19:0705(86)CA - Navy Northern Division, Naval Facilities Engineering Command and NFFE Local 1430 -- 1985 FLRAdec CA



[ v19 p705 ]
19:0705(86)CA
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 no