22:0015(4)CA - Air Force, Air Force Logistics Command, Wright-Patterson AFB, OH and AFGE Council 214 -- 1986 FLRAdec CA



[ v22 p15 ]
22:0015(4)CA
The decision of the Authority follows:


 22 FLRA No. 4
 
 DEPARTMENT OF THE AIR FORCE
 AIR FORCE LOGISTICS COMMAND
 WRIGHT-PATTERSON AIR FORCE BASE, OHIO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, COUNCIL 214
 Charging Party
 
                                            Case No. 5-CA-20018
 
                            DECISION AND ORDER
 
    I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 and cross-exceptions filed to the attached Decision of the
 Administrative Law Judge.  The complaint alleged that the Respondent,
 Department of the Air Force, Air Force Logistics Command,
 Wright-Patterson Air Force Base, Ohio, violated section 7116(a)(1) and
 (5) of the Statute /1/ by failing and refusing to negotiate in good
 faith with the American Federation of Government Employees, AFL-CIO,
 Council 214 (Union), its employees' exclusive representative, by
 declaring nonnegotiable certain Union proposals regarding the
 implementation and impact of Air Force Regulation 40-452 (AFR 40-452),
 entitled "Performance Appraisal System," and by unilaterally
 implementing that regulation on or about July 1, 1981, without
 bargaining with the Union concerning eleven (11) specific proposals
 which the General Counsel alleges to be negotiable.  The Respondent
 asserts that the proposals are nonnegotiable for a variety of reasons as
 set forth in the Judge's Decision.  The Judge found several of the
 proposals to be negotiable and therefore concluded that the refusal to
 bargain and unilateral implementation of a performance appraisal system
 in the circumstances violated section 7116(a)(1) and (5) of the Statute.
 
    II.  Facts
 
    From March 4 to March 17, 1981, /2/ the Respondent and the Union met
 several times in negotiations concerning proposals relating to the
 impact and implementation of AFR 40-452.  The parties submitted
 proposals and counter-proposals, and met with a mediator.  On March 17,
 the parties reached impasse on 15 Union proposals.  On March 27, the
 Union submitted a request for assistance to the Federal Service Impasses
 Panel (the Panel).  On this same date, the Respondent sent the Union a
 letter stating that "(b)ecause of the statutory requirements that the
 Performance Appraisal System be fully implemented by 1 October 1981, we
 intend to begin implementing our final offer on 1 June 1981.  Between
 now and 1 June 1981 we will train supervisors and managers.  On 1 June
 or later we will begin implementation with bargaining unit employees in
 accordance with our final offer." The parties stipulated that the
 Respondent began implementation on July 1 or later.
 
    During its initial investigation into the parties' impasse, the Panel
 asked the Respondent to state, in writing, its position on why there was
 an impasse.  The Respondent declared that the parties had reached
 impasse because the 15 Union proposals were nonnegotiable, citing a
 different rationale for each.  On May 13, in a brief to the Panel, the
 American Federation of Government Employees, AFL-CIO (AFGE), on behalf
 of the Union, replied to the Respondent's allegations of
 nonnegotiability.  In its reply, AFGE amended the language of Union
 Proposals 3 and 5, and modified the stated intent of other proposals.
 Although the Respondent was served with AFGE's reply which was submitted
 to the Panel, it was never asked by AFGE or the Union to bargain over
 these modified proposals.  On June 5, the Panel declined to assert
 jurisdiction because the Respondent had raised a "threshold" question
 involving negotiability.
 
    III.  Administrative Law Judge's Decision
 
    The Judge found that six of the proposals over which the Respondent
 refused to negotiate were negotiable, and therefore concluded that the
 refusal to bargain and subsequent unilateral implementation violated
 section 7116(a)(1) and (5) of the Statute.  He also denied the Union's
 request for a status quo ante remedy.  The Judge recommended that the
 Respondent be ordered to cease and desist from the unfair labor
 practices found, and to take certain affirmative action, including
 negotiation with the Union, upon request, over the proposals found to be
 negotiable.
 
    IV.  Positions of the Parties
 
    The Respondent asserted that the proposals over which it refused to
 bargain are nonnegotiable on the basis of various arguments discussed
 below.  It also contended that some of the proposals conflict with an
 agency regulation, but has not raised or argued that a compelling need
 exists for the regulation alleged to conflict with the proposals.  The
 Respondent also alleged that its unilateral implementation of changes in
 its performance appraisal system pursuant to its last best offer before
 impasse was appropriate and necessary to be accomplished by a specific
 date, and that it could delay no longer.
 
    The General Counsel excepted to the findings of the Judge that
 certain Union proposals were nonnegotiable.
 
    V.  Analysis
 
    A.  Union Proposals 3 and 5
 
    As noted above, the complaint listed 11 of the 15 Union proposals as
 being negotiable.  The complaint asserted as unfair labor practices the
 Respondent's refusal to bargain over these 11 proposals including Union
 Proposals 3 and 5 as modified by AFGE in its May 13 submission to the
 Panel.  The question here is whether the Respondent violated the Statute
 by failing to negotiate over certain Union proposals with respect to the
 procedures which the Respondent would observe in exercising its
 authority with regard to changes in its performance appraisal system and
 its implementation of such performance appraisal system on or about July
 1.  A failure or refusal to negotiate in violation of the Statute
 assumes that there was a proper request to negotiate.  As to Proposals 3
 and 5, the Authority finds, contrary to the Judge, that the Respondent's
 mere knowledge of the Union's modified proposals is not a sufficient
 basis to find a violation;  there must be a clearly communicated request
 to bargain and a refusal to do so.  The record is clear that the
 Respondent never was requested to negotiate over the two modified Union
 proposals before it implemented its last best offer on or about July 1.
 Thus, the modifications were made when AFGE submitted them to the Panel
 on May 13 during the Panel's initial investigation of the case (over
 which it ultimately declined to assert jurisdiction).  Only after the
 Respondent implemented its modified performance appraisal system did
 AFGE on September 14 ask the Respondent for its position on the
 negotiability of the modified proposals.  Under these circumstances, the
 AFGE's submission of the modified proposals to the Panel in May did not
 constitute a request that the Respondent negotiate over the modified
 proposals.  As to the AFGE's request for a negotiability determination
 on September 14, such request was made months after the Respondent's
 implementation of the revised performance appraisal system and,
 therefore, if considered a request to bargain, came after the alleged
 unfair labor practice occurred in this case.  Thus, in these
 circumstances, it cannot be considered a timely request to bargain.  /3/
 Therefore, the Authority shall dismiss those portions of the complaint
 dealing with Union Proposals 3 and 5 which never were properly before
 the Respondent for negotiation as it relates to the complaint in this
 case.
 
    B.  Compelling Need
 
    1.  The Judge's Decision
 
    In deciding whether Union Proposals 8 and 10 were negotiable, the
 Judge considered whether they conflicted with an agency rule or
 regulation (in this case AFR 40-452), and determined that Proposal 8,
 susceptible to varying interpretations, was not incompatible or
 irreconcilable with the regulation, but that Proposal 10 was
 incompatible and irreconcilable with the regulation.  He therefore found
 Proposal 8 to be negotiable on the merits, and found Proposal 10 to be
 nonnegotiable because it conflicted with AFR 40-452.  In neither case
 did the Judge consider whether there was a compelling need for the
 regulation asserted to be incompatible with the Union proposal, although
 he noted that agencies are not obligated to bargain over matters
 encompassed by their regulations unless it is first determined under
 section 7117(b) of the Statute /4/ that no compelling need exists for
 the regulation.  In this regard, he noted that the Authority had not yet
 addressed whether a compelling need issue could be resolved in an unfair
 labor practice proceeding, but concluded that absent the Authority's
 resolution of that question his opinion was that compelling need could
 be resolved by the Authority only in a negotiability proceeding.  The
 record indicates, as noted below, that the Respondent did not argue the
 existence of a compelling need for the regulation to the Judge.
 
