16:0749(105)CA - Treasury, IRS, Philadelphia Service Center and NTEU and NTEU Chapter 71 -- 1984 FLRAdec CA
[ v16 p749 ]
The decision of the Authority follows:
16 FLRA No. 105 U.S. DEPARTMENT OF TREASURY INTERNAL REVENUE SERVICE PHILADELPHIA SERVICE CENTER Respondent and NATIONAL TREASURY EMPLOYEES UNION AND NTEU, CHAPTER 71 Charging Party Case Nos. 23-CA-194 23-CA-368 DECISION AND ORDER The Administrative Law Judge issued his Decision in the above-entitled proceeding finding that the Respondent had not engaged in the unfair labor practices alleged in the consolidated complaint, and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Judge's Decision, and the Respondent filed an opposition to the General Counsel's 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 recommended Order, as modified herein. In Case No. 23-CA-194, involving the Activity's Processing Division, the Judge concluded that the Respondent did not violate section 7116(a)(1) and (5) of the Statute /1/ because its notice of its decision to implement "performance expectations" was adequate for the Union to have an opportunity to demand bargaining over impact and implementation, a well-established right, /2/ and that the Union had not made such demand or proposals prior to implementation. Thus, at the time the Union was given the proposed performance expectations, it was told they would be implemented the next week. The Union president replied that she wanted to look them over prior to any negotiations. However, when the Respondent began implementation six days later, no demand or proposals had been made. In the Authority's view, as it was clear that implementation was forthcoming, and occurred toward the end of the next week as predicted, the Union had adequate notice to request bargaining or at least to request more time to respond, if necessary. Accordingly, the Authority cannot find that the Respondent's implementation of the performance expectations violated the Statute, and the complaint in Case No. 23-CA-194 shall be dismissed. /3/ In Case No. 23-CA-368, the Judge found that the Respondent did not violate section 7116(a)(1) and (5) of the Statute by refusing to bargain with the Union over its implementation of proposals concerning performance expectations at the Taxpayers Service Division, prior to implementation on July 2, 1979. Rather, the Judge found that the Respondent was not obligated to negotiate over the proposals. While the Authority adopts the Judge's conclusion that all of the proposals are nonnegotiable, it does so for different reasoning with respect to his findings on "Minimum Adverse Action Procedures." The Judge found that this proposal required the Respondent to take up to 10 sequential steps, which included mandatory training and reassignment, that could take up to 580 days before it could remove an employee from employment. This delay he found would violate management's rights inasmuch as it would render ineffective any decision to remove an employee for not achieving expectations and thereby would prevent management from acting to remove employees. /4/ The Authority finds this proposal to be substantially identical to Proposal 3 in American Federation of Government Employees, AFL-CIO, Local 1708 and Military Ocean Terminal, Sunny Point, Southport, North Carolina, 15 FLRA No. 1 (1984) (issued subsequent to the Judge's Decision). In that case the Authority held the proposal to be outside the duty to bargain because it interfered with management's rights under section 7106(a) of the Statute to assign employees, by requiring their assignment to training and their reassignment from their current positions to other like-graded positions. In this regard, the Authority held that the effect of the proposal would be to condition the exercise of specified management rights on the prior exercise of others. For the reasons expressed in Military Ocean Terminal, Sunny Point, Southport, North Carolina and the cases cited therein, the Authority finds that the Union's proposal herein on "Minimum Adverse Action Procedures" is outside the duty to bargain. Accordingly, the Authority finds that the Respondent did not violate section 7116(a)(1) and (5) of the Statute in Case No. 23-CA-368. ORDER IT IS ORDERED that the consolidated complaint in Case No. 23-CA-194 and 23-CA-368 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., December 10, 1984 Henry B. Frazier III, Acting Chairman Ronald W. Haughton, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- U.S. DEPARTMENT OF TREASURY INTERNAL REVENUE SERVICE PHILADELPHIA SERVICE CENTER Respondent and NATIONAL TREASURY EMPLOYEES UNION AND NTEU, CHAPTER 71 Charging Party Case No.: 23-CA-194 23-CA-368 Thomas E. Crowe, Esq. For the Respondent Margaret Ann Sipser, Esq. W. Lee Mingledorff, Esq. For the General Counsel Richard Landis, Esq. For the Charging Party Before: WILLIAM NAIMARK Administrative Law Judge DECISION Statement of the Case Pursuant to an Order Consolidating Cases, Complaint and Notice of Hearing issued on March 30, 1981 by the Regional Director for the Federal Labor Relations Authority, New York, N.Y. Region, a hearing was held before the undersigned on July 15, 1981 at Philadelphia, Pennsylvania. This proceeding arose under the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101, et seq. (hereinafter called the Act). A charge in Case No. 3-CA-194 was filed on May 7, 1979 by National Treasury Employees Union and NTEU, Chapter 71 (herein called the Union) against U.S. Department of Treasury, Internal Revenue Service (herein called the Respondent). Thereafter, in Case No. 3-CA-368 a charge was filed on July 25, 1979 by the aforesaid Union against said Respondent. /5/ The complaint alleges, in substance, that: (a) Respondent unilaterally implemented performance standards in its Receipt and Control Branch on or about February 8, 1979; in its Examination Branch on or about February 12, 1979; and in its Input Perfection Branch on or about February 13, 1979-- all without affording the Union an opportunity to negotiate regarding impact and procedures for implementing this change in working conditions; (b) Since June 25, 1979 Respondent has refused to negotiate concerning the impact and procedures for implementing issuance of performance standards for unit employees in the Taxpayer Relations Branch, Research Branch, and Exempt Organization Branch; (c) On or about July 2, 1979 Respondent unilaterally implemented performance standards for employees in the Taxpayer, Research, and Exempt Organization Branches without negotiating with the Union concerning the impact and procedures for implementing this change in working conditions. The foregoing conduct was alleged in the complaint to violate Sections 7116(a)(1) and (5) of the Act. Respondent's answer, dated April 24, 1981, denied the commission of any unfair labor practice. In respect to the allegations set forth in (a), supra, it alleged that Respondent did afford the Union an opportunity to negotiate as to the impact and implementation of performance standards in the named branches. In respect to the allegations set forth in (b) and (c), supra, it denied a failure or refusal to negotiate impact and implementation of the standards in the named branches, and also denied unilateral implementation thereof without affording the Union an opportunity to negotiate same. All parties were represented at the hearing. Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed with the undersigned which have been duly considered. /6/ Upon the entire record herein, from my observations of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following findings and conclusions: Findings of Fact 1. At all times material herein the Union has been the collective bargaining representative of Respondent's professional and non-professional employees at the Philadelphia Service Center. 