[ v21 p609 ]
21:0609(78)CA
The decision of the Authority follows:
21 FLRA No. 78
DEPARTMENT OF THE AIR FORCE
AIR FORCE LOGISTICS COMMAND
WRIGHT-PATTERSON AIR FORCE
BASE, OHIO, AND NEWARK AIR
FORCE STATION, NEWARK, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2221, AFL-CIO
Charging Party
Case No. 5-CA-30215
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint and recommending
that the complaint be dismissed. The General Counsel and the Charging
Party filed exceptions to the Judge's Decision, and the Respondent filed
an opposition to both exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations only to the extent
consistent herewith.
The Judge, relying on the language of Article 15, Section 15.01 of
the parties' Master Labor Agreement and on the past practice of the
parties, concluded that the Respondent did not violate section
7116(a)(1) and (5) of the Statute when it unilaterally revised the job
performance appraisal system elements of employees assigned to the
Central Refurbishment Area, NAFS, without providing the Charging Party
(the Union) notice and an opportunity to bargain concerning the impact
and implementation of the change, as the Union had waived its right to
bargain in this regard. The Authority disagrees.
It is well established that the Respondent's decision to revise the
performance standards was a reserved management right under section
7106(a) of the Statute. See, e.g., National Treasury Employees Union
and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 768
(1980), affirmed sub nom. National Treasury Employees Union v. FLRA,
691 F.2d 553 (D.C. Cir. 1982), and Social Security Administration, 8
FLRA 517 (1982), affirmed sub nom. American Federation of Government
Employees, Local 1923 v. FLRA, 718 F.2d 1088 (4th Cir. 1983). However,
as previously held by the Authority, where an agency exercises a
reserved management right under section 7106 of the Statute to change a
condition of employment of unit employees, there is nonetheless a duty
to bargain consistent with Section 7106(b)(2) and (3) of the Statute
with respect to the procedures that management will follow in exercising
such rights and with respect to appropriate arrangements for employees
who may be adversely affected thereby. See, e.g., Department of
Transportation, Federal Aviation Administration, Washington, D.C., 20
FLRA No. 54 (1985), and cases cited therein.
Therefore, the Respondent was obligated under the Statute to provide
adequate prior notice to the exclusive representative and, upon request,
bargain pursuant to section 7106(b)(2) and (3) of the Statute, absent a
waiver of that right. See American Federation of Government Employees,
AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C.,
3 FLRA 784 (1980) (Union proposal 5); American Federation of Government
Employees, AFL-CIO, Local 1940 and Department of Agriculture, Plum
Island Disease Center, 16 FLRA 816 (1984). A waiver will be found only
if it can be shown that the exclusive representative clearly and
unmistakably waived its right to negotiate. See U.S. Department of
Labor, Washington, D.C. and Employment Standards Administration, Region
8, Denver, Colorado, 19 FLRA No. 65 (1985).
Article 15, Section 15.01 of the parties' agreement recognizes
management's right to revise performance standards, and the right of
employees to participate in discussions with supervisors as to what
those standards shall be. /1/ However, the Authority, contrary to the
Judge, finds that neither Article 15, Section 15.01 nor the past
practice of the parties constitutes a clear and unmistakable waiver of
the Union's right to receive notice and an opportunity to request
bargaining concerning procedures and appropriate arrangements for
adversely affected unit employees. Article 15, Section 15.01 of the
Master Labor Agreement contains no language which specifically relieves
the Respondent of this statutory obligation to the Union when it revises
unit employees' performance standards. Moreover, contrary to the
Judge's unsupported statement, the record does not reveal other
instances where the Respondent has unilaterally revised unit employees'
performance standards without notifying the Union. Absent a clear and
unmistakable waiver, a party will not be deemed to have given up a
statutory right, such as an exclusive representative's right to receive
adequate notice of proposed changes affecting unit employees' conditions
of employment, and an opportunity to request bargaining pursuant to the
provisions of the Statute. U.S. Department of Labor, Occupational
Safety and Health Administration, Chicago, Illinois, 19 FLRA No. 60
(1985); Department of Defense, Department of the Army, Headquarters,
XVIII Airborne Corps, and Fort Bragg, 15 FLRA 790 (1984); Department of
the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981).