    2.  Subsequent case law
 
    After the Judge issued his Decision in this case, the Authority
 determined that a compelling need issue can be decided in an unfair
 labor practice proceeding.  Defense Logistics Agency (Cameron Station,
 Virginia) et al., 12 FLRA 412 (1983).  /5/ Thus, agency management may
 raise compelling need for an agency regulation as an affirmative defense
 to an allegation that it unlawfully refused to bargain before
 implementing its new or revised regulation.  In addition, the agency
 raising compelling need as an affirmative defense is required to come
 forward with affirmative support for such assertion, just as it would
 have the burden of establishing compelling need in a negotiability
 proceeding.  See Aberdeen Proving Ground, Department of the Army, 21
 FLRA No. 100 (1986).  /6/
 
    3.  Discussion of compelling need in this case
 
    The record discloses that the Respondent did not raise or argue the
 existence of a compelling need for AFR 40-452 as a reason for refusing
 to bargain with the Union or as a defense to the unfair labor practice
 allegations in this case.  Rather, the Respondent consistently asserted
 that since it had claimed the proposals were nonnegotiable because they
 conflicted with AFR 40-452, raising a regulatory bar, it was up to the
 Union or the General Counsel to assert and establish the absence of a
 compelling need.  The Respondent contends that it needs only to show a
 conflict between the proposal and the regulation, and that the burden of
 proof is on the General Counsel to show that a proposal is negotiable.
 The Authority disagrees.  Section 2424.11 of the Authority's Rules and
 Regulations states that "(a) compelling need exists for an agency rule
 or regulation concerning any condition of employment when the agency
 demonstrates that the rule or regulation meets one or more of the . . .
 criteria(.)" (Emphasis added.) Thus, as the Respondent never even
 asserted that a compelling need existed for AFR 40-452 so as to excuse
 it from the duty to bargain, such obligation existed unless there is
 merit to any of the Respondent's other defenses.
 
    C.  Analysis of Negotiability Issues
 
    The Authority adopts the Judge's conclusion that Union Proposals 1
 and 2 are negotiable, and that Proposal 4 is nonnegotiable, all for the
 reasons he stated.  We will now address the negotiability of the
 remaining disputed proposals.
 
    Proposal 6.  /7/
 
          Details shall be given equitable and proportionate weight in
       the overall performance rating as work performed in the employee's
       actual position.  When an employee has been officially detailed to
       another position, the employee's performance on the detail shall
       be appraised in writing so that the employee's records reflect
       this annual appraisal.  Details of six months or more will be
       given equal weight in the overall rating.  Accordingly, details of
       a lesser period will be given an equitable, proportionate amount
       of weight in the overall rating.
 
          Employees who are detailed or assigned to another position will
       not be required to meet the standards of this position until they
       have received the necessary training, guidance, and etc.  This
       training period will be for no less than 30 days.  An employee's
       evaluation will only commence after the training period and the
       supervisor has fully discussed the performance standards, critical
       elements, and the performance expected of the employee.
 
    The first paragraph of Union Proposal 6 would, under existing
 precedent, substantively interfere with management's right to direct and
 assign work under section 7106(a)(2)(A) and (B) of the Statute.  /8/ See
 American Federation of State, County and Municipal Employees, AFL-CIO,
 Council 26 and U.S. Department of Justice, 13 FLRA 578 (1984).  However,
 the Union has argued that this proposal was intended to provide an
 "appropriate arrangement" under section 7106(b)(3) of the Statute for
 employees whose annual performance rating would be affected because of
 details during their rating period.  In its recent decision in National
 Association of Government Employees, Local R14-87 and Kansas Army
 National Guard, 21 FLRA No. 4 (1986), the Authority adopted and
 "excessive interference" test for dealing with proposed appropriate
 arrangements and addressed the factors it would consider in making its
 determination.  We find that the proposal here, on its face, clearly
 prescribes an arrangement for employees being appraised who have been
 detailed during their rating period.  We find that the proposal only
 provides that details be given "equitable and proportionate weight" in
 the performance ratings.  It appears that the proposal is fully
 consistent with and implements 5 C.F.R. 430.204(q) and (r) (1985), which
 provide that a performance rating must take into account an employee's
 performance on a detail which occurs during a rating period.  /9/ The
 benefit to employees under the proposal would simply be that their
 annual appraisal would include consideration of all the work they had
 done during the appraisal period.  /10/ The Agency still retains its
 management right to detail, to determine the length of the detail, to
 assign work on the current job or the detail, and to determine the
 priority of the work assigned.  Nor does the proposal preclude
 management from evaluating employees or from setting particular
 standards for the work assigned.  Therefore, the Authority concludes
 that the first paragraph of Union Proposal 6 is a negotiable appropriate
 arrangement as any burden on management in these circumstances is
 unsubstantial in comparison to the benefit afforded to the affected
 employees.  In conclusion, the Authority finds that it does not
 excessively interfere with management rights.
 
    Turning to the second paragraph of Union Proposal 6, the Authority
 finds this portion of the proposal negotiable.  In this regard, it has
 the same effect of delaying application of performance requirements for
 a period during which an employee is performing duties of a new position
 as the proposals the Authority found negotiable in American Federation
 of State, County and Municipal Employees, Local 2910, AFL-CIO and
 Library of Congress, 15 FLRA 541 (1984) and National Federation of
 Federal Employees, Council of Consolidated SSA Locals and Department of
 Health and Human Services, Social Security Administration, 17 FLRA 657
 (1985) (Union Proposal 1), petition for review filed sub nom. Department
 of Health and Human Services, Social Security Administration v. FLRA,
 No. 85-1601 (4th Cir. June 19, 1985).  Therefore, for the reasons set
 forth in those cases, the proposal is negotiable.
 
    Proposal 7.
 
       The union will be allowed participation on any committee and/or
       process established to select recipients for awards.
 
    The Authority finds that Union Proposal 7 would, under existing
 precedent, directly interfere with management's reserved rights under
 section 7106(a)(2)(A) and (B) of the Statute, even if the Union's role
 is limited to observation.  See Department of the Navy, Northern
 Division, Naval Facilities Engineering Command, 19 FLRA No. 86 (1985),
 petition for review filed sub nom. National Federation of Federal
 Employees, Local 1430 v. FLRA, No. 85-1648 (D.C. Cir. October 9, 1985).
 Thus, the term "any committee and/or process" could include any
 committee or process established to select employees for performance
 based awards, and to that extent the proposal is nonnegotiable.
 
    Proposal 8.
 
          An employee with a minimally acceptable rating or higher will
       be screened for basic promotion eligibility.
 
    The Authority finds Proposal 8 to be negotiable since it only
 involves the screening of employees.  If the proposal required selection
 based on the lower standard, it would have been inconsistent with
 management rights under section 7106(a) (2)(A) and (B) of the Statute
 and, thus, nonnegotiable.  The proposal here only proposes a procedure
 that the Respondent will use when it determines which employees are
 eligible for promotion, but will not compel the Respondent to promote
 such employees.  See, for example, National Treasury Employees Union and
 NTEU Chapter 72 and Internal Revenue Service, Austin Service Center, 11
 FLRA 271 (1983) (Union Proposal 2).
 
    Proposal 9.
 
          Under no circumstances will an employee be demoted or removed
       without the following steps being taken by the employer:
 
          1.  The agency shall direct maximum efforts to improve an
       employee's performance through counselling, training,
       reassignment, job restructuring, development of suitable
       incentives and setting short term specific goals to be
       accomplished within a set time limit before considering whether to
       initiate procedures to demote or separate the employee.
 
          2.  Following the above, and after a reasonable amount of time
       has been given to demonstrate acceptable performance and the
       employee has not improved further action might be warranted.  A
       "reasonable amount of time" is to be defined on a case-by-case
       basis by the supervisor, employee and union steward.  The
       supervisor at all times should assist the employee in improving
       his or her performance.
 
    The Union's intent with regard to Proposal 9 was to include "all
 employees" under its provisions.  The Union would not agree with
 management's counterproposal to change the word "employee" to
 "non-probationary employees." Since it is clear that the provisions of
 Proposal 9 would include within the parties' negotiated grievance
 procedures those disputes regarding the termination of probationary
 employees, the Authority finds the entire proposal nonnegotiable.  See
 American Federation of Government Employees, AFL-CIO, National
 Immigration and Naturalization Service Council and U.S. Department of
 Justice, Immigration and Naturalization Service, 8 FLRA 347 (1982),
 rev'd sub nom. U.S. Department of Justice, Immigration and
 Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983).  Further,
 as this proposal arose in an unfair labor practice proceeding, the
 Authority finds it unnecessary to pass upon whether the provisions of
 Proposal 9 would be negotiable for non-probationary employees.
 
    Proposal 10.
 
          Forms documenting ratings of unacceptable but not accompanied
       by a demotion or removal recommendation will be kept for one year
       then destroyed.
 
    Since no issue has been raised as to whether there exists a
 compelling need for AFR 40-452, as noted above, and no other basis for
 finding the proposal nonnegotiable has been alleged or established, the
 Authority finds Proposal 10 to be negotiable inasmuch as it relates to a
 procedure which management is to use when an employee receives an
 unacceptable rating.
 
    Proposal 11.
 
          An employee who believes any performance standard does not meet
       the criteria contained in this agreement may file a grievance
       under Article 6 of the MLA.
 