2. Both the Union and Respondent are parties to a Multi-Center Agreement which was executed on July 18, 1975. This agreement continues in effect and was effective at all times material herein. Article I, section 1 provides that all certified units of professional employees of the various Centers, including Respondent's Service Center, shall be covered under the agreement. Article 32, entitled Adverse Actions, sets forth procedures to be followed when an employee is the subject of an adverse action. The latter term is defined to be "a reduction in grade or pay, a removal, a suspension for more than thirty (30) days, or a furlough of a permanent employee without pay". Under this Article it is provided, inter alia, that specific written notice be given the employee of the charges against him; that he be afforded the opportunity to respond with supporting data; that the employee may appeal the Employer's decision on any basis allowed by applicable law and regulations". The negotiated agreement also contains a grievance procedure (Article 33) which, under Section 2A, covers requests for personal relief in matters involving personnel policies, practices and working conditions. Section 2B provides that "this procedure will be the only procedure available to bargaining unit employees for the processing and disposition of grievances covered by A above". The grievance procedure also sets forth detailed steps to be followed in the submission of a grievance, as well as provisions for, and methods of, appealing decisions rendered by a supervisor. Under Section 6 thereof the decision of the latter is appealable, via appeals from various higher level decisions, to the Center Director and finally to advisory arbitration. /7/ 3. In October, 1978 management at the Philadelphia Service Center embarked on a program to implement performance expectations in the Data Conversion Branch of the Center. This involved numerical production and quality standards so that the individual performance of employees could be measured. Initially, the expectations had been reached by setting up a goal based on a national average for all Service Centers. 4. Negotiations were held between management and the Union concerning the implementation of these standards, and the parties met on November 3, 1978. The purpose of the performance expectation was explained, and the Union expressed concern that employees could be adversely affected for minimal failure to reach expectation. Management reassured the Union that no rigid adherence to numbers was planned and that a range of performance would be acceptable. The parties met again on November 17, 1978 at which time the employer's representatives explained the mathematical process used in arriving at the expectations. The Union's proposals were discussed, and it was agreed that the performance expectations would be initiated as a probationary period for the quarter, beginning November 27, 1978. Another meeting was held on December 8, 1978 at which time management agreed to certain items of concern to the Union, and the latter was satisfied with the implementation of the expectation for the trial period. /8/ 5. On February 1, 1979 Union President Eleanor Hudson, along with Sean Rogers, the Union's attorney, happened to meet James Concannon, Assistant Personnel Officer of Respondent, in the lobby of the Service Center. /9/ Concannon told the union representatives that management wanted to implement performance expectations in three other branches of the Center: Receipts and Control Branch, Examination Branch, and Input Perfection Branch-- all within the Processing Division. Different versions are presented as to what other statements were made by the said individuals on that date. Thus, Rogers testified Concannon said Respondent wanted to implement performance expectations in three other named branches, and that the Union attorney remarked he wanted to bargain. Further, Concannon allegedly replied that Respondent took the position the substance is not negotiable and that Rogers had known about this for some time. Whereupon the Union attorney, as he testified, retorted that "wiser minds than us will decide that, but right now we want to bargain". Hudson's testimony reveals that on February 1, 1979, /10/ in the lobby of the Center, Concannon told Rogers management was planning to implement performance expectations in other areas of the Center; that Roger said he wanted to negotiate the substance and impact and implementation of those standards. She also testified there was no response by Concannon to Rogers' statement in this regard. According to Concannon, he excountered both union representatives in the lobby on February 1, and commented that Respondent wanted to put performance expectations into effect in the Processing Division. The Assistant Personnel Officer further testified Rogers commented there was a disagreement between the Union's National Office and IRS' National Office regarding the negotiability of these standards. Concannon also stated that no demand was made by the Union to bargain. Upon a careful review of the record herein I am persuaded that, on February 1, management representative Concannon did notify the Union representative Rogers and Hudson that Respondent wanted to implement performance expectations in the three branches, heretofore named, of the Data Processing Division. Further, I find that Rogers did tell Concannon the Union desired to negotiate or bargain in regard thereto. /11/ Concannon did reply, I find, that there had always been a disagreement between the national offices of both the Union and Respondent as to the negotiability of these standards; that Respondent took the position the substance is not negotiable. /12/ 6. The following day, February 2, Concannon called Hudson to meet with the branch chiefs of the areas in which the performance expectations would be implemented. At the meeting on that date Hudson was given a copy of the proposed standards. Record facts show that the union representative told management she was present merely to receive the performance expectations; that she couldn't discuss or negotiate the standards; and that she wanted to look them over prior to any negotiations. A conflict of testimony prevails as to whether Respondent's official informed the Union agent as to when the expectation would be implemented. Concannon testified he stated at the meeting that they would be put into effect next week. John Sawatchi, Chief of Receipts and Control, testified that Hudson was informed at the February 2 meeting that the standards would be issued shortly-- as soon as possible. Hudson's testimony reflects she was given no implementation date for the expectations. However, other testimony in the record tends to belie Hudson's statement in this regard. Thus, Rogers testified Hudson called him on Monday, February 5 to report that she received the proposed standards at the February 2 meeting; that she didn't bargain or make any proposals. With respect to Hudson's being informed by Concannon as to the date of implementation, the record reflects Rogers testified as follows: A. She (Hudson) had not requested to negotiate at the meeting on the 2nd. Q. I am sorry-- the 2nd-- and she knew that those performance expectations were going to be handed out on the 5th; is that right? They told her on Monday. (Feb. 2). A. Yes". Note is also taken of the fact that Concannon reduced to writing a summary of the aforesaid meeting on February 2; that he referred therein to Hudson's being notified at the meeting that the "Examination Branch would implement on February 5, 1979". Accordingly, I am persuaded Hudson was advised at the meeting on February 2 that the first implementation of the performance expectations would occur the following week. 7. Respondent issued the standards to employees, and implemented same, as follows: in the Receipt and Control Branch on February 8, in the Examination Branch on February 12; in the Input Perfection Branch on February 13. 8. On February 16 Rogers and Hudson met with Raymond Keenan, Assistant Director of the Service Center, and Chief of Personnel Stalinten. Questions were posed by the Union representatives as to management's right to develop and implement production standards, as well as its right to do so unilaterally. Keenan stated that Respondent had the right to do so and he would not bargain as to such right. In respect to impact and implementation, he told Rogers the Union "had some rights there"; that he would be happy to discuss any recommendation or proposals of the Union in regard thereto. The record reveals Rogers remarked that the Union wanted to negotiate but management didn't allow it much time. Upon Keenan's retorting that no written proposals were received from the Union, Rogers replied that the Union did not receive anything in writing prior to February 2 indicating Respondent would put the standards into effect. Keenan told the bargaining representatives it was never his intention to act without the Union's knowledge of Respondent's plans regarding the standards; that since no word was received from the Union, management went ahead and implemented the expectations. The Assistant Director further testified that the major issue was over the substance-- the issue of whether Respondent had the right to establish the standards. 