13:0707(116)CA - Army Engineer Center and Fort Belvoir and Army and AFGE Local 1052 -- 1984 FLRAdec CA



[ v13 p707 ]
13:0707(116)CA
The decision of the Authority follows:


 13 FLRA No. 116
 
 U.S. ARMY ENGINEER CENTER AND
 FORT BELVOIR
 Respondent
 
 and
 
 U.S. DEPARTMENT OF THE ARMY
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1052
 Charging Party
 
                                            Case Nos. 3-CA-2908
                                                      3-CA-20133
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Cases to the Authority" in accordance
 with section 2429.1(a) of the Authority's Rules and Regulations.
 
    Upon consideration of the entire record in this case, including the
 stipulation of facts and contentions of the parties, the Authority
 finds:
 
    The complaint in Case No. 3-CA-2908 alleges that the Respondent U.S.
 Army Engineer Center and Fort Belvoir (hereinafter referred to as Fort
 Belvoir) violated section 7116(a)(1) and (5) of the Federal Service
 Labor-Management Relations Statute (the Statute) by refusing to bargain
 over proposals submitted in connection with negotiations over the impact
 and implementation of a new performance appraisal system.  In Case No.
 3-CA-20133, the complaint alleges that the Respondent Department of the
 Army violated section 7116(a)(1) of the Statute by denying the Charging
 Party an opportunity to bargain over the new performance appraisal
 system prior to its implementation, thereby interfering with the
 collective bargaining relationship between the Charging Party and Fort
 Belvoir.
 
    The record reveals that the Charging Party, the American Federation
 of Government Employees, AFL-CIO, Local 1052 (the Union), exclusively
 represents a unit of employees at Fort Belvoir.  On or about April 15,
 1981, the Department of the Army issued regulation AR 690-400, Chapter
 430 (hereinafter referred to as AR 690-400), entitled "Department of the
 Army General Performance Appraisal System," which was to be implemented
 by component activities no later than October 1, 1981.  Subsequent to
 the issuance of this regulation, the Union and Fort Belvoir met for the
 purpose of bargaining over the impact and implementation of the new
 system.  During the course of negotiations, the Union submitted two
 proposals which were declared by Fort Belvoir to be in conflict with
 provisions of AR 690-400.  Fort Belvoir indicated that it could not
 bargain on the proposals without first checking with the Department of
 the Army.  Thereafter, Fort Belvoir informed the Union that Respondent
 Department of the Army had refused to waive the regulation so as to
 permit For Belvoir to negotiate concerning the Union's two proposals.
 Implementation of the performance appraisal system occurred on June 1,
 1981.
 
    The Respondents take the position that AR 690-400 constituted a bar
 to negotiations on the proposals submitted by the Union within the
 meaning of section 7117 of the Statute.  /1/ Specifically, the
 Respondents argue that AR 690-400 is a regulation of the Department of
 the Army, a primary national subdivision of the Department of Defense,
 and as such is not subject to negotiations because:  the Union does not
 hold exclusive recognition at the level of the primary national
 subdivision;  the Union does not hold exclusive recognition for a unit
 which includes a majority of the employees affected by the regulation;
 and no determination has been made by the Authority that no compelling
 need exists for the regulation in question to bar negotiations on
 conflicting proposals.  In this latter connection, the Respondents
 further argue that the Union had the option of filing a negotiability
 appeal in which the issue of compelling need could have been resolved,
 and that compelling need may not be litigated in an unfair labor
 practice proceeding where the Union has failed to file a timely
 negotiability appeal and where the General Counsel is excluded as a
 party in compelling need determinations under section 7117 of the
 Statute.
 
    With regard to the assertion that compelling need issues may not be
 litigated in unfair labor practice proceedings, the Authority has
 recently decided to the contrary.  In Defense Logistics Agency (Cameron
 Station, Virginia) et al., 12 FLRA No. 86(1983), the Authority held as
 follows:
 
          (I)n exercising its statutory authority to resolve disputes
       involving alleged unilateral changes in conditions of employment
       where issues of negotiability are also raised, the Authority has
       promulgated procedures which recognize a labor organization's
       right to seek a resolution of the negotiability issues by filing
       an unfair labor practice charge and a negotiability appeal and
       which require the labor organization to select the forum in which
       to proceed first.  . . . Accordingly, . . . where a labor
       organization selects the unfair labor practice forum with regard
       to alleged unilateral changes in conditions of employment
       affecting unit employees resulting from the issuance of a new
       regulation or . . . modification of an existing regulation, and
       agency management raises as an affirmative defense that it refused
       to bargain on the basis that there is a compelling need for the
       regulation in question, the compelling need issue must perforce be
       decided in the unfair labor practice proceeding.  Of course, an
       agency which raises compelling need as an affirmative defense in
       an unfair labor practice proceeding is required, as it would be in
       a negotiability proceeding, to come forward with affirmative
       support for that assertion.  (Footnotes omitted.)
 
