22:0464(47)CA - Air Force, Lowry AFB, Denver, CO and AFGE Local 1974 -- 1986 FLRAdec CA

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[ v22 p464 ]
22:0464(47)CA
The decision of the Authority follows:


 22 FLRA No. 47
 
 DEPARTMENT OF THE AIR FORCE
 LOWRY AIR FORCE BASE
 DENVER, COLORADO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 1974
 Charging Party
 
                                            Case No. 7-CA-1379
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority because the
 General Counsel filed exceptions to the attached Decision of the
 Administrative Law Judge.  The Respondent filed an opposition to the
 exceptions.  The complaint alleged that the Respondent, Department of
 the Air Force, Lowry Air Force Base, Denver, Colorado (Lowry AFB),
 violated section 7116(a)(1) and (5) of the Federal Service
 Labor-Management Relations Statute (the Statute) by failing and refusing
 to negotiate with the American Federation of Government Employees,
 AFL-CIO, Local 1974 (Union) over certain Union collective bargaining
 proposals regarding implementation of the Respondent's proposed Job
 Performance Appraisal System (JPAS), and by the Respondent's
 implementation of the system on October 1, 1981.
 
                                II.  Facts
 
    The Respondent, by letter dated March 31, 1981, notified each of its
 employees' exclusive representatives at Lowry AFB, including the
 Charging Party, that its JPAS must be implemented by October 1, and
 invited comments regarding the impact and implementation of the JPAS.
 By letter dated April 14, the Union requested negotiatons on the
 implementation of the JPAS.  The parties' first bargaining session
 occurred on or about June 11, when the Union submitted proposals.
 During several subsequent meetings, the Respondent declared Union
 proposals Section 2 A through K and Section 4.b.2 nonnegotiable.
 
    On September 15, the Respondent notified the Union of its intention
 to implement all the language that the parties had agreed to during
 negotiations plus Respondent's last best offer on all items over which
 the parties did not agree.
 
                 III.  Administrative Law Judge's Decision
 
    The Judge found that because (1) the Union's proposals, considered as
 a whole, were incompatible or irreconcilable with Air Force Regulation
 (AFR) 40-452;  (2) compelling need issues could not be adjudicated in an
 unfair labor practice proceeding;  and (3) the Union did not first
 establish under section 7117(b) of the Statute that no compelling need
 exists for AFR 40-452, Respondent had no obligation to negotiate.
 Therefore, he recommended that the complaint be dismissed.
 
                       IV.  Positions of the Parties
 
    The General Counsel excepted to the Judge's findings that compelling
 need issues could not be adjudicated in an unfair labor practice
 proceeding;  to the Judge's finding that the Union proposals were
 nonnegotiable;  and to his conclusion that the complaint should be
 dismissed.  The General Counsel also excepted to one of the Judge's
 credibility findings and to his ruling restricting participation at the
 hearing of one of the General Counsel's attorneys.
 
    The Respondent, in its opposition to the General Counsel's
 exceptions, asserted that the Judge correctly found the Union proposals,
 considered as a whole, were incompatible or irreconcilable with AFR
 40-452;  that he correctly interpreted the Statute with regard to
 compelling need;  that the Charging Party should have first pursued the
 compelling need issue under the provisions of section 7117(b) of the
 Statute;  and that the Judge's credibility finding was supported by
 ample evidence.  The Respondent also opposed the General Counsel's
 exception that the Judge erred in disqualifying one of the attorneys for
 the General Counsel at the hearing.
 
    The Respondent further asserted that there is a compelling need for
 AFR 40-452 and that Union proposals 2.E-H and 4.b.2. are not otherwise
 negotiable as such proposals interfere with the Agency's rights to
 direct employees and assign work contrary to section 7106(a)(2)(A) and
 (B) of the Statute.  The Respondent also argued that it cannot be found
 in violation of the Statute because it was required by law and
 Government-wide regulation to implement its JPAS on October 1.
 
                               V.  Analysis
 
    Both negotiability and compelling need arguments are raised by the
 parties as to the various proposals at issue.  We will now address the
 negotiability of the proposals and where found negotiable, as
 appropriate, determine whether the proposals are incompatible or
 irreconcilable with AFR 40-452.
 