    The negotiability of this proposal hinges on the Union's intent.  The
 question is whether it meant to authorize employees to grieve the
 performance standards themselves or only their application.  Relying on
 the Union's intent at the time the parties were at impasse, /11/ the
 Authority finds the Union's intent with regard to this proposal was to
 provide "the union and/or employee an opportunity to challenge the
 validity of performance standards through the negotiated grievance
 procedure." As the proposal would authorize grievances concerning the
 standards themselves rather than their application, the Authority
 concludes that Proposal 11 is nonnegotiable.  See American Federation of
 Government Employees, AFL-CIO, Local 1968 and Department of
 Transportation, St. Lawrence Seaway Development Corporation, Massena,
 New York, 5 FLRA 70 (1981), affirmed sub nom. American Federation of
 Government Employees, AFL-CIO, Local 1968 v. FLRA, 691 F.2d 565 (D.C.
 Cir. 1982), cert. denied, 461 U.S. 926 (1983).
 
    VI.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge made at the hearing, finds that no prejudicial error was
 committed, and thus affirms those rulings.  The Authority has considered
 the Judge's Decision, the exceptions to that Decision, the positions of
 the parties /12/ and the entire record, and adopts the Judge's findings,
 conclusions, and recommended Order as consistent with this decision.
 
    Therefore, having found that Union Proposals 1, 2, 6, 8 and 10 are
 negotiable, the Authority concludes that the Respondent's implementation
 of AFR 40-452 without bargaining on these proposals as requested,
 violated section 7116(a)(1) and (5) of the Statute.  See Veterans
 Administration, Veterans Administration Regional Office (Buffalo, New
 York), 10 FLRA 167 (1982).
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Authority 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, shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to meet and negotiate with the American
 Federation of Government Employees, AFL-CIO, Council 214, the employees'
 exclusive representative, over negotiable proposals with respect to the
 procedures which the Agency will observe in exercising its authority
 with regard to any change in the Agency's performance appraisal system
 and concerning appropriate arrangements for employees adversely affected
 by such change.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing employees in the exercise of any right assured by the Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Upon request of the American Federation of Government Employees,
 AFL-CIO, Council 214, the employees' exclusive representative, meet and
 negotiate with such representative concerning any of the proposals found
 negotiable herein, submitted in connection with implemented changes in
 the Agency's performance appraisal system.
 
    (b) Post at all of its facilities where bargaining unit employees are
 located 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, or a designee, and shall be posted and
 maintained for 60 consecutive days thereafter, in conspicuous places,
 including all bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 ensure 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 of 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 with the Order.
 
    IT IS FURTHER ORDERED that the allegation of the complaint in Case
 No. 5-CA-20018 relating to the Respondent's refusal to negotiate over
 those proposals found nonnegotiable be, and it hereby is, dismissed.
 
    Issued, Washington, D.C., June 4, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ 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 fail and refuse to meet and negotiate with the American
 Federation of Government Employees, AFL-CIO, Council 214, our employees'
 exclusive representative, over negotiable proposals with respect to the
 procedures which the Agency will observe in exercising its authority
 with regard to any change in our performance appraisal system and
 concerning appropriate arrangements for employees adversely affected by
 such change.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of any right assured by the
 Statute.
 
    WE WILL, upon request of the American Federation of Government
 Employees, AFL-CIO, Council 214, our employees' exclusive
 representative, meet and negotiate with such representative concerning
 any of the proposals found negotiable herein, submitted in connection
 with implemented changes in our performance appraisal system.
                                       (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 W. Jackson Boulevard, Suite 1359-A, Chicago, Il 60604, and whose
 telephone number is:  (312) 353-6306.
 
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 5-CA-20018
 
    DEPARTMENT OF THE AIR FORCE,
    AIR FORCE LOGISTICS COMMAND,
    WRIGHT-PATTERSON AIR FORCE BASE, OHIO
         Respondent
 
                                    and
 
    AMERICAN FEDERATION OF GOVERNMENT
    EMPLOYEES, COUNCIL 214, AFL-CIO
         Charging Party
 
    Roger T. McNamara, Esq.
    For the Respondent
 
    Steven M. Angel, Esq.
    For the Charging Aprty
 
    Sandra J. LeBold, Esq.
    For the General Counsel
 
    Before:  SALVATORE J. ARRIGO
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 Section 7101, et seq.
 
    Upon an unfair labor practice charge filed by the American Federation
 of Government Employees, Council 214, AFL-CIO (the Union herein), on
 October 13, 1981 against the Department of the Air Force, Air Force
 Logistics Command, Wright-Patterson Air Force Base, Ohio (Respondent
 herein), the General Counsel of the Authority, by the Regional Director
 for Region 5, issued a Complaint and Notice of Hearing alleging
 Respondent refused to bargain with the Union by declaring various of the
 Union's bargaining proposals to be nonnegotiable and thereafter
 implementing regulations concerning a performance appraisal program
 without bargaining with the Union on the procedures, impact and
 implementation of the regulations.
 
    A hearing on the Complaint was conducted on March 9, 1982 in Dayton,
 Ohio, at which time all parties were represented by counsel and afforded
 full opportunity to adduce evidence, call, examine, and cross-examine
 witnesses and argue orally.  Briefs were filed by all parties.
 
    Upon the entire record in this matter, my observation of the
 witnesses and their demeanor, and from my evaluation of the evidence, I
 make the following findings of fact, conclusions of law and
 recommendations.
 
                           Chronology of Events
 
    At all times material herein the Union has been the exclusive
 collective bargaining representative of approximately 70,000 of
 Respondent's employees nationwide.  In early November 1980 Respondent
 provided the Union with copies of Air Force Regulation (AFR) 40-452,
 dated October 1, 1980, which dealt with Department of the Air Force
 policy and procedures for appraisal and rating Air Force employees and
 offered to bargain with the Union on the impact of the regulation.  The
 regulation implemented the provision of the Civil Service Reform Act of
 1978, 5 U.S.C. Section 4302, 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.  The Union made
 a request to bargain on the regulation and the parties agreed to begin
 negotiations after the first of the year.  In mid-January 1981 the Union
 sent Respondent various proposals dealing with the regulation.  On March
 4, 1981 when the parties met for the first time to discuss the
 proposals, Respondent submitted its counter-proposals to the Union.
 
    The parties continued negotiations on March 5, 6, 8, and 9, 1981.  On
 March 9 the Union submitted its second set of proposals to Respondent.
 These proposals, consisting of eight pages, addressed ten general topics
 under the following titles:  general information, definitions, purpose
 of performance appraisal system, identifying job performance elements
 and performance standards, performance appraisal discussion, details,
 basic probation requirements, using the results of performance
 appraisal, record keeping, and rights of parties.  On March 10
 management presented the Union its second set of counter-proposals,
 consisting of five pages, which covered the same general topics raised
 by the Union.  Thereafter, the parties met on March 11, 12, and 15 to
 discuss the proposals.
 
    Although agreement was reached on numerous matters, the parties were
 unable to agree on 15 Union proposals and impasse was declared.
 Accordingly, on March 27 the Union requested the assistance of the
 Federal Service Impasses Panel and indicated to the Panel the areas of
 impasse and the areas of agreement and provided a summary of positions.
 On that same date Respondent notified the Union, in writing, that due to
 statutory requirements that the Performance Appraisal System be fully
 implemented by October 1, 1981, it intended to begin implementing its
 final offer to the Union.  Respondent advised the Union that it would
 immediately commence with training its supervisors and managers, and on
 June 1 or later, it would begin implementation with bargaining unit
 employees.
 
    By letter to the Impasses Panel dated April 22, 1981 the Union, inter
 alia, provided the Panel an amendment to supplement its March 27
 statement of position on three of its proposals.  A copy of this letter
 was sent to Respondent.
 
    On April 29, 1981 Respondent notified the Impasses Panel of its
 position that the Union's proposals upon which impasse had occurred were
 nonnegotiable.  Respondent set forth reasons for its conclusions and
 indicated that fact-finding by the Panel would be a likely course of
 action to follow to reach a settlement of the dispute.
 
    The Impasses Panel apparently telephonically requested the national
 office of AFGE to respond to Respondent's allegations of
 nonnegotiability.  Accordingly, by letter dated May 13, 1981 to the
 Panel, a copy of which was sent to Respondent and AFGE Council 214, the
 AFGE national office set forth its position and intent regarding each of
 the Union's proposals Respondent declared nonnegotiable.  That letter
 also explicitly revised two of the Union's specific proposals which
 Respondent had previously declared to be nonnegotiable.
 
    On June 5, 1981 the Impasses Panel notified the parties that it was
 declining to assert jurisdiction in the case since Respondent raised
 threshold questions concerning its duty to bargain with respect to a
 substantial portion of the Union's proposals.
 
    The process of implementing AFR 40-452 included:  instructing
 supervisors in the procedure;  developing a work plan by supervisors
 which encompassed the identification of critical elements and
 performance standards of each employee;  meeting with each employee to
 review and discuss the work plan;  revision and final drafting of each
 work plan;  and presenting the final work plan to each employee.  Around
 July 1, 1981 AFR 40-452 was implemented with regard to Respondent's
 supervisors meeting with employees to discuss specific critical elements
 and performance standards.  The process described above was completed by
 October 1.
 