Accordingly, the Authority concludes that the Respondent's unilateral
revision of the performance standards without providing the Union with
adequate prior notice and an opportunity to bargain concerning
procedures and appropriate arrangements for adversely affected unit
employees constitutes a violation of section 7116(a)(1) and (5) of the
Statute. See, e.g., Department of the Air Force, Air Force Systems
Command, Electronic Systems Division, 14 FLRA 390 (1984); Social
Security Administration, 16 FLRA 1135 (1984).
In briefs to the Judge, the General Counsel and the Union requested a
status quo ante order which would require the Respondent to rescind the
new performance standards. The General Counsel also requested an order
which would make whole any employee adversely affected by them.
However, the Authority concludes that a status quo ante remedy is not
warranted in the circumstances of this case. Thus, balancing the nature
and circumstances of the violation against the degree of disruption in
government operations that would be caused by such a remedy and taking
into consideration the factors set forth in Federal Correctional
Institution, 8 FLRA 604 (1982), the Authority concludes that a
prospective bargaining order will fully remedy the violation in the
circumstances of this case and will effectuate the purposes and policies
of the Statute. The Authority notes that, while no advance notice of
the revised performance standards was given to the Union, the
Respondent's notice to unit employees concerning the change in question
and its refusal to bargain with the Union concerning procedures and
appropriate arrangements for employees adversely affected were based
upon the good faith but erroneous belief that it was acting in
accordance with procedures contained in the negotiated Master Labor
Agreement covering the affected employees. Accordingly, contrary to the
General Counsel's contention, the Respondent's refusal to bargain herein
cannot be found to have been willful. Moveover, as recognized by the
Union in its post-hearing brief to the Judge, no employees had yet been
appraised under the revised performance standards, and there is no
assertion in the exceptions filed with the Authority by either the
General Counsel or the Union that there has yet been any application of
such performance standards to unit employees or any loss to them as a
result. Under these circumstances, the request for a status quo ante
remedy must be denied. See, e.g., Social Security Administration, supra.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations 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, and Newark Air
Force Station, Newark, Ohio shall:
1. Cease and desist from:
(a) Unilaterally implementing new or revised performance standards
for its Central Refurbishment Area, NAFS employees, without giving prior
notice to the American Federation of Government Employees, Local 2221,
AFL-CIO, the designated agent of the employees' exclusive
representative, and affording it the opportunity to bargain concerning
procedures to be observed in implementing them and concerning
appropriate arrangements for employees adversely affected thereby.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their right 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 Statute:
(a) Upon request, bargain with the American Federation of Government
Employees, Local 2221, AFL-CIO, the designated agent of the employees'
exclusive representative of its Central Refurbishment Area, NAFS
employees, concerning procedures to be observed in implementing new or
revised performance standards applicable to those employees, and
concerning appropriate arrangements for employees adversely affected
thereby.
(b) Post at its facility at Newark Air Force Station, Newark, Ohio,
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 of the Air Force Logistics Command,
Wright-Patterson Air Force Base, or a designee, and shall be posted for
60 consecutive days thereafter, in conspicuous places, including all
bulletin boards and places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure 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, 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 herewith.
Issued, Washington, D.C., April 30, 1986.
/s/ JERRY L. CALHOUN
Jerry L. Calhoun, Chairman
/s/ HENRY B. FRAZIER III
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 unilaterally implement new or revised performance
standards for our Central Refurbishment Area, NAFS employees, without
giving prior notice to the American Federation of Government Employees,
Local 2221, AFL-CIO, the designated agent of our employees' exclusive
representative, and affording it the opportunity to bargain concerning
procedures to be observed in implementing them and concerning
appropriate arrangements for employees adversely affected thereby.
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, bargain with the American Federation of
Government Employees, Local 2221, AFL-CIO, the designated agent of the
employees' exclusive representative of our Central Refurbishment Area
NAFS employees, concerning procedures to be observed in implementing new
or revised performance standards applicable to those employees, and
concerning appropriate arrangements for employees adversely affected
thereby.
