19:0705(86)CA - Navy Northern Division, Naval Facilities Engineering Command and NFFE Local 1430 -- 1985 FLRAdec CA
[ v19 p705 ]
The decision of the Authority follows:
19 FLRA No. 86 DEPARTMENT OF THE NAVY NORTHERN DIVISION, NAVAL FACILITIES ENGINEERING COMMAND Respondent and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1430 Charging Party Case No. 2-CA-1091 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had engaged in certain unfair labor practices as alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. The Judge further found that the Respondent had not engaged in certain other unfair labor practices and recommended dismissal of that portion of the complaint. Thereafter, the Respondent and the General Counsel filed exceptions to the Judge's Decision. /1/ 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, only to the extent consistent herewith. The complaint in this case alleges, and the Judge found, that the Respondent violated section 7116(a)(1) and (5) of the Statute /2/ by unilaterally changing the functions of an Incentive Awards Committee, thereby changing an established past practice affecting unit employees' conditions of employment. The Judge concluded, relying on National Federation of Federal Employees, Local 541 and Veterans Administration Hospital, Long Beach, California, 12 FLRA 270 (1983), that the Respondent was obligated to bargain concerning its decision to alter the functions of the Incentive Awards Committee as well as upon the procedures to be observed and appropriate arrangements for employees adversely affected by the proposed changes, and he recommended a remedy restoring the status quo ante. We do not agree. Since 1974, the Respondent and National Federation of Government Employees, Local 1430 (the Union) have been parties to a series of collective bargaining agreements which provide for the establishment of an Incentive Awards Committee and for a non-participating Union observer on the Committee. The composition of the Committee, its authority, and the scope of matters that it was to consider were not set forth in any of those collective bargaining agreements. However, pursuant to those agreements, the Respondent established an Incentive Awards Committee, designated members, permitted a Union observer, and assigned the Committee authority to review proposed: (a) quality step increases; (b) sustained superior performance ratings; (c) outstanding awards; (d) unsatisfactory ratings; (e) beneficial suggestion awards; and (f) special achievement awards. The Committee's function was to advise and make recommendations to the Commanding Officer, who alone retained the authority to grant or deny an award. In late 1979, the Respondent proposed, and the Union agreed to, a one-year trial period during which the Committee would continue to advise and make recommendations to the Commanding Officer concerning special achievement awards, beneficial suggestion awards and unsatisfactory performance ratings, but the authority to approve quality step increases, sustained superior performance ratings and outstanding awards would be transferred from the Commanding Officer to the various department heads, and the Committee would have no authority to advise or make recommendations to the department heads concerning those matters. As the one-year trial period drew to a close, the Respondent sought to make the change permanent, and the Union sought to revert to the former method of operation. Thus, between October 1980 and April 1981, the Respondent and the Union met on numerous occasions and discussed the scope of the Committee's functions, and the Respondent resisted every Union effort to expand the Committee's functions back to what they had been before the trial period. Throughout, the Respondent expressed its willingness to negotiate concerning the impact and implementation of its decision to narrow the functions of the Incentive Awards Committee, but refused to bargain concerning the decision to make permanent the change in the Committee's functions. Finally, on June 24, 1981, the Respondent issued a notice which, in effect, unilaterally made permanent the nature of the Committee as it existed during and since the trial period. The Authority has held that the designation of critical elements and performance standards is a matter which is outside the duty to bargain because it is within management's authority to direct its employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. /3/ Similarly, the determination as to whether particular performance warrants granting an incentive award is within management's authority to direct employees and assign work. /4/ It is clear from the record that the Incentive Awards Committee in the instant case performed a substantive role in determining whether certain performance warranted an incentive award. Specifically, in this regard, the Committee both reviewed proposals for awards and made recommendations concerning those awards. A union role on a committee with such a function directly interferes with management's reserved rights under section 7106(a)(2)(A) and (B) of the Statute, /5/ even if the union role is limited to observation. /6/ Thus, the