9. By letter dated March 9 the Union advised Respondent that the implementation of the performance expectations by management was unilaterally undertaken; that the Union demanded rescission thereof and that management negotiate on substance, impact and implementation of such expectations. 10. Respondent's representative, Acting Director Keenan, replied in a letter dated April 11 to the Union's demands as aforesaid. Keenan stated that the implementation with respect to Receipt and Control, Input Perfection, and Document Analysis Branches was explained to the Union President on February 2, and a copy of the written message to be distributed to employees informing them of the expectations was given to her at that time. Respondent's representation wrote further that he considered the notice to the Union was sufficient; that the demand to negotiate received on March 13, was untimely; that management would not rescind the standards but would discuss any problems the Union felt warranted consideration. 11. In a meeting between the parties, which took place on May 4, management gave the Union representative copies of performance expectations for the Taxpayers Service Division. These standards were to be implemented at, and involved, three branches thereof: Taxpayer Relations, Research, and Exempt Organization. Whereupon Rogers told Keenan that the Union wanted to bargain; that he would give management a written demand but wanted to look over the expectations and talk to the employees. Keenan stated he wanted proposals from the Union within about two weeks. Since Rogers desired more time to study the standards and meet with employees, it was agreed the Union would submit proposals by June 8. 12. The "Performance Expectations" to be issued to the employees of the Taxpayers Service Division, as applicable to the three branches, set forth, inter alia, as follows: (a) that the past gauging of performance by a "peer group average" method was disadvantageous since it did not provide objective performance goals; (b) management has developed a technique for measuring performance against a predetermined set of individual minimum performance expectations; (c) the expectations will be expressed in terms of "items per hour" and "acceptable quality standards"; /13/ (d) successful performance regarding performance expectations will be a major factor in determining annual performance ratings, within grade increases and all non-competitive actions; (e) the new approach would not change the local awards program. 13. By letter dated May 16 Rogers wrote Director Norman Morrill that the Union demands negotiations on the substance, impact and implementation of the performance expectations proposed for all the branches where they were put into effect, including the Taxpayer Relations, Research, and Exempt Organizations Branches. 14. Keenan sent a letter dated May 21 to Union President Hudson notifying her that Respondent intended to "establish expectations" /14/ for Research, Taxpayer Relations, and Exempt Organization Branches of the Taxpayer Services Division on June 11. Further, he stated therein that management would discuss with the Union any adverse impact of the expectations in terms of specific proposals it submitted in writing for negotiation. 15. Concannon replied to the May 16 demand for bargaining by the Union in a letter dated May 30 addressed to Rogers. The management official repeated Respondent's willingness to discuss the impact and implementation procedures regarding performance expectations in the Research, Taxpayer Relations and Exempt Organization Branches upon receipt of specific proposals concerning them. He stated that the substance thereof is non-negotiable under Section 7106(a) of the Act. Further, Concannon repeated Respondent's contentions that the request to bargain regarding the Processing Division standards was untimely; that, as to the Data Conversion Branch, the expectations were thoroughly discussed prior to implementation. 16. In a letter dated June 8 Union President Hudson sent Keenan the proposals of the Union in respect to the performance expectations for the Taxpayer's Service Division. The salient and principal proposals were as follows: (a) IV. ESTABLISHING PERFORMANCE EXPECTATIONS No performance expectation shall be established for any position at the PSC unless and until NTEU, Chapter 71 has been informed in advance in writing of the expectation and has agreed that the particular expectation is attainable and reasonable. Once both parties agree to the proper level for a performance expectation it may be implemented by the PSC. If at anytime either party finds an expectation is not attainable it will be set aside and a new expectation will be established by mutual agreement. (b) V. APPEALS OF PERSONNEL ACTIONS Appeals of any and all personnel actions, adverse or otherwise from any and all issues involving performance expectations shall be processed through the provisions of the existing negotiated grievance procedure found in the Multi-Center Agreement II, Article 33 and 34. (c) VI. MINIMUM ADVERSE ACTION PROCEDURES The PSC will follow the following minimum steps before instituting any removal action. The PSC may offer more rights to an employee in individual cases, but must offer at least these rights to each employee before taking a removal action. 1) When first an employee fails to achieve expectations, he/she shall receive notice of the performance expectations applicable to his or her job and any and all such optional counselling and training as the employee may request. 2) If after 30 days the subject employee still fails to achieve expectations, he/she shall receive a reasonable amount of mandatory training and counselling on how to achieve expectations. 3) If after 30 days after the completion of mandatory training and counselling the employee still fails to achieve expectations, he/she shall be placed on performance probation. The employees work performance shall be monitored weekly and the employee shall be counselled weekly until he/she achieve expectations. 4) If after 60 days of performance probation the employee still fails to achieve expectations, he/she shall be offered another less demanding available position in PSC without reduction in grade or pay. 5) If after 60 days in this alternate position or if no such alternate position is available and the employee is still not achieving expectations, then he/she will be offered another less demanding, available position which may be at a reduced grade. 6) If after 60 days in this reduced alternate position or if no such reduced alternate position is available and the employee is still not achieving expectations, then he/she may be disciplined at the level of oral admonishment. The Agency shall continue with performance probation counselling and to search for either an alternate position or an alternate reduced position, respectively. 7) If after 60 days from the date of the oral admonishment, the employee still fails to achieve expectations, then he/she may be disciplined at the level of a written reprimand. The Agency shall continue with performance probation counselling and to search for either an alternate position or an alternate reduced position, respectively. 8) If after 60 days from the date of the written reprimand, the employee still fails to achieve expectations, then he/she may be disciplined at the level of no more than a seven work day suspension. The Agency shall continue with performance probation counselling and to search for either an alternate position or an alternate reduced position, respectively. 9) If after 60 days from the date of the written reprimand, the employee still fails to achieve expectations, then he/she may be disciplined at the level of no more than a fourteen work day suspension. The Agency shall continue with performance probation counselling and to search for either an alternate position or an alternate reduced position, respectively. 10) If after 60 days from the date of the fourteen day suspension, the employee still fails to achieve expectations, then he/she will be offered the opportunity to resign without negative comment on the employees SF 50. This offer shall also be available to an employee who is the subject of proposed discipline in either item 8 or 9 above. If an employee does not accept this opportunity to resign within a reasonable time, he/she may be disciplined at the level of removal. (d) VII. AWARDS Any employee who meets or exceeds performance expectations shall be eligible for awards. Awards shall be determined by their nature and size and set by mutual agreement of a joint NTEU, Chapter 71 and PSC Awards Committee. This Awards Committee shall consist of one delegate from NTEU, Chapter 71 and one delegate from PSC. (e) PERFORMANCE EXPECTATIONS 2. An employee's inability to successfully meet performance standards, alone, shall not be determinative of: a. An employee's annual performance rating, b. An employee's performance for within-grade increases and c. All non-competitive promotions. 