 Thus, contrary to the Respondents' assertion, the Authority finds that
 the issue of compelling need for AR 690-400 to bar negotiations on
 conflicting proposals can, in fact, be litigated in the instant unfair
 labor practice proceeding.
 
    As noted above, Chapter 430 of AR 690-400 constitutes the Department
 of the Army's General Performance Appraisal System.  Among its features,
 the regulation provides that employees with current annual ratings of
 "Highly Successful" will be credited with two years of additional
 service for reduction-in-force purposes.  The regulation also provides
 that rating supervisors will discuss proposed appraisals with reviewers
 (generally higher level management officials) prior to discussing such
 appraisals with employees, and that employees then have an opportunity
 to enter written comments on the appraisal prior to signature by
 reviewing/approving officials.  During the course of bargaining, the
 Union advanced the following two proposals which were declared by Fort
 Belvoir to be in conflict with AR 690-400:
 
          1.  That employees with current annual ratings of Highly
       Successful not have any years added to creditable service for
       reduction-in-force purposes.
 
          2.  That the rating supervisors prepare the appraisal, discuss
       the appraisal with the employee, give the employee an opportunity
       to comment in writing and sign the appraisal, and then for the
       rating Supervisor to discuss the appraisal with the reviewer
       and/or approving official.  The approving official could then make
       up a final appraisal but could not destroy the rater's appraisal.
       Both the rater's appraisal and the final appraisal would be given
       to the employee and filed in his official personnel file.
 
    In the Authority's view, these proposals are within the duty to
 bargain inasmuch as the Respondent's have failed to demonstrate that a
 compelling need exists for those portions of AR 690-400 with which the
 Union's proposals are in conflict and inasmuch as the proposals do not
 otherwise appear to be inconsistent with law, rule or regulation.  /2/
 Thus, in Defense Logistics Agency, supra, the Authority stated that
 where an agency raises compelling need as an affirmative defense in an
 unfair labor practice proceeding, it is required to come forward with
 affirmative support for that assertion.  In the instant case, the record
 is devoid of support for the mere assertion that a compelling need
 exists for those portions of AR 690-400 to bar negotiations on the
 Union's conflicting proposals.  Accordingly, this contention of the
 Respondents cannot be sustained.
 
    Turning to the merits of the proposals, the Authority finds, with
 regard to the first proposal, that entitlements to additional service
 credit for reduction-in-force purposes is covered by 5 Cfr part 351.
 /3/ More particularly, 5 CFR 351.504 distinguishes between agencies
 which have not implemented performance appraisal systems meeting certain
 legal and regulatory requirements, and those agencies which have
 implemented such systems.  In the former's situation, 5 CFR 351.504(b)
 provides that employees who have an "Outstanding" rating shall receive 4
 additional years of service, while employees whose performance rating is
 between "Satisfactory" and "Outstanding" shall receive 2 additional
 years.  For those agencies which have implemented a performance
 appraisal system, 5 CFR 351.504(c) provides that employees with an
 "Outstanding" rating shall receive 4 additional years of service.  It
 further provides that agencies may assign to employees whose ratings
 exceed the minimum performance standards, but are less than
 "Outstanding" an amount of service credit ranging from 0 to less than 4
 years.  Unlike the former situation, then, the granting of additional
 years of service to employees performing above the minimum level but
 less than the outstanding level is a discretionary matter within the
 purview of agency management where performance appraisal systems are in
 place.  In the instant case, the Union was seeking to negotiate a
 proposal which was to take effect after implementation of AR 690-400.
 /4/ In such circumstances, the Authority finds that the proposal
 pertained to a discretionary matter under the provisions of 5 CFR
 351.504(c) and was, therefore, within Fort Belvoir's duty to bargain.
 /5/
 