issue of the scope of the Incentive Awards Committee's authority and that of final decision-making authority with regard to recommended performance-based awards, both of which were the subject matter of the change in question, were outside management's duty to bargain. /7/ In this regard, the instant case is distinguishable from cases wherein the Authority has found proposals concerning union participation on joint labor-management committees to be negotiable. In those cases, the committees which were at issue did not function as part of the decision-making process whereby management exercised its rights under the Statute. Rather, they merely purported to provide a way for the union to communicate its views, e.g., to make recommendations to management with respect to management decisions. See, e.g., National Treasury Employees Union and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA 255, 262-63 (1979); American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation Chicago Region, Illinois, 7 FLRA 217, 229-30 (1981). Of course, the establishment of joint labor-management committees to deal with matters that do not concern the exercise of management's rights would be negotiable, if otherwise consistent with applicable law and regulations. Since the Respondent did not fail or refuse to bargain about the impact and implementation of its decision, and since it was not required to bargain about the decision itself, it did not violate section 7116(a)(1) and (5) of the Statute by unilaterally changing the functions of the Incentive Awards Committee. Accordingly, the complaint must be dismissed. ORDER IT IS ORDERED that the allegation of the complaint in Case No. 2-CA-1091 be, and it hereby is, dismissed. Issued, Washington, D.C., August 12, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 2-CA-1091 Geoffrey D. Spinks For the Respondent Robert J. Fabii, Esq. For the General Counsel Before: WILLIAM NAIMARK Administrative Law Judge DECISION /8/ Statement of the Case Pursuant to an Amended Complaint and Notice of Hearing issued on October 27, 1982 by the Regional Director of the Federal Labor Relations Authority, New York, N.Y., a hearing was held before the undersigned at Philadelphia, Pennsylvania on January 25, 1983. This case arises under the Federal Service Labor-Management Relations Statute (herein called the Statute). It is based on a charge filed on July 15, 1981 by the National Federation of Federal Employees, Local 1430 (herein called the Union) against Department of the Navy, Northern Division, Naval Facilities Engineering Command (herein called Respondent). The amended complaint alleged, in substance, that on or about June 24, 1981 Respondent unilaterally implemented a change in the Incentive Awards/Performance Appraisal Committee functions without notifying the Union or affording it the opportunity to negotiate thereon. Further, that this change was implemented by Respondent while the dispute thereof was pending before the Federal Service Impasse Panel and prior to a final decision by the Panel. The foregoing conduct was alleged as violative of Section 7116(a)(1), (5) and (6) of the Statute. Respondent's answer, dated November 18, 1982, denied the aforesaid allegation of the complaint as well as the commission of any unfair labor practice. 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. Upon the entire record herein, from my observation 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, and still is, the exclusive bargaining representative of Respondent's non-supervisory professional employees in one unit, and of Respondent's non-supervisory non-professional employee in another unit. 2. Both the Union and Respondent were parties to a collective bargaining agreement which, by its terms, was effective from March 22, 1974 for a period of 2 years. The said agreement provided for its continuance until a new agreement was finalized. The Union and Respondent were parties to a subsequent collective bargaining agreement which, by its terms, was effective from December 19, 1977 for a period of 2 years. This also provided for its continuance if a new agreement was not finalized by the termination date. 3. Both of the aforesaid agreements provided, under Article 33, that the employer agrees to appoint Union members to the Incentive Awards/Performance Appraisal Committee-- one observer. Both of said agreement provided in Article 34 as follows: Incentive Awards/Performance Appraisal Committee "34.1 It is agreed by the parties that the Union may have an observer on the Incentive Awards/Performance Appraisal Committee and this observer will have no purview over the determination of performance ratings or quality step increases." 4. In accordance with these provisions Respondent established an Incentive Awards/Performance Appraisal Committee (herein called the Committee) and designated members to serve thereon. Since its creation, and until December 26, 1979-- when a change was made on a trial basis upon agreement with the Union as hereinafter described-- the functions of the Committee were to review proposed (a) Quality Step Increases, (b) Sustained Superior Performance Ratings, (c) Outstanding Awards, (d) Unsatisfactory Ratings, (e) Beneficial Suggestion Awards and (f) Special Achievement Awards. The Committee acted in an advisory capacity and made recommendations to the commanding officer who alone had the authority to grant or deny an award. 