[ v22 p15 ]
22:0015(4)CA
The decision of the Authority follows:
22 FLRA No. 4
DEPARTMENT OF THE AIR FORCE
AIR FORCE LOGISTICS COMMAND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, COUNCIL 214
Charging Party
Case No. 5-CA-20018
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
and cross-exceptions filed to the attached Decision of the
Administrative Law Judge. The complaint alleged that the Respondent,
Department of the Air Force, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, violated section 7116(a)(1) and
(5) of the Statute /1/ by failing and refusing to negotiate in good
faith with the American Federation of Government Employees, AFL-CIO,
Council 214 (Union), its employees' exclusive representative, by
declaring nonnegotiable certain Union proposals regarding the
implementation and impact of Air Force Regulation 40-452 (AFR 40-452),
entitled "Performance Appraisal System," and by unilaterally
implementing that regulation on or about July 1, 1981, without
bargaining with the Union concerning eleven (11) specific proposals
which the General Counsel alleges to be negotiable. The Respondent
asserts that the proposals are nonnegotiable for a variety of reasons as
set forth in the Judge's Decision. The Judge found several of the
proposals to be negotiable and therefore concluded that the refusal to
bargain and unilateral implementation of a performance appraisal system
in the circumstances violated section 7116(a)(1) and (5) of the Statute.
II. Facts
From March 4 to March 17, 1981, /2/ the Respondent and the Union met
several times in negotiations concerning proposals relating to the
impact and implementation of AFR 40-452. The parties submitted
proposals and counter-proposals, and met with a mediator. On March 17,
the parties reached impasse on 15 Union proposals. On March 27, the
Union submitted a request for assistance to the Federal Service Impasses
Panel (the Panel). On this same date, the Respondent sent the Union a
letter stating that "(b)ecause of the statutory requirements that the
Performance Appraisal System be fully implemented by 1 October 1981, we
intend to begin implementing our final offer on 1 June 1981. Between
now and 1 June 1981 we will train supervisors and managers. On 1 June
or later we will begin implementation with bargaining unit employees in
accordance with our final offer." The parties stipulated that the
Respondent began implementation on July 1 or later.
During its initial investigation into the parties' impasse, the Panel
asked the Respondent to state, in writing, its position on why there was
an impasse. The Respondent declared that the parties had reached
impasse because the 15 Union proposals were nonnegotiable, citing a
different rationale for each. On May 13, in a brief to the Panel, the
American Federation of Government Employees, AFL-CIO (AFGE), on behalf
of the Union, replied to the Respondent's allegations of
nonnegotiability. In its reply, AFGE amended the language of Union
Proposals 3 and 5, and modified the stated intent of other proposals.
Although the Respondent was served with AFGE's reply which was submitted
to the Panel, it was never asked by AFGE or the Union to bargain over
these modified proposals. On June 5, the Panel declined to assert
jurisdiction because the Respondent had raised a "threshold" question
involving negotiability.
III. Administrative Law Judge's Decision
The Judge found that six of the proposals over which the Respondent
refused to negotiate were negotiable, and therefore concluded that the
refusal to bargain and subsequent unilateral implementation violated
section 7116(a)(1) and (5) of the Statute. He also denied the Union's
request for a status quo ante remedy. The Judge recommended that the
Respondent be ordered to cease and desist from the unfair labor
practices found, and to take certain affirmative action, including
negotiation with the Union, upon request, over the proposals found to be
negotiable.
IV. Positions of the Parties
The Respondent asserted that the proposals over which it refused to
bargain are nonnegotiable on the basis of various arguments discussed
below. It also contended that some of the proposals conflict with an
agency regulation, but has not raised or argued that a compelling need
exists for the regulation alleged to conflict with the proposals. The
Respondent also alleged that its unilateral implementation of changes in
its performance appraisal system pursuant to its last best offer before
impasse was appropriate and necessary to be accomplished by a specific
date, and that it could delay no longer.
The General Counsel excepted to the findings of the Judge that
certain Union proposals were nonnegotiable.
V. Analysis
A. Union Proposals 3 and 5
As noted above, the complaint listed 11 of the 15 Union proposals as
being negotiable. The complaint asserted as unfair labor practices the
Respondent's refusal to bargain over these 11 proposals including Union
Proposals 3 and 5 as modified by AFGE in its May 13 submission to the
Panel. The question here is whether the Respondent violated the Statute
by failing to negotiate over certain Union proposals with respect to the
procedures which the Respondent would observe in exercising its
authority with regard to changes in its performance appraisal system and
its implementation of such performance appraisal system on or about July
1. A failure or refusal to negotiate in violation of the Statute
assumes that there was a proper request to negotiate. As to Proposals 3
and 5, the Authority finds, contrary to the Judge, that the Respondent's
mere knowledge of the Union's modified proposals is not a sufficient
basis to find a violation; there must be a clearly communicated request
to bargain and a refusal to do so. The record is clear that the
Respondent never was requested to negotiate over the two modified Union
proposals before it implemented its last best offer on or about July 1.
Thus, the modifications were made when AFGE submitted them to the Panel
on May 13 during the Panel's initial investigation of the case (over
which it ultimately declined to assert jurisdiction). Only after the
Respondent implemented its modified performance appraisal system did
AFGE on September 14 ask the Respondent for its position on the
negotiability of the modified proposals. Under these circumstances, the
AFGE's submission of the modified proposals to the Panel in May did not
constitute a request that the Respondent negotiate over the modified
proposals. As to the AFGE's request for a negotiability determination
on September 14, such request was made months after the Respondent's
implementation of the revised performance appraisal system and,
therefore, if considered a request to bargain, came after the alleged
unfair labor practice occurred in this case. Thus, in these
circumstances, it cannot be considered a timely request to bargain. /3/
Therefore, the Authority shall dismiss those portions of the complaint
dealing with Union Proposals 3 and 5 which never were properly before
the Respondent for negotiation as it relates to the complaint in this
case.
B. Compelling Need
1. The Judge's Decision
In deciding whether Union Proposals 8 and 10 were negotiable, the
Judge considered whether they conflicted with an agency rule or
regulation (in this case AFR 40-452), and determined that Proposal 8,
susceptible to varying interpretations, was not incompatible or
irreconcilable with the regulation, but that Proposal 10 was
incompatible and irreconcilable with the regulation. He therefore found
Proposal 8 to be negotiable on the merits, and found Proposal 10 to be
nonnegotiable because it conflicted with AFR 40-452. In neither case
did the Judge consider whether there was a compelling need for the
regulation asserted to be incompatible with the Union proposal, although
he noted that agencies are not obligated to bargain over matters
encompassed by their regulations unless it is first determined under
section 7117(b) of the Statute /4/ that no compelling need exists for
the regulation. In this regard, he noted that the Authority had not yet
addressed whether a compelling need issue could be resolved in an unfair
labor practice proceeding, but concluded that absent the Authority's
resolution of that question his opinion was that compelling need could
be resolved by the Authority only in a negotiability proceeding. The
record indicates, as noted below, that the Respondent did not argue the
existence of a compelling need for the regulation to the Judge.
2. Subsequent case law
After the Judge issued his Decision in this case, the Authority
determined that a compelling need issue can be decided in an unfair
labor practice proceeding. Defense Logistics Agency (Cameron Station,
Virginia) et al., 12 FLRA 412 (1983). /5/ Thus, agency management may
raise compelling need for an agency regulation as an affirmative defense
to an allegation that it unlawfully refused to bargain before
implementing its new or revised regulation. In addition, the agency
raising compelling need as an affirmative defense is required to come
forward with affirmative support for such assertion, just as it would
have the burden of establishing compelling need in a negotiability
proceeding. See Aberdeen Proving Ground, Department of the Army, 21
FLRA No. 100 (1986). /6/
3. Discussion of compelling need in this case
The record discloses that the Respondent did not raise or argue the
existence of a compelling need for AFR 40-452 as a reason for refusing
to bargain with the Union or as a defense to the unfair labor practice
allegations in this case. Rather, the Respondent consistently asserted
that since it had claimed the proposals were nonnegotiable because they
conflicted with AFR 40-452, raising a regulatory bar, it was up to the
Union or the General Counsel to assert and establish the absence of a
compelling need. The Respondent contends that it needs only to show a
conflict between the proposal and the regulation, and that the burden of
proof is on the General Counsel to show that a proposal is negotiable.