    On September 14, 1981 AFGE national office wrote Respondent, on
 behalf of its ". . . constitutent, National Council of AFLC (Air Force
 Logistics Command) Locals," requesting Respondent's position on its
 claim of nonnegotiability on the Union's March 9, 1981 proposals (above)
 "as modified in (the national office's) submission to the Federal
 Service Impasses Panel on May 13, 1981." The letter indicated that the
 information would be used in connection with a negotiability appeal to
 the Authority.  Respondent replied on September 21 by providing a copy
 of the document it previously sent the Impasses Panel on April 29
 (above) which set forth its reasons for claiming nonnegotiability.  The
 response made no reference to the May 13 letter of AFGE national office
 revising two of the Union's earlier proposals but, rather, addressed
 only the Union's March 9 proposals.
 
    On October 8, 1981 the AFGE national office, "on behalf of its
 constituent Council 214" filed an negotiability appeal with the
 Authority.  On October 13 the present unfair labor practice charge was
 filed and on November 2 the AFGE national office requested that the
 Authority hold in abeyance its negotiability appeal and the matter
 thereafter proceeded to complaint.
 
    The Proposals
 
    The specific proposals at issue herein are as follows:  /13/
 
          (1) Management will encourage employee and union
       representatives to work with supervisors to identify job
       performance elements and to set performance standards.
 
          (2) The union will be provided copies of all standards in a
       manner which will allow sufficient time for review and discussion
       with employees, if such is warranted in the opinion of the union.
 
          (3) Critical Elements:  a job element which is of such
       importance that if it is not performed adequately, acceptable
       performance of the job as a whole is not possible.
 
          Performance Standards:  Statements of objective requirements
       measuring various levels of achievement for critical and
       non-critical elements.  All performance standards must be fair,
       equitable, objective, valid, reliable and job-related.
 
          (4) All efforts should be made so that standards reflect
       expectations of the average employee working a reasonable, normal
       rate.
 
          (5) The agency shall make every effort to remove whatever
       obstacles there may be in the job environment, such as excessive
       paperwork, physical hazards to health and safety, insufficient
       freedom to exercise initiative, and lack of direction, which makes
       it difficult for an employee to do the best work.
 
          (6) Details shall be given equitable and proportionate weight
       in the overall performance rating as work performed in the
       employee's actual position.  When an employee has been officially
       detailed to another position, the employee's performance on the
       detail shall be appraised in writing so that the employee's
       records reflect this annual appraisal.  Details of six months or
       more will be given equal weight in the overall rating.
       Accordingly, details of a lesser period will be given an
       equitable, proportionate amount of weight in the overall rating.
 
          Employees who are detailed or assigned to another position will
       not be required to meet the standards of this position until they
       have received the necessary training, guidance, and etc.  This
       training period will be for no less than 30 days.  An employee's
       evaluation will only commence after the training period and the
       supervisor has fully discussed the performance standards, critical
       elements, and the performance expected of the employee.
 
          (7) The union will be allowed participation on any committee
       and/or process established to select recipients for awards.
 
          (8) An employee with a minimally acceptable rating or higher
       will be screened for basic promotion eligibility.
 
          (9) Under no circumstances will an employee be demoted or
       removed without the following steps being taken by the employer:
 
          1.  The agency shall direct maximum efforts to improve an
       employee's performance through counselling, training,
       reassignment, job restructuring, development of suitable
       incentives and setting short term specific goals to be
       accomplished within a set time limit before considering whether to
       initiate procedures to demote or separate the employee.
 
          2.  Following the above, and after a reasonable amount of time
       has been given to demonstrate acceptable performance and the
       employee has not improved further action might be warranted.  A
       "reasonable amount of time" is to be defined on a case-by-case
       basis by the supervisor, employee and union steward.  The
       supervisor at all times should assist the employee in improving
       his or her performance.
 
          (10) Forms documenting ratings of unacceptable but not
       accompanied by a demotion or removal recommendation will be kept
       for one year then destroyed.
 
          (11) An employee who believes any performance standard does not
       meet the criteria contained in this agreement may file a grievance
       under Article 6 of the MLA.
 
                                Discussion
 
    Proposal 1 - "Management will encourage employee and union
 representatives to work with supervisors to identify job performance
 elements and to set performance standards."
 
    Respondent contends that this proposal requires negotiations with the
 Union in identifying job performance elements and setting performance
 standards and is therefore nonnegotiable.  I find the proposal to be
 negotiable.
 
    The Authority held in American Federation of Government Employees,
 AFL-CIO, Local 2849 and Office of Personnel Management, New York
 Regional Office, 7 FLRA 571 (1982), that a proposal requiring
 negotiations to establish performance standards and critical elements to
 be outside an agency's duty to bargain.  /14/ Prior thereto, the
 Authority held nonnegotiable a similar proposal requiring the
 establishment of performance standards "through collective bargaining"
 in that such negotiations would directly interfere with the exercise of
 mangement's right to direct employees and to assign work under section
 7106(a)(2)(A) and (B) of the Statute.  American Federation of Government
 Employees, AFL-CIO, Local 32 and Office of Personnel Management,
 Washington, D.C., 3 FLRA 784 at 787-789.  However, the Authority stated
 in that case, ". . . an exclusive representative must be given the
 opportunity to be represented at certain meetings between management and
 employees relating to the development and implementation of performance
 appraisal systems . . ." Further, the Authority noted in a subsequent
 case that proposals which require the opportunity for union comment on
 proposed changes in performance standards and critical elements are
 within an agency's duty to bargain under the Statute.  American
 Federation of Government Employees, AFL-CIO, Local 3656 and Federal
 Trade Commission, Boston Regional Office, 5 FLRA No. 70 at p.3.
 
    In the case herein the proposal as stated is ambiguous as to whether
 negotiation or merely an opportunity for Union comment is required.
 Respondent asserts that the following unrebutted testimony of
 Respondent's negotiator, relating what the Union's negotiator stated
 concerning the meaning of the proposal during bargaining, demonstrates
 that "negotiation" was envisioned by the proposal:
 
          "Q.  What did Mr. Ketcherside tell you that proposal meant, Mr.
       Mullen?
 
          "A.  This proposal was explained to me that the supervisor, the
       union representative and the employee would sit down and identify
       job performance elements, set the performance standards, and that
       they would reach agreement.  And I pursued that, the requirement
       for the agreement, with the question of what would happen if there
       was no agreement.  It was explained that there would be.  The
       people working at the first level supervisor level in the shops
       knew the jobs, knew each other, and that there shouldn't be too
       much of a problem with that."
 
    I find this testimony still leaves a measure of doubt as to the
 meaning of the proposal.  However, subsequent to the bargaining session
 which produced the above comments, the Union, in its March 27, 1981
 request for assistance from the Federal Service Impasses Panel explained
 that the Union's proposal would only commit the employee to solicit
 "input" from employees and Union officials and specifically disclaimed
 "an attempt for such participation to preclude the supervisor from
 making final determinations relative to elements and standards."
 Therefore, in the circumstances herein I find that the proposal does not
 require negotiations on performance elements and standards but only
 requires the opportunity for Union comment.  Accordingly, I conclude the
 proposal is negotiable.  Federal Trade Commission, Boston Regional
 Office, supra, and Respondent's refusal to negotiate on this proposal
 violated section 7116(a)(1) and (5) of the Statute.  Socal Security
 Administration, Baltimore, Maryland, 9 FLRA 909 (1982).
 
    Proposal 2 - "The union will be provided copies of all standards in a
 manner which will allow sufficient time for review and discussion with
 employees, if such is warranted in the opinion of the union."
 
    Respondent contends that this proposal would require Respondent
 providing the Union with copies of impending final job performance
 elements and standards prior to implementation, including the completed
 work plan for each individual employee.  Respondent argues that such a
 procedure would violate the Privacy Act, 5 U.S.C. 552(a), and is
 therefore nonnegotiable.
 
    I find the proposal to be negotiable.  While AFR 40-452 provides that
 the Privacy Act is applicable to matters concerning performance
 appraisal programs developed thereunder, the Authority, as stated above,
 has held that an agency is obligated to bargain over a proposal
 providing a union with an opportunity to comment on proposed changes in
 performance standards and critical elements.  Federal Trade Commission,
 Boston Regional Office, supra.  That being the case, it is difficult to
 imagine how the Union herein could make meaningful comments regarding
 performance standards and critical elements as applied to a particular
 employee's job unless the information sought and an opportunity for
 review and discussion is provided.  Further, when considering the
 application of the Privacy Act in situations where, as here, the
 information sought by an exclusive representative is necessary and
 relevant to perfecting its Statutory rights and fulfilling its
 obligations, the Authority has frequently held that a union's Statuatory
 right and need for the information sought substantially outweighs an
 employee's loss of privacy which might occur.  Veterans Administration
 Regional Office, Denver, Colorado, 7 FLRA 629 at 635, 640 (1981) and
 cases cited therein.  Accordingly, I find and concluded that the
 proposal is negotiable and reject Respondent's contention regarding the
 application of the Privacy Act.
 