5. The Union member on the Committee acted as an observer and had no role in the determination as to whether awards or ratings, as recommended, would be granted. 6. Under date of November 21, 1979 Administrative Officer Roger Kearney sent a memorandum to Edward Patrucci, President of the Union herein. Enclosed in said memo were draft notices wherein Respondent proposed certain changes in respect to the Committee's functions. It was proposed that Quality Step Increases and Outstanding Performance Ratings be approved by line management-- department heads rather than the Commander. Further, the Committee would be expected to review only Special Achievement Awards (except individual awards based on Sustained Superior Performance of duties), Beneficial Suggestions recommended for awards of $351 or more, and employer Performance Ratings of Unsatisfactory. Kearney's memo stated that Respondent was proposing a "trial" period to insure careful consideration of its effect and impact. 7. In a reply memo dated November 28, 1979, Patrucci advised Kearney that the proposals impact on present union-management negotiations; that the proposals "must be in consonance with the terms of the final negotiated agreement." 8. Kearney replied to Patrucci in a memo dated November 28, 1979. He stated that he agreed fully with the Union Official; that an interim procedure was needed similar to what existed to process ongoing actions; and that Respondent wanted to "test a change in approval authority." Kearney further stated management would like Patrucci's support, and he suggested they could implement them without impacting contract negotiations. 9. Testimony by Patrucci reflects he agreed to a trial period from October 1979 to September 30, 1980 whereby line management would make the determinations proposed by Respondent; that he stated at various meetings with management that the Union wanted to revert back to the Committee System after the trial period. 10. Respondent issued NORTHNAVFACENGCOM Notices 12430 and 12451 on December 26, 1979 which set forth the changes in the functions of the Committee. Notice 12430 recited the purpose was "to establish, on a trial basis, policies and procedures concerning approval of Outstanding Performance Ratings and Quality Increases." Moreover, it stated the provisions of the Notice would remain in effect until September 30, 1980. 11. By virtue of the foregoing Respondent changed the functions of the Committee. It reduced the functions of the Committee to assisting the Commander re Special Achievement Awards, Beneficial Suggestion Awards and Unsatisfactory Performance Ratings. The Committee had no purview re Outstanding Performance Ratings, Quality Step Increases, and Sustained Superior Performance Awards. 12. During the trial period the parties were negotiating a new agreement. The latter became effective on October 26, 1980. It endured for 2 years with a continuation provision in the event no new agreement was finalized at the termination date. The same article (Articles 33 and 34.1), dealing with the appointment of a Union observer to the Committee, along with the provision that the observer would have no purview over the determination of Performance Ratings or Quality Step Increases, as were present in the 1974 and 1977 agreements, were contained in the 1980 agreement. 13. Between October 1980 and April 1981, the Union and Respondent had between 8-10 meetings at which they discussed the trial period arrangements. Management sought to retain as permanent the procedure whereby the department heads would approve Quality Step Increases, Sustained Superior Performance Awards, and Outstanding Performance Ratings. The Union wanted to revert back to the original contract and the Committee system of approval. It asked Respondent, during a November meeting, when management would return to that procedure, and the response was that the matter was being studied. /9/ 14. Record facts show that, at the aforesaid meetings, Respondent made no attempt to bargain as to the change itself in the Committee's functions which was made in December 1979 and continued thereafter. As Respondent's Labor-Management Representative John Emilkian testified: "Q. . . . did the terms negotiability come up during that time? "A. Well, yes, because we were negotiating the impact of the assessment (sic) and in that vein only. We were not negotiating to change the-- anything else. Just a portion." Management also informed the Union, during these discussions, that it was less costly to continue with the changed set-up, that in many cases time would be saved since awards were not made in the same fiscal year they were supposed to be made-- all of which impacted on the budget. 