(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 Jackson Blvd., Suite 1359-A, Chicago, IL 60604, and whose telephone
number is: (312) 353-6306.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 5-CA-30215
DEPARTMENT OF THE AIR FORCE AIR FORCE LOGISTICS COMMAND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO, AND NEWARK AIR FORCE
STATION,
NEWARK, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2221,
AFL-CIO
Charging Party
Major Charles Brower, USAF
For the Respondent
Judith A. Ramey, Esquire
For the General Counsel
Janet T. Wachter
For the Charging Party
BEFORE: LOUIS SCALZO
Administrative Law Judge
DECISION
Statement of the Case
This case arose as an unfair labor practice proceeding under the
provisions of the Federal Service Labor-Management Relations Statute, 92
Stat. 1191, 5 U.S.C. 7101, et seq. (hereinafter called "The Statute"),
and the Rules and Regulations issued thereunder.
The complaint alleges that on or about November 15, 1982, the
Respondent, through the acts of agents employed by the Newark Air Force
Station, Newark, Ohio (NAFS), unilaterally changed the terms and
conditions of employment of bargaining unit members assigned to the
Central Refurbishment Area, NAFS, without first giving notice to
American Federation of Government Employees, Local 2221, AFL-CIO
(Charging Party or Union); and without providing the Union with an
opportunity to bargain concerning the impact and implementation of the
change. It was further alleged that the conduct described pertained to
the issuance of revised job performance appraisal system elements to
bargaining unit employees, and that the issuance was violative of
Section 7116(a)(1) and (5) of the Statute.
Counsel representing the Respondent contends that the Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio (AFLC) and
American Federation of Government Employees, AFL-CIO, Council No. 214
(Council 214), bargained in good faith at the level of exclusive
recognition concerning procedures to be followed when revising
performance standards; that the issuance of revised performance
standards as alleged herein was effectuated in accordance with
procedures established by the AFLC and Council 214 in a collective
bargaining agreement; that the Respondent was required to do no more
than comply with procedures established by AFLC and Council 214; that
the dispute involves issues of contract interpretation which should have
been resolved through the grievance and arbitration procedure set out in
the parties' collective bargaining agreement; and lastly that
constructive notice of the change was received by a Union steward
assigned to the Central Refurbishment Area, but that the Union failed to
request bargaining. /2/
The parties were represented by counsel during the hearing and were
afforded full opportunity to be heard, adduce relevant evidence, and
examine and cross-examine witnesses. Based upon the entire record
herein, including a stipulation of facts, exhibits, and other relevant
evidence adduced at the hearing, /3/ and briefs filed by the parties, I
make the following findings of fact, conclusions and recommendations.
Findings of Fact
Facts Stipulated
The following stipulations of fact entered into the record are
accepted as true: /4/
1. The Respondent submits to the jurisdiction of the Authority in
this proceeding, and does not otherwise interpose or raise the question
of jurisdiction as an issue. (See also Tr. at 10).
2. At all times material there have been approximately 30 employees
in the Central Refurbishment Area, LN Instrument Section, Directorate of
Maintenance, Aerospace Guidance and Metrology Center (AGMC), NAFS, and
approximately 28 of these employees hold the position of WG-3359-07
Instrument Worker. /5/
3. Central Refurbishment Area employees described are part of a
consolidated bargaining unit of employees employed by AFLC, and
represented by Council 214. These employees are represented at the
local level by the Charging Party.
4. At all times material herein David Tomer was a supervisor and
agent of Respondent and was the supervisor of Central Refurbishment Area
employees.
5. The performance of Central Refurbishment Area employees is
appraised under the civilian employee Job Performance Appraisal System
of the United States Air Force (JPAS). /6/
6. On or about November 15, 1982, David Tomer furnished to Central
Refurbishment Area employees, a copy of the performance standards or
"work plan" for his or her position. The work plan furnished was
effective for the appraisal period beginning on October 1, 1982.
7. Jt. Exh. No. 1 is a copy of performance standards issued on or
about November 15, 1982, to Jane A. Hoskinson.
8. Jt. Exh. No. 2 is a copy of performance standards that had
previously been in effect from July 1, 1982 until October 1, 1982 for
Jane A. Hoskinson.
9. Performance standards set forth in Jt. Exh. No. 1 are the same in
all material respects as the performance standards that were effective
for all affected employees for the appraisal period beginning October 1,
1982.
10. The performance standards set forth in Jt. Exh. No. 2 are the
same in all material respects as performance standards in effect prior
to October 1, 1982 for all affected employees.