    Proposal 3 - "Critical Element:  a job element which is of such
 importance that if it is not performed adequately, acceptable
 performance of the job as a whole is not possible."
 
    "Performance Standards:  Statements of objective requirements
 measuring various levels of achievement for critical and non-critical
 elements.  All performance standards must be fair, equitable, objective,
 valid, reliable, and job-related."
 
    Proposal 3 encompassing definitions of critical elements and
 performance standards, herein, was one of the two proposals which were
 revised by the AFGE national office in its submission to the Impasses
 Panel on May 13, 1981.  Respondent argues that no request to bargain on
 this proposal as amended was ever made since AFGE national had not
 participated in negotiations prior to impasse.  Therefore, Respondent
 reasons, procedurally no unfair labor practice violation can lie.
 
    Respondent's procedural argument is rejected.  Respondent, by
 receiving a copy of AFGE national's communication to the Impasse Panel
 was made aware that AFGE national, on behalf of Council 214, was
 revising the proposal.  It did not object nor indicate any confusion by
 the revision.  Rather, Respondent chose to stand by its last submission
 to the Impasses Panel re nonnegotiability and indeed, made no comment
 when responding to AFGE national's September 14, 1981 request for its
 position on negotiability wherein it specifically noted the proposals
 had been "modified." Thus, I find it was clear to Respondent that the
 Union's proposals were revised by AFGE national, on behalf of Council
 214, the revision was timely made since the matter was still before the
 Impasses Panel for consideration, and Respondent's conduct constituted
 affirmation of its prior contention of nonnegotiability.
 
    With regard to the negotiability of the proposal, Respondent asserts
 that no duty to bargain on the proposal exists since AFR 40-452 sets
 forth the definitions of a critical element and a performance standard
 and the proposed definitions of critical element and performance
 standards conflict with the regulatory definitions.
 
    Under section 7117(a)(2) and (3) of the Statute, an agency or a
 primary national subdivision of an agency is not obligated to bargain
 with a union regarding matters encompassed by their regulations unless a
 union represents the majority of employees in the agency or primary
 national subdivision or unless the Authority has determined, under
 section 7117(b) of the Statute, that no compelling need exists for the
 regulation in effect.  The Department of the Air Force is a primary
 national subdivision of the Department of Defense and, Respondent
 reasons, since the Union does not represent a majority of Department of
 the Air Force employees, and the Authority has not determined that no
 compelling need exists for the regulation, no obligation to bargain
 exists regarding the Union's proposal.
 
    The Authority has not yet addressed the question of whether a
 compelling need issue may be resolved in an unfair labor practice
 proceeding before an Administrative Law Judge.  However, I have
 previously addressed this issue in Boston District Recruiting Command et
 al., Case Nos. 1-CA-206, et al., OALJ-81-023 (December 22, 1980).  In
 that case I held that the legislative history and the language of the
 Statute and Regulations require a conclusion that the compelling need
 procedures envisioned by section 7117 of the Statute apply generally to
 all situations where an agency genuinely defends against a demand to
 negotiate on a matter by interposing the existence of an appropriate
 regulation.  In rejecting a position propounded by counsel for the
 General Counsel in that case I stated:
 
          Counsel for the General Counsel also suggests, as an
       alternative argument, that if the agency regulation stands as a
       bar to negotiations, then the proceeding herein served to put the
       issue of compelling need before the Authority for determination.
       In my view neither the Statute nor the Authority's regulations
       appear to envision this approach.  Indeed, section 7117(b)(3) of
       the Statute provides that where a hearing is held to make a
       determination of compelling need, it ". . . shall not include the
       General Counsel as a party" (Footnote omitted).  Accordingly, to
       combine a compelling need determination with an unfair labor
       practice proceeding, where the General Counsel has the
       responsibility of presenting the evidence in support of the
       complaint and carries the burden of proving the allegations of the
       complaint, would run contrary to Statutory prohibition.
       Therefore, Counsel for General Counsel's contention is rejected."
 
    Judge Francis E. Dowd also addressed this issue in Defense Logistics
 Agency, et al., Case No. 1-CA-213, OALJ-81-131 (July 7, 1981), and
 Headquarters, Defense Logistics Agency, et al., Case Nos. 3-CA-664 et
 al., OALJ-81-133 (July 10, 1981).  In those cases Judge Dowd similarly
 found that an agency regulation was a bar to negotiations absent a
 finding of no compelling need made directly by the Authority in a
 negotiability context.  Judge Dowd based his conclusion not only on a
 literal reading of the Statutory language but also on the apparent
 Statutory scheme for resolving such matters.
 
    In the case herein, "critical element" is defined in AFR 40-452 as
 follows:
 
          "d.  Critical Element.  A job performance element of an
       employee's job of sufficient importance that performance below the
       minimum performance standard established by management requires
       remedial action and denial of merit pay or a within-grade
       increase, and may be the basis for removing, reassigning, or
       demoting the employee.  Such action may be taken without regard to
       performance on other job performance elements."
 
    I find the definition of "critical "element" as proposed by the
 Union, supra, is at substantial variance and therefore incompatible or
 irreconcilable with the definition contained in the regulation.
 Accordingly, I conclude that AFR 40-452 is a bar to negotiations on the
 proposal.  Cf. Office of Personnel Management, Washington, D.C., supra.
 
    With regard to "performance standards," it is defined in AFR 40-452
 as follows:
 
          "f.  Performance Standard.  A description of the minimum level
       of accomplishment necessary for satisfactory performance.
       Performance standards are expressed in terms of qualitative or
       quantitative objectives, specific actions, project assignments, or
       other requirements related to job performance elements.  There may
       be more than one standard set for a single job performance
       element."
 
    I similarly find the definition of "performance standard" as proposed
 by the Union, supra, is, taken as a whole, at substantial variance and
 therefore incompatible or irreconcilable with the definition contained
 in the regulation.  Accordingly, I conclude that AFR 40-452 is a bar to
 negotiations.  Office of Personnel Management, Washington, D.C. supra.
 
    Proposal 4 - "All efforts should be made so that standards reflect
 expectations of the average employee working a reasonable, normal rate."
 
    This proposal would limit Respondent in setting performance standards
 to the "expectations" of the average employee.  Thus, the expectations
 of such an employee would be the determinative element for management in
 initially establishing performance standards and management would be
 precluded from exercising its independent judgment in making the
 determination.  Therefore, the proposal goes to the content of the
 performance standard and if a grievance were to be decided concerning
 the application of a performance standard, questions of whether "all
 efforts" were made and the underlying standard actually reflected the
 expectations of the average employee would be open for determination by
 an arbitrator who might well substitute his judgment for that of the
 agency.  Such action would impermissibly restrict Respondent's decision
 and directly interfere with management's right to direct its employees
 and assign work under section 7106(a) of the Statute.  Accordingly, I
 find the proposal to be nonnegotiable.  Cf. National Treasury Employees
 Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA
 769 (1980);  aff'd, No. 80-1895 (D.C. Cir. Oct. 12, 1982);  Office of
 Personnel Management, Washington, D.C., supra;  National Treasury
 Employees Union and Department of Health and Human Services, Region 10,
 7 FLRA 727 (1982);  and National Federation of Federal Employees, Local
 1437 and U.S. Army Armament Research and Development Command, Dover, New
 Jersey, 8 FLRA 414 (1982).
 
    Proposal 5 - "The agency shall make every effort to remove whatever
 obstacles there may be in the job environment, such as excessive
 paperwork, physical hazards to health and safety, insufficient freedom
 to exercise initiative, and lack of direction, which makes it difficult
 for an employee to do the best work." /15/
 
    Respondent contends, inter alia, that the above proposal violates
 management's right to direct employees and assign work under 7106(a)(2),
 and is therefore nonnegotiable.  I agree.
 
    The Authority has held that a proposal to "tailor" or redesign the
 position in a particular manner conflicts with management's right to
 assign work under section 7106(a)(2)(B) of the Statute and is therefore
 nonnegotiable.  National Federation of Federal Employees, Local 1624 and
 Air Force Contract Management Division, Hagerstown, Maryland, 3 FLRA 142
 (1980) and American Federation of Government Employees, AFL-CIO and Air
 Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA
 604 at 620-622.  The proposal herein, encompassing such matters as
 reducing "paperwork" and providing better "direction" and "freedom to
 exercise initiative," clearly requires restructuring duties to provide a
 job which does not make it "difficult for an employee to do the best
 work." Accordingly, I find the proposal to be nonnegotiable.
 