15. The Commanding officer of Respondent directed a memo, dated March 4, 1981, to the President of the Union entitled "Bargaining on the Results of the Trial Period of the Disestablishment of the Incentive Awards Committee." Management proposed therein (a) the employees would reestablish the Incentive Awards Committee following the previously agreed upon methods of choosing members; (b) the duties of the Committee will be to receive Beneficial Suggestions and recommend awards, review and recommend other awards, and act as a Review Board on grievances re Merit Ratings for employees GS 1-GS12. The memo further stated that the President of the Union would have the right to review merit ratings of such employees weekly to preclude evaluation delays. 16. Patrucci testified he did not accept such proposal made by the Commander and so informed management. Moreover, the Union official still desired to return to the Committee procedure as per the contract. 17. Under date of March 30, 1981 the Commander sent the President of the Union another memo which essentially reviewed Respondent's proposals as set forth in the March 4 memo. The Commander further indicated that the increased workload and the morale factors dictated the continuance of the "trial" procedure. He also stated that during discussions re the impact and effect of the change it was learned that the number of awards increased over 30 percent over prior periods; that it took less time to complete than before and it saved time by the participating employees. 18. The Union filed a Notice to the Mediation and Conciliation Service dated April 7, 1981 seeking assistance from said agency. However, no agreement was reached as a result thereof. 19. Thereafter, on May 5, 1981, the Union filed a request to consider a negotiation impasse with the Federal Service Impasses Panel. The Impasses Panel sent a letter dated June 10, 1981 to both parties directing them to: (a) submit to each other on June 26 written proposals on the impasse issue re performance appraisal committee, as well as the position of each party thereon with supporting evidence and argument; (b) submit on July 6 rebuttal briefs to each other. 20. Respondent issued NORTHNAVFACENGCOM Notice 12451 on June 24, 1981 which recited that, with respect to Incentive Awards, the Committee will (a) review and act in supervisory reports of Special Achievement Awards, except those for Sustained Superior Performance of duties, (b) no longer review Quality Increases, (c) evaluate and make recommendations on all Beneficial Suggestions recommended for awards of $351 or more. With respect to Performance Ratings, the Notice stated that the Committee will review and take final action on civilian employee ratings of "Unsatisfactory," and serve as an appeal board to review employee complaints re appraisals of individual performance. /10/ The Notice also made some changes in committee members which were listed thereon. 21. Although it issued a new version of Notice 12451 on June 24, 1981 which set forth that the functions of the Committee would be to review and make recommendations re Special Achievement Awards, Beneficial Suggestion Awards, and Unsatisfactory Ratings, Respondent did not reinstitute this award system on a permanent basis until September 1981, as hereinafter described. 22. In accordance with the directive from the Impasses Panel. The parties exchanged proposals dated June 26, 1981. Both the Union and Respondent set forth their respective position: The bargaining agent desired to revert to the system in effect before October 1979, whereas management proposed the continuance of the trial procedure. 23. Under date of August 10, 1981 the Impasses Panel wrote the parties that it declined to assert jurisdiction. It stated that a threshold question existed concerning the Union's obligation to bargain, which related to whether an impasse existed under the Statute; that, meanwhile, the particular provision in the parties' agreement remains in effect for the duration of the contract. 24. In a memo from the Commander to the President of the Union, dated September 11, 1981, Respondent asserted it had decided to proceed with the distribution of the Outstanding Performance Rating Awards for the period ending March 31, 1981. Another memo from the Commander to Patrucci, dated September 18, 1981, stated that since the Union deemed the change in method of awards to be negotiable and sought assistance from the Impasses Panel which declined to rule on the matter, Respondent decided to proceed with the distribution of awards. /11/ 25. Since September 1981, the Committee has continued to review and made recommendations as to Beneficial Suggestion Awards, Special Achievement Awards, and Unsatisfactory Performance Ratings. The union observer remained in said capacity on the Committee. Final decision in respect to awards or ratings concerning these three areas continues to reside with the Commander. However since September 1981, final decision re Quality Step Increases, Outstanding Performance Ratings and Sustained Superior Performance Awards, are made by department or line heads. The Committee takes no part in reviewing these awards nor in making any recommendations with regard thereto. Conclusions There are two basic issues for determination herein: (1) whether the updated NORTHNAVFACENGCOM Notice 12541 issued by Respondent on June 24, 1981, involving the removal from the Incentive Awards Committee of its purview over Quality Step Increases, Outstanding Performance Ratings, and Sustained Superior Performance Awards-- together with the permanent implementation thereof on September 11, 1981 and thereafter-- constituted a unilateral change of a past practice re the Committee's functions in violation of Section 7116(a)(1) and (5) of the Statute; (2) whether the aforesaid Notice and its implementation, in light of the submission to the Federal Services Impasses Panel and the action taken by the Panel on August 10, 1981, may be properly deemed a failure or refusal by Respondent to cooperate in impasse procedures and decisions in violation of Section 7116(a)(6) of the Statute. (1) Respondent takes the position that since December 1979, no change was effected in regard to the Committee's functions. It argues that the June 24, 1981 Notice did nothing more than announce the continuation of the reduced functions of the Committee, which had existed by mutual agreement from October 1979 through September 30, 1980. Thus, insists the employer herein, it merely continued that arrangement. Moreover, Respondent contends its action amounted to redelegating final approval re those three items, i.e. Quality Step Increases, Outstanding Performance Ratings, and Sustained Superior Performance Awards, from the Commander to the department heads. Since the bargaining agreement does not define the functions of the Committee, it is urged that management may decide which awards should be under its purview in respect to recommendations thereof. The general rule is well established, and not in dispute, that management may not change past practices or conditions of employment without first notifying the bargaining representative and affording it an opportunity to bargain therein. Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No. 2. Moreover, the employer is obliged to meet with a union, consider its proposals, and engage in a meaningful dialogue. It is incumbent upon management to explore matters prior to taking any action, and an agency must participate in give and take meetings in order to fulfill its obligation to bargain in good faith. Internal Revenue Service and Brookhaven Service Center, IRS, 4 FLRA No. 30; Department of the Air Force, Malmstrom Air Force Base, Malmstrom Air Force Base, Montana, 2 FLRA No. 2; Federal Railroad Administration, A/SLMR No. 418. At the outset consideration must be given to the question as to whether the procedure re approval of Quality Step Increases and Outstanding Performances was a condition of employment in respect to employees. If not, then a change whereby awards for the foregoing were made by line management rather than the Commander would scarcely require notification to the Union or bargaining on the part of management. Assuming arguendo the practice with respect to these awards involved employment conditions, the agency must necessarily inform the Union and negotiate with it prior to implementing the new procedure. Although approval of the various awards, including Quality Step Increases and Outstanding Performances, calls for action on the part of management rather than unit employees, I am constrained to conclude the determination and such results affect employment conditions. Thus, whether an employee will receive either award is determined-- under the changed procedure-- by different authority, and the consideration which govern the determination may well vary from those prevailing under the former procedure. In such an instance the criteria adopted by the line heads will affect these employees who may be eligible for either award. Such a conclusion was drawn by the Authority in San Antonio Logistics Center (AFLC) Kelly Air Force Base, Texas, 5 FLRA No. 22 which involved a somewhat similar circumstance as the case at bar. In the cited case appraisals were reviewed by first and second line supervisors. Management changed the procedure so that review thereof was made by higher levels of supervision. It was held that the change was marked and significant, and that the new review procedure resulted in a substantial impact upon working conditions of employees. Failure to bargain re such impact, as well as its implementation, was violative of Section 7116(a)(1) and (5) of the Statute. /12/ While conceding that it was obliged to negotiate the impact and implementation of the removal from the Committee of three functions, Respondent takes issue with any determination which obligate it to negotiate with the Union as to the decision to remove such functions from that body. Apart from its contention that no change was made in June or September 1981, the employee disagrees that it was required to bargain in that respect. A most recent decision involving this precise issue of negotiability was rendered by the Authority in National Federation of Federal Employees, Local 541 and Veterans Administration Hospital, Long Beach, California, Case No. O-NG-275 (July 7, 1983). In this cited case the following pertinent proposals were made by the union to the agency: "Union Proposal Article XIII-- Incentive Awards A. The employer will develop an incentive