The Authority disagrees. Section 2424.11 of the Authority's Rules and
Regulations states that "(a) compelling need exists for an agency rule
or regulation concerning any condition of employment when the agency
demonstrates that the rule or regulation meets one or more of the . . .
criteria(.)" (Emphasis added.) Thus, as the Respondent never even
asserted that a compelling need existed for AFR 40-452 so as to excuse
it from the duty to bargain, such obligation existed unless there is
merit to any of the Respondent's other defenses.
C. Analysis of Negotiability Issues
The Authority adopts the Judge's conclusion that Union Proposals 1
and 2 are negotiable, and that Proposal 4 is nonnegotiable, all for the
reasons he stated. We will now address the negotiability of the
remaining disputed proposals.
Proposal 6. /7/
Details shall be given equitable and proportionate weight in
the overall performance rating as work performed in the employee's
actual position. When an employee has been officially detailed to
another position, the employee's performance on the detail shall
be appraised in writing so that the employee's records reflect
this annual appraisal. Details of six months or more will be
given equal weight in the overall rating. Accordingly, details of
a lesser period will be given an equitable, proportionate amount
of weight in the overall rating.
Employees who are detailed or assigned to another position will
not be required to meet the standards of this position until they
have received the necessary training, guidance, and etc. This
training period will be for no less than 30 days. An employee's
evaluation will only commence after the training period and the
supervisor has fully discussed the performance standards, critical
elements, and the performance expected of the employee.
The first paragraph of Union Proposal 6 would, under existing
precedent, substantively interfere with management's right to direct and
assign work under section 7106(a)(2)(A) and (B) of the Statute. /8/ See
American Federation of State, County and Municipal Employees, AFL-CIO,
Council 26 and U.S. Department of Justice, 13 FLRA 578 (1984). However,
the Union has argued that this proposal was intended to provide an
"appropriate arrangement" under section 7106(b)(3) of the Statute for
employees whose annual performance rating would be affected because of
details during their rating period. In its recent decision in National
Association of Government Employees, Local R14-87 and Kansas Army
National Guard, 21 FLRA No. 4 (1986), the Authority adopted and
"excessive interference" test for dealing with proposed appropriate
arrangements and addressed the factors it would consider in making its
determination. We find that the proposal here, on its face, clearly
prescribes an arrangement for employees being appraised who have been
detailed during their rating period. We find that the proposal only
provides that details be given "equitable and proportionate weight" in
the performance ratings. It appears that the proposal is fully
consistent with and implements 5 C.F.R. 430.204(q) and (r) (1985), which
provide that a performance rating must take into account an employee's
performance on a detail which occurs during a rating period. /9/ The
benefit to employees under the proposal would simply be that their
annual appraisal would include consideration of all the work they had
done during the appraisal period. /10/ The Agency still retains its
management right to detail, to determine the length of the detail, to
assign work on the current job or the detail, and to determine the
priority of the work assigned. Nor does the proposal preclude
management from evaluating employees or from setting particular
standards for the work assigned. Therefore, the Authority concludes
that the first paragraph of Union Proposal 6 is a negotiable appropriate
arrangement as any burden on management in these circumstances is
unsubstantial in comparison to the benefit afforded to the affected
employees. In conclusion, the Authority finds that it does not
excessively interfere with management rights.
Turning to the second paragraph of Union Proposal 6, the Authority
finds this portion of the proposal negotiable. In this regard, it has
the same effect of delaying application of performance requirements for
a period during which an employee is performing duties of a new position
as the proposals the Authority found negotiable in American Federation
of State, County and Municipal Employees, Local 2910, AFL-CIO and
Library of Congress, 15 FLRA 541 (1984) and National Federation of
Federal Employees, Council of Consolidated SSA Locals and Department of
Health and Human Services, Social Security Administration, 17 FLRA 657
(1985) (Union Proposal 1), petition for review filed sub nom. Department
of Health and Human Services, Social Security Administration v. FLRA,
No. 85-1601 (4th Cir. June 19, 1985). Therefore, for the reasons set
forth in those cases, the proposal is negotiable.
Proposal 7.
The union will be allowed participation on any committee and/or
process established to select recipients for awards.
The Authority finds that Union Proposal 7 would, under existing
precedent, directly interfere with management's reserved rights under
section 7106(a)(2)(A) and (B) of the Statute, even if the Union's role
is limited to observation. See Department of the Navy, Northern
Division, Naval Facilities Engineering Command, 19 FLRA No. 86 (1985),
petition for review filed sub nom. National Federation of Federal
Employees, Local 1430 v. FLRA, No. 85-1648 (D.C. Cir. October 9, 1985).
Thus, the term "any committee and/or process" could include any
committee or process established to select employees for performance
based awards, and to that extent the proposal is nonnegotiable.
Proposal 8.
An employee with a minimally acceptable rating or higher will
be screened for basic promotion eligibility.
The Authority finds Proposal 8 to be negotiable since it only
involves the screening of employees. If the proposal required selection
based on the lower standard, it would have been inconsistent with
management rights under section 7106(a) (2)(A) and (B) of the Statute
and, thus, nonnegotiable. The proposal here only proposes a procedure
that the Respondent will use when it determines which employees are
eligible for promotion, but will not compel the Respondent to promote
such employees. See, for example, National Treasury Employees Union and
NTEU Chapter 72 and Internal Revenue Service, Austin Service Center, 11
FLRA 271 (1983) (Union Proposal 2).
Proposal 9.
Under no circumstances will an employee be demoted or removed
without the following steps being taken by the employer:
1. The agency shall direct maximum efforts to improve an
employee's performance through counselling, training,
reassignment, job restructuring, development of suitable
incentives and setting short term specific goals to be
accomplished within a set time limit before considering whether to
initiate procedures to demote or separate the employee.
2. Following the above, and after a reasonable amount of time
has been given to demonstrate acceptable performance and the
employee has not improved further action might be warranted. A
"reasonable amount of time" is to be defined on a case-by-case
basis by the supervisor, employee and union steward. The
supervisor at all times should assist the employee in improving
his or her performance.
The Union's intent with regard to Proposal 9 was to include "all
employees" under its provisions. The Union would not agree with
management's counterproposal to change the word "employee" to
"non-probationary employees." Since it is clear that the provisions of
Proposal 9 would include within the parties' negotiated grievance
procedures those disputes regarding the termination of probationary
employees, the Authority finds the entire proposal nonnegotiable. See
American Federation of Government Employees, AFL-CIO, National
Immigration and Naturalization Service Council and U.S. Department of
Justice, Immigration and Naturalization Service, 8 FLRA 347 (1982),
rev'd sub nom. U.S. Department of Justice, Immigration and
Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983). Further,
as this proposal arose in an unfair labor practice proceeding, the
Authority finds it unnecessary to pass upon whether the provisions of
Proposal 9 would be negotiable for non-probationary employees.
Proposal 10.
Forms documenting ratings of unacceptable but not accompanied
by a demotion or removal recommendation will be kept for one year
then destroyed.
Since no issue has been raised as to whether there exists a
compelling need for AFR 40-452, as noted above, and no other basis for
finding the proposal nonnegotiable has been alleged or established, the
Authority finds Proposal 10 to be negotiable inasmuch as it relates to a
procedure which management is to use when an employee receives an
unacceptable rating.
Proposal 11.
An employee who believes any performance standard does not meet
the criteria contained in this agreement may file a grievance
under Article 6 of the MLA.
The negotiability of this proposal hinges on the Union's intent. The
question is whether it meant to authorize employees to grieve the
performance standards themselves or only their application. Relying on
the Union's intent at the time the parties were at impasse, /11/ the
Authority finds the Union's intent with regard to this proposal was to
provide "the union and/or employee an opportunity to challenge the
validity of performance standards through the negotiated grievance
procedure." As the proposal would authorize grievances concerning the
standards themselves rather than their application, the Authority
concludes that Proposal 11 is nonnegotiable. See American Federation of
Government Employees, AFL-CIO, Local 1968 and Department of
Transportation, St. Lawrence Seaway Development Corporation, Massena,
New York, 5 FLRA 70 (1981), affirmed sub nom. American Federation of
Government Employees, AFL-CIO, Local 1968 v. FLRA, 691 F.2d 565 (D.C.
