Federal Education Association, Stateside Region (Union) and U.S. Department of Defense, Domestic Dependent Elementary and Secondary Schools, Arlington, Virginia (Agency)

[ v56 p473 ]

56 FLRA No. 70

FEDERAL EDUCATION ASSOCIATION
STATESIDE REGION
(Union)

and

U.S. DEPARTMENT OF DEFENSE
DOMESTIC DEPENDENT ELEMENTARY
AND SECONDARY SCHOOLS
ARLINGTON, VIRGINIA

(Agency)

0-NG-2496

_____

DECISION AND ORDER ON A
NEGOTIABILITY ISSUE

June 30, 2000

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petition concerns the negotiability of one provision disapproved by the Agency under section 7114(c) of the Statute. The Agency filed a statement of position, to which the Union filed a response, and the Agency filed a reply to the Union's response.

      For the reasons that follow, we dismiss the petition for review.

II.     Preliminary Matter

A.     Procedural Background

      The post-petition conference in this case was rescheduled twice, once because of deficiencies in the petition for review and once at the request of the Agency. The Union did not notify the Authority that it would not be available at the time of the rescheduled conference and failed to participate in it.

      The Authority issued an Order, dated July 20, 1999, directing the Union to show cause why the Authority should not take action under section 2424.32 of the Authority's Regulations "including dismissal of the Union's petition or finding that it has conceded to the assertions made by the Agency during the post-petition conference." [n*] Order at 2. The Union representative responded that she was on vacation and did not receive notice of the rescheduled conference until after it had been held.

      In an Order issued September 2, 1999, on behalf of the Authority, the Case Control Office concluded that, as a result of the Union's failure to participate in the conference, "the Union has waived any objection to the meaning of the provision at issue in this matter as explained by the Agency and set forth in the record of the conference and the Agency's clarification of the record in its statement of position." Order at 2.

B.     Positions of the Parties

      The Agency requests that the Authority dismiss the petition for review because the Union failed to participate in the post-petition conference. The Agency asserts that the Union representative was responsible for either designating another official to act during her absence or making arrangements to schedule the conference for a different time.

      The Union asserts that its representative informed the Agency representative of her vacation plans and that, although the Agency did not have an obligation to notify the Authority of this information, it should not be permitted to "gain any benefit from withholding information . . . ." Union Response at 1. The Union does not object to the sanction imposed in the Order, and the Union states that it agrees with the information contained in the conference report.

      The Agency, in its reply to the Union's response, asserts that the Agency representative was not aware of the Union representative's exact vacation plans and was unsuccessful in his attempts to contact the Union representative during her vacation.

C.     Analysis and Conclusion

      Section 2424.32(d) of the Authority's Regulations provides that where a party fails to participate in a post-petition conference, the Authority may take any action that in its discretion it deems appropriate. Here, the Case Control Office determined on behalf of the Authority that it was appropriate to find that the Union waived any objection to the meaning of the provision, as explained by the Agency. [ v56 p474 ]

      Although there is no indication in the record that the Union representative was aware of the date of the rescheduled conference until after the conference had been held, the Union representative was aware of the Authority's attempt to schedule the conference during this period and did not make arrangements for her absence. We do not condone a party's failure to participate in a conference convened under section 2424.23 of the Authority's Regulations. However, in these circumstances, we conclude that the Union's conduct was not so egregious as to warrant dismissal of the petition for review. Accordingly, we deny the Agency's motion to dismiss the petition for review.

III.     Provision

Article 15, Section 2:
Each DDESS School District will continue to use the performance appraisal system currently in effect through School Year 1999-2000. Thereafter, performance of all bargaining unit employees will be evaluated in accordance with Department of Defense Education Activity (DoDEA) Administrative Instruction (Appendix E). Prior to amending this Instruction, the Agency will first notify the Association and provide an opportunity to bargain in accordance with Chapter 71 of Title 5. The Agency shall apply performance standards in such a manner that a competent employee can reasonably be expected to attain them. Employees shall be informed of the supervisors who will evaluate their performance.

Petition at 1; Statement of Position at 4 (only the underlined sentences are in dispute).

IV.     Positions of the Parties

A.     Agency

      The Agency argues that the first sentence of the provision would preclude it from changing the content of performance standards and elements. Therefore, according to the Agency, the first sentence excessively interferes with its rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. The Agency argues that the second sentence is inconsistent with the same management rights, for the same reason. The Agency asserts that the second sentence would prevent the Agency from changing the Instruction during the term of the parties' agreement.

B.     Union

      Regarding the first sentence of the provision, the Union asserts that the parties intended to continue to use the current performance appraisal system through the initial year of implementation of the parties' collective bargaining agreement. The Union claims that the first sentence does not preclude the Agency from making changes to the performance appraisal system because, under the system, the Agency retains the right to make changes subject to bargaining under section 7106(b) of the Statute.

      Regarding the second sentence of the provision, the Union contends that the parties intended to establish an implementation date for the DoDEA Administrative Instruction (Instruction), and that doing so is purely procedural. The Union asserts that the remainder of the provision permits the Agency to make changes to the Instruction.

      The Union states that it does not request that any part of the provision be severed. See Petition at 5; Union Response at 4. In this connection, the Union requests that if either of the two disputed sentences is found nonnegotiable, then all of the remaining sections of Article 15 be "deleted" from the parties' agreement. Union Response at 4.

V.     Meaning of the Provision

      Sentence one of the provision provides that "[e]ach DDESS School District will continue to use the performance appraisal system currently in effect through School Year 1999-2000." Petition at 1. It is undisputed that the system establishes the performance standards and elements for unit employees. As construed by the Agency, the first sentence would preclude the Agency from making changes in the appraisal system until the end of the 1999-2000 school year. See Conference Report at 2; Statement of Position at 6. As this construction comports with the plain wording of the sentence, we conclude that sentence one would require the Agency to use the current performance appraisal system, unchanged, through the end of the 1999-2000 school year.

      For the reasons set forth below, it is not necessary to address the second sentence. However, we note that the Agency's construction of the second sentence -- as precluding it from making changes in the Instruction during the term of the agreement -- does not comport with the third sentence, which is not in dispute and which specifically references amendments to the Instruction, subject to fulfilling its bargaining obligation under the Statute with the Union. [ v56 p475 ]

VI.     Analysis and Conclusion

      The Authority has found that the establishment of performance standards and elements constitutes an exercise of management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. See, e.g., American Federation of Government Employees, Local 1687 and U.S. Department of Veterans Affairs Medical Center, Mountain Home, Tennessee, 52 FLRA