[ v27 p488 ]
27:0488(70)AR
The decision of the Authority follows:
27 FLRA No. 70
U.S. IMMIGRATION AND
NATURALIZATION SERVICE
Agency
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (NATIONAL IMMIGRATION AND
NATURALIZATION SERVICE COUNCIL)
Union
Case No. 0-AR-1317
DECISION
I. Statement of the Case
This matter is before us on exceptions to the award of Arbitrator
Albert V. Carter filed by the Agency under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and
part 2425 of the Authority's Rules and Regulations. The Union filed an
opposition.
II. Background and Arbitrator's Award
The Union filed a grievance charging that the Agency violated Article
9 of the collective bargaining agreement when it implemented a new and
revised performance work plan for Immigration Inspectors without first
notifying the Union in writing of the revisions. The grievance also
charged that the Agency violated Article 5-E of the agreement by failing
to notify the Union of a change in the past practice which allowed
Immigration Inspectors to conduct vehicle inspections while they were
seated. The grievance was submitted to arbitration.
The Arbitrator compared the old and new performance work plans and
found that there had been a change in the standards used to evaluate
Immigration Inspectors. He ruled that under Article 9 of the agreement,
which covers midterm and impact bargaining, the Agency was obligated to
notify the Union in writing of the proposed changes and to give the
Union an opportunity to respond. He found that the Agency did not
comply with Article 9 because it had failed to do that in this case.
The Arbitrator specifically pointed out that he was aware that
management has the right to establish performance standards and that his
decision was not to be construed to imply otherwise. The Arbitrator
also found that the Union failed to establish that there was a binding
past practice which allowed Immigration Inspectors to sit while
conducting vehicle inspections and concluded that the Agency had not
violated Article 5-E.
As his award, the Arbitrator ordered the Agency to immediately
invalidate the new performance work plan and to leave the old plan in
effect until the changes to be made were presented to the Union in
writing for the Union's response within 10 working days as provided by
Article 9 of the agreement. He further ordered that all ratings which
had been given to employees under the new performance work plan should
be nullified and a new rating calculated for each employee according to
the standards of the old plan.
III. Exceptions
A. Positions of the Parties
The Agency contends that the award violates its rights to direct
employees and to assign work under section 7106(a)(2)(A) and (B) of the
Statute because it would require negotiations over the establishment and
content of performance standards. The Agency maintains that because the
establishment of performance standards is outside the duty to bargain,
there was no requirement to notify the Union in writing of changes in
the standards. The Agency also contends that the Arbitrator
misinterpreted Article 9 of the agreement when he found that there was a
requirement for written notice of the changes.
The Union contends that the Arbitrator's award requires bargaining on
only the impact and not the content of the proposed changes in
performance standards and that the Arbitrator correctly applied the
notice requirements of Article 9 of the agreement.
B. Analysis and Conclusions
We find that the Agency's exceptions fail to show that the award is
deficient.
The Authority has held consistently that proposals which
substantively restrict management in its identification of critical
elements of a position and establishment of performance standards are
contrary to section 7106(a)(2)(A) and (B) of the Statute as improper
interferences with management's rights to direct employees and to assign
work. See Bureau of Engraving and Printing, U.S. Department of the
Treasury and Washington Plate Printers Union, Local No. 2, IPDEU,
AFL-CIO, 20 FLRA 380 (1985). In Bureau of Engraving, the Authority
discussed the role of an arbitrator in resolving grievances involving
performance appraisal matters. The Authority held that a grievance
directly challenging an agency's identification of job elements or its
establishment of performance standards is not grievable and arbitrable
and that an arbitrator can not render an award substituting his or her
judgment for that of management. Id. at 381.
However, we do not agree with the Agency that the grievance and the
Arbitrator's award in this case directly challenge or restrict
management's right to establish performance standards. The Arbitrator
expressly recognized that Agency management has the right to establish
performance standards. His award addressed only the Agency's failure to
comply with the agreement requirement that the Union be notified in
writing that revised performance work plans would be issued. The
Arbitrator made no comment or judgment in his opinion and award as to
the content or appropriateness of the revised performance work plan, and
he placed no obligation on the Agency to negotiate over the content of
the plan. He merely interpreted and applied the agreement provision
requiring notice to the Union and the opportunity to respond concerning
the impact and implementation of the changes in the plan.
Procedures by which employees can bring disputes concerning the
application of their performance elements and standards to the attention
of management are subject to the duty to bargain. See National Treasury
Employees Union and U.S. Department of Agriculture, Food and Nutrition
Service, Midwest Region, 25 FLRA No. 90 (1987) (Proposal 3), petition
for review filed sub nom. National Treasury Employees Union v. FLRA, No.
87-1178 (D.C. Cir. Apr. 21, 1987); American Federation of Governmesnt
Employees, AFL-CIO, Local 3028 and Department of Health and Human
Services, Public Health Service, Alaska Area Native Health Service, 13
FLRA 697 (1984) (Proposal 1). See also Department of the Air Force, Air
Force Systems Command, Electronic Systems Division, 14 FLRA 390 (1984),
where the Authority affirmed the decision of an Administrative Law Judge
who concluded that an agency's promulgation and application of
performance standards and critical elements for an employee's position
without giving the union prior notice and an opportunity to negotiate on
the procedures to be observed and the impact on adversely affected
employees violated section 7116(a)(1) and (5) of the Statute. As part
of the remedy in that case the Authority ordered the agency to cease and
desist from implementing the performance standards and critical elements
which were challenged without first giving notice to the union and
affording it the opportunity to negotiate on procedures and appropriate
arrangements for employees adversely affected. Id. at 393. We
conclude, therefore, that the Arbitrator's award in this case, ordering
the Agency to comply with the agreement and ordering a return to the old
performance work plan until the Union is given the opportunity to
negotiate on impact and implementation of the new plan, is not contrary
to the Statute and is consistent with Authority precedent.
The Agency also contends that the Arbitrator misinterpreted and
misapplied Article 9 of the agreement when he directed the Agency to
issue a written notice to the Union and allow comment on the revised
performance work plan. That contention is nothing more than
disagreement with the Arbitrator's interpretation and application of the
agreement and provides no basis for finding the award deficient. See
The Columbia Basin Trades Council, Grand Coulee, Washington and The
Grand Coulee Project Office, Bureau of Reclamation, U.S. Department of
the Interior, Grand Coulee, Washington, 20 FLRA 385, 390 (1985).
IV. Decision
The Agency's exceptions are denied.
Issued, Washington, D.C., June 23, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY