21:0609(78)CA - Air Force. AFLC, Wright-Patterson AFB, Ohio And Newark AFS, Newark, Ohio and AFGE, Local 2221 -- 1986 FLRAdec CA
[ v21 p609 ]
The decision of the Authority follows:
21 FLRA No. 78 DEPARTMENT OF THE AIR FORCE AIR FORCE LOGISTICS COMMAND WRIGHT-PATTERSON AIR FORCE BASE, OHIO, AND NEWARK AIR FORCE STATION, NEWARK, OHIO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2221, AFL-CIO Charging Party Case No. 5-CA-30215 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed. The General Counsel and the Charging Party filed exceptions to the Judge's Decision, and the Respondent filed an opposition to both exceptions. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings, conclusions and recommendations only to the extent consistent herewith. The Judge, relying on the language of Article 15, Section 15.01 of the parties' Master Labor Agreement and on the past practice of the parties, concluded that the Respondent did not violate section 7116(a)(1) and (5) of the Statute when it unilaterally revised the job performance appraisal system elements of employees assigned to the Central Refurbishment Area, NAFS, without providing the Charging Party (the Union) notice and an opportunity to bargain concerning the impact and implementation of the change, as the Union had waived its right to bargain in this regard. The Authority disagrees. It is well established that the Respondent's decision to revise the performance standards was a reserved management right under section 7106(a) of the Statute. See, e.g., National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 768 (1980), affirmed sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982), and Social Security Administration, 8 FLRA 517 (1982), affirmed sub nom. American Federation of Government Employees, Local 1923 v. FLRA, 718 F.2d 1088 (4th Cir. 1983). However, as previously held by the Authority, where an agency exercises a reserved management right under section 7106 of the Statute to change a condition of employment of unit employees, there is nonetheless a duty to bargain consistent with Section 7106(b)(2) and (3) of the Statute with respect to the procedures that management will follow in exercising such rights and with respect to appropriate arrangements for employees who may be adversely affected thereby. See, e.g., Department of Transportation, Federal Aviation Administration, Washington, D.C., 20 FLRA No. 54 (1985), and cases cited therein. Therefore, the Respondent was obligated under the Statute to provide adequate prior notice to the exclusive representative and, upon request, bargain pursuant to section 7106(b)(2) and (3) of the Statute, absent a waiver of that right. See American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 3 FLRA 784 (1980) (Union proposal 5); American Federation of Government Employees, AFL-CIO, Local 1940 and Department of Agriculture, Plum Island Disease Center, 16 FLRA 816 (1984). A waiver will be found only if it can be shown that the exclusive representative clearly and unmistakably waived its right to negotiate. See U.S. Department of Labor, Washington, D.C. and Employment Standards Administration, Region 8, Denver, Colorado, 19 FLRA No. 65 (1985). Article 15, Section 15.01 of the parties' agreement recognizes management's right to revise performance standards, and the right of employees to participate in discussions with supervisors as to what those standards shall be. /1/ However, the Authority, contrary to the Judge, finds that neither Article 15, Section 15.01 nor the past practice of the parties constitutes a clear and unmistakable waiver of the Union's right to receive notice and an opportunity to request bargaining concerning procedures and appropriate arrangements for adversely affected unit employees. Article 15, Section 15.01 of the Master Labor Agreement contains no language which specifically relieves the Respondent of this statutory obligation to the Union when it revises unit employees' performance standards. Moreover, contrary to the Judge's unsupported statement, the record does not reveal other instances where the Respondent has unilaterally revised unit employees' performance standards without notifying the Union. Absent a clear and unmistakable waiver, a party will not be deemed to have given up a statutory right, such as an exclusive representative's right to receive adequate notice of proposed changes affecting unit employees' conditions of employment, and an opportunity to request bargaining pursuant to the provisions of the Statute. U.S. Department of Labor, Occupational Safety and Health Administration, Chicago, Illinois, 19 FLRA No. 60 (1985); Department of Defense, Department of the Army, Headquarters, XVIII Airborne Corps, and Fort Bragg, 15 FLRA 790 (1984); Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981). Accordingly, the Authority concludes that the Respondent's unilateral revision of the performance standards without providing the Union with adequate prior notice and an