31:1231(109)CA - Army Corps of Engineers, Kansas City District, Kansas City, MO and NFFE Local 29 -- 1988 FLRAdec CA



[ v31 p1231 ]
31:1231(109)CA
The decision of the Authority follows:


31 FLRA No. 109

U.S. ARMY CORPS OF ENGINEERS
KANSAS CITY DISTRICT
KANSAS CITY, MISSOURI

                      Respondent

       and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 29

                      Charging Party

Case No. 7-CA-30445
  (19 FLRA 192)

DECISION AND ORDER ON REMAND

I. Statement of the Case

This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit. The court set aside the Authority's original decision and remanded the case for further proceedings consistent with its decision in NTEU v. FLRA, 810 F.2d 295 (D.C. Cir. 1987).

The issue is whether the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by refusing to negotiate with the Charging Party (the Union) on proposals submitted by the Union during the term of the parties' collective bargaining agreement. Consistent with the court's decision in NTEU v. FLRA, and in accordance with our recent Decision and Order on Remand in Internal Revenue Service, 29 FLRA 162 (1987), we conclude that the Respondent violated the Statute, as alleged.

This case resolves only the question of whether the Respondent has a duty to bargain in the circumstances involved. It does not present questions as to whether or not particular proposals are negotiable. The Union requested to bargain over the general subject matter of the procedures to [PAGE] be used in rating unit employees in certain circumstances. The Union did not offer specific proposals concerning this subject matter. The Respondent made no allegations of nonnegotiability. II. History of the Case

A. Background

During the term of the parties' collective bargaining agreement, the Union requested the Respondent to bargain about procedures to be used to rate unit employees who did not receive annual performance appraisals because they had not performed work duties for 120 days due to extensive amounts of official time for representational duties during the appraisal period. The request resulted from the Respondent's refusal to rate a unit employee who had served as a steward for nearly 100 percent of her work time during a rating period.

The parties' agreement contained a "reopener" provision that allowed negotiations on certain matters at the "mid-term date of this contract." The Union requested bargaining on April 26, 1983, several months after the January 1983 "mid-term" of the agreement.

The parties stipulated that the rating procedures at issue were not considered or discussed during negotiations for their collective bargaining agreement.

B. Previous Decision and Order of The Authority

On July 22, 1985, the Authority issued its previous Decision and Order in this case, U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 19 FLRA 192 (1985). The Authority relied on its previous decision in Internal Revenue Service, 17 FLRA 731 (1985), where the Authority determined that except for union proposals related to changes in established conditions of employment made by management, an agency did not have an obligation under the Statute to bargain over union-initiated proposals during the term of a collective bargaining agreement.

The Authority concluded that the Respondent had no duty to bargain over performance appraisal procedures because (1) the matter was unrelated to any management-initiated changes in unit employees' conditions of employment and was raised [ v31 p2 ] during the term of the parties' agreement, and (2) the request to bargain was not submitted in accordance with the "reopener" provision. In view of that conclusion, the Authority found it unnecessary to pass on the question of whether the subject matter of the Union's request was negotiable. The Authority dismissed the complaint.

C. The Court's Decision

The court reversed and remanded this case, NFFE Local 29 v. FLRA, No. 85-1588 (D.C. Cir. Aug. 19, 1987), in its consolidated Order in NAGE Locals R14-68 71 73 and 96 v. FLRA, No. 85-1463 (D.C. Cir. Aug. 19, 1987). The court remanded the case for proceedings consistent with its decision in NTEU v. FLRA, 810 F.2d 295 (D.C. Cir. 1987). In that case, the court set aside the Authority's decision in Internal Revenue Service and remanded the case. The court concluded that the Authority's decision was contrary to the intent of Congress and the purposes of the Statute.

D. The Authority's Decision and Order on Remand in Internal Revenue Service

in our Decision and Order on Remand in Internal Revenue Service, 29 FLRA 162 (1987), we concluded that the duty to bargain in good faith imposed by the Statute requires an agency to bargain during the term of a collective bargaining agreement on negotiable union-initiated proposals concerning matters which are not contained in the agreement, unless the Union clearly and unmistakably waived its right to bargain about the subject matter involved.

III. Positions of the Parties

The General Counsel argued that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate over procedures used to rate unit employees in the circumstances described above. The General Counsel asserts that (1) the Respondent made no showing that the matter is not negotiable, and (2) there was no waiver by the Union of its right to bargain.