    As to the Union's second proposal, which would permit an employee to
 discuss and sign an appraisal prior to having it reviewed by a reviewing
 or approving official, the Authority finds that it constitutes a
 negotiable procedure under section 7106(b)(2) of the Statute, /6/ and
 would not interfere with management's section 7106(a) rights to direct
 employees or assign work.  National Federation of Federal Employees and
 Department of the Army, Fort Monmouth, New Jersey, 13 FLRA No. 75(1983).
  /7/ Therefore, this proposal was also within Fort Belvoir's duty to
 bargain.  /8/
 
    As previously noted, Fort Belvoir declared the two proposals to be in
 conflict with AR 690-400 and indicated that it could not negotiate with
 regard thereto unless it first obtained a waiver from the Department of
 the Army.  After such waiver was refused, Fort Belvoir informed the
 Union that the Department of the Army would not waive AR 690-400 so as
 to permit Fort Belvoir to bargain.  In the Authority's view, while Fort
 Belvoir was obligated to bargain over the proposals, /9/ the record
 indicates that it was prevented from doing so by direction of the
 Department of the Army which refused to waive those portions of AR
 690-400 with which the proposals were alleged to be in conflict.  It has
 been previously held that the acts and conduct of higher level agency
 management may constitute an unfair labor practice where such conduct
 prevents agency management at the level of exclusive recognition from
 fulfilling its bargaining obligation under the Statute.  /10/ In the
 circumstances of this case, the Authority finds that the Department of
 the Army improperly interfered with the bargaining relationship between
 Fort Belvoir and the Union.  However, inasmuch as the complaint did not
 allege a separate violation of section 7116(a)(5) of the Statute against
 the Department of the Army, no such violation may be found.
 Nevertheless, the Authority finds that such interference with the
 bargaining relationship had the effect of undermining the status of the
 exclusive representative selected by unit employees, thereby improperly
 interfering with, restraining or coercing employees in the exercise of
 their rights under the Statute, in violation of section 7116(a)(1).
 Thus, section 7102(2) of the Statute provides that employees have the
 right "to engage in collective bargaining with respect to conditions of
 employment through (their) representatives . . .." Where the Department
 of the Army improperly interfered with this right, its conduct therefore
 violated section 7116(a)(1) of the Statute.  However, no violation will
 be found against Fort Belvoir which acted solely at the direction of the
 Department of the Army in refusing to negotiate over the Union's
 proposals.  /11/ Accordingly, this portion of the complaint shall be
 dismissed.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Federal
 Service Labor-Management Relations Statute, it is hereby ordered that
 the Department of the Army shall:
 
    1.  Cease and desist from:
 
    (a) Improperly interfering with the rights of unit employees by
 directing the U.S. Army Engineer Center and Fort Belvoir not to bargain
 with the American Federation of Government Employees, AFL-CIO, Local
 1052, the employees' exclusive representative.
 
    (b) In any like or related manner interfering with, restraining or
 coercing employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Upon request of the American Federation of Government Employees,
 AFL-CIO, Local 1052, permit the U.S. Army Engineer Center and Fort
 Belvoir to bargain on the two proposals which were declared to be in
 conflict with the Department of the Army regulation, AR 690-400, Chapter
 430, entitled "Department of the Army General Performance Appraisal
 System."
 
    (b) Post at all facilities within the U.S. Army Engineer Center and
 Fort Belvoir, copies of the attached Notice on forms to be furnished by
 the Federal Labor Relations Authority.  Such forms shall be signed by
 the Secretary of the Army, or his 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
 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 III, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    IT IS FURTHER ORDERED that the complaint in Case No. 3-CA-2908 be,
 and it hereby is, dismissed.
 
    Issued, Washington, D.C., January 31, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       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 improperly interfere with the rights of unit employees by
 directing the U.S. Army Engineer Center and Fort Belvoir not to bargain
 with the American Federation of Government Employees, AFL-CIO, Local
 1052, the employees' exclusive representative.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce any 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, AFL-CIO, Local 1052, permit the U.S. Army Engineer Center and
 Fort Belvoir to bargain on the two proposals which were declared to be
 in conflict with the Department of the Army regulation, AR 690-400,
 Chapter 430, entitled "Department of the Army General 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 III, Federal Labor Relations Authority, whose address
 is:  1111 18th Street, Rm. 700, P.O. Box 33758, Washington, D.C.
 20033-0758 and whose telephone number is:  (202) 653-8507.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7117 of the Statute provides, in pertinent part, as
 follows:
 