11. All employees falling within the coverage of JPAS are evaluated
once a year according to the performance standards applicable to their
positions. Among other things these annual evaluations are used to
determine whether employees will or will not receive performance awards
and within grade increases; and it is on the basis of these evaluations
that employees are, or are not demoted, or removed from their positions
for performance reasons.
12. The performance standards set forth in Jt. Exh. No. 1 are
different in some respects from the performance standards set forth in
Jt. Exh. No. 2.
13. The Charging Party was given no advance notice by management
that there was to be a change in the performance standards applicable to
affected employees for the performance period beginning October 1, 1982,
and no such notice was provided by management to Council 214, or to any
other organizational level of the Union.
In addition to the previously outlined stipulations, counsel of
record also stipulated to the following facts:
1. That the change alleged in the complaint did in fact involve a
change in the terms and conditions of employment (Tr. 17-18, 143-144,
Respondent's Brief at 9-10).
2. The change which occurred involved a change in critical elements
and a change in performance standards (Tr. 43).
Pertinent Contractual Provisions and Bargaining History Outlined
Following establishment of the consolidated unit, the National Office
of the AFGE, on behalf of Council 214; together with the AFLC, entered
into a three-year Master Labor Agreement. The agreement became
effective on May 3, 1979, and the three-year period commenced as of
April 3, 1979. /7/ (Jt. Exh. No. 4.)
Article 15 (Employee Performance Evaluation) provided certain
procedural rules relating to performance standards. Section 15.01
touched upon management changes in this area of concern. It provided:
SECTION 15.01: PERFORMANCE STANDARDS
Supervisors will establish valid performance requirements for
positions of employees which they supervise. Except as may be
provided by applicable law, such performance requirements may be
oral or written, and they will be discussed with each new employee
when he is newly assigned to a position. New or revised
performance requirements established as a result of changes in
duties and responsibilities, technological changes, performance
criteria, etc., will be discussed with the employee when such are
imposed; if performance requirements are in writing, such changes
will also be in writing.
Article 15, Section 15.03 of the May 1979 Master Labor Agreement gave
to the Charging Party the right to negotiate "supplemental
implementation procedures" in the following terms:
SECTION 15.03: SUPPLEMENTAL IMPLEMENTATION PROCEDURES
Procedures for the implementation of this Article are expressly
authorized for negotiations in activity Local Supplements to this
Agreement.
Article 34 of the 1979 Master Labor Agreement provided rules
pertaining to local supplements. In accordance with these, and
authority set out in Section 15.03, the Charging Party and AGMC, NAFS,
entered into a Supplemental Labor Agreement on January 11, 1980 (Jt.
Exh. No. 5). It was approved by AFLC and Council 214 on February 8,
1980. Under the provisions of Article 34, Section 34.09 of the 1979
Master Labor Agreement, this local supplement became effective on
February 8, 1980. Article 15, Section 15.01(S) of the Supplemental
Labor Agreement reflected the following limited procedures relating to
implementing changes in performance standards at AGMC, NAFS:
SECTION 15.01(S):
A. Performance standards are guides to measure the quality,
quantity, timeliness and level of achievement expected by
management of an individual's performance. These standards are
job-related and based upon the employee's particular duties and
responsibilities. Such standards define the level of performance
necessary for a satisfactory performance rating.
B. The parties agree that these requirements be a joint effort
by the supervisor and the employee.
C. Management agrees to encourage supervisors to establish
these performance standards in writing.
Approximately 18 months after the negotiation of the May 1979 Master
Labor Agreement, Council 214 and the AFLC moved to reopen contract
negotiations under the provisions of Article 35, Section 35.03 of the
Agreement (Tr. 26-27, 151). Negotiations ensued, and were continuing in
February of 1981 (Tr. 149). Council 214 representatives made specific
proposals concerning Article 15, and AFLC representatives disagreed with
the Council position on the subject (Tr. 151).
During this same period of time the negotiating parties were, in the
context of a different forum, leading up to impact and implementation
bargaining concerning JPAS as presented in AFR 40-452. By memorandum
dated November 4, 1980, AFLC had forwarded copies of AFR 40-452 to
Council 214 for the purpose of soliciting proposals leading to impact
and implementation bargaining (R. Exh. No. 1). In a letter dated
November 6, 1980, Council 214 requested, for personal and other reasons,
that bargaining on AFR 40-452 be deferred (R. Exh. No. 2). However,
detailed proposals concerning AFR 40-452 were subsequently supplied to
AFLC by Council 214 (R. Exh. No. 3). These proposals, offered by
Council 214 with respect to AFR 40-452, were not the same as those
offered during reopened Master Labor Agreement negotiations (Tr.