opportunity to bargain concerning procedures and appropriate arrangements for adversely affected unit employees constitutes a violation of section 7116(a)(1) and (5) of the Statute. See, e.g., Department of the Air Force, Air Force Systems Command, Electronic Systems Division, 14 FLRA 390 (1984); Social Security Administration, 16 FLRA 1135 (1984). In briefs to the Judge, the General Counsel and the Union requested a status quo ante order which would require the Respondent to rescind the new performance standards. The General Counsel also requested an order which would make whole any employee adversely affected by them. However, the Authority concludes that a status quo ante remedy is not warranted in the circumstances of this case. Thus, balancing the nature and circumstances of the violation against the degree of disruption in government operations that would be caused by such a remedy and taking into consideration the factors set forth in Federal Correctional Institution, 8 FLRA 604 (1982), the Authority concludes that a prospective bargaining order will fully remedy the violation in the circumstances of this case and will effectuate the purposes and policies of the Statute. The Authority notes that, while no advance notice of the revised performance standards was given to the Union, the Respondent's notice to unit employees concerning the change in question and its refusal to bargain with the Union concerning procedures and appropriate arrangements for employees adversely affected were based upon the good faith but erroneous belief that it was acting in accordance with procedures contained in the negotiated Master Labor Agreement covering the affected employees. Accordingly, contrary to the General Counsel's contention, the Respondent's refusal to bargain herein cannot be found to have been willful. Moveover, as recognized by the Union in its post-hearing brief to the Judge, no employees had yet been appraised under the revised performance standards, and there is no assertion in the exceptions filed with the Authority by either the General Counsel or the Union that there has yet been any application of such performance standards to unit employees or any loss to them as a result. Under these circumstances, the request for a status quo ante remedy must be denied. See, e.g., Social Security Administration, supra. ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Authority hereby orders that the Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, and Newark Air Force Station, Newark, Ohio shall: 1. Cease and desist from: (a) Unilaterally implementing new or revised performance standards for its Central Refurbishment Area, NAFS employees, without giving prior notice to the American Federation of Government Employees, Local 2221, AFL-CIO, the designated agent of the employees' exclusive representative, and affording it the opportunity to bargain concerning procedures to be observed in implementing them and concerning appropriate arrangements for employees adversely affected thereby. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right 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) Upon request, bargain with the American Federation of Government Employees, Local 2221, AFL-CIO, the designated agent of the employees' exclusive representative of its Central Refurbishment Area, NAFS employees, concerning procedures to be observed in implementing new or revised performance standards applicable to those employees, and concerning appropriate arrangements for employees adversely affected thereby. (b) Post at its facility at Newark Air Force Station, Newark, Ohio, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the Commander of the Air Force Logistics Command, Wright-Patterson Air Force Base, or a designee, and shall be posted 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 to insure that such Notices are not altered, defaced, or covered by any other material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region v. 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. Issued, Washington, D.C., April 30, 1986. /s/ JERRY L. CALHOUN Jerry L. Calhoun, Chairman /s/ HENRY B. FRAZIER III Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY 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 UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT unilaterally implement new or revised performance standards for our Central Refurbishment Area, NAFS employees, without giving prior notice to the American Federation of Government Employees, Local 2221, AFL-CIO, the designated agent of our employees' exclusive representative, and affording it the opportunity to bargain concerning procedures to be observed in implementing them and concerning appropriate arrangements for employees adversely affected thereby. WE WILL NOT in 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, upon request, bargain with the American Federation of Government Employees, Local 2221, AFL-CIO, the designated agent of the employees' exclusive representative of our Central Refurbishment Area NAFS employees, concerning procedures to be observed in implementing new or revised performance standards applicable to those employees, and concerning appropriate arrangements for employees adversely affected thereby. (Activity) Dated: By: (Signature) (Title) 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 its provisions, they may communicate directly with the Regional Director, Region V, Federal Labor Relations Authority, whose address is: 175 Jackson Blvd., Suite 1359-A, Chicago, IL 60604, and whose telephone number is: (312) 353-6306. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 5-CA-30215 DEPARTMENT OF THE AIR FORCE AIR FORCE LOGISTICS COMMAND WRIGHT-PATTERSON AIR FORCE BASE, OHIO, AND NEWARK AIR FORCE STATION, NEWARK, OHIO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2221, AFL-CIO Charging Party Major Charles Brower, USAF For the Respondent Judith A. Ramey, Esquire For the General Counsel Janet T. Wachter For the Charging Party BEFORE: LOUIS SCALZO Administrative Law Judge DECISION Statement of the Case This case arose as an unfair labor practice proceeding under the provisions of the Federal Service Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101, et seq. (hereinafter called "The Statute"), and the Rules and Regulations issued thereunder. The complaint alleges that on or about November 15, 1982, the Respondent, through the acts of agents employed by the Newark Air Force Station, Newark, Ohio (NAFS), unilaterally changed the terms and conditions of employment of bargaining unit members assigned to the Central Refurbishment Area, NAFS, without first giving notice to American Federation of Government Employees, Local 2221, AFL-CIO (Charging Party or Union); and without providing the Union with an opportunity to bargain concerning the impact and implementation of the change. It was further alleged that the conduct described pertained to the issuance of revised job performance appraisal system elements to bargaining unit employees, and that the issuance was violative of Section 7116(a)(1) and (5) of the Statute. Counsel representing the Respondent contends that the Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio (AFLC) and American Federation of Government Employees, AFL-CIO, Council No. 214 (Council 214), bargained in good faith at the level of exclusive recognition concerning procedures to be followed when revising performance standards; that the issuance of revised performance standards as alleged herein was effectuated in accordance with procedures established by the AFLC and Council 214 in a collective bargaining agreement; that the Respondent was required to do no more than comply with procedures established by AFLC and Council 214; that the dispute involves issues of contract interpretation which should have been resolved through the grievance and arbitration procedure set out in the parties' collective bargaining agreement; and lastly that constructive notice of the change was received by a Union steward assigned to the Central Refurbishment Area, but that the Union failed to request bargaining. /2/ The parties were represented by counsel during the hearing and were afforded full opportunity to be heard, adduce relevant evidence, and examine and cross-examine witnesses. Based upon the entire record herein, including a stipulation of facts, exhibits, and other relevant evidence adduced at the hearing, /3/ and briefs filed by the parties, I make the following findings of fact, conclusions and recommendations. Findings of Fact Facts Stipulated The following stipulations of fact entered into the record are accepted as true: /4/ 1. The Respondent submits to the jurisdiction of the Authority in this proceeding, and does not otherwise interpose or raise the question of jurisdiction as an issue. (See also Tr. at 10). 2. At all times material there have been approximately 30 employees in the Central Refurbishment Area, LN Instrument Section, Directorate of Maintenance, Aerospace Guidance and Metrology Center (AGMC), NAFS, and approximately 28 of these employees hold the position of WG-3359-07 Instrument Worker. /5/ 3. Central Refurbishment Area employees described are part of a consolidated bargaining unit of employees employed by AFLC, and represented by Council 214. These employees are represented at the local level by the Charging Party. 4. At all times material herein David Tomer was a supervisor and agent of Respondent and was the supervisor of Central Refurbishment Area employees. 5. The performance of Central Refurbishment Area employees is appraised under the civilian employee Job Performance Appraisal System of the United States Air Force (JPAS). /6/ 6. On or about November 15, 1982, David Tomer furnished to Central Refurbishment Area employees, a copy of the performance standards or "work plan" for his or her position. The work plan furnished was effective for the appraisal period beginning on October 1, 1982. 