3. Acceptable level of competence determinations and annual performance ratings will be made in a fair and objective manner and will be made only on the basis of the work requirements of the particular position or specific work standards as may have been established by the employer for the position; provided, however, that a determination that an employee is not performing at an acceptable level of competence will not be used to dispose of questions of misconduct. 4. Performance expectations will be reviewed and adjusted in January, July and October. The NTEU shall be notified sufficiently in advance to prepare independent analysis and participate in these periodic reviews and adjustments. 5. No performance expectation may be established unless it is based upon an already achieved reasonable level of performance. Recognizing the unique qualities of individual employees, and such performance expectation shall be no more than a guide for supervisory personnel and thereby serve as a counseling tool only. 17. The implementation date of June 11 was delayed so Respondent could study the Union's proposals. By letter dated June 25, Director Morrill wrote Hudson that the Union's proposals would limit management's right to establish the level of expectation and to remove or reduce employees in grade; that as to the procedures to be used in processing actions and the appeal rights available, no change occurred with the publication of the expectations; that Respondent would not negotiate regarding the substance of the expectations, already existing procedures, or the right to take adverse action. The letter also indicated the standards would be implemented on July 2. /15/ 18. In an attempt to clarify his letter of June 25, Morrill wrote Hudson again on June 29 confirming Respondent's refusal to negotiate the substance of performance expectations, the right to take adverse action, or already existing procedures. 19. Record facts disclose that prior to the implementation of performance expectations, it was not customary to adopt adverse action procedures when employees performed poorly or at low levels of production. Employees who performed unacceptably were downgraded voluntarily, although they would be offered a higher step than if action was to be taken against them. Subsequent to the adoption of the performance expectations the procedure formerly adhered to was discontinued. 20. As a result of the implementation of performance expectations in all branches, some employees were adversely affected. Thus, there were individuals who were denied within grade increases; some were removed from their positions and others were downgraded-- all for failure to meet performance standards. /16/ CONCLUSIONS It is asserted by the General Counsel that Respondent ran afoul of the Act herein in two essential respects: (a) the implementation of the performance expectations by management in the three branches (Receipt and Control, Examination, and Input Perfection) of the Processing Division on February 8, 12, 13, 1979 respectively was unilateral in nature; that the standards were implemented without affording the Union an opportunity to bargain regarding their impact and the procedure to be followed. By so doing, it is insisted, Respondent did not meet its obligation to bargain and violated Sections 7116(a)(1) and (5) of the Act; (b) management, since June 25, 1979, also refused to bargain regarding the impact and procedures for implementing performance standards in the three branches (Taxpayer Relations, Research, and Exempt Organization) of the Taxpayer Service Division; and the said standards were unilaterally implemented on or about July 2, 1979 without affording the Union an opportunity to negotiate regarding its impact and procedure, thereby failing to meet its obligation to bargain and violating Sections 7116(a)(1) and (5) of the Act. (a) It is a well entrenched principle in the public sector that, despite management's right to make certain decisions as to personnel practices, practices, or working conditions, it has certain obligations with respect to the impact and implementation of actions taken in regard thereto. Thus, it must provide the bargaining representative reasonable notice of the proposed action, and thereby afford the representative an opportunity to bargain with respect to its impact and implementation. Internal Revenue Service (IRS) and Brooklyn District Office, IRS, 2 FLRA No. 76; Federal Railroad Administration, 4 A/SLMR 497. By the same token, a duty revolves upon the union, after it has received such notification, to request negotiations or bargaining as to the impact and implementation of management's contemplated action. A failure to do so will exculpate the agency from blame for refusing to bargain regarding action taken concerning working conditions. Department of Health, Education and Welfare, Social Security Administration, BRSI, Northeastern Program Service Center, 8 A/SLMR 188. In the case at bar both parties focus considerable argument on the events which occurred on February 1 at the Service Center. With respect to the conversation in the lobby on that date concerning the performance expectations, I am not persuaded that Respondent's advertence thereto constituted proper notification of its proposed institution of performance expectations. Management's representative Concannon and the union agents met casually that day at the Center. No meeting was scheduled to discuss the proposed action. Further, Respondent's official confined his notification to stating that the employer wanted to implement the standards in the designated branches of the Processing Division. No specifics were forthcoming since Concannon intended to present the bargaining agent with details of the expectations. Note is taken of the decision in Jacksonville District, Internal Revenue Service, Jacksonville, Florida, 7 A/SLMR 758 where, at a meeting between representatives of management and the Union, a passing reference was made to a proposed change in a testing program. It was mentioned at the meeting that quality control would be achieved, in part, through a series of pre-tests and post-tests. It was held that the agency failed to give adequate notice to the Union of a change in the testing program to enable the bargaining representative to bargain in a meaningful manner regarding its impact and implementation. The passing reference to the new testing plans was not precise nor sufficiently detailed. In the case at bar Respondent did announce on February 1 its intention to put into effect performance standards. However, it gave no particulars to the Union nor did it state when they would be enforced. In the case of Department of the Treasury, Internal Revenue Service, Indianapolis, Indiana, A/SLMR No. 909 a similar notification was held deficient. The agency therein informed the bargaining agent of its intention to reinstate security restrictions. It gave, however, no indication as to when this would occur nor other details in regard thereto. It was held that such notice did not afford the Union a reasonable opportunity to bargain over the procedures or impact of its decision. Based on the foregoing, I conclude that Respondent's reference in the lobby on February 1 to its "wanting" to implement performance expectation was not sufficiently precise so as to constitute adequate notification; that it did not, on that date, comply with its obligation to afford the Union specific notice of its intention and provide it with an opportunity to bargain under the Statute. Notwithstanding its failure to give adequate notification to the Union herein on February 1, it is apparent that the employer did fulfill its obligation in this regard on the following day. Thus, on February 2 management presented Union President Hudson with a detailed copy of the proposed standards, and Concannon told Hudson that they would be implemented next week. I am satisfied, and conclude, that Respondent gave specific notice to the Union on February 2 as to its proposed standards. In order to establish a refusal to bargain on the part of an employer who institutes changes or new procedures in working conditions, the bargaining agent is obliged to request negotiations when it has been provided ample notification thereof. This well grounded rule has been followed by decisional law in the public sector, and a failure to make such