Cir. 1982), cert. denied, 461 U.S. 926 (1983).
VI. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms those rulings. The Authority has considered
the Judge's Decision, the exceptions to that Decision, the positions of
the parties /12/ and the entire record, and adopts the Judge's findings,
conclusions, and recommended Order as consistent with this decision.
Therefore, having found that Union Proposals 1, 2, 6, 8 and 10 are
negotiable, the Authority concludes that the Respondent's implementation
of AFR 40-452 without bargaining on these proposals as requested,
violated section 7116(a)(1) and (5) of the Statute. See Veterans
Administration, Veterans Administration Regional Office (Buffalo, New
York), 10 FLRA 167 (1982).
ORDER
Pursuant to section 2423.29 of the Rules and Regulations of the
Authority and section 7118 of the Statute, the Authority hereby orders
that the Department of the Air Force, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, shall:
1. Cease and desist from:
(a) Failing and refusing to meet and negotiate with the American
Federation of Government Employees, AFL-CIO, Council 214, the employees'
exclusive representative, over negotiable proposals with respect to the
procedures which the Agency will observe in exercising its authority
with regard to any change in the Agency's performance appraisal system
and concerning appropriate arrangements for employees adversely affected
by such change.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of any right assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request of the American Federation of Government Employees,
AFL-CIO, Council 214, the employees' exclusive representative, meet and
negotiate with such representative concerning any of the proposals found
negotiable herein, submitted in connection with implemented changes in
the Agency's performance appraisal system.
(b) Post at all of its facilities where bargaining unit employees are
located copies of the attached Notice on forms to be furnished by the
Federal Labor Relations Authority. Upon receipt of such forms they
shall be signed by the Commander, or a designee, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. Reasonable steps shall be taken to
ensure that such Notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region V, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply with the Order.
IT IS FURTHER ORDERED that the allegation of the complaint in Case
No. 5-CA-20018 relating to the Respondent's refusal to negotiate over
those proposals found nonnegotiable be, and it hereby is, dismissed.
Issued, Washington, D.C., June 4, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF
THE FEDERAL
LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF
CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to meet and negotiate with the American
Federation of Government Employees, AFL-CIO, Council 214, our employees'
exclusive representative, over negotiable proposals with respect to the
procedures which the Agency will observe in exercising its authority
with regard to any change in our performance appraisal system and
concerning appropriate arrangements for employees adversely affected by
such change.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of any right assured by the
Statute.
WE WILL, upon request of the American Federation of Government
Employees, AFL-CIO, Council 214, our employees' exclusive
representative, meet and negotiate with such representative concerning
any of the proposals found negotiable herein, submitted in connection
with implemented changes in our performance appraisal system.
(Activity)
Dated: . . .
By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region V, Federal Labor Relations Authority, whose address is:
175 W. Jackson Boulevard, Suite 1359-A, Chicago, Il 60604, and whose
telephone number is: (312) 353-6306.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 5-CA-20018
DEPARTMENT OF THE AIR FORCE,
AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL 214, AFL-CIO
Charging Party
Roger T. McNamara, Esq.
For the Respondent
Steven M. Angel, Esq.
For the Charging Aprty
Sandra J. LeBold, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
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, 5 U.S.C.
Section 7101, et seq.
Upon an unfair labor practice charge filed by the American Federation
of Government Employees, Council 214, AFL-CIO (the Union herein), on
October 13, 1981 against the Department of the Air Force, Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio (Respondent
herein), the General Counsel of the Authority, by the Regional Director
for Region 5, issued a Complaint and Notice of Hearing alleging
Respondent refused to bargain with the Union by declaring various of the
Union's bargaining proposals to be nonnegotiable and thereafter
implementing regulations concerning a performance appraisal program
without bargaining with the Union on the procedures, impact and
implementation of the regulations.
A hearing on the Complaint was conducted on March 9, 1982 in Dayton,
Ohio, at which time all parties were represented by counsel and afforded
full opportunity to adduce evidence, call, examine, and cross-examine
witnesses and argue orally. Briefs were filed by all parties.
Upon the entire record in this matter, my observation of the
witnesses and their demeanor, and from my evaluation of the evidence, I
make the following findings of fact, conclusions of law and
recommendations.
Chronology of Events
At all times material herein the Union has been the exclusive
collective bargaining representative of approximately 70,000 of
Respondent's employees nationwide. In early November 1980 Respondent
provided the Union with copies of Air Force Regulation (AFR) 40-452,
dated October 1, 1980, which dealt with Department of the Air Force
policy and procedures for appraisal and rating Air Force employees and
offered to bargain with the Union on the impact of the regulation. The
regulation implemented the provision of the Civil Service Reform Act of
1978, 5 U.S.C. Section 4302, which provided for the establishment of
performance appraisal systems, including critical elements and
performance standards, by each agency and required that all performance
appraisal systems be put into effect by October 1, 1981. The Union made
a request to bargain on the regulation and the parties agreed to begin
negotiations after the first of the year. In mid-January 1981 the Union
sent Respondent various proposals dealing with the regulation. On March
4, 1981 when the parties met for the first time to discuss the
proposals, Respondent submitted its counter-proposals to the Union.
The parties continued negotiations on March 5, 6, 8, and 9, 1981. On
March 9 the Union submitted its second set of proposals to Respondent.
These proposals, consisting of eight pages, addressed ten general topics
under the following titles: general information, definitions, purpose
of performance appraisal system, identifying job performance elements
and performance standards, performance appraisal discussion, details,
basic probation requirements, using the results of performance
appraisal, record keeping, and rights of parties. On March 10
management presented the Union its second set of counter-proposals,
consisting of five pages, which covered the same general topics raised
by the Union. Thereafter, the parties met on March 11, 12, and 15 to
discuss the proposals.
Although agreement was reached on numerous matters, the parties were
unable to agree on 15 Union proposals and impasse was declared.
Accordingly, on March 27 the Union requested the assistance of the
Federal Service Impasses Panel and indicated to the Panel the areas of
impasse and the areas of agreement and provided a summary of positions.
On that same date Respondent notified the Union, in writing, that due to
statutory requirements that the Performance Appraisal System be fully
implemented by October 1, 1981, it intended to begin implementing its
final offer to the Union. Respondent advised the Union that it would
immediately commence with training its supervisors and managers, and on
June 1 or later, it would begin implementation with bargaining unit
employees.
By letter to the Impasses Panel dated April 22, 1981 the Union, inter
alia, provided the Panel an amendment to supplement its March 27
statement of position on three of its proposals. A copy of this letter
was sent to Respondent.
On April 29, 1981 Respondent notified the Impasses Panel of its
position that the Union's proposals upon which impasse had occurred were
nonnegotiable. Respondent set forth reasons for its conclusions and
indicated that fact-finding by the Panel would be a likely course of
action to follow to reach a settlement of the dispute.
The Impasses Panel apparently telephonically requested the national
office of AFGE to respond to Respondent's allegations of
nonnegotiability. Accordingly, by letter dated May 13, 1981 to the
Panel, a copy of which was sent to Respondent and AFGE Council 214, the
AFGE national office set forth its position and intent regarding each of
the Union's proposals Respondent declared nonnegotiable. That letter
also explicitly revised two of the Union's specific proposals which
Respondent had previously declared to be nonnegotiable.
On June 5, 1981 the Impasses Panel notified the parties that it was
declining to assert jurisdiction in the case since Respondent raised
threshold questions concerning its duty to bargain with respect to a
substantial portion of the Union's proposals.
The process of implementing AFR 40-452 included: instructing
supervisors in the procedure; developing a work plan by supervisors
which encompassed the identification of critical elements and
performance standards of each employee; meeting with each employee to
review and discuss the work plan; revision and final drafting of each
work plan; and presenting the final work plan to each employee. Around
July 1, 1981 AFR 40-452 was implemented with regard to Respondent's
supervisors meeting with employees to discuss specific critical elements
and performance standards. The process described above was completed by
October 1.