The Respondent conceded that procedures governing performance appraisals of unit employees are negotiable. However, it argued that the Union had no right to demand mid-term bargaining except where management initiated a change in conditions of employment. [ v31 p3 ]

The Respondent also argued that there is no obligation to bargain under the parties' collective bargaining agreement. It argued that provisions in the parties' supplementary agreement covered the subject matter of the Union's bargaining request. The Respondent also maintained that the Union waived its right to bargain by agreement to limit mid-term bargaining to a specific reopener period, which had passed by the time of the Union's request. It argued that disagreements over the interpretation of the agreement should be resolved pursuant to the parties' negotiated grievance procedure. Finally, the Respondent argued that there was no "adverse impact" on the Union by its failure to rate one of the unit employees.

IV. Analysis

Consistent with the court's remand here as well as our Decision on Remand in Internal Revenue Service, the Respondent had a duty to bargain over a negotiable proposal regarding appraisal procedures unless (1) the matter is covered by the parties' agreement or (2) the Union clearly and unmistakably waived its right to bargain. A waiver of the Union's right to bargain may be established by express agreement or by bargaining history.

We find, as explained below, that the matter is not covered by the parties' agreement and that a clear and unmistakable waiver has not been established. Therefore, we conclude that the Respondent violated section 7116(a)(1) and (5), as alleged.

A. The Matter is Not Covered by the Parties' Agreement

The Respondent asserts that the following provisions of the parties' supplemental agreement cover the matter about which the Union sought to negotiate:

K. (AR 690-400.430.3-2f (1)) A rating will be postponed when (a) a newly assigned supervisor has had less than 120 days to observe the employee's performance against current requirements; or (b) an employee's performance has been temporarily marginal or unsatisfactory (e.g., due to illness, alcoholism, or drug abuse) and the performance shows evidence of improvement.

Q. (AR 690-400.430.3-2c(l)) Annual appraisals will be prepared for each employee at least one (sic) during each 12 month period. Appraisals will normally be completed during [ v31 p4 ] the first 25 days following the end of the rating period. Appraisals will be considered delinquent after the forty-fifth day following the end of the rating period.

T. (AR 690-400.430.2-4d and 3-2g (2)) Rating supervisors will be individuals who have administrative authority to properly rate employees and who have personally observed the employee's performance for an extended period of time, i.e., 120 days. When the rating supervisor is not available (e.g., Extended illness, Death, or Sudden Resignation), the next higher level supervisor will prepare the appraisal.

We conclude that these sections of the supplemental agreement do not address the particular subject matter of the union's bargaining request. Section K deals with ratings where a new supervisor has not had time to observe an employee or where an employee's performance temporarily has been marginal or unsatisfactory. Section Q requires annual appraisals. Section T concerns "rating supervisors" and situations where those supervisors are not available.

These sections of the supplementary agreement address the same general subject area--performance appraisals--as the subject of the Union's request. However, these sections do not in any way address procedures for rating an employee who was on official time for extensive periods during the rating period. In our Decision and Order on Remand in Internal Revenue Service, 29 FLRA at 167, we addressed the similarity which must exist between mid-term proposals and matters which are covered in a collective bargaining agreement in order to establish a waiver by bargaining history. We stated:

The particular words of proposals offered during contract and mid-term negotiations need not be identical for a waiver to exist. On the other hand, the fact that a mid-term proposal may relate to a general subject area covered in a collective bargaining agreement will not relieve an agency of its obligation to bargain. Rather, the determinative factor is whether the particular subject matter of the proposals offered during contract and mid-term negotiations is the same.

We find no reason to apply a different standard to determine whether a matter is covered by the parties' agreement than is applied to determine whether a waiver by [ v31 p5 ] bargaining history has been established. Accordingly, our examination of the sections of the parties' supplementary agreement is limited to determining whether the agreement covers the particular subject matter of the Union's bargaining request. That particular subject matter--appraisal procedures for unit employees who used extensive amounts of official time during the rating period--clearly is not covered by the supplementary agreement. Therefore, we cannot conclude that the Union sought to bargain over matters which were already contained in the parties' agreement.