    Proposal 6 - "Details shall be given equitable and proportionate
 weight in the overall performance rating as work performed in the
 employee's actual position.  When an employee has been officially
 detailed to another position, the employee's performance on the detail
 shall be appraised in writing so that the employee's records reflect
 this annual appraisal.  Details of six months or more will be given
 equal weight in the overall rating.  Accordingly, details of a lesser
 period will be given an equitable, proportionate amount of weight in the
 overall rating."
 
    "Employees who are detailed or assigned to another position will not
 be required to meet the standards of this position until they have
 received the necessary training, guidance, and etc.  This training
 period will be for no less than 30 days.  An employee's evaluation will
 only commence after the training period and the supervisor has fully
 discussed the performance standards, critical elements, and the
 performance expected of the employee."
 
    With regard to the first part of this proposal, Respondent argues
 that by "dictating" to appraising officials the weight accorded detail
 duties in the overall rating, management's rights to direct and assign
 work under section 7106(a)(2) of the Statute are abridged.  I find this
 part of Proposal 6 to be negotiable.
 
    In my view that part of the proposal concerning the weight given to
 details deals primarily with procedures for the implementation of
 performance standards and does not infringe on management's section
 7106(a) rights.  Indeed, the Authority specifically indicated in Bureau
 of the Public Debt, supra at 780, that the manner in which the
 performance of employees on detail will be appraised was an example of
 ". . . the wide range of employee participation possible through
 negotiations . . ." relative to performance standards.  /16/
 
    Turning now to the second part of Proposal 6 dealing with training
 detailed employees prior to requiring them to meet the standards of the
 position they have been assigned to, I find that this proposal to be
 nonnegotiable.  A very similar proposal was found to be outside an
 agency's duty to bargain in American Federation of Government Employees,
 AFL-CIO, Local 3004 and Department of the Air Force, Otis Air Force
 Base, Massachusetts, 9 FLRA 723 (1982).  In that case the essence of the
 proposal provided that employees would not be evaluated on assigned
 duties which were outside their position description until management
 provided, and the employee completed, a formal training program in these
 duties.  The Authority, citing numerous cases, held that determining
 which employee duties would be included in a performance appraisal is a
 management's right to direct and assign work under section 7106(a)(2)(A)
 and (B) of the Statute and therefore, management was not required to
 negotiate proposals relating to the substance of such determinations.
 The Authority specifically stated:
 
          "Furthermore, proposals which would contractually obligate an
       agency to provide formal training, to periodically assign
       employees to specific types of training programs, and to make
       specific training assignments upon employee requests are outside
       the duty to bargain because the assignment of training under such
       circumstances constitutes an assignment of work the negotiation of
       which is inconsistent with management's right to assign work under
       section 7106(a)(2)(B)." (Citations omitted).
 
    Thus, I conclude the second part of Proposal 6 is outside
 Respondent's duty to bargain.  /17/
 
    Proposal 7 - "The union will be allowed participation on any
 committee and/or process established to select recipients for awards."
 
    Respondent contends it has no bargaining obligation regarding this
 proposal arguing that regulation AFR 40-470 controls the subject of
 awards and no changes in the awards program encompassed by AFR 40-470
 occurred to require negotiations thereon.
 
    I find that the change which occurred in Respondent's basic system of
 employee appraisal opened for bargaining the performance awards program
 under the new appraisal system.  AFR 40-452 section 5-3 /18/ states,
 inter alia, that "(e)mployees who get excellent or superior ratings
 should be considered for some kind of official honorary or monetary
 recognition." The regulation further treats the variety of awards
 available and circumstances for granting them, noting, "(m)ost employees
 covered by this regulation are eligible for wards covered by AFR
 40-470."
 
    The current AFR 40-470 /19/ recognizes, under section 4A, inter alia,
 that appraisals given under AFR 40-452 are the basis for granting
 performance recognition.  The regulation also provides under section 4D
 for an "interim measure" to permit granting performance recognition
 until employees covered by AFR 40-452 have been given an earned
 performance rating under that regulation.  Section 4D reveals that the
 interim measure was to expire September 30, 1982.
 
    AFR 40-470 also indicates that union representation on Incentive
 Awards Committees covering civilian performance awards programs is
 acceptable.  Thus, section 6 of that regulation provides, inter alia:
 "Both supervisory and nonsupervisory military and civilian personnel may
 be represented on or participate in the committee's work including
 civilian personnel representation resulting from local negotiated
 agreements."
 
    Accordingly, in the circumstances herein wherein a new appraisal
 system was adopted, that new system envisions awards, the regulation
 relating to the performance awards program was obviously amended to
 apply to appraisals under the new program, and the regulation
 controlling performance awards programs does not preclude union
 participation in the awards process, I find and concluded that Union
 Proposal 7 is negotiable.
 
    Proposal 8 - "An employee with a minimally acceptable rating or
 higher will be screened for basic promotion eligibility."
 
    Respondent contends that this proposal is nonnegotiable in that it
 conflicts with section 5-5 of AFR 40-452.
 
    Section 5-5 of AFR 40-452 provides, in relevant part:
 
    "The extent of consideration an employee receives for merit promotion
 purposes will be determined by the performance appraisal.  An employee
 with a fully successful rating or higher will be screened for basic
 merit promotion eligibility."
 
    Respondent argues that the impact of the second sentence of the
 quoted portion of section 5-5 is to set the minimum rating required for
 screening for promotion.  However, I find that section 5-5 is open to
 another interpretation whereby the Union's proposal would not be in
 conflict with the regulation.  Thus, if the section were read to mean
 that all employees with a fully successful rating or higher must be
 considered for promotion eligibility, such would not preclude others,
 namely employees with a minimally successful ratings, from also
 receiving consideration.  This construction is supported by the fact
 that section 5-5 does not state that only employees with a fully
 successful rating would be screened.  Accordingly, I find that section
 5-5 is susceptible of varying interpretations and the Union's proposal
 is not incompatible or irreconcilable with the regulation Cf.  Office of
 Personnel Management, Washington, D.C., supra.  I therefore conclude the
 proposal is negotiable.  Such finding and conclusion is in accord with
 congressional intent that management rights be treated narrowly as an
 exception to the general obligation to bargain.
 
    Proposal 9 - "Under no circumstances will an employee be demoted or
 removed without the following steps being taken by the employer:
 
    "1.  The agency shall direct maximum efforts to improve an employee's
 performance through counselling, training, reassignment, job
 restructuring, development of suitable incentives and setting short term
 specific goals to be accomplished within a set time limit before
 considering whether to initiate procedures to demote or separate the
 employee.
 
    "2.  Following the above, and after a reasonable amount of time has
 been given to demonstrate acceptable performance, and the employee has
 not improved further action might be warranted.  A "reasonable amount of
 time" is to be defined on a case-by-case basis by the supervisor,
 employee and union steward.  The supervisor at all times should assist
 the employee in improving his or her performance."
 
    Respondent raises a variety of arguments to support its contention
 that Proposal 9 is nonnegotiable, including conflict with regulations
 /20/ and impermissable restricting of management rights set forth in
 7106(a) of the Statute.
 
    Section 4302(b)(3) of the Civil Service Reform Act (CSRA) requires
 that performance appraisal systems provide for "assisting employees in
 improving unacceptable performance" and providing "an opportunity to
 demonstrate acceptable performance" before management reassigns or takes
 an adverse action against an employee whose performance is deemed
 unacceptable.  However, Union Proposal 9, Section 1, requires management
 to engage in a training program and job restructuring for an employee
 whose performance is unacceptable before considering whether to demote
 or separate the employee from service.
 
    Clearly, Proposal 9, Section 1, goes substantially beyond the
 requirements of the CSRA.  Indeed, as stated above regarding Proposal 5,
 the Authority has held that a proposal to redesign or restructure a
 particular job conflicts with management's right to assign work under
 section 7106(a)(2)(B) of the Statute.  Air Force Contract Management
 Division, supra, and Air Force Logistics Command, supra.  Further, a
 similar proposal relative to demoting employees was construed by the
 Authority to improperly establish a condition upon an agency's rights
 under section 7106(a)(2)(A) of the Statute to remove or reduce in grade
 employees and assign employees.  American Federation of Government
 Employees, Local 1760 and Department of Health and Human Services,
 Social Security Administration, Northeast Program Service Center, 9 FLRA
 1025 (1982).
 