7. Jt. Exh. No. 1 is a copy of performance standards issued on or about November 15, 1982, to Jane A. Hoskinson. 8. Jt. Exh. No. 2 is a copy of performance standards that had previously been in effect from July 1, 1982 until October 1, 1982 for Jane A. Hoskinson. 9. Performance standards set forth in Jt. Exh. No. 1 are the same in all material respects as the performance standards that were effective for all affected employees for the appraisal period beginning October 1, 1982. 10. The performance standards set forth in Jt. Exh. No. 2 are the same in all material respects as performance standards in effect prior to October 1, 1982 for all affected employees. 11. All employees falling within the coverage of JPAS are evaluated once a year according to the performance standards applicable to their positions. Among other things these annual evaluations are used to determine whether employees will or will not receive performance awards and within grade increases; and it is on the basis of these evaluations that employees are, or are not demoted, or removed from their positions for performance reasons. 12. The performance standards set forth in Jt. Exh. No. 1 are different in some respects from the performance standards set forth in Jt. Exh. No. 2. 13. The Charging Party was given no advance notice by management that there was to be a change in the performance standards applicable to affected employees for the performance period beginning October 1, 1982, and no such notice was provided by management to Council 214, or to any other organizational level of the Union. In addition to the previously outlined stipulations, counsel of record also stipulated to the following facts: 1. That the change alleged in the complaint did in fact involve a change in the terms and conditions of employment (Tr. 17-18, 143-144, Respondent's Brief at 9-10). 2. The change which occurred involved a change in critical elements and a change in performance standards (Tr. 43). Pertinent Contractual Provisions and Bargaining History Outlined Following establishment of the consolidated unit, the National Office of the AFGE, on behalf of Council 214; together with the AFLC, entered into a three-year Master Labor Agreement. The agreement became effective on May 3, 1979, and the three-year period commenced as of April 3, 1979. /7/ (Jt. Exh. No. 4.) Article 15 (Employee Performance Evaluation) provided certain procedural rules relating to performance standards. Section 15.01 touched upon management changes in this area of concern. It provided: SECTION 15.01: PERFORMANCE STANDARDS Supervisors will establish valid performance requirements for positions of employees which they supervise. Except as may be provided by applicable law, such performance requirements may be oral or written, and they will be discussed with each new employee when he is newly assigned to a position. New or revised performance requirements established as a result of changes in duties and responsibilities, technological changes, performance criteria, etc., will be discussed with the employee when such are imposed; if performance requirements are in writing, such changes will also be in writing. Article 15, Section 15.03 of the May 1979 Master Labor Agreement gave to the Charging Party the right to negotiate "supplemental implementation procedures" in the following terms: SECTION 15.03: SUPPLEMENTAL IMPLEMENTATION PROCEDURES Procedures for the implementation of this Article are expressly authorized for negotiations in activity Local Supplements to this Agreement. Article 34 of the 1979 Master Labor Agreement provided rules pertaining to local supplements. In accordance with these, and authority set out in Section 15.03, the Charging Party and AGMC, NAFS, entered into a Supplemental Labor Agreement on January 11, 1980 (Jt. Exh. No. 5). It was approved by AFLC and Council 214 on February 8, 1980. Under the provisions of Article 34, Section 34.09 of the 1979 Master Labor Agreement, this local supplement became effective on February 8, 1980. Article 15, Section 15.01(S) of the Supplemental Labor Agreement reflected the following limited procedures relating to implementing changes in performance standards at AGMC, NAFS: SECTION 15.01(S): A. Performance standards are guides to measure the quality, quantity, timeliness and level of achievement expected by management of an individual's performance. These standards are job-related and based upon the employee's particular duties and responsibilities. Such standards define the level of performance necessary for a satisfactory performance rating. B. The parties agree that these requirements be a joint effort by the supervisor and the employee. C. Management agrees to encourage supervisors to establish these performance standards in writing. Approximately 18 months after the negotiation of the May 1979 Master Labor Agreement, Council 214 and the AFLC moved to reopen contract negotiations under the provisions of Article 35, Section 35.03 of the Agreement (Tr. 26-27, 151). Negotiations ensued, and were continuing in February of 1981 (Tr. 149). Council 214 representatives made specific proposals concerning Article 15, and AFLC representatives disagreed with the Council position on the subject (Tr. 151). During this same period of time the negotiating parties were, in the context of a different forum, leading up to impact and implementation bargaining concerning JPAS as presented in AFR 40-452. By memorandum dated November 4, 1980, AFLC had forwarded copies of AFR 40-452 to Council 214 for the purpose of soliciting proposals leading to impact and implementation bargaining (R. Exh. No. 1). In a letter dated November 6, 1980, Council 214 requested, for personal and other reasons, that bargaining on AFR 40-452 be deferred (R. Exh. No. 2). However, detailed proposals concerning AFR 40-452 were subsequently supplied to AFLC by Council 214 (R. Exh. No. 3). These proposals, offered by Council 214 with respect to AFR 40-452, were not the same as those offered during reopened Master Labor Agreement negotiations (Tr. 157-158). Proposals submitted in the latter forum were described as processing elements which the Council wished to utilize in AFR 40-452 negotiations (Tr. 158). The issue posed by the parties was whether to resolve key questions relating to employee performance evaluations in the context of the Master Labor Agreement negotiations, or during separate, and perhaps much later, impact and implementation negotiations relating to AFR 40-452. The parties resolved the issue by deciding to carry over Article 15 of the May 1979 Master Labor Agreement without change, and by agreeing to be governed by the provisions of Article 15 until the issue could be thoroughly addressed during negotiations pertaining to AFR 40-452 (Tr.30, 153, 166-167). It was then anticipated that the issues posed would be handled as mid-term bargaining after execution of a new Master Labor Agreement. A new Master Labor Agreement, incorporating the earlier version of Article 15 in its entirety was executed on June 1, 1982 (Jt. Exh. No. 6). It became effective on June 28, 1982, the date on which it was approved. /8/ Negotiators representing AFLC and Council 214 were not able to reach agreement in collateral negotiations pertaining to AFR 40-452. Bargaining had commenced on March 4, 1981, /9/ after the parties decided to handle employee performance evaluation negotiations separately from negotiations pertaining to the Master Labor Agreement (Tr. 83-84, R. Exh. No. 4). The representative of the Charging Party acknowledged that there was substantial bargaining on the subject (Tr. 165-166). R. Exh. No. 3 reflects that these negotiations involved bargaining over procedures that Council 214 wished to add to the summary procedures reflected in the May 1979 and June 1982 Master Labor Agreements (Tr. 43-45). A series of eight negotiating sessions, the first of which had commenced on March 4, 1981, culminated in the Union filing a March 27, 1981 request for Federal Service Impasses Panel assistance (R. Exh. No. 4). /10/ On June 5, 1981, the Panel declined to assert jurisdiction on the ground that duty to bargain issues were inextricably related to the Council's proposal (R. Exh. No. 5). The Panel ruled that the determination was without prejudice to either party's right to refile once duty to bargain issues had been resolved in an appropriate forum. Because 5 U.S.C. 4302, required that all performance appraisal systems be put into effect by October 1, 1981, AFLC determined that it would be necessary to implement AFLC's last offer to Council 214 (Tr. 52, 56, R. Exh. No. 6). Accordingly, on or about July 1, 1981, AFLC notified its field activities that AFLC's last offer relating to AFR 40-452 would be implemented to insure complaince with the October 1, 1981 deadline (Tr. 52-53, 56-67). AFR 40-452 continued in effect thereafter, and was in effect as of the date of the hearing. On October 8, 1981, the AFGE National Office, on behalf of Council 214, filed a negotiability appeal with the Authority. On October 13, 1981, an unfair labor practice charge was filed by Council 214 in Case No. 5-CA-20018, alleging, that the Department of the Air Force, AFLC, Wright-Patterson Air Force Base, Ohio, refused to bargain with Council 214, by declaring some of the Council's proposals to be nonnegotiable, and by thereafter implementing AFR 40-452 without first bargaining on impact and implementation. On November 2, 1981, the AFGE National Office requested that the Authority hold the negotiability appeal in abeyance, and the unfair labor practice charge thereafter proceeded to complaint. Administrative Law Judge Salvatore J. Arrigo heard the case, and on October 20, 1982, issued a recommended decision finding certain proposals to be negotiable. A bargaining order was also recommended. However, under the facts presented a status quo ante remedy was not considered appropriate. The case is pending before the Authority on exceptions filed