157-158). Proposals submitted in the latter forum were described as
processing elements which the Council wished to utilize in AFR 40-452
negotiations (Tr. 158).
The issue posed by the parties was whether to resolve key questions
relating to employee performance evaluations in the context of the
Master Labor Agreement negotiations, or during separate, and perhaps
much later, impact and implementation negotiations relating to AFR
40-452.
The parties resolved the issue by deciding to carry over Article 15
of the May 1979 Master Labor Agreement without change, and by agreeing
to be governed by the provisions of Article 15 until the issue could be
thoroughly addressed during negotiations pertaining to AFR 40-452
(Tr.30, 153, 166-167). It was then anticipated that the issues posed
would be handled as mid-term bargaining after execution of a new Master
Labor Agreement. A new Master Labor Agreement, incorporating the
earlier version of Article 15 in its entirety was executed on June 1,
1982 (Jt. Exh. No. 6). It became effective on June 28, 1982, the date
on which it was approved. /8/
Negotiators representing AFLC and Council 214 were not able to reach
agreement in collateral negotiations pertaining to AFR 40-452.
Bargaining had commenced on March 4, 1981, /9/ after the parties decided
to handle employee performance evaluation negotiations separately from
negotiations pertaining to the Master Labor Agreement (Tr. 83-84, R.
Exh. No. 4). The representative of the Charging Party acknowledged that
there was substantial bargaining on the subject (Tr. 165-166). R. Exh.
No. 3 reflects that these negotiations involved bargaining over
procedures that Council 214 wished to add to the summary procedures
reflected in the May 1979 and June 1982 Master Labor Agreements (Tr.
43-45).
A series of eight negotiating sessions, the first of which had
commenced on March 4, 1981, culminated in the Union filing a March 27,
1981 request for Federal Service Impasses Panel assistance (R. Exh. No.
4). /10/ On June 5, 1981, the Panel declined to assert jurisdiction on
the ground that duty to bargain issues were inextricably related to the
Council's proposal (R. Exh. No. 5). The Panel ruled that the
determination was without prejudice to either party's right to refile
once duty to bargain issues had been resolved in an appropriate forum.
Because 5 U.S.C. 4302, required that all performance appraisal
systems be put into effect by October 1, 1981, AFLC determined that it
would be necessary to implement AFLC's last offer to Council 214 (Tr.
52, 56, R. Exh. No. 6). Accordingly, on or about July 1, 1981, AFLC
notified its field activities that AFLC's last offer relating to AFR
40-452 would be implemented to insure complaince with the October 1,
1981 deadline (Tr. 52-53, 56-67). AFR 40-452 continued in effect
thereafter, and was in effect as of the date of the hearing.
On October 8, 1981, the AFGE National Office, on behalf of Council
214, filed a negotiability appeal with the Authority. On October 13,
1981, an unfair labor practice charge was filed by Council 214 in Case
No. 5-CA-20018, alleging, that the Department of the Air Force, AFLC,
Wright-Patterson Air Force Base, Ohio, refused to bargain with Council
214, by declaring some of the Council's proposals to be nonnegotiable,
and by thereafter implementing AFR 40-452 without first bargaining on
impact and implementation. On November 2, 1981, the AFGE National
Office requested that the Authority hold the negotiability appeal in
abeyance, and the unfair labor practice charge thereafter proceeded to
complaint.
Administrative Law Judge Salvatore J. Arrigo heard the case, and on
October 20, 1982, issued a recommended decision finding certain
proposals to be negotiable. A bargaining order was also recommended.