On September 14, 1981 AFGE national office wrote Respondent, on
behalf of its ". . . constitutent, National Council of AFLC (Air Force
Logistics Command) Locals," requesting Respondent's position on its
claim of nonnegotiability on the Union's March 9, 1981 proposals (above)
"as modified in (the national office's) submission to the Federal
Service Impasses Panel on May 13, 1981." The letter indicated that the
information would be used in connection with a negotiability appeal to
the Authority. Respondent replied on September 21 by providing a copy
of the document it previously sent the Impasses Panel on April 29
(above) which set forth its reasons for claiming nonnegotiability. The
response made no reference to the May 13 letter of AFGE national office
revising two of the Union's earlier proposals but, rather, addressed
only the Union's March 9 proposals.
On October 8, 1981 the AFGE national office, "on behalf of its
constituent Council 214" filed an negotiability appeal with the
Authority. On October 13 the present unfair labor practice charge was
filed and on November 2 the AFGE national office requested that the
Authority hold in abeyance its negotiability appeal and the matter
thereafter proceeded to complaint.
The Proposals
The specific proposals at issue herein are as follows: /13/
(1) Management will encourage employee and union
representatives to work with supervisors to identify job
performance elements and to set performance standards.
(2) The union will be provided copies of all standards in a
manner which will allow sufficient time for review and discussion
with employees, if such is warranted in the opinion of the union.
(3) Critical Elements: a job element which is of such
importance that if it is not performed adequately, acceptable
performance of the job as a whole is not possible.
Performance Standards: Statements of objective requirements
measuring various levels of achievement for critical and
non-critical elements. All performance standards must be fair,
equitable, objective, valid, reliable and job-related.
(4) All efforts should be made so that standards reflect
expectations of the average employee working a reasonable, normal
rate.
(5) The agency shall make every effort to remove whatever
obstacles there may be in the job environment, such as excessive
paperwork, physical hazards to health and safety, insufficient
freedom to exercise initiative, and lack of direction, which makes
it difficult for an employee to do the best work.
(6) Details shall be given equitable and proportionate weight
in the overall performance rating as work performed in the
employee's actual position. When an employee has been officially
detailed to another position, the employee's performance on the
detail shall be appraised in writing so that the employee's
records reflect this annual appraisal. Details of six months or
more will be given equal weight in the overall rating.
Accordingly, details of a lesser period will be given an
equitable, proportionate amount of weight in the overall rating.
Employees who are detailed or assigned to another position will
not be required to meet the standards of this position until they
have received the necessary training, guidance, and etc. This
training period will be for no less than 30 days. An employee's
evaluation will only commence after the training period and the
supervisor has fully discussed the performance standards, critical
elements, and the performance expected of the employee.
(7) The union will be allowed participation on any committee
and/or process established to select recipients for awards.
(8) An employee with a minimally acceptable rating or higher
will be screened for basic promotion eligibility.
(9) Under no circumstances will an employee be demoted or
removed without the following steps being taken by the employer:
1. The agency shall direct maximum efforts to improve an
employee's performance through counselling, training,
reassignment, job restructuring, development of suitable
incentives and setting short term specific goals to be
accomplished within a set time limit before considering whether to
initiate procedures to demote or separate the employee.
2. Following the above, and after a reasonable amount of time
has been given to demonstrate acceptable performance and the
employee has not improved further action might be warranted. A
"reasonable amount of time" is to be defined on a case-by-case
basis by the supervisor, employee and union steward. The
supervisor at all times should assist the employee in improving
his or her performance.
(10) Forms documenting ratings of unacceptable but not
accompanied by a demotion or removal recommendation will be kept
for one year then destroyed.
(11) An employee who believes any performance standard does not
meet the criteria contained in this agreement may file a grievance
under Article 6 of the MLA.
Discussion
Proposal 1 - "Management will encourage employee and union
representatives to work with supervisors to identify job performance
elements and to set performance standards."
Respondent contends that this proposal requires negotiations with the
Union in identifying job performance elements and setting performance
standards and is therefore nonnegotiable. I find the proposal to be
negotiable.
The Authority held in American Federation of Government Employees,
AFL-CIO, Local 2849 and Office of Personnel Management, New York
Regional Office, 7 FLRA 571 (1982), that a proposal requiring
negotiations to establish performance standards and critical elements to
be outside an agency's duty to bargain. /14/ Prior thereto, the
Authority held nonnegotiable a similar proposal requiring the
establishment of performance standards "through collective bargaining"
in that such negotiations would directly interfere with the exercise of
mangement's right to direct employees and to assign work under section
7106(a)(2)(A) and (B) of the Statute. American Federation of Government
Employees, AFL-CIO, Local 32 and Office of Personnel Management,
Washington, D.C., 3 FLRA 784 at 787-789. However, the Authority stated
in that case, ". . . an exclusive representative must be given the
opportunity to be represented at certain meetings between management and
employees relating to the development and implementation of performance
appraisal systems . . ." Further, the Authority noted in a subsequent
case that proposals which require the opportunity for union comment on
proposed changes in performance standards and critical elements are
within an agency's duty to bargain under the Statute. American
Federation of Government Employees, AFL-CIO, Local 3656 and Federal
Trade Commission, Boston Regional Office, 5 FLRA No. 70 at p.3.
In the case herein the proposal as stated is ambiguous as to whether
negotiation or merely an opportunity for Union comment is required.
Respondent asserts that the following unrebutted testimony of
Respondent's negotiator, relating what the Union's negotiator stated
concerning the meaning of the proposal during bargaining, demonstrates
that "negotiation" was envisioned by the proposal:
"Q. What did Mr. Ketcherside tell you that proposal meant, Mr.
Mullen?
"A. This proposal was explained to me that the supervisor, the
union representative and the employee would sit down and identify
job performance elements, set the performance standards, and that
they would reach agreement. And I pursued that, the requirement
for the agreement, with the question of what would happen if there
was no agreement. It was explained that there would be. The
people working at the first level supervisor level in the shops
knew the jobs, knew each other, and that there shouldn't be too
much of a problem with that."
I find this testimony still leaves a measure of doubt as to the
meaning of the proposal. However, subsequent to the bargaining session
which produced the above comments, the Union, in its March 27, 1981
request for assistance from the Federal Service Impasses Panel explained
that the Union's proposal would only commit the employee to solicit
"input" from employees and Union officials and specifically disclaimed
"an attempt for such participation to preclude the supervisor from
making final determinations relative to elements and standards."
Therefore, in the circumstances herein I find that the proposal does not
require negotiations on performance elements and standards but only
requires the opportunity for Union comment. Accordingly, I conclude the
proposal is negotiable. Federal Trade Commission, Boston Regional
Office, supra, and Respondent's refusal to negotiate on this proposal
violated section 7116(a)(1) and (5) of the Statute. Socal Security
Administration, Baltimore, Maryland, 9 FLRA 909 (1982).
Proposal 2 - "The union will be provided copies of all standards in a
manner which will allow sufficient time for review and discussion with
employees, if such is warranted in the opinion of the union."
Respondent contends that this proposal would require Respondent
providing the Union with copies of impending final job performance
elements and standards prior to implementation, including the completed
work plan for each individual employee. Respondent argues that such a
procedure would violate the Privacy Act, 5 U.S.C. 552(a), and is
therefore nonnegotiable.
I find the proposal to be negotiable. While AFR 40-452 provides that
the Privacy Act is applicable to matters concerning performance
appraisal programs developed thereunder, the Authority, as stated above,
has held that an agency is obligated to bargain over a proposal
providing a union with an opportunity to comment on proposed changes in
performance standards and critical elements. Federal Trade Commission,
Boston Regional Office, supra. That being the case, it is difficult to
imagine how the Union herein could make meaningful comments regarding
performance standards and critical elements as applied to a particular
employee's job unless the information sought and an opportunity for
review and discussion is provided. Further, when considering the
application of the Privacy Act in situations where, as here, the
information sought by an exclusive representative is necessary and
relevant to perfecting its Statutory rights and fulfilling its
obligations, the Authority has frequently held that a union's Statuatory
right and need for the information sought substantially outweighs an
employee's loss of privacy which might occur. Veterans Administration
Regional Office, Denver, Colorado, 7 FLRA 629 at 635, 640 (1981) and
cases cited therein. Accordingly, I find and concluded that the
proposal is negotiable and reject Respondent's contention regarding the
application of the Privacy Act.