    With regard to the requirement that an employee not be demoted or
 removed from service without first receiving "training" to improve
 performance, as stated above regarding the second portion of Proposal 6,
 the Authority has held that "proposals which would contractually
 obligate an agency to provide formal training, to periodically assign
 employees to specific types of training programs, and to make specific
 training assignments upon employee requests . . . are inconsistent with
 management's right to assign work under section 7106(a)(2)(B))."
 Department of the Air Force, Otis Air Force Base, supra;  see also
 National Association of Air Traffic Specialists and Department of
 Transportation, Federal Aviation Administration, 6 FLRA 588 (1981) and
 cases cited in footnote 5 herein.  Accordingly, in these circumstances I
 conclude that Proposal 9, taken as a whole, is nonnegotiable.  /21/
 
    Proposal 10 - "Forms documenting ratings of unacceptable but not
 accompanied by a demotion or removal recommendation will be kept for one
 year then destroyed."
 
    Respondent takes the position that section 6-2 of AFR 40-452
 conflicts with this proposal and therefore should be declared
 nonnegotiable.  I agree.
 
    Section 6-2 of AFR 40-452 provides:
 
          "a.  Forms documenting ratings of superior, excellent, fully
       successful, or minimally acceptable, or an unacceptable rating not
       accompanied by a demotion or removal recommendation, will be kept
       for 5 years and then destroyed."
 
    Proposal 10 limits retention of the designated unacceptable ratings
 for one year while the regulation specifically requires retention for
 five years.  The proposal and the regulation are clearly incompatible
 and irreconcilable.  Accordingly, for the reasons set forth above with
 regard to my conclusions regarding Union Proposal 3, I conclude Propoal
 10 is nonnegotiable.
 
    Proposal 11 - "An employee who believes any performance standard does
 not meet the criteria contained in this agreement may file a grievance
 under Article 6 of the MLA."
 
    Respondent bases its contention that this proposal infringes upon the
 Respondent's right to direct employees and assign work on the "intent
 and the plain and clear language of the proposal."
 
    With regard to the intent of the proposal, the Union in the
 attachment to its March 27, 1981 submission to the Impasses Panel,
 supra, explained that the proposal ". . . provides the union and/or the
 employee an opportunity to challenge the validity of performance
 standards through the negotiated grievance procedure." When the national
 union made its May 13, 1981 submission to the Impasses Panel it
 indicated that the intent of the proposal was not to violate
 management's right to direct and assign work.  The national office
 further stated that, as used in the proposal, grievance meant ". . .
 grievance consistent with the Federal Labor Relations Authority decision
 that performance standards are grievable only after they are applied",
 citing American Federation of Government Employees, AFL-CIO, Local 1968
 and Department of Transportation, St. Lawrence Seaway Development
 Corporation, Massena, New York, 5 FLRA No. 14 (1981), aff'd, No. 81-1274
 (D.C. Cir. Oct. 12, 1982).  In the cited case the Authority interpreted
 a union proposal that the grievance procedure therein extended to any
 action taken as a result of a performance appraisal to mean any action
 taken as a result of the application of critical elements and
 performance standardsto an employee covered by the procedure.  Id. at p.
 11.  This interpretation reflects the Authority's holding in Office of
 Personnel Management, Washington, D.C., supra, at 789-794 that a
 proposal which establishes a "general, nonquantitative requirement by
 which the application of critical elements and performance standards . .
 . may subsequently be evaluated in a grievance . . . is within the duty
 to bargain.
 
    In all the circumstances herein I find Proposal 11 does not infringe
 upon management's right to direct employees or assign work.  In my view,
 the statements of intent by the Union and the Union's national office do
 not help to clarify the meaning of the proposal.  However, the express
 language used in the proposal merely implies that performance standards
 will comport with whatever "criteria" is ultimately contained in the
 parties collective bargaining agreement.  One must assume that
 nonnegotiable or unlawful "criteria" will not be "contained in (the)
 agreement." That is what these proceedings, in part, are intended to
 assure.  Accordingly, I find the proposal to be negotiable.
 
                            Summary and Remedy
 
    I have found that Union Proposal 1, Proposal 2, Proposal 6, first
 paragraph, Proposal 7, Proposal 8, and Proposal 11 are negotiable.  /22/
 Accordingly, I conclude that Respondent's refusal to bargain on these
 proposals, and subsequent unilateral implementation of a performance
 appraisal system on July 1, 1981 in these circumstances, violated
 section 7116(a)(1) and (5) of the Statute.  Cf. Veterans Administration,
 1 FLRA 888 (1979) and Internal Revenue Service, Chicago, Illinois, 9
 FLRA 648 (1982).
 
    The Union requests as a remedy a return to the status quo ante.  /23/
 In Federation Correctional Institution, 8 FLRA 604 (1982), the Authority
 held that in cases involving a violation of the duty to bargain over
 "impact and implementation", the appropriateness of the status quo ante
 remedy will be determined "on a case-by-case basis, carefully balancing
 the nature and circumstances of the particular violation against the
 degree of disruption in government operations that would be caused by
 such a remedy." The Authority went on to list five factors it considered
 important in making a status quo ante determination through "balancing
 the equities." See also Internal Revenue Service, Chicago, Illinois,
 supra at 651.
 
    In the case herein negotiations between the parties produced
 agreement on numerous items.  However, 15 of the Union's proposals were
 declared nonnegotiable by Respondent and the General Counsel issued a
 complaint alleging Respondent illegally refused to bargain on 11 of the
 Union's proposals.  I find herein that Respondent was obligated to
 bargain on five Union proposals and a portion of a sixth.
 
    Respondent began to implement its new performance appraisal program
 in the collective bargaining unit on July 1, 1981 and by October 1,
 1981, work plans encompassing performance standards and critical
 elements for some 70,000 employees were established.  Within-grade pay
 increases to employees based upon the new appraisal system began to
 occur in February 1982 and continue at a rate of 25,000 a year.  /24/
 Effective October 1982, promotions of employees will relate to
 appraisals received under the new appraisal system.
 
    In the circumstances herein, and applying the standards set by the
 Authority in Federal Correctional Institution, supra, I conclude that a
 status quo ante remedy requiring Respondent to withdraw the new
 performance appraisal system and invalidating all personnel actions
 taken in accordance thereunder, reinstituting the performance appraisal
 program which was in effect prior to October 1, 1981 and appraising all
 employees and effectuating any personnel actions in conformance
 therewith, is not warranted.  Rather, I conclude that requiring
 Respondent to bargain on the proposals found negotiable herein and
 subsequently putting into effect the performance appraisal program as
 negotiated would best effectuate the purposes and policies of the
 Statute and comply with the Authority's direction to balance the nature
 and circumstances of the violation against the degree of disruption in
 government operations that would be caused by such a remedy.
 
    Accordingly, in view of the entire foregoing and having concluded
 that Respondent has violated section 7116(a)(1) and (5) of the Statute,
 I recommend the Authority issue the following:
 
                                   ORDER
 
    Pursuant to section 2423.20 of the Federal Labor Relations
 Authority's regulations and section 7118 of the Statute, it is hereby
 ordered that the Department of the Air Force, Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio shall:
 
    1.  Cease and desist from:
 
          (a) Instituting any change in the Performance Appraisal Program
       without affording the American Federation of Government Employees,
       Council 214, AFL-CIO, the employee's exclusive representative, the
       opportunity to bargain with respect to the procedures which the
       agency will observe in exercising its authority with regard
       thereto and appropriate arrangements for employees adversely
       affected by such change.
 
          (b) Failing and refusing to negotiate with the American
       Federation of Government Employees, Council 214, AFL-CIO, the
       employees' exclusive representative, to the extent consonant with
       law and regulation, concerning any change in the Performance
       Appraisal Program.
 
          (c) In any like or related manner interfering with,
       restraining, or coercing 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 Federal Service Labor-Management Relations
 Statute:
 
          (a) Upon request of the American Federation of Government
       Employees, Council 214, AFL-CIO, the employees' exclusive
       representative, meet and negotiate with respect to the proposals
       previously submitted by the Union and found negotiable herein, to
       the extent consonant with law and regulation, concerning changes
       in the Performance Appraisal Program.
 
          (b) Post at all of its facilities where bargaining unit
       employees are located 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/her for 60
       consecutive days thereafter, in conspicuous places, including all
       bulletin boards and other places where notices to employees are
       customarily posted.  The Commander shall take reasonable steps to
       insure that such notices are not altered, defaced, or covered by
       any other material.
 
          (c) Pursuant to section 2423.30 of the Federal Labor Relations
       Authority's Rules and Regulations, notify the Regional Director,
       Region 5, Federal Labor Relations Authority, 175 West Jackson
       Boulevard, Suite A-1359, Chicago, Illinois 60604, in writing,
       within 30 days from the date of this Order, as to what steps have
       been taken to comply herewith.
 
                                       /s/ SALVATORE J. ARRIGO
                                       Administrative Law Judge
 
    Dated:  October 20, 1982
    Washington, DC
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Section 7116(a)(1) and (5) provides:
 
    Section 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice an agency --
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
          . . . . . . .
 
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter(.)
 
    (2) All references are to 1981 unless otherwise indicated.
 