However, under the facts presented a status quo ante remedy was not
considered appropriate. The case is pending before the Authority on
exceptions filed by the parties. There was no showing during the
hearing held in this case, nor does it otherwise appear, that the
decision issued by Judge Arrigo in Case No. 5-CA-20018, has any bearing
upon questions posed in this litigation. It was noted that none of the
proposals found to be negotiable by Judge Arrigo related to the
obligation of the Respondent herein to bargain with the Charging Party
concerning changes made in performance standards or critical elements
relating to Central Refurbishment Area employees. /11/
The June 1982 Master Labor Agreement brought about an attempt on the
part of the Charging Party to renegotiate Article 15 of the earlier
February 8, 1980 Supplemental Labor Agreement executed by NAFS and the
Charging Party. By memorandum dated August 16, 1982, the President of
the Charging Party requested mid-term bargaining concerning the
Supplemental Labor Agreement (R. Exh. No. 10), and submitted to NAFS
representatives a proposed replacement article for Article 15, Section
15.01(S) (R. Exh. No. 11). The proposal reflects numerous procedural
elements of concern to the Charging Party in the area of employee
evaluation. However, NAFS took the position that Article 15 of the
Supplemental Labor Agreement was not in conformity with the June 1982
Master Labor Agreement (Tr. 103-104, R. Exh. No. 12). Being then in
dispute, it became inoperative pending disposition of the issue in an
arbitration proceeding (Tr. 104). /12/ On September 29, 1982 the
President of the Charging Party withdrew the earlier August 16, 1982
request for mid-term bargaining on the Supplemental Labor Agreement, and
all Charging Party proposals submitted in connection therewith (R. Exh.
No. 13). As of the date of the hearing, issues involving the
appropriateness of the inclusion of Article 15 in the Supplemental Labor
Agreement had not been resolved. However, the matter was scheduled to
be heard by an arbitrator in November of this year (Tr. 104).
The record clearly reflects that the effectuation of changes in
individual performance standards in the past has not involved prior
notice to the Charging Party. Instead, the procedures set out in
Article 15, Section 15.01 of the May 1979 and June 1982 Master Labor
Agreements have governed (Tr. 32-33). This section provides for
supervisory establishment of performance standards after discussions
with employees; for the formulation of "valid performance
requirements," for guidance concerning the form in which an employee
receives performance requirements (oral or written), and for discussion
of such changes with employees prior to putting them into effect.
Although counsel representing the General Counsel made an attempt to
show that during AFLC -- Council 214 negotiations leading to the June
1982 Master Labor Agreement the parties entered into an oral side
agreement imposing a greater duty on the AFLC with respect to
notification of the Charting Party of changes in individual performance
standards, the record does not support this contention. Instead, the
record indicates a clear desire on the part of AFLC and Council 214 to
rely entirely upon the sparse procedural language in Article 15, Section
15.01 of the Master Labor Agreement as the guide for effecting changes
in performance standards.
Discussion and Conclusions
The record in this case makes it clear that the parties were governed
by the provisions of Article 15 of the June 1982 Master Labor Agreement
when the changes alleged in the complaint occurred. Section 15.01 of
this Article, together with evidence of longstanding practice of the
parties, reflects that the Respondent had a contractual right to change
individual performance requirements without first incurring a bargaining
obligation. Article 15 did impose certain requirements; however, the
obligation to bargain was not included. /13/ Instead, Section 15.01
specifically provided for the establishment of performance requirements
by Respondent's supervisory personnel. It would be difficult to see how
the Charging Party could be accorded the right to participate in the
formulation of performance standards in this case without doing
irreparable damage to the procedures reflected in Article 15, Section
15.01 of the June 1982 Master Labor Agreement. Thus, it is concluded
that the contractual language referred to, and the practice of the
parties, demonstrate that the June 1982 Master Labor Agreement reflects
a clear and unmistakable waiver of the statutory right to bargain
concerning changes in performance standards. In the light of these
circumstances the obligation to bargain on impact and implementation
does not arise. Department of the Treasury, United States Customs
Service, Region I, Boston, Massachusetts, and St. Albans, Vermont
District Office, 10 FLRA No. 100, 10 FLRA 566 (December 3, 1982);
Nuclear Regulatory Commission, 8 FLRA No. 124, 8 FLRA 715 (May 20,
1982); Department of the Air Force, Scott Air Force Base, Illinois, 5
FLRA No. 2, 5 FLRA 9 (January 15, 1981).
Since the question of the legal status to be attributed to Article 15
of the Supplemental Labor Agreement, was, as of the date of the hearing,
proceeding to arbitration, it is not possible to determine whether or
not the provisions contained in this Article are applicable in this
case. However, if Article 15 is deemed to be currently in effect, it
too reflects clear elements of a waiver in that Article 15, Section
15.01(S)(B) of the Supplemental Labor Agreement indicates that the
Charging Party and NAFS agreed that performance standards would be
established "by the supervisor and the employee," as a "joint effort."