    The Union proposals set out below prescribe and define rating levels
 of employee performance (Section 2.E. through 2.H., and Section 4.b.2.).
 
                                 Section 2
 
          For the purpose of this Article, the following definitions will
       apply:
 
          E.  OUTSTANDING -- The employee has significantly exceeded the
       established performance standard.  The rating is of exceptionally
       high quality.  The employee's performance is beyond the
       requirements of the position.
 
          F.  SATISFACTORY -- The employee has met the established
       standard.  The employee requires an average degree of supervision
       and normal problems are satisfactorily solved.  Assignments are
       complete and prepared as compared to the average employee.
 
          G.  MARGINAL -- The employee has barely met the established
       standards while overall performance meets the requirements of the
       position.  There are noted deficiencies with room for improvement
       and more direct supervision may have been required.
 
          H.  UNACCEPTABLE -- The employee has failed to meet the
       established standards, one or more critical elements and has
       failed to complete assignments in an acceptable manner.
 
                              Section 4.b.2.
 
          4.b.2.  Overall Rating.  The range of rating for overall
       performance shall be one of the four (4) ratings defined below (in
       actuality, defined in Union Proposal, Section 2.E. through 2.H.,
       set forth above).  The overall rating shall be arrived at
       considering the total performance of the employee by using only
       the rating elements as prescribed in Section 4 B (sic) 1 above and
       the definitions of the ratings below.  The ratings are:
 
          (a) Outstanding
 
          (b) Satisfactory
 
          (c) Marginal
 
          (d) Unacceptable
 
          A rating other than (b) satisfactory shall be documented in
       writing and made part of the employee's personnel file.  Each
       employee will be given a copy of the rating and any written
       documentation.
 
    The Authority finds that these proposals are outside the duty to
 bargain since they would directly interfere with management's right to
 direct employees and assign work pursuant to section 7106(a)(2)(A) and
 (B) of the Statute.  These proposals have the same effect as the Union
 proposal in American Federation of State, County and Municipal
 Employees, AFL-CIO, Council 26 and U.S. Department of Justice, 13 FLRA
 578 (1984).  In that case, the Authority determined that the proposal at
 issue, which would have established the levels of performance in
 individual job elements necessary to the achievement of a given overall
 rating and would have established the number of rating levels in the
 evaluation of an employee's performance, was nonnegotiable as it would
 have interfered with the exercise of management's rights to direct
 employees and assign work under section 7106(a)(2)(A) and (B) of the
 Statute.  In the instant case, it appears the Union proposals would
 similarly prescribe the levels of performance that management must
 accept in evaluating an employee's overall performance as well as
 establish the number of rating levels to evaluate such performance.
 Thus, Union Proposals 2.E. through 2.H., and 4.b.2, for the reasons more
 fully set forth in the Authority's Department of Justice decision,
 above, likewise would directly interfere with management's right to
 direct employees and assign work under section 7106(a)(2)(A) and (B) of
 the Statute and are outside the duty to bargain.
 
    Of the remaining Union proposals, 2.A. through 2.D., and 2.I. through
 2.K., as set forth below, the Authority finds all negotiable except
 Section 2.B., the Union's definition of "critical element."
 
                                 Section 2
 
          For the purpose of this Article, the following definitions will
       apply:
 
          A.  A Job Element is any major component of an employee's job
       that has been included in the official position description which
       can be objectively measured.
 
          B.  A Critical Element is 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.
 
          C.  A Non-Critical Element is a job element that is not
       critical, but is important enough to require measurements based on
       objective criteria.
 
          D.  A Performance Standard is a statement 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.
 
          I.  WORK PLAN -- The written critical or non-critical elements
       identified in the major components of an employee's official
       position description and recorded on AF Form 1282.
 
          J.  PERFORMANCE APPRAISAL -- A comparison of an employee's
       accomplishment of assigned duties and responsibilities with
       management established performance standards.
 
          K.  TRAINING -- To improve performance and acquire new skills
       and to identify remedial or developmental training required for an
       employee to meet or exceed a specified performance standard.
 