    Sec. 7117.  Duty to bargain in good faith;  compelling need;  duty to
 consult
 
                                  * * * *
 
    (a)(2) The duty to bargain in good faith shall, to the extent not
 inconsistent with Federal law or any Government-wide rule or regulation,
 extend to matters which are the subject of any agency rule or regulation
 referred to in paragraph (3) of this subsection only if the Authority
 has determined under subsection (b) of this section that no compelling
 need (as determined under regulations prescribed by the Authority)
 exists for the rule or regulation.
 
    (3) Paragraph (2) of the subsection applies to any rule or regulation
 issued by any agency or issued by any primary national subdivision of
 such agency, unless an exclusive national subdivision represents an
 appropriate unit including not less than a majority of the employees in
 the issuing agency or primary national subdivision, as the case may be,
 to whom the rule or regulation is applicable.
 
    (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.
 
    (3) A hearing may be held, in the discretion of the Authority, before
 a determination is made under this subsection.  If a hearing is held, it
 shall be expedited to the extent practicable and shall not include the
 General Counsel as a party.
 
 
    /2/ See, e.g., Association of Civilian Technicians, Pennsylvania
 State Council and The Adjutant General, Department of Military Affairs,
 Commonwealth of Pennsylvania, 3 FLRA 50(1980).
 
 
    /3/ 5 CFR 351.504 provides, in pertinent part, as follows:
 
    Sec. 351.504 Credit for performance.
 
    (a) Each employee's performance rating of record on the date of
 issuance of specific reduction in force notices shall determine the
 employee's entitlement to additional service credit for performance
 under this section.
 
    (b) An agency that has not implemented a performance appraisal system
 meeting all the requirements of 5 U.S.C. 4302 and Part 430 Subpart B of
 this title, and assigns summary adjective performance ratings, shall
 credit the following employees with additional service, which is added
 to each employee's creditable service under this part:
 
    (1) Each employee who has an "Outstanding" performance rating shall
 receive 4 years of additional service;  and
 
    (2) Each employee who has a performance rating between "Satisfactory"
 and "Outstanding" shall receive 2 additional years of service.
 
    (c) An agency that has implemented a performance appraisal system
 meeting all the requirements of 5 U.S.C. 4302, and Part 430 Subpart B of
 this title, is responsible for using employee performance appraisals to
 credit employees with additional service toward retention standing.
 This additional service is added to each employee's creditable service
 under this part.  Each employee who has an "Outstanding" or highest
 appraisal under the agency's system, shall receive 4 additional years of
 service.  Each employee whose performance meets, but does not exceed,
 the established minimum performance standards for the critical elements
 of his or her position shall be credited with no additional years of
 service.  Agencies may use employee performance appraisals to assign
 other employees whose performance exceeds that established minimum
 performance standards for the critical elements of the position, but is
 less than "Outstanding" or the highest equivalent appraisal under the
 agency's system, an amount of service credit ranging from 0 to less than
 4 years.
 
    Each agency is responsible for ensuring that these provisions are:
 
    (1) Consistent with Part 430 Subpart B of this title;  and
 
    (2) Uniformly and consistently applied in any one reduction in force.
 
 
    /4/ There was no evidence in the record to suggest that the proposal
 was to take effect prior to implementation of the performance appraisal
 system and, therefore, the Authority need not address whether such a
 proposal would have conflicted with the provisions of 5 CFR 351.504(b).
 
 
    /5/ National Treasury Employees Union, Chapter 6 and Internal Revenue
 Service, New Orleans District, 3 FLRA 748(1980).
 
 
    /6/ Section 7106(b)(2) of the Statute provides, in pertinent part, as
 follows:
 
    Sec. 7106.  Management rights
 
                                  * * * *
 
    (b) Nothing in this section shall preclude any agency and any labor
 organization from negotiating --
 
                                * * * ,0 *
 
    (2) procedures which management officials of the agency will observe
 in exercising any authority under this section(.)
 
 
    /7/ See generally Department of the Treasury, Bureau of the Public
 Debt. 3 FLRA 769(1980), at 779-780.
 
 
    /8/ The Authority notes that the Office of Personnel Management has
 caused to be published in 48 Fed. Reg. 4