If Article 15 of the Supplemental Labor Agreement is found to be null
and void because in conflict with the June 1982 Master Labor Agreement,
then the provisions of Article 15, Section 15.01 of the June 1982 Master
Labor Agreement, without more, suffice as a basis for a finding that a
waiver exists.
The record does show that the provisions of AFR 40-452, as
implemented by AFLC, were in effect on the date of the change alleged in
the complaint. However, AFR 40-452, as implemented did not operate to
modify or otherwise change the provisions of Article 15, Section 15.01
of the June 1982 Master Labor Agreement by imposing a bargaining
obligation of the type alleged in the complaint; nor did AFR 40-452,
otherwise remove the clear and unmistakable waiver reflected in the
Master Labor Agreement. Moreover, AFLC proposals considered by Judge
Arrigo in Case No. 5-CA-20018, and found to be negotiable in that case,
may not be construed as conferring on the Charging Party, or Council
214, bargaining rights specifically withheld in the June 1982 Master
Labor Agreement. It is noted that counsel representing the General
Counsel and counsel representing the Charging Party make no such
argument. /14/
Lastly, it is also observed that even in the absence of a finding of
waiver, the essence of this unfair labor practice complaint would
involve differing and arguable interpretations of Article 15, Section
15.01 of the June 1982 Master Labor Agreement, as distinguished from a
clear and patent breach of the agreement. That is, the issues posed
would merely involve matters of contract interpretation. In such cases
the aggrieved party's remedy lies within the grievance and arbitration
procedures in the negotiated agreement rather than through unfair labor
practice procedures. Harry S. Truman Memorial Veterans Hospital,
Columbia, Missouri, 11 FLRA No. 90, 11 FLRA 516 (March 9, 1983); Iowa
National Guard and National Guard Bureau, 8 FLRA No. 101, 8 FLRA 500
(May 7, 1982); Division of Military and Naval Affairs, State of New
York, Albany, New York, 8 FLRA No. 71, 8 FLRA 307 (March 26, 1982);
Social Security Administration, District Offices in Denver, Pueblo and
Greely, Colorado, et al., 3 FLRA No. 10, 3 FLRA 61 (April 14, 1980);
U.S. Patent and Trademark Office, 3 FLRA No. 123, 3 FLRA 823, (July 31,
1980); Oklahoma City Air Logistics Center, Tinker Air Force Base,
Oklahoma, 3 FLRA No. 82, 3 FLRA 511 (June 27, 1980); Department of
Health, Education and Welfare, Social Security Administration, 1 FLRA
No. 37, 1 FLRA 297 (May 9, 1979).
The Respondent relies heavily upon interpretations to be accorded
Article 15, Section 15.01 of the June 1982 Master Labor Agreement. At a
bare minimum, this Section arguably may be construed as relieving the
Respondent of the obligation to bargain concerning changes in
performance standards. Thus, an alleged refusal to bargain concerning
the implementation of a change in performance standards would, even in
the absence of a waiver, necessarily involve an interpretation of
Section 15.01.
In light of the conclusions outlined, it is recommended that the
Authority issue the following Order pursuant to 5 C.F.R. 2423.29.
ORDER
IT IS HEREBY ORDERED, that the complaint in Case No. 5-CA-30215, be,
and it hereby is, dismissed.
/s/ LOUIS SCALZO
LOUIS SCALZO
Administrative Law Judge
Dated: December 7, 1983
Washington, DC
--------------- FOOTNOTES$ ---------------
(1) Of course, both of these rights exist by operation of law. See,
e.g., National Treasury Employees Union and Department of the Treasury,
Bureau of the Public Debt, supra, concerning management's right to
revise performance standards pursuant to its section 7106(a) rights to
direct and assign work to employees. See also Social Security
Administration, Baltimore, Maryland, 9 FLRA 909 (1982), with respect to
the right of employees to participate in discussion concerning the
establishment of their performance standards pursuant to 5 U.S.C.
4302(a)(2), which provides:
Section 4302. Establishment of performance appraisal
systems
(a) Each agency shall develop one or more performance appraisal
systems which --
* * *
(2) encourage employee participation in establishing
performance standards(.)