request or demand with absolve an employer from any alleged violation in that regard under the Statute. U.S. Department of Air Force, Air Force Systems Command, Electronic System Division, Hanscom AFB, 5 FLRA No. 88. Where management notifies the Union of a forthcoming change, it is incumbent on the latter to avail itself of this opportunity and request to meet and confer or be granted additional time to consider proposed changes. Department of the Navy, Portsmouth Naval Shipyard, A/SLMR No. 508. General Counsel argues that Rogers made a demand on February 1 when he met Concannon in the lobby and the latter referred to the expectations. Having concluded that Respondent did not give adequate notification to the Union on that date of its proposed standards, I find it difficult to determine that a demand to negotiate was made by Rogers at that time. Since no particulars were mentioned and no time of implementation was specified, the statement by the Union attorney that he wanted to bargain over any standards which might be effected was, in my opinion, anticipatory or inchoate in nature. It could not relate to nor be based upon a proper notice of action to be taken by management, nor did it specify that the Union desired to bargain as to either the procedures or the impact of such expectations. See Department of Health, Education and Welfare, Social Security Administration, BRSI, Northeastern Program Service Center, supra, where the complaint was dismissed since no evidence appeared that the Union requested bargaining on impact and implementation. Consideration must be given as to whether, in any event, the Union herein was afforded, on February 2, a reasonable opportunity to demand bargaining on the performance standards. Record facts reveal the expectations were implemented on February 8, 12, 13 in the respective branches of the Processing Division. While General Counsel insists the Union was not afforded sufficient time to study the proposed standards, I am constrained to find to the contrary. About six days elapsed between the date the expectations were provided Hudson and their implementation in the Receipt and Control Branch; ten days passed before they were implemented in the Input Perfection Branch. Nevertheless no proposals were submitted by the Union prior to implementation, and no demands for negotiations were made until March 9-- one month after Respondent gave the Union specific notification, along with a copy, of the performance expectations. A case arising in the public sector held that a union had been afforded ample opportunity to request bargaining were it learned of a planned change in work hours five days in advance thereof. Southeast Exchange Region of the Army and Air Force Exchange Service, Rosewood Warehouse, Columbia, S.C., A/SLMR No. 656. /17/ In the instant case Union president Hudson expressly declared to Concannon on February 2 that she was not present at the meeting to negotiate or discuss the expectations; that she was there merely to receive the written standards which management proposed to implement. Thus, except for the incipient request made on February 1-- which I have rejected as a proper and sufficient demand to bargain-- the Union herein has failed to make a proper negotiating demand prior to the implementation of the standards. Moreover, I am constrained to conclude that the interim periods of six, ten, and eleven days between notification and implementation afforded the Union herein ample opportunity to request that Respondent meet and negotiate with respect to the impact and implementation of such performance expectations. Accordingly, I conclude that since no such demand was made after February 2 and prior to implementation, Respondent did not violate Section 7116(a)(1) and (5) of the Act when it put the standards in effect in the Processing Division. See Department of the Army, U.S. Military Academy, West Point, N.Y., A/SLMR No. 1138. (b) In respect to the implementation of the performance standards in the Taxpayer Service Division, Respondent concedes it refused to bargain regarding the written demands by the Union sent to the employer on June 8. It takes the position, however, that the proposals were either non-bargainable under the Act, or were not impacted upon by the expectations, or involved no changes allowing for mid-term negotiations under the contract. The Authority has issued several cases which discussed in depth the obligation by an agency to bargain concerning proposals by a union where performance expectations are developed and implemented by management. See Office of Personnel Management, Washington, D.C., 3 FLRA No. 120; Department of the Treasury, Bureau of the Public Debt, 3 FLRA No. 119. Both of these cases, which involve decisions on negotiability issues, make it clear that an agency is not obliged to bargain over union proposals which require negotiation as to the establishment and content of performance standards. Despite the fact that the Civil Service Reform Act provides, under 5 U.S.C. 4302, that each agency shall develop performance appraisal systems and encourage employee participation in establishing same, the identification of critical elements and the establishment of standards are not negotiable. Proposals of this nature, which could concern the quantity, quality, and timeliness of an employee's production, would interfere with management's rights under Section 7106 of the Act. Under this section management has the express right, inter alia, to assign and direct the work of its employees. Proposals which require the bargaining agent to approve performance standards, or involve modification of the standards established by the agency, infringe upon such management rights set forth in Section 7106. Nevertheless, the cited cases also make it clear that an agency cannot refuse to bargain on any and all matters which pertain to performance expectations. Thus, management can be called upon to negotiate proposals dealing with the form of employee participation in establishing the standards. In addition, the employer must bargain regarding the procedures related to the identification of critical elements and the establishment of performance standards, as well as appropriate arrangements for employees adversely affected by actions taken under those standards. Further, an employee, against whom disciplinary action has been taken for unacceptable performance, has the right to challenge this action under appellate procedures or the negotiated grievance procedure. In the case at bar the Union submitted various proposals which it requested should be the subjects of bargaining before the Respondent implemented the performance expectations in the Taxpayer Service Division. These form the basis of the pending dispute between the parties as to their negotiability and the justifications of Respondent's refusal to bargain in regard thereto. It is thus necessary to examine those demands to determine whether they may be deemed management rights within the meaning of Section 7106 of the Statute. They are as follows: /18/ 1. "ESTABLISHING PERFORMANCE EXPECTATIONS" The substance of this proposal requires that both the Union and management agree on the performance standard to be established. A level of expectation, under this provision, must be sanctioned by the bargaining agent before it could become a standard of performance. Levels of performance may comprise the quantity and quality of work needed from employees to achieve the agency's function and its mission. In Office of Personnel Management, 7 FLRA No. 88 the Authority decided that a proposal which requires performance standards and critical elements to be "agreed to" is non-negotiable. Consistent with its holding in Bureau of Public Debt, supra, the Authority concluded that such a proposal flies in the face of Section 7106(a)(2)(A) and (B) of the Act. In the instant case the Union's proposal, as set forth above, calls for agreement by both parties as to the proper level of expectations. It thus infringes upon management's right to establish the standards-- and thereby assign and direct the work of the employees provided under the Statute. Further, it interferes with the employer's right to identify the critical elements which are essential to a proper performance of the job by the employee. To preclude the implementation of a performance expectation, unless the Union is in accord with its attainability and reasonableness, is equatable with making the bargaining agent a partner in establishing the standard. Accordingly, I conclude management was not obligated to bargain regarding this proposal; and its refusal to do so was not