Proposal 3 - "Critical Element: a job element which is of such
importance that if it is not performed adequately, acceptable
performance of the job as a whole is not possible."
"Performance Standards: Statements of objective requirements
measuring various levels of achievement for critical and non-critical
elements. All performance standards must be fair, equitable, objective,
valid, reliable, and job-related."
Proposal 3 encompassing definitions of critical elements and
performance standards, herein, was one of the two proposals which were
revised by the AFGE national office in its submission to the Impasses
Panel on May 13, 1981. Respondent argues that no request to bargain on
this proposal as amended was ever made since AFGE national had not
participated in negotiations prior to impasse. Therefore, Respondent
reasons, procedurally no unfair labor practice violation can lie.
Respondent's procedural argument is rejected. Respondent, by
receiving a copy of AFGE national's communication to the Impasse Panel
was made aware that AFGE national, on behalf of Council 214, was
revising the proposal. It did not object nor indicate any confusion by
the revision. Rather, Respondent chose to stand by its last submission
to the Impasses Panel re nonnegotiability and indeed, made no comment
when responding to AFGE national's September 14, 1981 request for its
position on negotiability wherein it specifically noted the proposals
had been "modified." Thus, I find it was clear to Respondent that the
Union's proposals were revised by AFGE national, on behalf of Council
214, the revision was timely made since the matter was still before the
Impasses Panel for consideration, and Respondent's conduct constituted
affirmation of its prior contention of nonnegotiability.
With regard to the negotiability of the proposal, Respondent asserts
that no duty to bargain on the proposal exists since AFR 40-452 sets
forth the definitions of a critical element and a performance standard
and the proposed definitions of critical element and performance
standards conflict with the regulatory definitions.
Under section 7117(a)(2) and (3) of the Statute, an agency or a
primary national subdivision of an agency is not obligated to bargain
with a union regarding matters encompassed by their regulations unless a
union represents the majority of employees in the agency or primary
national subdivision or unless the Authority has determined, under
section 7117(b) of the Statute, that no compelling need exists for the
regulation in effect. The Department of the Air Force is a primary
national subdivision of the Department of Defense and, Respondent
reasons, since the Union does not represent a majority of Department of
the Air Force employees, and the Authority has not determined that no
compelling need exists for the regulation, no obligation to bargain
exists regarding the Union's proposal.
The Authority has not yet addressed the question of whether a
compelling need issue may be resolved in an unfair labor practice
proceeding before an Administrative Law Judge. However, I have
previously addressed this issue in Boston District Recruiting Command et
al., Case Nos. 1-CA-206, et al., OALJ-81-023 (December 22, 1980). In
that case I held that the legislative history and the language of the
Statute and Regulations require a conclusion that the compelling need
procedures envisioned by section 7117 of the Statute apply generally to
all situations where an agency genuinely defends against a demand to
negotiate on a matter by interposing the existence of an appropriate
regulation. In rejecting a position propounded by counsel for the
General Counsel in that case I stated:
Counsel for the General Counsel also suggests, as an
alternative argument, that if the agency regulation stands as a
bar to negotiations, then the proceeding herein served to put the
issue of compelling need before the Authority for determination.
In my view neither the Statute nor the Authority's regulations
appear to envision this approach. Indeed, section 7117(b)(3) of
the Statute provides that where a hearing is held to make a
determination of compelling need, it ". . . shall not include the
General Counsel as a party" (Footnote omitted). Accordingly, to
combine a compelling need determination with an unfair labor
practice proceeding, where the General Counsel has the
responsibility of presenting the evidence in support of the
complaint and carries the burden of proving the allegations of the
complaint, would run contrary to Statutory prohibition.
Therefore, Counsel for General Counsel's contention is rejected."
Judge Francis E. Dowd also addressed this issue in Defense Logistics
Agency, et al., Case No. 1-CA-213, OALJ-81-131 (July 7, 1981), and
Headquarters, Defense Logistics Agency, et al., Case Nos. 3-CA-664 et
al., OALJ-81-133 (July 10, 1981). In those cases Judge Dowd similarly
found that an agency regulation was a bar to negotiations absent a
finding of no compelling need made directly by the Authority in a
negotiability context. Judge Dowd based his conclusion not only on a
literal reading of the Statutory language but also on the apparent
Statutory scheme for resolving such matters.
In the case herein, "critical element" is defined in AFR 40-452 as
follows:
"d. Critical Element. A job performance element of an
employee's job of sufficient importance that performance below the
minimum performance standard established by management requires
remedial action and denial of merit pay or a within-grade
increase, and may be the basis for removing, reassigning, or
demoting the employee. Such action may be taken without regard to
performance on other job performance elements."
I find the definition of "critical "element" as proposed by the
Union, supra, is at substantial variance and therefore incompatible or
irreconcilable with the definition contained in the regulation.
Accordingly, I conclude that AFR 40-452 is a bar to negotiations on the
proposal. Cf. Office of Personnel Management, Washington, D.C., supra.
With regard to "performance standards," it is defined in AFR 40-452
as follows:
"f. Performance Standard. A description of the minimum level
of accomplishment necessary for satisfactory performance.
Performance standards are expressed in terms of qualitative or
quantitative objectives, specific actions, project assignments, or
other requirements related to job performance elements. There may
be more than one standard set for a single job performance
element."
I similarly find the definition of "performance standard" as proposed
by the Union, supra, is, taken as a whole, at substantial variance and
therefore incompatible or irreconcilable with the definition contained
in the regulation. Accordingly, I conclude that AFR 40-452 is a bar to
negotiations. Office of Personnel Management, Washington, D.C. supra.
Proposal 4 - "All efforts should be made so that standards reflect
expectations of the average employee working a reasonable, normal rate."
This proposal would limit Respondent in setting performance standards
to the "expectations" of the average employee. Thus, the expectations
of such an employee would be the determinative element for management in
initially establishing performance standards and management would be
precluded from exercising its independent judgment in making the
determination. Therefore, the proposal goes to the content of the
performance standard and if a grievance were to be decided concerning
the application of a performance standard, questions of whether "all
efforts" were made and the underlying standard actually reflected the
expectations of the average employee would be open for determination by
an arbitrator who might well substitute his judgment for that of the
agency. Such action would impermissibly restrict Respondent's decision
and directly interfere with management's right to direct its employees
and assign work under section 7106(a) of the Statute. Accordingly, I
find the proposal to be nonnegotiable. Cf. National Treasury Employees
Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA
769 (1980); aff'd, No. 80-1895 (D.C. Cir. Oct. 12, 1982); Office of
Personnel Management, Washington, D.C., supra; National Treasury
Employees Union and Department of Health and Human Services, Region 10,
7 FLRA 727 (1982); and National Federation of Federal Employees, Local
1437 and U.S. Army Armament Research and Development Command, Dover, New
Jersey, 8 FLRA 414 (1982).
Proposal 5 - "The agency shall make every effort to remove whatever
obstacles there may be in the job environment, such as excessive
paperwork, physical hazards to health and safety, insufficient freedom
to exercise initiative, and lack of direction, which makes it difficult
for an employee to do the best work." /15/
Respondent contends, inter alia, that the above proposal violates
management's right to direct employees and assign work under 7106(a)(2),
and is therefore nonnegotiable. I agree.
The Authority has held that a proposal to "tailor" or redesign the
position in a particular manner conflicts with management's right to
assign work under section 7106(a)(2)(B) of the Statute and is therefore
nonnegotiable. National Federation of Federal Employees, Local 1624 and
Air Force Contract Management Division, Hagerstown, Maryland, 3 FLRA 142
(1980) and American Federation of Government Employees, AFL-CIO and Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA
604 at 620-622. The proposal herein, encompassing such matters as
reducing "paperwork" and providing better "direction" and "freedom to
exercise initiative," clearly requires restructuring duties to provide a
job which does not make it "difficult for an employee to do the best
work." Accordingly, I find the proposal to be nonnegotiable.