by the parties. There was no showing during the hearing held in this case, nor does it otherwise appear, that the decision issued by Judge Arrigo in Case No. 5-CA-20018, has any bearing upon questions posed in this litigation. It was noted that none of the proposals found to be negotiable by Judge Arrigo related to the obligation of the Respondent herein to bargain with the Charging Party concerning changes made in performance standards or critical elements relating to Central Refurbishment Area employees. /11/ The June 1982 Master Labor Agreement brought about an attempt on the part of the Charging Party to renegotiate Article 15 of the earlier February 8, 1980 Supplemental Labor Agreement executed by NAFS and the Charging Party. By memorandum dated August 16, 1982, the President of the Charging Party requested mid-term bargaining concerning the Supplemental Labor Agreement (R. Exh. No. 10), and submitted to NAFS representatives a proposed replacement article for Article 15, Section 15.01(S) (R. Exh. No. 11). The proposal reflects numerous procedural elements of concern to the Charging Party in the area of employee evaluation. However, NAFS took the position that Article 15 of the Supplemental Labor Agreement was not in conformity with the June 1982 Master Labor Agreement (Tr. 103-104, R. Exh. No. 12). Being then in dispute, it became inoperative pending disposition of the issue in an arbitration proceeding (Tr. 104). /12/ On September 29, 1982 the President of the Charging Party withdrew the earlier August 16, 1982 request for mid-term bargaining on the Supplemental Labor Agreement, and all Charging Party proposals submitted in connection therewith (R. Exh. No. 13). As of the date of the hearing, issues involving the appropriateness of the inclusion of Article 15 in the Supplemental Labor Agreement had not been resolved. However, the matter was scheduled to be heard by an arbitrator in November of this year (Tr. 104). The record clearly reflects that the effectuation of changes in individual performance standards in the past has not involved prior notice to the Charging Party. Instead, the procedures set out in Article 15, Section 15.01 of the May 1979 and June 1982 Master Labor Agreements have governed (Tr. 32-33). This section provides for supervisory establishment of performance standards after discussions with employees; for the formulation of "valid performance requirements," for guidance concerning the form in which an employee receives performance requirements (oral or written), and for discussion of such changes with employees prior to putting them into effect. Although counsel representing the General Counsel made an attempt to show that during AFLC -- Council 214 negotiations leading to the June 1982 Master Labor Agreement the parties entered into an oral side agreement imposing a greater duty on the AFLC with respect to notification of the Charting Party of changes in individual performance standards, the record does not support this contention. Instead, the record indicates a clear desire on the part of AFLC and Council 214 to rely entirely upon the sparse procedural language in Article 15, Section 15.01 of the Master Labor Agreement as the guide for effecting changes in performance standards. Discussion and Conclusions The record in this case makes it clear that the parties were governed by the provisions of Article 15 of the June 1982 Master Labor Agreement when the changes alleged in the complaint occurred. Section 15.01 of this Article, together with evidence of longstanding practice of the parties, reflects that the Respondent had a contractual right to change individual performance requirements without first incurring a bargaining obligation. Article 15 did impose certain requirements; however, the obligation to bargain was not included. /13/ Instead, Section 15.01 specifically provided for the establishment of performance requirements by Respondent's supervisory personnel. It would be difficult to see how the Charging Party could be accorded the right to participate in the formulation of performance standards in this case without doing irreparable damage to the procedures reflected in Article 15, Section 15.01 of the June 1982 Master Labor Agreement. Thus, it is concluded that the contractual language referred to, and the practice of the parties, demonstrate that the June 1982 Master Labor Agreement reflects a clear and unmistakable waiver of the statutory right to bargain concerning changes in performance standards. In the light of these circumstances the obligation to bargain on impact and implementation does not arise. Department of the Treasury, United States Customs Service, Region I, Boston, Massachusetts, and St. Albans, Vermont District Office, 10 FLRA No. 100, 10 FLRA 566 (December 3, 1982); Nuclear Regulatory Commission, 8 FLRA No. 124, 8 FLRA 715 (May 20, 1982); Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA No. 2, 5 FLRA 9 (January 15, 1981). Since the question of the legal status