violative of Section 7116(a)(1) and (5) of the Act. 2. "APPEALS OF PERSONNEL ACTIONS" It is argued by General Counsel that this proposal, along with other proposals as hereinafter mentioned, deal with provisions for employees adversely affected by the performance expectations. As such, this demand allegedly falls within the ambit of bargainable matters involving such standards, as set forth in Bureau of the Public Debt and Office of Personnel Management, supra. While it is true that this proposal refers to adverse actions resulting from the implementation of the performance standards, it must be viewed in light of the statutory language regarding procedures for filing grievances. Thus, Section 7121(e)(1) of the Statute, entitled "Grievance Procedures", professes in pertinent part as follows: "Matters covered under Sections 4304 and 7512 of this title which also fall within the coverage of the negotiated grievance procedure may, in the discretion of the aggrieved employee, be raised either under the appellate procedures of section 7701 of this title or under the negotiated grievance procedure, but not under both . . . ." Under this statutory provision an aggrieved employee is given certain options provided the matter, concerning which he is aggrieved, is covered by both Section 4303 of the Civil Service Reform Act and the negotiated grievance procedure. In such instances he may raise any action taken against him for unacceptable performance, as outlined in 4303, by appealing to the Merit System Protection Board /19/ or by filing a grievance under the negotiated agreement between the union and the agency. In the case at bar it would appear that any adverse action taken against an employee by Respondent based on his failure to achieve performance expectation would constitute a 'matter' within the language of Section 7121(e)(1) of the Act. This is so because Section 4303 of the Civil Service Reform Act, entitled "Actions based on unacceptable performance", deals with disciplinary acts which may be taken against an employee for such unsatisfactory work performance. An individual employee who fails to achieve the performance standards set by Respondent, and is disciplined therefor, may come within the coverage of Section 7121(e)(1) of the Act. Thus, if a negotiated grievance procedure exists covering such discipline for failure to meet performance expectations, the employee may, under 7121, exercise his options by filing an appeal to the MSPB or filing a grievance under the contract. Turning to the negotiated agreement between the parties herein, I am persuaded that the document does cover adverse actions taken against an employee based on unacceptable performance. Under Article 32 (Adverse Actions) of the agreement provision is made for disciplinary conduct towards employees. Section 1A thereof states that "an adverse action, for the purpose of this Article, is defined as a reduction in grade or pay, a removal, a suspension for more than thirty (30) days, or a furlough of a permanent employee without pay". That this Article is intended to cover adverse actions resulting from unacceptable performance is apparent from the wording in Section 5 thereof. The latter section bespeaks of instances where an employee who is the subject of adverse action for reasons of inefficiency files for disability retirement. Further, Article 33 (Grievance Procedure) contains detailed provisions and processing grievances covering "personnel policies, practices and matters affecting working conditions". Thus, I would construe the negotiated grievance procedure, together with the provisions regarding adverse actions taken against employees, as covering a matter involving disciplinary action directed toward an employee for unacceptable work performance or a failure to meet performance expectations. /20/ In the instant case, the Union proposal requires that the employee process all appeals from adverse actions, which result from a failure to meet performance standards, through the contractual grievance procedure. As such, the provision runs counter to Section 7121(e)(1) of the Act which affords an option to the aggrieved employee to take such route or appeal to the MSPB under 4303, as aforesaid. Therefore, since the proposal would violate 7121(e), it would not be within the duty of the Respondent to bargain. Accordingly, I conclude the agency herein did not violate Section 7116(a)(1) or (5) by refusing to negotiate as to this proposal. 3. "MINIMUM ADVERSE ACTION PROCEDURES" This proposal sets forth ten different steps which management must take before it can remove an employee from his position for failure to meet performance expectations. The prescribed course of conduct proposed by the Union calls for such mandatory actions by the Respondent before the employee may be removed, such as (a) counselling and having the deficient employee, (b) placing him on probation and counselling him until he achieves the expectations, (c) offering him a less demanding position without reduction in pay, (d) offering him such a position with a reduction in pay, (e) oral admonishment, (f) written reprimand, (g) a seven day suspension, (h) a fourteen day suspension, (i) an opportunity to resign. In each instance a specific number of days must elapse (30 or 60 days as specified) before the next adverse action may be taken against the employee-- and then only if the individual still fails to achieve the expectations. In respect to this proposal, the central issue is whether it conflicts with a management right provided in Section 7106(a)(2)(A) of the Act. The latter section provides, in pertinent part: 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-- (b) in accordance with applicable laws-- (A) . . . to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees. This statutory provision preserves the right of management to discipline an employee. Any proposal which would prohibit such disciplinary action by the employer would be contrary to the aforesaid section of the statute. As such it would not be a bargainable matter. See, Internal Revenue Service, 6 FLRA No. 88. In the case at bar I am satisfied that the collective adverse actions imposed by the Union would affect Respondent's authority to discipline employees. Each sequential step advocated by the bargaining agent involved another adverse action, i.e. discipline, which must be taken by management when an employee fails to achieve the performance standards. Respondent may not, at its discretion, exercise its right to remove the employee until it has undertaken the disciplinary action set forth by the Union. The imposition by the latter of the adverse actions which must be taken by the employer would necessarily operate as a restraint upon management's right to effect its disciplinary authority. In essence, the Union is compelling Respondent to discipline the employee (who fails to achieve the standards) in the manner specified by the bargaining agent. This imposition of discipline is, in my opinion, scarcely consistent with Section 7106(a)(2)(A) of the Act. Further, as a practical matter, it renders ineffective any decision to remove an employee for not achieving the expectations. An inordinate amount of time will pass before the employer is enabled, under this proposal, to terminate the individual. At least 580 days must pass before Respondent could remove an employee for failing to meet the standards. In Internal Revenue Service, supra, the union therein proposed that no employee could be disciplined as long as the individual was an active participant in a recognized drug/alcoholism program; and it further proposed that any disciplinary action be stayed if the employee entered such program. The Authority concluded these proposals were inconsistent with the agency's authority to discipline employees under 7106(a)(2)(A) of the Act. While I recognize that the Respondent herein is not wholly precluded from disciplining employees who do not achieve the expectations, the proposals in the instant case do restrict the exercise of certain adverse action toward the individual. The preclusion is, in reality, one of degree since the employer may not remove an employee upon the failure of the latter to perform as required. Based upon the foregoing, I am constrained to conclude the said proposals involving minimum adverse action procedures do conflict with Section 7106(a)(2)(A) of the Act; that the duty to bargain does not extend thereto; and that Respondent did not violate Section 7116(a)(1) and (5) of the Statute for refusing to negotiate with regard thereto. 