awards committee, made up of equal members from management and the Union. It will be the responsibility of this committee to design, develop, and administer the Incentive Awards Program for this Medical Center. . . . . C. The committee will review all nominations for incentive awards and through open deliberation select those nominees they feel deserving of the award. The committee will forward these names to the Director for final approval . . . . " The Authority concluded that the said proposal is within the duty to bargain as to unit employees; that it was not inconsistent with law or Government-wide regulations. It was argued by the Agency in the foregoing case that the Union proposal would require it to negotiate in the "methods" and "means" of performing work-- all of which are negotiable, under Section 7106(b)(1) of the Statute, only at the election of the agency. The Authority disagreed, stating it would not require the agency to negotiate as to the method it would use to perform its work, i.e. the way in which it provides medical services. Neither, declared the Authority, does it concern the means, i.e., the tools, devices, or instrumentalities by which the agency would do its work. Further, it was concluded that, contrary to the contention of the agency, the proposal for the Incentive Awards Committee did not involve an assignment of work under 7106(a)(2)(B) of the Statute. Thus, the establishment of the committee, together with its functions re recommending incentive awards, was not a "management right" within the meaning of Section 7106 so as to preclude any obligation to bargain thereon. It is noted that, in determining that the proposal re the committee was a condition of employment which was within the scope of bargaining, the Authority emphasized that it concerns a procedure. As such, it paralleled the union proposals made in American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA No. 34 (1981). The proposals therein included the creation of a joint labor-management committee to recommend changes in the performance appraisal systems. The Authority concluded that since the agency retained its discretion to accept or reject any of the committee's recommendations, the proposal did not concern or interfere with the agency's rights under Section 7106 of the Statute. Likewise, in the case at bar, I am constrained to conclude that the subject of an Incentive Awards Committee is a bargainable matter. It also concerns a procedure whereby the Committee makes recommendations to the approving authority re the awards granted to unit employees. In this respect it differs little, if at all, from the recent negotiability decision handed down by the Authority, supra. It is insisted by Respondent herein, nevertheless, that no change was made in the Committee's functions; that no agreement was made to revert to the original procedure as existed prior to December 1979; and that the employer merely continued the new practice since that date. I do not agree. While it is true that both parties agreed on December 26, 1979 to a one year trial period until September 30, 1980 for the reduced functions of the Committee, the Union did not consent to a continuation thereof or a permanent arrangement to that effect. Thus, to the extent that Respondent, on September 11, 1981, implemented its decision to withdraw from the Committee any purview over Quality Step Increases or Performance Awards, this was a change from the practice prior to December 1979. Prior to that date, and since 1974 where the bargaining agreement provided for an Incentive Awards/Performance Appraisal Committee, this body also reviewed Quality Step Increases and Outstanding Performance Awards and made recommendations thereon to the Commander. By altering the procedure, and delegating approval of these awards to the Department heads-- rather than having the Commander approve them-- without any review or recommendation from the Committee, Respondent made a permanent change on September 11, 1981. Moreover, it concededly refused to negotiate the change with the Union. /13/ As indicated hereinabove, the Authority has concluded that the matter of Incentive Awards, and the establishment of a committee to review and make recommendations in respect thereto, is within the scope of collective bargaining. Hence it must also follow that any change in such committee's functions-- as was effected by Respondent-- is also a negotiable matter. Accordingly, I conclude that the unilateral change by Respondent of the Committee's functions, i.e. removing from its purview review and recommendation re Quality Step Increases, Outstanding Performance Ratings, and Sustained Superior Performance Awards, was violative of Section 7116(a)(1) and (5) of the Statute. In respect to the appropriateness of a status quo ante remedy, I am satisfied that the circumstances herein warrant its issuance. It does not appear that restoring the practice as it existed prior to December 26, 1979 would impair the efficiency or the effectiveness of the agency's operations. While the changed procedure, in regard to the three categories of awards removed from the Committee's review, may have expedited the