to be attributed to Article 15 of the Supplemental Labor Agreement, was, as of the date of the hearing, proceeding to arbitration, it is not possible to determine whether or not the provisions contained in this Article are applicable in this case. However, if Article 15 is deemed to be currently in effect, it too reflects clear elements of a waiver in that Article 15, Section 15.01(S)(B) of the Supplemental Labor Agreement indicates that the Charging Party and NAFS agreed that performance standards would be established "by the supervisor and the employee," as a "joint effort." If Article 15 of the Supplemental Labor Agreement is found to be null and void because in conflict with the June 1982 Master Labor Agreement, then the provisions of Article 15, Section 15.01 of the June 1982 Master Labor Agreement, without more, suffice as a basis for a finding that a waiver exists. The record does show that the provisions of AFR 40-452, as implemented by AFLC, were in effect on the date of the change alleged in the complaint. However, AFR 40-452, as implemented did not operate to modify or otherwise change the provisions of Article 15, Section 15.01 of the June 1982 Master Labor Agreement by imposing a bargaining obligation of the type alleged in the complaint; nor did AFR 40-452, otherwise remove the clear and unmistakable waiver reflected in the Master Labor Agreement. Moreover, AFLC proposals considered by Judge Arrigo in Case No. 5-CA-20018, and found to be negotiable in that case, may not be construed as conferring on the Charging Party, or Council 214, bargaining rights specifically withheld in the June 1982 Master Labor Agreement. It is noted that counsel representing the General Counsel and counsel representing the Charging Party make no such argument. /14/ Lastly, it is also observed that even in the absence of a finding of waiver, the essence of this unfair labor practice complaint would involve differing and arguable interpretations of Article 15, Section 15.01 of the June 1982 Master Labor Agreement, as distinguished from a clear and patent breach of the agreement. That is, the issues posed would merely involve matters of contract interpretation. In such cases the aggrieved party's remedy lies within the grievance and arbitration procedures in the negotiated agreement rather than through unfair labor practice procedures. Harry S. Truman Memorial Veterans Hospital, Columbia, Missouri, 11 FLRA No. 90, 11 FLRA 516 (March 9, 1983); Iowa National Guard and National Guard Bureau, 8 FLRA No. 101, 8 FLRA 500 (May 7, 1982); Division of Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA No. 71, 8 FLRA 307 (March 26, 1982); Social Security Administration, District Offices in Denver, Pueblo and Greely, Colorado, et al., 3 FLRA No. 10, 3 FLRA 61 (April 14, 1980); U.S. Patent and Trademark Office, 3 FLRA No. 123, 3 FLRA 823, (July 31, 1980); Oklahoma City Air Logistics Center, Tinker Air Force Base, Oklahoma, 3 FLRA No. 82, 3 FLRA 511 (June 27, 1980); Department of Health, Education and Welfare, Social Security Administration, 1 FLRA No. 37, 1 FLRA 297 (May 9, 1979). The Respondent relies heavily upon interpretations to be accorded Article 15, Section 15.01 of the June 1982 Master Labor Agreement. At a bare minimum, this Section arguably may be construed as relieving the Respondent of the obligation to bargain concerning changes in performance standards. Thus, an alleged refusal to bargain concerning the implementation of a change in performance standards would, even in the absence of a waiver, necessarily involve an interpretation of Section 15.01. In light of the conclusions outlined, it is recommended that the Authority issue the following Order pursuant to 5 C.F.R. 2423.29. ORDER IT IS HEREBY ORDERED, that the complaint in Case No. 5-CA-30215, be, and it hereby is, dismissed. /s/ LOUIS SCALZO LOUIS SCALZO Administrative Law Judge Dated: December 7, 1983 Washington, DC --------------- FOOTNOTES$ --------------- (1) Of course, both of these rights exist by operation of law. See, e.g., National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, supra, concerning management's right to revise performance standards pursuant to its section 7106(a) rights to direct and assign work to employees. See also Social Security Administration, Baltimore, Maryland, 9 FLRA 909 (1982), with respect to the right of employees to participate in discussion concerning the establishment of their performance standards pursuant to 5 U.S.C. 4302(a)(2), which provides: Section 4302. Establishment of performance appraisal systems (a) Each agency shall develop one or more performance appraisal systems which -- * * * (2) encourage employee participation in establishing performance standards(.) (2) This argument, reflected in Respondent's post-hearing brief, has no merit in view of a stipulation to the effect that Respondent provided "no advance notice" of the change to the Union, to Council 214, or to any other organizational level of the American