4. "AWARDS" The Union has proposed that any employee who meets or exceeds performance expectations shall be eligible for awards. Further, its proposal states that awards shall be determined by their nature and size; that they be set by an Awards Committee composed of a delegate from the Union and a delegate from the Service Center. It is argued by the Respondent that its award procedure was not changed by management when it instituted these expectations. An examination of the negotiated agreement fails to reveal any award system covering the awards for work performance. Article 7, Section 2 provides for achievement awards in performing higher grade dates. But this provision relates to temporary assignments of employees to work on positions which may be different or higher graded than his regular position. As such, I find it inapplicable herein. Regulations have been promulgated when do govern incentive awards for government employees. Chapter 451 (Incentive Awards) of the Federal Personnel Manual (FPM) sets forth various provisions regulating the granting of awards. These regulations cover awards linked with performance appraisal systems. /21/ It is noted that it is the purpose of the Incentive Award program, as set forth under 451.1-2 of the FPM, to reward employees whose job performances are substantially above normal job requirements. Moreover, under 451.1-4 it is provided that agencies shall design awards program that will recognize special acts or services that substantially exceed normal standards expectations. It thus appears that the awards sanctioned under the government-wide regulations are for services beyond the normal requirements as expectations of the employee. The FPM bespeaks of superior performance as a prerequisite for an award involving work performed. The Union herein has proposed granting awards to employees who meet or exceed performance standards. Granting an award to an employee who performs at the level of competence required would be inconsistent with the spirit and language of the aforesaid regulations. The latter makes no provision for granting awards to employees who merely meet the performance expectations. In Bureau of the Public Debt, supra, the union therein proposed that the standard for eligibility to receive within-grade increases for certain clerks should be the same as the standard of performance for job retention. The Authority concludes this proposal was inconsistent with an OPM regulation 531.407 (Work of an acceptable level of competence). The regulation requires that a performance level sufficient to receive a within-grade increase must exceed the level which is merely adequate for job retention. Thus, the proposal was deemed outside the duty to bargain. While not involving an incentive award, the cited case is supportive of the view that, when the regulation limits granting benefits to employees whose work performance exceeds the expected level of competence, a proposal which grants awards to individuals who just meet such level would be non-negotiable. I so conclude. Note is also taken of the language in 451.3-3 of the FPM which recites that "the decision to grant or not to grant an award . . . is a management prerogative, thus, is not grievable". Under the language submitted by the Union herein, management could not grant awards without consent of the delegate representing the bargaining agent. As proposed by the Union, awards must occur by mutual agreement of both parties. It would appear to the undersigned that this proposal flies in the face of the regulation cited above. The express declaration, as set forth in the agency-wide regulation, would confine to management the decision as to granting or denying an incentive award. Concurrence by the Union, or its determinative, with respect to bestowing awards is not within the framework of the regulation as aforesaid. Based on the foregoing, I conclude the Union proposal with respect to Awards is non-negotiable-- that Respondent did not violate Sections 7116(a)(1) and (5) by refusing to bargain regarding such proposal. 5. INABILITY TO MEET STANDARDS AS NOT DETERMINATIVE OF RATINGS, WITHIN-GRADE INCREASES, NON-COMPETITIVE PROMOTIONS It is proposed by the Union that an employee's inability to successfully meet performance standards should not be determinative of: (a) his annual performance rating, (b) his performance for within-grade increases, and (c) non-competitive promotions. In other words, if the employer adheres to this proposal, an employee would still be eligible for-- and possibly entitled to-- a satisfactory rating, a within-grade increase, or a promotion despite his failure to meet performance expectations. The thrust of the FPM, as it relates to rewarding employees for work performance, refers to achievements beyond the norm set up for performing duties. As hereinbefore noted, the Authority found a union proposal, which would allow within-grade increases based on a standard of performance similar to that needed for job retention, as inconsistent with regulation 531.407. Under the latter an employee is obliged to exceed the level of acceptable competence. Under the proposal herein, an employee could be considered for a within-grade increase if he did not even meet the performance standards. This would run counter to the agency-wide regulation and, under the Bureau of Debt case, supra, is not a bargainable matter under the Act. Further, as I read the provisions regarding the establishment of Performance Ratings under FPM Section 430.201 et seq., and the provisions regarding Promotion in Chapter 335 thereof, no satisfactory rating or promotion is warranted when an employee fails to at least meet performance standards. The impact of the Union's proposals under consideration allows an employee to obtain such a rating, or promotion, even though he fails to meet the standards. Such a conclusion renders the standards ineffective and inoperative. Adoption of this proposal is tantamount to permitting the establishment of the expectations, but denying the use thereof. In such a posture, this proposal is non-negotiable, and I conclude Respondent has not violated Sections 7116(a)(1) and (5) by refusing to bargain concerning same. 6. ACCEPTABLE LEVELS OF COMPETENCE DETERMINATIONS This proposal is listed on the separate page entitled "PERFORMANCE EXPECTATIONS" of GC Exhibit 18 as item number 3. It is the verbatim wording found in Article 9. Section 1 of the negotiated agreement which exists between the Union and Respondent. Hence, I found no obligation existed on the part of management to bargain in respect to this proposal. 7. REVIEW AND ADJUSTMENT OF PERFORMANCE EXPECTATIONS /22/ The Union has proposed that performance expectations be reviewed and adjusted in January, July and October; that NTEU shall be notified sufficiently in advance to prepare independent analysis and participate in those periodic reviews and adjustments. It would appear that, under this proposal, the bargaining agent seeks to confer three times per year regarding the adjustment of the standards established by Respondent. While I would find nothing inconsistent with the Statute or regulations in the proposed review of the standards, the language employed by the Union suggests something more than a periodic examination of the expectations. Under this proposal the bargaining agent advocates an adjustment of the standards in the months mentioned by it. Further, the Union proposed that it participate in the adjustment. The latter term, in my opinion, connotes a change or alteration in the expectations. In Office of Personnel Management, New York Regional Office, 7 FLRA No. 77 the union proposed that it "participate on an equal basis in the development or revision of all measures of performance and studies . . . ." The Authority held this proposal to be outside the duty to bargain under 7106(a)(2)(A) of the Act. It is true that the proposal in the instant matter does not refer to the "development" of the standards. However, it contemplates adjustments thereto, which I perceive as being equAtable with "revisions" to the expectations. Thus, under the cited case the Union would not be permitted to participate in adjusting or revising the standards, and management should not be obligated to bargain concerning this proposal. Hence, I find no violation of Section 7116(a)(1) and (5) of the Act in Respondent's refusal to negotiate in respect thereto. 