    (3) The evidence shows that, after the Panel refused to assert
 jurisdiction on June 5, the local parties resumed negotiations over AFR
 40-452 in an effort to overcome the negotiability questions, but were
 unable to reach any significant agreement.  In a September 4 letter to
 AFGE, the Union president stated, "(W)e were unable to reach any
 significant agreement on the outstanding issues and as a result we are
 in the same position as when these issues were submitted to FSIP."
 (Emphasis added.) The Union president further added that "(t)he issues
 remain essentially the same as outlined in those documents submitted to
 your office . . . by letters of transmittal dated March 31, 1981 and
 April 30, 1981." Thus, it apeears that the local parties were still
 bargaining over the unmodified proposals after implementation, and the
 record further indicates that the Respondent was not requested to
 bargain over the modified proposals, which are the subject of the
 complaint in this case, inasmuch as the issues remained essentially the
 same on September 4 as prior to the May 13 AFGE submission.
 
    (4) Section 7117(b) provides:
 
          Section 7117.  Duty to bargain in good faith;  compelling need;
        duty to consult
 
                  .  .  .  .  .  .  .
 
 
          (b)(1) In any case of collective bargaining in which an
       exclusive representative alleges that no compelling need exists
       for any rule or regulation referred to in subsection (a)(3) of
       this section which is then in effect and which governs any matter
       at issue in such collective bargaining, the Authority shall
       determine under paragraph (2) of this subsection, in accordance
       with regulations prescribed by the Authority, whether such a
       compelling need exists.
 
          (2) For the purpose of this section, a compelling need shall be
       determined not to exist for any rule or regulation only if --
 
          (A) the agency, or primary national subdivision, as the case
       may be, which issued the rule or regulation informs the Authority
       in writing that a compelling need for the rule or regulation does
       not exist;  or
 
          (B) the Authority determines that a compelling need for a rule
       or regulation does not exist.
 
    (5) The United States Court of Appeals for the District of Columbia
 Circuit affirmed the Authority's interpretation of the Statute, but
 remanded the matter to the Authority for the sole purpose of permitting
 the petitioners to present evidence as to whether there existed a
 compelling need for the particular regulation at issue.  Defense
 Logistics Agency, et al. v. FLRA, 754 F.2d 1003 (D.C. Cir. 1985).  On
 April 22, 1985, the Authority remanded the proceeding to the Chief
 Administrative Law Judge for disposition consistent with the direction
 of the court.  Thereafter, on March 31, 1986, the complaint was
 withdrawn.
 
    (6) The Authority notes that the United States Court of Appeals for
 the Fourth Circuit recently reversed an Authority decision on this same
 issue, U.S. Army Engineer Center and Fort Belvoir, 13 FLRA 707 (1984),
 reversed sub nom. United States Army Engineer Center v. FLRA, 762 F.2d
 409 (4th Cir. 1985), rehearing denied (July 26, 1985).  In the
 Authority's Supplemental Decision and Order in that case, U.S. Army
 Engineer Center and Fort Belvoir, 19 FLRA No. 92 (1985), the Authority
 stated it "accepts the Court's opinion as the law of the case and,
 consistent with that opinion, shall order that the complaint in Case No.
 3-CA-20133 be dismissed." Slip op. at 2.
 
    (7) The second sentence of the first paragraph is not in dispute.
 
    (8) Section 7106(a)(2)(A) and (B) provides:
 
          Section 7106.  Management rights
 
          (a) Subject to subsection (b) of this section, nothing in this
       chapter shall affect the authority of any management official of
       any agency --
 
          (2) in accordance with applicable laws --
 
          (A) to hire, assign, direct, layoff, and retain employees in
       the agency, or to suspend, remove, reduce in grade or pay, or take
       other disciplinary action against such employees;
 
          (B) to assign work, to make determinations with respect to
       contracting out, and to determine the personnel by which agency
       operations shall be conducted(.)
 
    (9) 5 C.F.R. 430.204(q) and (r) provides in pertinent parts:
 
          Section 430.204 The performance appraisal process
 
          (q) Details within the same agency.
 
          Agencies shall provide written critical elements and
       performance standards to employees as soon as possible but no
       later than 30 calendar days after the beginning of a detail or
       temporary promotion with the same agency when the detail or
       temporary promotion is expected to last 120 calendar days or
       longer.  Performance ratings on critical elements must be prepared
       for these details and temporary promotions and must be considered
       in deriving an employee's next annual performance rating.
 
          (r) Details to another agency or organization.
 
          When an employee is or had been detailed or temporarily
       assigned outside of the agency, an annual performance rating must
       be prepared if the employee has served for the minimum appraisal
       period inside the agency.
 
          (1) If an employee has not served in the agency for the
       established minimum appraisal period, but has served for the
       minimum appraisal period in another organization, the agency must
       make a reasonable effort to obtain appraisal information from the
       other organization sufficient to prepare an annual performance
       rating.
 
    (10) See, for example, American Federation of Government Employees,
 AFL-CIO, Local 2849 and Office of Personnel Management, New York
 Regional Office, 7 FLRA 571 (1982), wherein the Authority found
 negotiable a proposal that would require an employee's performance
 standard to be consistent with the employee's duties.
 
    (11) Any other explanation of intent occurring after the Union's
 submission to the Panel is not germane to this proceeding.  The AFGE's
 May 13 submission was not a proper bargaining request to the Respondent
 in terms of its modified Proposals 3 and 5, as discussed earlier, or in
 terms of its change of intent with regard to the Union's proposals.
 
    (12) The Authority's Rules and Regulations do not provide for the
 Respondent's submission of an oppostion to the Charging Party's
 "Opposition to Respondent's Exceptions and Charging Party's
 Cross-exceptions." Therefore, the Authority has not considered that
 submission.
 
    (13) Proposals 3 and 5 appear as revised by the AFGE national office
 in its May 13, 1981 letter to the Impasses Panel, a copy of which was
 received by Respondent.
 
    (14) The requirement for negotiations was actually stated as "meeting
 and conferring."
 
    (15) Proposal 5 appears as revised in the AFGE national office
 submission to the Impasses Panel on May 13, 1981.
 
    (16) The second sentence of the first portion of Proposal 6 dealing
 with an employee being provided a written appraisal while on detail is
 not alleged by Respondent to be nonnegotiable.  In any event I would
 find such proposal to be clearly negotiable.
 
    (17) Cf. American Federation of Government Employees, AFL-CIO, Local
 1923 and Department of Health and Human Service, Social Security
 Administration, 9 FLRA 899 (1982);  But see American Federation of
 Government Employees, AFL-CIO, Social Security Local No. 1760 and
 Department of Human Service, Social Security Administration, 9 FLRA 813
 (1982) at 814 and cases cited therein.
 
    (18) Chapter 5 of the regulation is entitled:  "Using the Results of
 Performance Appraisal."
 
    (19) Although a copy of this regulation was not offered in evidence,
 I hereby take administrative notice of its content.
 
    (20) As a part of this position Respondent strongly argues that the
 proposal does not differentiate between the treatment of probationary
 and nonprobationary employees as required by 5 U.S.C. 4303 and AFR
 40-452.
 
    (21) Section 2 of Proposal 9 is designed to take effect only after
 the procedures set forth in section 1 have been exhausted.  Since
 section 1 is nonnegotiable, obviously the elements of section 2 cannot
 be implemented and no independent negotiability determinating of this
 proposal need be made herein.
 
    (22) In finding that these proposals are within the duty to bargain I
 make no judgment as to their merits.
 
    (23) The General Counsel did not urge a status quo ante remedy.
 
    (24) Between October 1981 and February 1982 Respondent gave
 "presumptive" satisfactory ratings to employees eligible for
 within-grade increases.
 
 
 
 
 
 
                                 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 UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT institute any change in the Performance Appraisal Program
 without affording the American Federation of Government Employees,
 Council 214, AFL-CIO, the employees' exclusive representative, the
 opportunity to bargain with respect to the procedures which the agency
 will observe in exercising its authority with regard thereto and
 appropriate arrangements for employees adversely affected by such
 change.
 
    WE WILL NOT fail and refuse to negotiate with the American Federation
 of Government Employees, Council 214, AFL-CIO, the employees' exclusive
 representative, to the extent consonant with law and regulation,
 concerning any changes in the Performance Appraisal Program.
 
    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 of the American Federation of Government
 Employees, Council 214, AFL-CIO, the employees' exclusive
 representative, meet and negotiate with respect to the proposals
 previously submitted by the Union and found to be negotiable, to the
 extent consonant with law and regulations, concerning changes in the
 Performance Appraisal Program.
                                       (Agency of Activity)
 
    Dated:  . . .
                                       By:  (Signature)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting and must not be altered, defaced or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region 5, Federal Labor Relations Authority, 175 West Jackson
 Boulevard