Employer’s view that local supplemental agreements may not make changes in policy, the cited provision appears to acknowledge that there are likely to be situations where such agreements may actually conflict with changes in policy.⁽¹¹⁾ In any event, Article 9, Section a. has nothing to do with whether CMCs should be required to provide their quarterly performance memoranda to the CMs, and to offer the CMs the opportunity to discuss them with the CMC, prior to forwarding the memoranda to the UMs. For this reason, the Employer has failed to establish that it is entitled to an exception to the general principle that an employer must fulfill its bargaining obligations before any change can be made to a past practice that has ripened into a condition of employment.⁽¹²⁾

    The Employer’s second category of jurisdictional argument, based on contentions that both the current practice and the Union’s final offer interfere with its rights under §§ 7114(b)(4) and 7106(a)(2) of the Statute, is also essentially unavailing. When such duty-to-bargain questions are raised in the course of an interest arbitration proceeding in the Federal sector, arbitrators are guided by the FLRA’s decisions in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988)(Carswell) and U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Region, Yuma, Arizona and National Federation of Federal Employees, Local 1487, 41 FLRA 3 (1991)(Bureau of Reclamation).⁽¹³⁾ Applying Carswell and Bureau of Reclamation to the Employer’s argument that disclosing the CMC’s quarterly performance memorandum at any time prior to the UM/RO issuing performance log entries is prohibited by § 7114(b)(4) of the Statute, the FLRA has stated that § 7114(b)(4) "applies only to the disclosure of information by an agency to a union and . . . is not a consideration with respect to proposals requiring disclosure of information by the agency to its employees."⁽¹⁴⁾ The practice established by the 1999 Memorandum, and the Union’s final offer, require the disclosure of information to employees and not the Union. Accordingly, the Employer’s reliance on § 7114(b)(4) to support its jurisdictional argument is without merit.

In PTO I and other cases,⁽¹⁵⁾ the FLRA also has stated that:

The proper inquiry with respect to union proposals that require agencies to provide general information to employees is whether: (1) the information concerns conditions of employment; and (2) disclosure of the information violates any law or applicable regulation.

In OHA, a proposal substantively identical to the parties’ practice (and the Union’s final offer) in this case, requiring an employer "to show performance documentation to an employee prior to the issuance of the performance appraisal which is based in whole, or part, on that documentation," was found by the FLRA to be a negotiable procedure, under § 7106(b)(2) of the Statute.⁽¹⁶⁾ As in that case, it cannot be contested that the current practice and the Union’s final offer concern a condition of employment, and that the disclosure of the information does not appear to violate any law or applicable regulation.⁽¹⁷⁾ In addition, in PTO I, the FLRA also found negotiable, under § 7106(b)(2) of the Statute, another substantively identical proposal specifying that "whenever a reviewer raises a question as to the appropriateness of an action, he shall consult with the employee before making a final determination that a clear error exists."⁽¹⁸⁾ Among other things, in rejecting the agency’s argument that the proposal interfered "with management’s internal deliberative process when exercising its rights under section 7106," the FLRA stated that it only required "reviewers" (in our case, the CMC) to consult with "examiners" (in our case, CMs) in order to hear the examiners’ clarifying explanations. As in the instant case, the proposal did not require that the examiner concur in the reviewer’s assessments.⁽¹⁹⁾ In view of the FLRA’s clear precedent, as set forth above, the Employer has provided no basis for concluding that jurisdiction over this dispute should not be retained, or that the Union should be ordered to withdraw its final proposal.

    The final jurisdictional argument that needs to be addressed concerns the Employer’s contention that, by designating the CMC as the particular management official with the specific tasks of forwarding the quarterly performance memoranda to CMs, and discussing them, the current practice and the Union’s final offer are inconsistent with its right to assign work, under § 7106(a)(2)(B) of the Statute. The Employer’s contention is supported by previous FLRA decisions finding that proposals requiring management to assign specific duties to particular supervisors affect management’s right to assign work.⁽²⁰⁾ As the Union points out, however, the FLRA also has determined that "proposals establishing otherwise negotiable procedures do not directly interfere with the right to assign work because management must assign personnel to implement the procedures."⁽²¹⁾ Although there is probably a way to reconcile the FLRA’s precedent with respect to this matter, it is unnecessary to do so here. Rather than designating the CMC as the specific management official assigned to perform the duties identified in the 1999 Memorandum and the Union’s final offer, the wording ordered below is more generic, and eliminates reference as to why the CMC’s quarterly performance memoranda are being provided to CM’s prior to being forwarded to UM’s for official use. This avoids any potential negotiability problem while keeping the substance of the current practice intact. It is assumed, of course, that the parties understand that the purpose of the procedure is to provide CMs with an opportunity to discuss the contents of the memoranda with the CMC, should they choose to do so. Finally, the Union argued during the mediation-arbitration proceeding that CM’s need to receive the memoranda at least 7 calendar days before they are forwarded to the appropriate UM to ensure that there is enough time for a discussion to take place. Given the testimony during the proceeding that previous discussions between the CMC and CMs regarding the contents of the memoranda have normally been pro forma, 5 calendar days appears to balance the parties’ interests more appropriately. Accordingly, this conclusion also is reflected in the decision below.

DECISION

    The parties shall adopt the following wording to resolve their impasse:

Management shall provide copies of the Case Management Coordinator’s quarterly performance memoranda to Case Managers at least 5 calendar days before they are forwarded to Unit Managers/Ratings Officials for official use.

H. Joseph Schimansky
Arbitrator

Washington, D.C.
February 15, 2002