19:0192(20)CA - Army Corps of Engineers, Kansas City District, Kansas City, MO and AFFE Local 29 -- 1985 FLRAdec CA



[ v19 p192 ]
19:0192(20)CA
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,