Proposal 6 - "Details shall be given equitable and proportionate
weight in the overall performance rating as work performed in the
employee's actual position. When an employee has been officially
detailed to another position, the employee's performance on the detail
shall be appraised in writing so that the employee's records reflect
this annual appraisal. Details of six months or more will be given
equal weight in the overall rating. Accordingly, details of a lesser
period will be given an equitable, proportionate amount of weight in the
overall rating."
"Employees who are detailed or assigned to another position will not
be required to meet the standards of this position until they have
received the necessary training, guidance, and etc. This training
period will be for no less than 30 days. An employee's evaluation will
only commence after the training period and the supervisor has fully
discussed the performance standards, critical elements, and the
performance expected of the employee."
With regard to the first part of this proposal, Respondent argues
that by "dictating" to appraising officials the weight accorded detail
duties in the overall rating, management's rights to direct and assign
work under section 7106(a)(2) of the Statute are abridged. I find this
part of Proposal 6 to be negotiable.
In my view that part of the proposal concerning the weight given to
details deals primarily with procedures for the implementation of
performance standards and does not infringe on management's section
7106(a) rights. Indeed, the Authority specifically indicated in Bureau
of the Public Debt, supra at 780, that the manner in which the
performance of employees on detail will be appraised was an example of
". . . the wide range of employee participation possible through
negotiations . . ." relative to performance standards. /16/
Turning now to the second part of Proposal 6 dealing with training
detailed employees prior to requiring them to meet the standards of the
position they have been assigned to, I find that this proposal to be
nonnegotiable. A very similar proposal was found to be outside an
agency's duty to bargain in American Federation of Government Employees,
AFL-CIO, Local 3004 and Department of the Air Force, Otis Air Force
Base, Massachusetts, 9 FLRA 723 (1982). In that case the essence of the
proposal provided that employees would not be evaluated on assigned
duties which were outside their position description until management
provided, and the employee completed, a formal training program in these
duties. The Authority, citing numerous cases, held that determining
which employee duties would be included in a performance appraisal is a
management's right to direct and assign work under section 7106(a)(2)(A)
and (B) of the Statute and therefore, management was not required to
negotiate proposals relating to the substance of such determinations.
The Authority specifically stated:
"Furthermore, proposals which would contractually obligate an
agency to provide formal training, to periodically assign
employees to specific types of training programs, and to make
specific training assignments upon employee requests are outside
the duty to bargain because the assignment of training under such
circumstances constitutes an assignment of work the negotiation of
which is inconsistent with management's right to assign work under
section 7106(a)(2)(B)." (Citations omitted).
Thus, I conclude the second part of Proposal 6 is outside
Respondent's duty to bargain. /17/
Proposal 7 - "The union will be allowed participation on any
committee and/or process established to select recipients for awards."
Respondent contends it has no bargaining obligation regarding this
proposal arguing that regulation AFR 40-470 controls the subject of
awards and no changes in the awards program encompassed by AFR 40-470
occurred to require negotiations thereon.
I find that the change which occurred in Respondent's basic system of
employee appraisal opened for bargaining the performance awards program
under the new appraisal system. AFR 40-452 section 5-3 /18/ states,
inter alia, that "(e)mployees who get excellent or superior ratings
should be considered for some kind of official honorary or monetary
recognition." The regulation further treats the variety of awards
available and circumstances for granting them, noting, "(m)ost employees
covered by this regulation are eligible for wards covered by AFR
40-470."
The current AFR 40-470 /19/ recognizes, under section 4A, inter alia,
that appraisals given under AFR 40-452 are the basis for granting
performance recognition. The regulation also provides under section 4D
for an "interim measure" to permit granting performance recognition
until employees covered by AFR 40-452 have been given an earned
performance rating under that regulation. Section 4D reveals that the
interim measure was to expire September 30, 1982.
AFR 40-470 also indicates that union representation on Incentive
Awards Committees covering civilian performance awards programs is
acceptable. Thus, section 6 of that regulation provides, inter alia:
"Both supervisory and nonsupervisory military and civilian personnel may
be represented on or participate in the committee's work including
civilian personnel representation resulting from local negotiated
agreements."
Accordingly, in the circumstances herein wherein a new appraisal
system was adopted, that new system envisions awards, the regulation
relating to the performance awards program was obviously amended to
apply to appraisals under the new program, and the regulation
controlling performance awards programs does not preclude union
participation in the awards process, I find and concluded that Union
Proposal 7 is negotiable.
Proposal 8 - "An employee with a minimally acceptable rating or
higher will be screened for basic promotion eligibility."
Respondent contends that this proposal is nonnegotiable in that it
conflicts with section 5-5 of AFR 40-452.
Section 5-5 of AFR 40-452 provides, in relevant part:
"The extent of consideration an employee receives for merit promotion
purposes will be determined by the performance appraisal. An employee
with a fully successful rating or higher will be screened for basic
merit promotion eligibility."
Respondent argues that the impact of the second sentence of the
quoted portion of section 5-5 is to set the minimum rating required for
screening for promotion. However, I find that section 5-5 is open to
another interpretation whereby the Union's proposal would not be in
conflict with the regulation. Thus, if the section were read to mean
that all employees with a fully successful rating or higher must be
considered for promotion eligibility, such would not preclude others,
namely employees with a minimally successful ratings, from also
receiving consideration. This construction is supported by the fact
that section 5-5 does not state that only employees with a fully
successful rating would be screened. Accordingly, I find that section
5-5 is susceptible of varying interpretations and the Union's proposal
is not incompatible or irreconcilable with the regulation Cf. Office of
Personnel Management, Washington, D.C., supra. I therefore conclude the
proposal is negotiable. Such finding and conclusion is in accord with
congressional intent that management rights be treated narrowly as an
exception to the general obligation to bargain.
Proposal 9 - "Under no circumstances will an employee be demoted or
removed without the following steps being taken by the employer:
"1. The agency shall direct maximum efforts to improve an employee's
performance through counselling, training, reassignment, job
restructuring, development of suitable incentives and setting short term
specific goals to be accomplished within a set time limit before
considering whether to initiate procedures to demote or separate the
employee.
"2. Following the above, and after a reasonable amount of time has
been given to demonstrate acceptable performance, and the employee has
not improved further action might be warranted. A "reasonable amount of
time" is to be defined on a case-by-case basis by the supervisor,
employee and union steward. The supervisor at all times should assist
the employee in improving his or her performance."
Respondent raises a variety of arguments to support its contention
that Proposal 9 is nonnegotiable, including conflict with regulations
/20/ and impermissable restricting of management rights set forth in
7106(a) of the Statute.
Section 4302(b)(3) of the Civil Service Reform Act (CSRA) requires
that performance appraisal systems provide for "assisting employees in
improving unacceptable performance" and providing "an opportunity to
demonstrate acceptable performance" before management reassigns or takes
an adverse action against an employee whose performance is deemed
unacceptable. However, Union Proposal 9, Section 1, requires management
to engage in a training program and job restructuring for an employee
whose performance is unacceptable before considering whether to demote
or separate the employee from service.
Clearly, Proposal 9, Section 1, goes substantially beyond the
requirements of the CSRA. Indeed, as stated above regarding Proposal 5,
the Authority has held that a proposal to redesign or restructure a
particular job conflicts with management's right to assign work under
section 7106(a)(2)(B) of the Statute. Air Force Contract Management
Division, supra, and Air Force Logistics Command, supra. Further, a
similar proposal relative to demoting employees was construed by the
Authority to improperly establish a condition upon an agency's rights
under section 7106(a)(2)(A) of the Statute to remove or reduce in grade
employees and assign employees. American Federation of Government
Employees, Local 1760 and Department of Health and Human Services,
Social Security Administration, Northeast Program Service Center, 9 FLRA
1025 (1982).
With regard to the requirement that an employee not be demoted or
removed from service without first receiving "training" to improve
performance, as stated above regarding the second portion of Proposal 6,
the Authority has held that "proposals which would contractually
obligate an agency to provide formal training, to periodically assign
employees to specific types of training programs, and to make specific
training assignments upon employee requests . . . are inconsistent with
management's right to assign work under section 7106(a)(2)(B))."
