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 ]
21:0609(78)CA
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 moti