processing thereof, no evidence appears to support an impairment of the agency's work. Moreover, I cannot conclude such operations would be disrupted by granting this remedy. The change also affects a substantial number of employees, and since the Respondent remained adamant in refusing to negotiate the change despite the Union's continued requests to bargain thereon, I am persuaded that a return to status quo is warranted. See Federal Correctional Institution, 8 FLRA No. 111 (1982). (2) In asserting that Respondent failed to comply with impasse proceedings before the Federal Services Impasses Panel, General Counsel claims that Respondent implemented the change on June 24, 1981 while the dispute was still before the panel. It is thus contended that the Respondent did not cooperate in impasse the procedure and decision in violation of Section 7116(a)(6) of the Statute. Record facts herein disclose that each party submitted, on June 26, 1981, proposals to the other and a statement of position-- all in accordance with the direction of the Panel dated June 10, 1981. Thereafter, on August 10, 1981 the Panel declined to assert jurisdiction, stating that a question exist as to whether there is an obligation to bargain, which relates to whether an impasse had occurred. Permanent implementation by Respondent of the changed procedure affecting the Committee took place initially on September 11, 1981. Under these circumstances, I am persuaded that there was no violation of Section 7116(a)(6). The employer herein complied with the directive of the Panel, and it did not approve any award (Quality Step Increases or Outstanding Performance Ratings) during the pendency of the dispute before that body. Awards commencing with March 30, 1981-- the then current appraisal period-- were held in abeyance until after the Panel's decision on August 10, 1981. In view of the foregoing, and particularly in light of the Panel's declaration that it was questionable whether an "impasse" existed as deferred under Section 2470.2 of the Rules and Regulations, I am constrained to include Respondent did not fail or refuse to cooperate in impasse procedures and decisions. See Social Security Administration, Mid-America Service Center, Kansas City, Missouri, 9 FLRA No. 33 (1982). Thus, I recommend that the allegations in the amended complaint which alleges a violation of Section 7116(a)(6) of the Statute be dismissed. Having found that Respondent violated Section 7116(a)(1) and (5) of the Statute, I recommend the Authority adopt the following Order: ORDER Pursuant to Section 7118(a)(7) of the Federal Service Labor-Management Relations Statute and Section 2423.29 of the Rules and Regulations, it is hereby ordered that the Department of the Navy, Northern Division, Naval Facilities Engineering Command shall: 1. Cease and desist from: (a) Unilaterally changing the functions of the Incentive Awards/Performance Appraisal Committee by removing from its purview any review and recommendation to the Commander as to Quality Step Increases, Outstanding Performance Ratings and Sustained Superior Performance Awards, for unit employees, without first notifying the National Federation of Federal Employees, Local 1430, the exclusive bargaining representative, and affording it the opportunity to bargain, to the extent consonant with law and regulations, on the decision to effectuate such action. (b) In any like or related manner interfering with, restraining or coercing its 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) Rescind and withdraw NORTHNAVFACENGCOM NOTICE 12451, dated June 24, 1981, and its provisions which removed from the purview of the Incentive Awards/Performance Appraisal Committee and functions as to its review and recommendation to the Commander concerning Quality Step Increases, Outstanding Performance Ratings and Sustained Superior Performance Awards, for unit employees. (b) Restore the procedure which existed prior to December 26, 1979 whereby the Incentive Awards/Performance Appraisal Committee reviewed proposed Quality Step Increases, Outstanding Performance Ratings, Sustained Superior Performance Awards, in addition to Unsatisfactory Ratings, Beneficial Suggestions, and Special Achievement Awards, and made recommendations thereon to the Commander. (c) Notify the National Federation of Federal Employees, Local 1430, the exclusive bargaining representative, of any intention to change the functions of the Incentive Awards/Performance Appraisal Committee, or to remove from its purview any review and recommendation as to proposed awards, and, upon request, bargain with said representative, to the extent consonant with law and regulations, on the decision to effectuate such action. (d) Post at its facilities at the Northern Division, Naval Facilities Engineering Command, Philadelphia, Pennsylvania, copies of the attached notice marked "Appendix" on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commander, and shall be posted and maintained by him for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and places where notices to employees are customarily posted. Reasonable steps shall be taken by the Commander to insure that such notices