Department of the Air Force, Otis Air Force Base, supra; see also
National Association of Air Traffic Specialists and Department of
Transportation, Federal Aviation Administration, 6 FLRA 588 (1981) and
cases cited in footnote 5 herein. Accordingly, in these circumstances I
conclude that Proposal 9, taken as a whole, is nonnegotiable. /21/
Proposal 10 - "Forms documenting ratings of unacceptable but not
accompanied by a demotion or removal recommendation will be kept for one
year then destroyed."
Respondent takes the position that section 6-2 of AFR 40-452
conflicts with this proposal and therefore should be declared
nonnegotiable. I agree.
Section 6-2 of AFR 40-452 provides:
"a. Forms documenting ratings of superior, excellent, fully
successful, or minimally acceptable, or an unacceptable rating not
accompanied by a demotion or removal recommendation, will be kept
for 5 years and then destroyed."
Proposal 10 limits retention of the designated unacceptable ratings
for one year while the regulation specifically requires retention for
five years. The proposal and the regulation are clearly incompatible
and irreconcilable. Accordingly, for the reasons set forth above with
regard to my conclusions regarding Union Proposal 3, I conclude Propoal
10 is nonnegotiable.
Proposal 11 - "An employee who believes any performance standard does
not meet the criteria contained in this agreement may file a grievance
under Article 6 of the MLA."
Respondent bases its contention that this proposal infringes upon the
Respondent's right to direct employees and assign work on the "intent
and the plain and clear language of the proposal."
With regard to the intent of the proposal, the Union in the
attachment to its March 27, 1981 submission to the Impasses Panel,
supra, explained that the proposal ". . . provides the union and/or the
employee an opportunity to challenge the validity of performance
standards through the negotiated grievance procedure." When the national
union made its May 13, 1981 submission to the Impasses Panel it
indicated that the intent of the proposal was not to violate
management's right to direct and assign work. The national office
further stated that, as used in the proposal, grievance meant ". . .
grievance consistent with the Federal Labor Relations Authority decision
that performance standards are grievable only after they are applied",
citing American Federation of Government Employees, AFL-CIO, Local 1968
and Department of Transportation, St. Lawrence Seaway Development
Corporation, Massena, New York, 5 FLRA No. 14 (1981), aff'd, No. 81-1274
(D.C. Cir. Oct. 12, 1982). In the cited case the Authority interpreted
a union proposal that the grievance procedure therein extended to any
action taken as a result of a performance appraisal to mean any action
taken as a result of the application of critical elements and
performance standardsto an employee covered by the procedure. Id. at p.
11. This interpretation reflects the Authority's holding in Office of
Personnel Management, Washington, D.C., supra, at 789-794 that a
proposal which establishes a "general, nonquantitative requirement by
which the application of critical elements and performance standards . .
. may subsequently be evaluated in a grievance . . . is within the duty
to bargain.
In all the circumstances herein I find Proposal 11 does not infringe
upon management's right to direct employees or assign work. In my view,
the statements of intent by the Union and the Union's national office do
not help to clarify the meaning of the proposal. However, the express
language used in the proposal merely implies that performance standards
will comport with whatever "criteria" is ultimately contained in the
parties collective bargaining agreement. One must assume that
nonnegotiable or unlawful "criteria" will not be "contained in (the)
agreement." That is what these proceedings, in part, are intended to
assure. Accordingly, I find the proposal to be negotiable.
Summary and Remedy
I have found that Union Proposal 1, Proposal 2, Proposal 6, first
paragraph, Proposal 7, Proposal 8, and Proposal 11 are negotiable. /22/
Accordingly, I conclude that Respondent's refusal to bargain on these
proposals, and subsequent unilateral implementation of a performance
appraisal system on July 1, 1981 in these circumstances, violated
section 7116(a)(1) and (5) of the Statute. Cf. Veterans Administration,
1 FLRA 888 (1979) and Internal Revenue Service, Chicago, Illinois, 9
FLRA 648 (1982).
The Union requests as a remedy a return to the status quo ante. /23/
In Federation Correctional Institution, 8 FLRA 604 (1982), the Authority
held that in cases involving a violation of the duty to bargain over
"impact and implementation", the appropriateness of the status quo ante
remedy will be determined "on a case-by-case basis, carefully balancing
the nature and circumstances of the particular violation against the
degree of disruption in government operations that would be caused by
such a remedy." The Authority went on to list five factors it considered
important in making a status quo ante determination through "balancing
the equities." See also Internal Revenue Service, Chicago, Illinois,
supra at 651.
In the case herein negotiations between the parties produced
agreement on numerous items. However, 15 of the Union's proposals were
declared nonnegotiable by Respondent and the General Counsel issued a
complaint alleging Respondent illegally refused to bargain on 11 of the
Union's proposals. I find herein that Respondent was obligated to
bargain on five Union proposals and a portion of a sixth.
Respondent began to implement its new performance appraisal program
in the collective bargaining unit on July 1, 1981 and by October 1,
1981, work plans encompassing performance standards and critical
elements for some 70,000 employees were established. Within-grade pay
increases to employees based upon the new appraisal system began to
occur in February 1982 and continue at a rate of 25,000 a year. /24/
Effective October 1982, promotions of employees will relate to
appraisals received under the new appraisal system.
In the circumstances herein, and applying the standards set by the
Authority in Federal Correctional Institution, supra, I conclude that a
status quo ante remedy requiring Respondent to withdraw the new
performance appraisal system and invalidating all personnel actions
taken in accordance thereunder, reinstituting the performance appraisal
program which was in effect prior to October 1, 1981 and appraising all
employees and effectuating any personnel actions in conformance
therewith, is not warranted. Rather, I conclude that requiring
Respondent to bargain on the proposals found negotiable herein and
subsequently putting into effect the performance appraisal program as
negotiated would best effectuate the purposes and policies of the
Statute and comply with the Authority's direction to balance the nature
and circumstances of the violation against the degree of disruption in
government operations that would be caused by such a remedy.
Accordingly, in view of the entire foregoing and having concluded
that Respondent has violated section 7116(a)(1) and (5) of the Statute,
I recommend the Authority issue the following:
ORDER
Pursuant to section 2423.20 of the Federal Labor Relations
Authority's regulations and section 7118 of the Statute, it is hereby
ordered that the Department of the Air Force, Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio shall:
1. Cease and desist from:
(a) Instituting any change in the Performance Appraisal Program
without affording the American Federation of Government Employees,
Council 214, AFL-CIO, the employee's exclusive representative, the
opportunity to bargain with respect to the procedures which the
agency will observe in exercising its authority with regard
thereto and appropriate arrangements for employees adversely
affected by such change.
(b) Failing and refusing to negotiate with the American
Federation of Government Employees, Council 214, AFL-CIO, the
employees' exclusive representative, to the extent consonant with
law and regulation, concerning any change in the Performance
Appraisal Program.
(c) 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 Service Labor-Management Relations
Statute:
(a) Upon request of the American Federation of Government
Employees, Council 214, AFL-CIO, the employees' exclusive
representative, meet and negotiate with respect to the proposals
previously submitted by the Union and found negotiable herein, to
the extent consonant with law and regulation, concerning changes
in the Performance Appraisal Program.
(b) Post at all of its facilities where bargaining unit
employees are located 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 Commander and shall be posted and maintained by him/her for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. The Commander shall take reasonable steps to
insure that such notices are not altered, defaced, or covered by
any other material.
(c) Pursuant to section 2423.30 of the Federal Labor Relations
Authority's Rules and Regulations, notify the Regional Director,
Region 5, Federal Labor Relations Authority, 175 West Jackson
Boulevard, Suite A-1359, Chicago, Illinois 60604, in writing,
within 30 days from the date of this Order, as to what steps have
been taken to comply herewith.
/s/ SALVATORE J. ARRIGO
Administrative Law Judge
Dated: October 20, 1982
Washington, DC
--------------- FOOTNOTES$ ---------------
(1) Section 7116(a)(1) and (5) provides:
Section 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice 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) All references are to 1981 unless otherwise indicated.