    The Respondent's essential argument that Union proposals Section
 2.A., 2.B., 2.C., 2.D. and 2.I. are nonnegotiable derives from the
 Union's definition of "job element" in Section 2.A. which, it asserts,
 controls all the succeeding subsections, since the defined term, "job
 element," is incorporated in each of them.  The Respondent contends the
 Union's definition of "job element" limits management to rating or
 appraising employee job performance on those job elements "included
 within the official position description" of the employee.  It also
 contends that the Union's definition of "non-critical element" is
 incompatible with AFR 40-452 as it does not denote a consequence of
 failing to meet the described objective standard.  The Authority finds
 Union proposal 2.A. and the related Union definitions negotiable since,
 taken together, they only subject management to the procedural
 requirement that the position description involved accurately reflect
 the work assigned.
 
    These proposals are substantively identical to the proposal
 considered by the Authority in American Federation of Government
 Employees, AFL-CIO, Local 2849 and Office of Personnel Management, New
 York Regional Office, 7 FLRA 571 (1982) (Union Proposal 1).  In that
 case, the Authority concluded that under the proposal at issue, the
 right of the agency to direct employees and to assign work through
 establishing elements and standards remained unaffected, subject to the
 procedural requirement that the position description involved would
 accurately reflect the work assigned.  Therefore, for the reasons set
 forth in AFGE, Local 2849, above, the referenced Union proposals in this
 case would not interfere with management's right to direct employees and
 assign work under section 7106(a)(2)(A) and (B) of the Statute and
 therefore are within the duty to bargain.  Similarly, such proposals are
 not inconsistent, i.e., incompatible or irreconcilable, with AFR 40-452
 as the proposals in this case would only require the Activity to
 procedurally amend an employee's position description to achieve
 consistency with the duties assigned.  The proposals therefore would not
 prevent management from rating or appraising employee job performance
 contrary to or inconsistent with AFR 40-452.  Moreover, although the
 Respondent is correct that the Union's definition of "non-critical
 element" does not denote a consequence of failing to meet the described
 objective standard, in American Federation of Government Employees,
 AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C.,
 3 FLRA 784 (1980) (Union Proposals 2 and 3), the Authority held that the
 proposal there was not inconsistent with the regulatory definition
 merely because it was silent with respect to remedial action.  The
 Authority found that in all cases involving remedial action, where the
 proposal is silent, the regulation would govern.
 
    Union proposal 2.B. defines the term "critical element." The Judge
 concluded, based on his resolution of credibility, that the Union's
 intent was that critical elements should be "grade controlling." Thus,
 the Authority finds the proposal to be outside the duty to bargain under
 section 7106(a)(2)(A) and (B) of the Statute.  The Authority has held
 that a proposal which would require that the critical elements of a
 position be based only on grade controlling factors of a position is
 inconsistent with section 7106(a) of the Statute.  See American
 Federation of Government Employees, AFL-CIO, Local 3804 and Federal
 Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217
 (1981) (Union Proposal 1) and American Federation of Government
 Employees, AFL-CIO, Local 1968 and Department of Transportation, Saint
 Lawrence Seaway Development Corporation, Massena, New York, 5 FLRA 70
 (1981) (Union Proposal 1) enforced sub nom. American Federation of
 Government Employees, AFL-CIO, Local 1968 v. FLRA, 691 F.2d 565 (D.C.
 Cir. 1982), cert. denied, 103 S. Ct. 2085 (1983).
 
    The Judge found that a determination of compelling need for an agency
 regulation could not be adjudicated in an unfair labor practice
 proceeding.  Subsequent to the Judge's decision herein, the Authority
 decided to the contrary.  See Defense Logistics Agency (Cameron Station,
 Virginia) et al., 12 FLRA 412 (1983), affirmed sub nom. Defense
 Logistics Agency et al. v. FLRA, 754 F.2d 1003 (D.C. Cir. 1985).  But
 see also United States Army Engineer Center v. FLRA, 762 F.2d 409 (4th
 Cir. 1985), rehearing denied, reversing U.S. Army Engineer Center and
 Fort Belvoir, 13 FLRA 707 (1984).  Based on the finding that the
 proposals in this case did not conflict with the regulation, the
 Authority finds it unnecessary to rule on whether a compelling need
 exists for AFR 40-452.
 