are not altered, defaced, or covered by any other material. (e) Notify the Acting Regional Director, Region II, 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. WILLIAM NAIMARK Administrative Law Judge Dated: July 29, 1983 Washington, D.C. APPENDIX 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 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT unilaterally change the functions of the Incentive Awards/Performance Appraisal Committee by removing from its purview any review and recommendation to the Commander as to Quality Step Increases, Outstanding Performance Ratings and Sustained Superior Performance Awards, for unit employees, without first notifying the National Federation of Federal Employees, Local 1430, the exclusive bargaining representative, and affording it the opportunity to bargain, to the extent consonant with law and regulations, on the decision to effectuate such action. WE WILL NOT any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL rescind and withdraw NORTHNAVFACENGCOM NOTICE 12451, dated June 24, 1981, and its provisions which removed from the purview of the Incentive Awards/Performance Appraisal Committee and functions as to its review and recommendation to the Commander concerning Quality Step Increases, Outstanding Performance Ratings and Sustained Superior Performance Awards, for unit employees. WE WILL restore the procedure which existed prior to December 26, 1979 whereby the Incentive Awards/Performance Appraisal Committee reviewed proposed Quality Step Increases, Outstanding Performance Ratings, Sustained Superior Performance Awards, in addition to Unsatisfactory Ratings, Beneficial Suggestions, and Special Achievement Awards, and made recommendations thereon to the Commander. (Agency/Activity) Dated: . . . By: (Signature) 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 any of its provisions, they may communicate directly with the Acting Regional Director, Region II, Federal Labor Relations Authority whose address is: 26 Federal Plaza, Room 24-102, New York, New York 10278; and whose telephone number is: (212) 264-4934. --------------- FOOTNOTES$ --------------- /1/ Noting particularly that no exceptions were filed to the Judge's finding that the Respondent did not fail to cooperate in impasse procedures and decisions of the Federal Service Impasses Panel in violation of section 7116(a)(1) and (6) of the Statute, the Authority adopts such finding and shall order dismissal of that allegation of the complaint. /2/ Section 7116(a)(1) and (5) reads as follows: 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(.) /3/ National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). /4/ National Treasury Employees Union and Internal Revenue Service, 14 FLRA 463 (1984) (Proposals 1 and 2). /5/ American Federation of Government Employees, AFL-CIO, Local 3488 and Federal Deposit Insurance Corporation, New York Region, 17 FLRA No. 78 (1985) (Proposal 2). /6/ American Federation of Government Employees, AFL-CIO, Local 2302 and U.S. Army Armor Center, Ft. Knox, Kentucky, 15 FLRA No. 5 (1984) (Proposal 2). /7/ National Federation of Federal Employees, Local 943 and Department of the Air Force, Keesler Air Force Base, Mississippi, 16 FLRA No. 49 (1984). In this respect, National Federation of Federal Employees, Local 541 and Veterans Administration Hospital, Long Beach, California, supra, relied upon by the Judge, is inapposite since it involved a proposal which did not present the issue of management's rights to establish performance standards. National Treasury Employees Union and Internal Revenue Service, 14 FLRA 463, fn. 8 (1984). /8/ The caption on the transcript herein erroneously states "DEPT, OF THE ARMY." /9/ Between March 30, 1981 (the end of the appraisal year and beginning of an awards period) and September 1981, Respondent held in abeyance approval of Quality Step Increases and Outstanding Performance Ratings. /10/ This Notice was, except for the recital of Committee members, identical to Respondent's Notice 12451 issued on December 26, 1979. Management refers to it as an updated Notice 12451. /11/ It also acted upon Quality Step Increases for the period ending March 31, 1981. However, between March 31, 1981 and September 11, 1981-- while the matter was pending at the Impasses Panel-- Respondent held in abeyance the approval or issuance of Quality Step Increases or Outstanding Performance Awards. Awards issued between January-- April 1981 were for the period ending March 1980. /12/ In the cited case the complaint only alleged a failure to negotiate re impact and implementation. No allegation was made that the respondent was obliged to bargain as to the decision concerning the changed review procedure, and no conclusion in that regard was reached by the Authority. /13/ Some of the testimony adduced by Respondent, involving the meetings between the parties during October 1980 and April 1981, is possibly indicative of bargaining as to the change. However, since Respondent insists it would not bargain on the decision and did not do so, I could not conclude from such testimony that any such bargaining did in fact occur in good faith on the part of management.