(3) The evidence shows that, after the Panel refused to assert
jurisdiction on June 5, the local parties resumed negotiations over AFR
40-452 in an effort to overcome the negotiability questions, but were
unable to reach any significant agreement. In a September 4 letter to
AFGE, the Union president stated, "(W)e were unable to reach any
significant agreement on the outstanding issues and as a result we are
in the same position as when these issues were submitted to FSIP."
(Emphasis added.) The Union president further added that "(t)he issues
remain essentially the same as outlined in those documents submitted to
your office . . . by letters of transmittal dated March 31, 1981 and
April 30, 1981." Thus, it apeears that the local parties were still
bargaining over the unmodified proposals after implementation, and the
record further indicates that the Respondent was not requested to
bargain over the modified proposals, which are the subject of the
complaint in this case, inasmuch as the issues remained essentially the
same on September 4 as prior to the May 13 AFGE submission.
(4) Section 7117(b) provides:
Section 7117. Duty to bargain in good faith; compelling need;
duty to consult
. . . . . . .
(b)(1) In any case of collective bargaining in which an
exclusive representative alleges that no compelling need exists
for any rule or regulation referred to in subsection (a)(3) of
this section which is then in effect and which governs any matter
at issue in such collective bargaining, the Authority shall
determine under paragraph (2) of this subsection, in accordance
with regulations prescribed by the Authority, whether such a
compelling need exists.
(2) For the purpose of this section, a compelling need shall be
determined not to exist for any rule or regulation only if --
(A) the agency, or primary national subdivision, as the case
may be, which issued the rule or regulation informs the Authority
in writing that a compelling need for the rule or regulation does
not exist; or
(B) the Authority determines that a compelling need for a rule
or regulation does not exist.
(5) The United States Court of Appeals for the District of Columbia
Circuit affirmed the Authority's interpretation of the Statute, but
remanded the matter to the Authority for the sole purpose of permitting
the petitioners to present evidence as to whether there existed a
compelling need for the particular regulation at issue. Defense
Logistics Agency, et al. v. FLRA, 754 F.2d 1003 (D.C. Cir. 1985). On
April 22, 1985, the Authority remanded the proceeding to the Chief
Administrative Law Judge for disposition consistent with the direction
of the court. Thereafter, on March 31, 1986, the complaint was
withdrawn.
(6) The Authority notes that the United States Court of Appeals for
the Fourth Circuit recently reversed an Authority decision on this same
issue, U.S. Army Engineer Center and Fort Belvoir, 13 FLRA 707 (1984),
reversed sub nom. United States Army Engineer Center v. FLRA, 762 F.2d
409 (4th Cir. 1985), rehearing denied (July 26, 1985). In the
Authority's Supplemental Decision and Order in that case, U.S. Army
Engineer Center and Fort Belvoir, 19 FLRA No. 92 (1985), the Authority
stated it "accepts the Court's opinion as the law of the case and,
consistent with that opinion, shall order that the complaint in Case No.
3-CA-20133 be dismissed." Slip op. at 2.
(7) The second sentence of the first paragraph is not in dispute.
(8) Section 7106(a)(2)(A) and (B) provides:
Section 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 --
(2) in accordance with applicable laws --
(A) to hire, assign, direct, layoff, and retain employees in
the agency, or to suspend, remove, reduce in grade or pay, or take
other disciplinary action against such employees;
(B) to assign work, to make determinations with respect to
contracting out, and to determine the personnel by which agency
operations shall be conducted(.)
(9) 5 C.F.R. 430.204(q) and (r) provides in pertinent parts:
Section 430.204 The performance appraisal process
(q) Details within the same agency.
Agencies shall provide written critical elements and
performance standards to employees as soon as possible but no
later than 30 calendar days after the beginning of a detail or
temporary promotion with the same agency when the detail or
temporary promotion is expected to last 120 calendar days or
longer. Performance ratings on critical elements must be prepared
for these details and temporary promotions and must be considered
in deriving an employee's next annual performance rating.
(r) Details to another agency or organization.
When an employee is or had been detailed or temporarily
assigned outside of the agency, an annual performance rating must
be prepared if the employee has served for the minimum appraisal
period inside the agency.
(1) If an employee has not served in the agency for the
established minimum appraisal period, but has served for the
minimum appraisal period in another organization, the agency must
make a reasonable effort to obtain appraisal information from the
other organization sufficient to prepare an annual performance
rating.
(10) See, for example, American Federation of Government Employees,
AFL-CIO, Local 2849 and Office of Personnel Management, New York
Regional Office, 7 FLRA 571 (1982), wherein the Authority found
negotiable a proposal that would require an employee's performance
standard to be consistent with the employee's duties.
(11) Any other explanation of intent occurring after the Union's
submission to the Panel is not germane to this proceeding. The AFGE's
May 13 submission was not a proper bargaining request to the Respondent
in terms of its modified Proposals 3 and 5, as discussed earlier, or in
terms of its change of intent with regard to the Union's proposals.
(12) The Authority's Rules and Regulations do not provide for the
Respondent's submission of an oppostion to the Charging Party's
"Opposition to Respondent's Exceptions and Charging Party's
Cross-exceptions." Therefore, the Authority has not considered that
submission.
(13) Proposals 3 and 5 appear as revised by the AFGE national office
in its May 13, 1981 letter to the Impasses Panel, a copy of which was
received by Respondent.
(14) The requirement for negotiations was actually stated as "meeting
and conferring."
(15) Proposal 5 appears as revised in the AFGE national office
submission to the Impasses Panel on May 13, 1981.
(16) The second sentence of the first portion of Proposal 6 dealing
with an employee being provided a written appraisal while on detail is
not alleged by Respondent to be nonnegotiable. In any event I would
find such proposal to be clearly negotiable.
(17) Cf. American Federation of Government Employees, AFL-CIO, Local
1923 and Department of Health and Human Service, Social Security
Administration, 9 FLRA 899 (1982); But see American Federation of
Government Employees, AFL-CIO, Social Security Local No. 1760 and
Department of Human Service, Social Security Administration, 9 FLRA 813
(1982) at 814 and cases cited therein.
(18) Chapter 5 of the regulation is entitled: "Using the Results of
Performance Appraisal."
(19) Although a copy of this regulation was not offered in evidence,
I hereby take administrative notice of its content.
(20) As a part of this position Respondent strongly argues that the
proposal does not differentiate between the treatment of probationary
and nonprobationary employees as required by 5 U.S.C. 4303 and AFR
40-452.
(21) Section 2 of Proposal 9 is designed to take effect only after
the procedures set forth in section 1 have been exhausted. Since
section 1 is nonnegotiable, obviously the elements of section 2 cannot
be implemented and no independent negotiability determinating of this
proposal need be made herein.
(22) In finding that these proposals are within the duty to bargain I
make no judgment as to their merits.
(23) The General Counsel did not urge a status quo ante remedy.
(24) Between October 1981 and February 1982 Respondent gave
"presumptive" satisfactory ratings to employees eligible for
within-grade increases.
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 any change in the Performance Appraisal Program
without affording the American Federation of Government Employees,
Council 214, AFL-CIO, the employees' exclusive representative, the
opportunity to bargain with respect to the procedures which the agency
will observe in exercising its authority with regard thereto and
appropriate arrangements for employees adversely affected by such
change.
WE WILL NOT fail and refuse to negotiate with the American Federation
of Government Employees, Council 214, AFL-CIO, the employees' exclusive
representative, to the extent consonant with law and regulation,
concerning any changes in the Performance Appraisal Program.
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
Federal Service Labor-Management Relations Statute.
WE WILL, upon request of the American Federation of Government
Employees, Council 214, AFL-CIO, the employees' exclusive
representative, meet and negotiate with respect to the proposals
previously submitted by the Union and found to be negotiable, to the
extent consonant with law and regulations, concerning changes in the
Performance Appraisal Program.
(Agency of 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 questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region 5, Federal Labor Relations Authority, 175 West Jackson
Boulevard, Suite A-1359, Chicago, Illinois 60604, and whose telephone
number is (312) 353-0139.