Federation of Government Employees, AFL-CIO (Jt. Exh. No. 3). Counsel representing the General Counsel moved to strike portions of Respondent's brief which relate to the argument that the Union received constructive notice of the change, noting that the stipulation precluded the argument. An opposition to the motion to strike was filed by counsel representing the Respondent. The motion to strike must be denied. Although Respondent's argument has no merit in the light of the stipulation entered into the record, Respondent's counsel arbuably has the right to contend that the stipulation did not operate to deny counsel the right to rely upon constructive notice of the change received through a Union steward. (3) Counsel representing the Respondent moved to correct certain errors in the hearing transcript. Under authority set out in 5 C.F.R. 2423.19(r), the corrections proposed are approved. (4) Jt. Exh. No. 3. (5) These employees are hereinafter referred to as "Central Refurbishment Area employees," or "employees affected." (6) Air Force Regulation 40-452, incorporates what is otherwise referred to in the record as "JPAS" (Tr. 37-38). AFR 40-452 deals with Department of the Air Force policy and procedures for appraisal and rating of Air Force employees. It implemented 5 U.S.C. 4302 of the Civil Service Reform Act of 1978, which provided for the establishment of performance appraisal systems, including critical elements and performance standards, by each agency, and required that all performance appraisal systems be put into effect by October 1, 1981. (7) This agreement is hereinafter referred to as the "May 1979 Master Labor Agreement." (8) This agreement is hereinafter referred to as the June 1982 Master Labor Agreement. The parties have considered it binding despite inclusion of a statement in Section 35.01 of Article 35, to the effect that it would remain in effect only for the three year period ending on April 3, 1982 (Tr. 27-29). (9) These negotiations commenced and reached impasse prior to execution of the June 1982 Master Labor Agreement. (10) It is noted that this request was filed over a year before the parties executed the June 1982 Master Labor Agreement (Jt. Exh. No. 6). (11) Also, the record did not reflect that the specific change alleged in the case herein under consideration contravened AFR 40-452 as implemented, or the bargaining order recommended to the Authority by Judge Arrigo. The recommended cease and desist order in Case No. 5-CA-20018 addressed the issue of instituting changes in teh AFLC performance appraisal program without affording the Council 214 the right to bargain. In this case both the May 1979 and June 1982 Master Labor Agreements reflect that responsibility for the establishment of performance standards was within the purview of authority exercised by Respondent's supervisory personnel. It follows therefore, that the changes alleged in the complaint should not be construed as falling within the meaning of the recommended cease and desist order in Case No. 5-CA-20018. Also, it is noted that the latter case did not involve the possible applicability of Master Labor Agreement terminology, or issues of possible waiver of bargaining rights. (12) Section 34.07 of the June 1982 Master Labor Agreement provided for inclusion of disputed Supplemental Labor Agreement articles only after an arbitration decision determining the appropriateness of such inclusion (Jt. Exh. No. 6 at page 138). NAFS took the position that reopening negotiations relating to Article 15 of the Supplemental Labor Agreement could ensue only after a determination in favor of inclusion (Tr. 100-102). (13) It is noted that AFLC -- Council 214 bargaining in connection with the renegotiation of the Master Labor Agreement, and in connection with AFR 40-452, theoretically could have produced the bargaining obligation that the Charging Party so eagerly sought in this case. It is also conceivable that such rights might have been generated by bargaining at the local level in connection with the Supplemental Labor Agreement. However, the fact remains that bargaining to date has not produced such a result. (14) Briefs filed on behalf of the General Counsel and the Charging Party do assert that the change in performance standards alleged in the case under consideration did involve a breach of AFR 40-452 procedures implemented on or about July 1, 1981. However, such conduct is not relied upon as a basis for the complaint, and it is not otherwise referred to in the complaint. Moreover, the specific provision alluded to confers no bargaining rights on Council 214 or the Charging Party, but merely provides: "Prior to a supervisor implementing the final decisions on the identification of job performance elements and standards the Union will be informed of such decisions and given a copy of the work plan if requested by the employee. The copy will be provided to the Union at least three days prior to implementation . . . " (R. Exh. No. 6 at 1).