19:0192(20)CA - Army Corps of Engineers, Kansas City District, Kansas City, MO and AFFE Local 29 -- 1985 FLRAdec CA
[ v19 p192 ]
The decision of the Authority follows:
19 FLRA No. 20 U.S. ARMY CORPS OF ENGINEERS KANSAS CITY DISTRICT KANSAS CITY, MISSOURI Respondent and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 29 Charging Party Case No. 7-CA-30445 DECISION AND ORDER This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations 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, accompanying exhibits, and the parties' contentions, the Authority finds: At all times material herein, the National Federation of Federal Employees, Local 29 (the Union) has been the certified exclusive representative of a unit consisting of all nonprofessional employees of the U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri (the Respondent). At all times material herein, the Respondent and the Union have been parties to a collective bargaining agreement, effective July 31, 1981. A supplemental agreement to this contract, effective December 8, 1981, covers the subject of the general performance appraisal system. On or about April 25, 1983, the Respondent refused to give a new performance appraisal rating to a bargaining unit employee who had been serving as the Union's chief steward, leaving in effect her current fully successful rating, because she had not performed work duties for 120 days during the rating period, as required for appraisal. Since July 1, 1982, this employee had been on official time for the performance of representational duties for nearly 100 percent of her work time. On April 26, 1983, during the term of the parties' agreement, the Union requested to meet with the Respondent and bargain about the procedures to be used for unit employees who did not receive annual performance appraisal ratings because they were not personally observed by their supervisor for 120 days during a rating period due to extensive amounts of official time used during the period. The Respondent refused to bargain over this matter, which the parties have stipulated had not been considered, discussed, or negotiated during the negotiations leading to their current agreement. On June 15, 1983, the Union filed the unfair labor practice charge that gave rise to the instant complaint, which alleges that the Respondent's refusal to bargain over this matter constituted a violation of section 7116(a)(1) and (5) of the Statute. In Internal Revenue Service, 17 FLRA No. 103 (1985), issued subsequent to the parties' stipulation in this case, the Authority found, in part, as follows: . . . Congress intended that where parties are negotiating a basic collective bargaining agreement, the bargaining obligation shall exist with respect to negotiable proposals initiated by either agency management or the exclusive representative. However, outside this context, Congress intended the bargaining obligation to exist only with respect to changes in established conditions of employment proposed by management. This distinction indicates that other than negotiations leading to a basic collective bargaining agreement, there is no obligation to bargain over union-initiated proposals. (footnote omitted.) In the instant case, the record indicates that the Respondent and the Union were parties to a collective bargaining agreement. During the term of the agreement, the Union requested to bargain over performance appraisal procedures, as set forth above. It is neither alleged nor does the record establish that the Respondent either proposed or initiated a change in the existing performance appraisal procedures. /1/ While the parties' agreement contained a "reopener" provision that allowed negotiations on certain matters at "mid-term date of this contract," the record shows that "mid-term" occurred in January 1983. The matter here in question arose several months after January 1983. Thus, the Authority concludes that the Respondent was not obligated to bargain concerning the performance appraisal procedures involved at the time the Union's request was made, /2/ and that its failure to do so did not constitute a violation of section 7116(a)(1) or (5) of the Statute as alleged in the complaint. Accordingly, we shall order that the complaint be dismissed. ORDER IT IS ORDERED that the complaint in case No. 7-CA-30445 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., July 22, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ So far as the record shows, this precise problem had never before arisen, and we note the parties' stipulation that the matter was not considered or discussed during negotiations for their collective bargaining agreement. We specifically do not pass upon the meaning of the parties' agreement in this regard. /2/ Internal Revenue Service, supra. See also Missouri National Guard, Office of the Adjutant General, Jefferson City, Missouri, 18 FLRA No. 44 (1985). In view of this conclusion, we find it unnecessary to pass upon the question whether the subject matter of the Union's request to bargain was negotiable.