5. BASIS OF ESTABLISHMENT OF PERFORMANCE EXPECTATION-- ITS USE AS A GUIDE AND COUNSELING TOOL /23/ This proposal requires that the performance expectation not be established unless it be based upon an "already achieved reasonable level of performance; that it be no more than a guide for supervisory personnel and used only as a counseling tool. The Office of Personnel Management has defined the term "performance standard" as the expressed measure of the level of achievement established by management for the duties and responsibilities of a position or group of positions. /24/ These standards are then utilized by management in determining the quality, quantity, and timeliness of work required of employees. The particulars proposed herein would place a limitation upon the establishment by management of the performance expectation. It does not relate to procedures to be observed by management in exercising its authority, but goes to the institution of the standards. The development of the latter is not only a responsibility of management under 5 U.S.C. 4302. It is also an integral part of its right to assign and direct the work of employees under 7106(a)(2)(B) of the Act. In the case at bar the Union would restrict the establishment of the standard to one already achieved. If adopted, this proposal would interfere with anagement's right to establish the expectation, /25/ and thus be outside the duty to bargain. See Bureau of the Public Debt, supra. Further, it is proposed by the Union that the performance expectations be used only as a guide for supervisors, and that they serve merely as a counseling tool. Both the LSRA and the FPM reflect that the performance standards are to have a wider use than advocated by this proposal. All within-grade increases, awards, and promotions are based on the performance by employees. Under the limitation set forth by the Union, the standards would lose their efficacy, have no especial significance in determining action to be taken regarding employees, and would render meaningless their establishment. Apart from infringing upon management's right to direct employees, and assign work to them, under Section 7106 of the Act, the prohibitive use of these expectations is inconsistent with the legislative directives and the agency-wide regulations. Accordingly, I conclude this particular proposal does not form the subject of mandatory bargaining, and Respondent did not violate the Act by failing to negotiate in this regard. The cases cited by the undersigned herein do acknowledge that, in respect to performance standards, there is-- and must be-- areas which require management to bargain thereon. Certainly there may be matters which the Union, in the case at bar, is entitled to demand Respondent negotiate in regard to the performance expectations. However, I am constrained to conclude that, as framed, the proposals herein are inconsistent with the obligations imposed on management under the Statute and the Regulations. They neither deal with procedures to be observed leading to the standards or this implementation, nor to proper adverse effects upon employees. In view of the foregoing, I conclude Respondent by failing and refusing to negotiate the impact and implementation of its performance expectations issued in the Data Processing Division on February 8, 12, and 13, 1979 did not violate Sections 7116(a)(1) and (5) of the Act: that Respondent did not so violate the Act by refusing to bargain regarding the Union's performance expectations proposals as to the Taxpayers Service Division submitted on June 8, 1979, nor did it violate the Act by its implementation on July 2, 1979 of such performance expectations for said Taxpayers Service Division without negotiating with the Union regarding the latter's proposals concerning said standards. Accordingly, I recommend the complaint in Case No. 23-CA-194 be dismissed in its entirety. WILLIAM NAIMARK Administrative Law Judge Dated: February 26, 1982 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ Section 7116(a)(1) and (5) provides: Sec. 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for 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/ See, e.g., Internal Revenue Service (District, Region and National Office Unit and Service Center Unit), 10 FLRA 326 (1982). /3/ See General Services Administration, 15 FLRA No. 6 (1984). /4/ The Authority disagrees with the Judge's findings that the delay Respondent would incur in removing employees could prevent it from acting at all. In this regard, it is well established that delay does not prevent management from ultimately taking removal actions against employees. American Federation of Government Employees, AFL-CIO, Local 1999 and Army-Air Force Exchange Service, Dix-McGuire Exchange, Fort Dix, New Jersey, 2 FLRA 153 (1979), enf'd sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). /5/ The charge in Case No. 3-CA-368 also named the Philadelphia Service Center as the particular location involved. /6/ Subsequent to the hearing Respondent's counsel notified the undersigned in writing that a significant error appeared on page 109 of the transcript: Line 12 on page 109 should reflect the correct date as June 11, 1979 and not July 11, 1979. The undersigned will treat the notification as a motion to correct the transcript. Accordingly, the motion is granted, and the transcript is corrected as follows: The date July 11, 1979 appearing on Line 12 of page 109 is changed to June 11, 1979. /7/ Article 34 contains a detailed procedure for arbitration of decisions which may be so appealed. /8/ The performance expectations for the Data Conversion Branch were, in fact, implemented on November 27, 1978. /9/ These individuals were participants in the meetings which took place in 1978, as heretofore described. /10/ Unless otherwise indicated, all dates hereinafter mentioned occur in 1979. /11/ While Hudson testified that Union attorney Rogers told Concannon the Union wanted to bargain also over the impact and implementation of the standards, I make no such finding. Such testimony is at odds with Rogers' version, as well as Concannon's, of what was said by the Union attorney. /12/ The testimony of Hudson reflects that no response was made by Concannon to Rogers' statement concerning the Union's desire to bargain regarding the performance expectation. In view of the contrary testimony of both Rogers and Concannon, Hudson is discredited in this regard. /13/ The Expectations for the Taxpayer Relations Branch stated that there were other expectations dealing with such areas as case management, use of average listings, and compliance with Rules of Conduct and Security. /14/ The letter identified the expectations as those given to the Union on May 4. /15/ The performance expectations were implemented in the Taxpayer Service Division on that date. /16/ Testimony to this effect adduced by the General Counsel was not rebutted or contradicted by Respondent. /17/ Respondent in the cited case failed to give formal notice of a change in work hours. However, the bargaining agent was made aware of the contemplated change at a meeting and the matter discussed thereat. Thus, it was concluded that the union had reasonable notice and opportunity to request bargaining as to procedures involved and the impact of the decision. /18/ The proposals made by the Union to Respondent are not quoted verbatim. Set forth herein is the substance of each principal demand and a summarization thereof. /19/ 5 U.S.C. 7701. /20/ Note has been taken of Case No. O-PS-2, Interpretation and Guidance, 2 FLRA No. 32 which states that parties may continue to maintain negotiated grievance procedures negotiated under Executive Order 11491, as amended despite Section 7121 of the Act. It is also noted that Article 33, Section 2B of the contract herein provides that the grievance procedure will be the only procedure available to employees for processing of grievances under that Article. I do not construe this provision as precluding the aggrieved employee from resorting to appellate procedures (MSPB) when adverse action has been taken against him for not meeting performance standards. Such a recourse is outside the contract and beyond the limitation power of the parties. Further, I do not believe that Case No. O-PS-2 was intended to permit applicability of a negotiated grievance procedure-- even if it did limit an employee's rights-- where changes are made in working conditions or terms of employment (not provided for in the agreement) subsequent to the execution of such agreement. /21/ Federal Personnel Manual Bulletins 451-21, June 17, 1980, and July 3, 1980. /22/ Item No. 4 on separate page of GC 18 entitled "Performance Expectations". /23/ Item No. 5 on separate page of GC 18 entitled "PERFORMANCE EXPECTATIONS". /24/ 5 C.F.R. 430.202(d) and (e). /25/ In its brief General Counsel recites that a basic objective of the Union was to have the performance standards bilaterally established.