(2) This argument, reflected in Respondent's post-hearing brief, has
no merit in view of a stipulation to the effect that Respondent provided
"no advance notice" of the change to the Union, to Council 214, or to
any other organizational level of the American Federation of Government
Employees, AFL-CIO (Jt. Exh. No. 3).
Counsel representing the General Counsel moved to strike portions of
Respondent's brief which relate to the argument that the Union received
constructive notice of the change, noting that the stipulation precluded
the argument. An opposition to the motion to strike was filed by
counsel representing the Respondent.
The motion to strike must be denied. Although Respondent's argument
has no merit in the light of the stipulation entered into the record,
Respondent's counsel arbuably has the right to contend that the
stipulation did not operate to deny counsel the right to rely upon
constructive notice of the change received through a Union steward.
(3) Counsel representing the Respondent moved to correct certain
errors in the hearing transcript. Under authority set out in 5 C.F.R.
2423.19(r), the corrections proposed are approved.
(4) Jt. Exh. No. 3.
(5) These employees are hereinafter referred to as "Central
Refurbishment Area employees," or "employees affected."
(6) Air Force Regulation 40-452, incorporates what is otherwise
referred to in the record as "JPAS" (Tr. 37-38). AFR 40-452 deals with
Department of the Air Force policy and procedures for appraisal and
rating of Air Force employees. It implemented 5 U.S.C. 4302 of the
Civil Service Reform Act of 1978, 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.
(7) This agreement is hereinafter referred to as the "May 1979 Master
Labor Agreement."
(8) This agreement is hereinafter referred to as the June 1982 Master
Labor Agreement. The parties have considered it binding despite
inclusion of a statement in Section 35.01 of Article 35, to the effect
that it would remain in effect only for the three year period ending on
April 3, 1982 (Tr. 27-29).
(9) These negotiations commenced and reached impasse prior to
execution of the June 1982 Master Labor Agreement.
(10) It is noted that this request was filed over a year before the
parties executed the June 1982 Master Labor Agreement (Jt. Exh. No. 6).
(11) Also, the record did not reflect that the specific change
alleged in the case herein under consideration contravened AFR 40-452 as
implemented, or the bargaining order recommended to the Authority by
Judge Arrigo. The recommended cease and desist order in Case No.
5-CA-20018 addressed the issue of instituting changes in teh AFLC
performance appraisal program without affording the Council 214 the
right to bargain. In this case both the May 1979 and June 1982 Master
Labor Agreements reflect that responsibility for the establishment of
performance standards was within the purview of authority exercised by
Respondent's supervisory personnel. It follows therefore, that the
changes alleged in the complaint should not be construed as falling
within the meaning of the recommended cease and desist order in Case No.
5-CA-20018. Also, it is noted that the latter case did not involve the
possible applicability of Master Labor Agreement terminology, or issues
of possible waiver of bargaining rights.
(12) Section 34.07 of the June 1982 Master Labor Agreement provided
for inclusion of disputed Supplemental Labor Agreement articles only
after an arbitration decision determining the appropriateness of such
inclusion (Jt. Exh. No. 6 at page 138). NAFS took the position that
reopening negotiations relating to Article 15 of the Supplemental Labor
Agreement could ensue only after a determination in favor of inclusion
(Tr. 100-102).
(13) It is noted that AFLC -- Council 214 bargaining in connection
with the renegotiation of the Master Labor Agreement, and in connection
with AFR 40-452, theoretically could have produced the bargaining
obligation that the Charging Party so eagerly sought in this case. It
is also conceivable that such rights might have been generated by
bargaining at the local level in connection with the Supplemental Labor
Agreement. However, the fact remains that bargaining to date has not
produced such a result.
(14) Briefs filed on behalf of the General Counsel and the Charging
Party do assert that the change in performance standards alleged in the
case under consideration did involve a breach of AFR 40-452 procedures
implemented on or about July 1, 1981. However, such conduct is not
relied upon as a basis for the complaint, and it is not otherwise
referred to in the complaint. Moreover, the specific provision alluded
to confers no bargaining rights on Council 214 or the Charging Party,
but merely provides: "Prior to a supervisor implementing the final
decisions on the identification of job performance elements and
standards the Union will be informed of such decisions and given a copy
of the work plan if requested by the employee. The copy will be
provided to the Union at least three days prior to implementation . . .
" (R. Exh. No. 6 at 1).