B. The Union Did Not Waive Its Right to Bargain

Although a union may waive its statutory right to bargain about conditions of employment, such a waiver must be clear and unmistakable. Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981). See also Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983). In our Decision and Order on Remand in Internal Revenue Service, 29 FLRA at 166, we held that a waiver of a union's right to initiate mid-term bargaining over matters which are not covered in the parties' agreement may be established by (1) express agreement, or (2) bargaining history. We stated the following about these two types of waivers:

As to the first category of waiver, a union may contractually agree to waive its right to initiate bargaining in general by a "zipper clause," that is, a clause intended to waive the obligation to bargain during the term of the agreement on matters not contained in the agreement. Or, a union may waive its right to initiate bargaining over a particular subject matter. In determining whether a contract provision constitutes a clear and unmistakable waiver . . . we will examine the wording of the provision as well as other relevant provisions of the contract, bargaining history, and past practice.

The second category of waiver, clear and unmistakable waiver as evidenced by bargaining history, concerns subject matters which were discussed in contract negotiations but which were not specifically covered in the resulting contract. In this category, waiver may be found . . . where the subject matter of the proposal offered by the union during mid-term negotiations was fully discussed and explored by the parties at the bargaining table. Id. at 166-67. [ v31 p6 ]

For the following reasons, we conclude that the Union did not waive its right to bargain in this case.

1. There is No Express Waiver

Article 28, Section 2 of the parties' existing collective bargaining agreement provides:

Section 2. Amendments and Supplements. This agreement may be amended and/or supplemented as follows:

(a) At mid-term date of this contract under the provisions of the articles entitled "Negotiations" and "Union Rights and Representation."

(b) Within a reasonable time after the enactment of any new law or regulation of appropriate authority which affects the provisions of this Agreement. A proposal by either party to negotiate such amendment(s) or supplement(s) shall cite the pertinent law or regulation and the article(s) of this Agreement affected. When such a proposal is submitted, representatives of the Employer and the Union shall meet within a reasonable time, normally within fifteen (15) calendar days to negotiate the requested amendment(s) or supplement(s).

We find that this "reopener" provision is not a clear and unmistakable waiver of the Union's right to negotiate over the appraisal procedures involved in this case. It provides only that the agreement may be reopened for amendment and/or supplementation at a mid-term date, and after enactment of a new law or regulation "which affects the provisions of this Agreement." The provision does not address the circumstance giving rise to the bargaining request here. Further, the provision does not state that it provides the exclusive conditions under which the agreement may be reopened. Therefore, we find that the reopener provision does not constitute an express waiver of the Union's bargaining rights.

2. There is No Waiver by Bargaining History

The parties stipulated that "at no time during the negotiations for the parties' collective bargaining agreement" did the parties "discuss, consider, and/or [ v31 p7 ] negotiate" over the subject matter of the Union's bargaining request. Stipulation, paragraph 18. Consistent with this stipulation, we find that the subject matter of the Union's bargaining request was not "fully discussed and explored at the bargaining table." Internal Revenue Service, 29 FLRA at 167. See generally Suffolk Child Development Center, Inc., 277 NLRB 1345, 1350 (1985). Therefore, there is no waiver by bargaining history in this case.

V. Summary

The particular subject matter of the Union's bargaining request is not covered by the parties' agreement and the Union did not otherwise clearly and unmistakably waive its right to bargain. Therefore, we conclude that by refusing to bargain, the Respondent violated section 7116(a)(1) and (5), and we shall order an appropriate remedy.

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute, the U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri shall:

1. Cease and desist from:

(a) Refusing to bargain with the National Federation of Federal Employees, Local 29, the exclusive representative of its employees, to the extent consistent with law, concerning appraisal procedures for employees who have not been personally observed by their supervisor for 120 days during the rating period due to an employee's extensive amounts of official time during the period.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured them by the 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, bargain with the National Federation of Federal Employees, Local 29, to the extent consistent with law, concerning appraisal procedures for employees who have not been personally observed by their supervisors for 120 days during the rating period due to an [ v31 p8 ] employee's extensive amounts of official time during the period.

(b) Post at its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receiving such forms, they shall be signed by the Respondent's Commander and shall be posted 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 Federal Labor Relations 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.

Issued, Washington, D.C., April 25, 1988

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v31 p9 ]

                     NOTICE TO ALL EMPLOYEES
       AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
              AND TO EFFECTUATE THE POLICIES OF THE
        FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
                  WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to bargain with National Federation of Federal Employees, Local 29, the exclusive representative of our employees, to the extent consistent with law, concerning appraisal procedures for employees who have not been personally observed by their supervisor for 120 days during the rating period due to an employee's extensive amounts of official time during the period.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Statute.

WE WILL, upon request, bargain with National Federation of Federal Employees, Local 29, to the extent consistent with law, concerning appraisal procedures for employees who have not been person