    Finally, in the absence of exceptions to the Judge's determination
 that Union proposals Section 2.J., Performance Appraisal, and 2.K.,
 Training, are negotiable, the Authority adopts that determination.
 
                             VI.  Conclusions
 
    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.  /1/ The Authority has
 considered the Judge's Decision, the positions of the parties and the
 entire record, and adopts the Judge's findings, /2/ conclusions, and
 recommended Order as consistent with this decision.
 
    Thus, having concluded that Union proposals Section 2.A., 2.C., 2.D.,
 2.I., 2.J. and 2.K. are negotiable, and are not incompatible or
 irreconcilable with AFR 40-452, the Authority concludes that the
 Respondent violated section 7116(a)(1) and (5) of the Statute when it
 implemented its performance appraisal system on October 1, 1981, without
 having negotiated with the Union over those proposals.  See Veterans
 Administration, Veterans Administration Regional Office (Buffalo, New
 York), 10 FLRA 167 (1982).  The Authority further finds that the
 Respondent's need to implement by that date did not negate its
 obligation to bargain with the Union over the negotiable proposals
 because, absent indications to the contrary, it is the Authority's view
 that there was sufficient time to bargain between the Union's submission
 of its proposals on June 11, 1981, and implementation on October 1,
 1981.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Federal
 Service Labor-Management Relations Statute, it is hereby ordered that
 the Department of the Air Force, Lowry Air Force Base, Denver, Colorado,
 shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to negotiate with the American
       Federation of Government Employees, AFL-CIO, Local 1974, its
       employees' exclusive representative, over negotiable proposals
       found not to be inconsistent with AFR 40-452 regarding the
       Activity's Job Performance Appraisal System.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing any employee in the exercise of any
       rights assured by the Federal Service Labor-Management Relations
       Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Upon request of the American Federation of Government
       Employees, AFL-CIO, Local 1974, the employees' exclusive
       representative, meet and negotiate with such representative
       concerning any proposal found to be negotiable regarding the
       Activity's Job 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.  Such forms
       shall be signed by the Commander, or his 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, Region VII, 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.
 
    IT IS FURTHER ORDERED that the allegations contained in the complaint
 in Case No. 7-CA-1379 found not to have been sustained be, and hereby
 are, dismissed.
 
    Issued, Washington, D.C., July 9, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The General Counsel excepted to the Judge's ruling granting the
 Respondent's motion to restrict the participation during the hearing of
 one of the General Counsel's attorneys on the basis of an appearance of
 a conflict of interest.  Without passing on whether there was either a
 real or apparent conflict of interest, the Authority affirms the Judge's
 ruling as there has been no showing of prejudice caused by the ruling.
 In this regard, the Authority notes particularly that the attorney in
 question was permitted to remain at the hearing throughout the
 proceeding and to actively assist the other attorney for the General
 Counsel in presenting the General Counsel's case.
 
    (2) The General Counsel excepted to one of the Judge's credibility
 findings.  The demeanor of witnesses is a factor of consequence in
 resolving issues of credibility, and the Judge has had the advantage of
 observing the witnesses while they testified.  The Authority will not
 overrule a Judge's resolution with respect to credibility unless a clear
 preponderance of all relevant evidence demonstrates such resolution was
 incorrect.  The Authority has examined the record carefully, and finds
 no basis for reversing the Judge's credibility finding.
 
 
 
 
                                 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 fail and refuse to negotiate with the American Federation
 of Government Employees, AFL-CIO, Local 1974, our employees' exclusive
 representative, over negotiable proposals found not to be inconsistent
 with AFR 40-452 regarding the Activity's Job Performance Appraisal
 System.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce any employee in the exercise of any rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon request of the American Federation of Government
 Employees, AFL-CIO, Local 1974, our employees' exclusive representative,
 meet and negotiate with such representative concerning any proposal
 found to be negotiable regarding the Activity's Job 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 VII, Federal Labor Relations Authority, whose address
 is:  535 16th Street, Suite 310, Denver, Colorado 80202, and whose
 telephone number is:  (303) 837-5224.
 
 
 
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 ALJ decision not available.     [ ALJNOTAVAILABLE$ ]
 
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