DEPARTMENT OF DEFENSE MONTANA AIR NATIONAL GUARD GREAT FALLS, MONTANA and MONTANA AIR CHAPTER 29, ASSOCIATION OF CIVILIAN TECHNICIANS

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of

DEPARTMENT OF DEFENSE

MONTANA AIR NATIONAL GUARD

GREAT FALLS, MONTANA

and

MONTANA AIR CHAPTER 29, ASSOCIATION

OF CIVILIAN TECHNICIANS

 

Case No. 00 FSIP 35

DECISION AND ORDER

    Montana Air Chapter 29, Association of Civilian Technicians (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Defense, Montana Air National Guard, Great Falls, Montana (Employer).

    Following an investigation of the request for assistance, arising from the parties’ negotiations over a successor collective-bargaining agreement (CBA), the Panel determined that the dispute should be resolved through the issuance of an Order to Show Cause why the Panel should not adopt the Union’s proposal to resolve the matter. After considering the entire record, including the parties’ statements of position, the Panel would take whatever action it deems appropriate to resolve the impasse, which may include the issuance of a Decision and Order. Pursuant to this procedure, the parties submitted their final offers and written statements of position, including rebuttal. The Panel has now considered the entire record.

BACKGROUND

   The Employer’s mission is to fly and maintain F-16 aircraft as well as general purpose aircraft, train traditional guardsmen, maintain readiness, provide air defense, and deliver ordnance. The Union represents approximately 180 employees, all of whom are civilian technicians. The most prevalent bargaining-unit position is aircraft mechanic; other employees work in supply or hold General Schedule clerical positions. The parties’ current CBA, which was to have expired on March 18, 1999, has been extended until a successor agreement is implemented.

    The parties reached agreement on all articles in a successor CBA with the exception of portions of both Article 13 (Performance Appraisal System) and Article 20 (Negotiated Grievance and Arbitration Procedure).(1) Under the current CBA, as well as three preceding agreements, disputes pertaining to performance ratings are specifically excluded from coverage under the parties’ negotiated grievance procedure. Employees who wished to challenge their performance appraisals did so by filing an appeal with the State Review and Appeals Board. The State Board, consisting of management representatives, would make recommendations for resolution to the state Adjutant General who was the final arbiter of the appeal. In 1997, the National Guard Bureau (NGB or Agency) revised Technician Personnel Regulation (TPR) 430 to allow states greater autonomy in the establishment of performance appraisal programs. This change led some states to develop performance appraisal systems which no longer used the traditional five-level rating system. It also gave rise to negotiations with labor organizations over various aspects of state procedures concerning performance management. In 1998, the parties herein negotiated over a state-wide circular for a new performance appraisal system. Ultimately, they were unable to reach agreement over whether disputes concerning performance appraisals should be subject to a negotiated grievance procedure. The issue was deferred to successor-agreement bargaining, pursuant to a Memorandum of Agreement (MOA), dated December 3, 1998, which provides that "(t)he parties agree to negotiate a grievance procedure during the upcoming negotiations to reflect performance evaluations."

ISSUE AT IMPASSE

    The parties disagree whether their negotiated grievance/arbitration procedure should continue to exclude disputes over performance ratings.

POSITIONS OF THE PARTIES

1. The Union’s Position

    In essence, the Union proposes to: (1) eliminate the current exclusion, in Article 20-4 (Negotiated Grievance and Arbitration Procedures), of grievances over individual performance ratings from the parties’ grievance procedure; (2) provide, in Article 13-5(a) (Performance Appraisal System), "(t)echnicians not agreeing with their performance appraisal may appeal their performance evaluation using the negotiated grievance process established with this contract;" and (3) provide, in Article 13-7(f)(2), that "(t)he technician has the right to grieve the unacceptable performance appraisal."

    The Employer has failed to show cause why disputes over performance appraisals should be excluded from the negotiated grievance procedure. Rather, there is a demonstrated need to eliminate the exclusion. In this regard, employees do not want to be restricted to using the State Board procedures because they have been dissatisfied with the decisions issued through that process. Employees who have filed appeals concerning their performance appraisals with the State Board do not perceive that the procedure is fair and impartial because the State Board consists only of management representatives who submit recommendations for resolution to the State Adjutant General, the final arbiter in the matter. There have been few employee appeals in recent years because a system which allows management to be the "jury, judge and executioner" does not engender employee confidence in an outcome which cannot be further appealed. Allowing employees to use the negotiated grievance procedure would bolster employee confidence that the process is fair and impartial because the decision maker - a neutral arbitrator - would have no stake in the outcome, unlike the existing appeals procedure where the State Board members and the Adjutant General clearly have a vested interest in the outcome.

    Including within the scope of the grievance procedure matters pertaining to performance appraisals is consistent with the parties’ MOA of December 3, 1998. Furthermore, contrary to the Employer’s allegation, the proposals do not conflict with the plain wording of the National Guard Technicians Act (Technicians Act), 32 U.S.C. § 709(e)(4) and (5).(2) (5) a right of appeal which may exist with respect to clause [] (4) shall not extend beyond the adjutant general of the jurisdiction concerned []. Therefore, nothing in the Technicians Act prevents employees from utilizing a negotiated grievance procedure to resolve disputes over performance appraisals. Moreover, its proposal is consistent with Agency regulations which indicate that disputes over performance appraisals may be resolved under negotiated grievance procedures. Finally, many other CBAs between state National Guard Bureaus and labor organizations do not exclude performance appraisals from the scope of negotiated grievance procedures. This provides additional evidence that the Employer’s nonnegotiability allegation is without merit.

2. The Employer’s Position

    The Panel should decline to retain jurisdiction because the proposal is outside the duty to bargain. In this regard, the Union’s proposal is contrary to 32 U.S.C. § 709(e)(4) and (5) of the Technicians Act, because it would eliminate the statutorily mandated authority of the State Adjutant General, which is sole and exclusive, on matters involving "a reduction in force (RIF), removal, or an adverse action involving discharge from technician employment, suspension, furlough without pay, or a reduction in rank or compensation." Since performance appraisals are an integral part of the processes protected under 32 U.S.C. § 709(e)(4), disputes concerning them are prohibited from being resolved under a negotiated grievance procedure. Furthermore, performance appraisals are considered in determining RIF retention, and since the State Adjutant General has exclusive jurisdiction over matters involving a RIF, it may be contrary to the Technicians Act to allow disputes over performance appraisals to be resolved through a negotiated grievance/arbitration procedure. The provisions in TPR 430 cited by the Union to support its claim that the regulation recognizes that performance appraisal matters may be submitted for resolution through a negotiated grievance procedure, have been deleted from TPR 430 as ordered by the NGB Headquarters on June 17, 1998; conceivably, those provisions were deleted to make the regulation consistent with the Technicians Act.(3)

    In the alternative, should the Panel determine to retain jurisdiction, the Employer proposes to resolve disputes over performance appraisals through a procedure which, essentially, would (1) allow employees to have Union representation during all phases of the process; (2) shorten the time frames for resolving the dispute; (3) allow the Wing Commander to review the appeal, thereby interjecting an additional opportunity for resolution before the matter is considered by the State Board; and (4) change the composition of the State Board to consist of two voting management representatives, two voting Union representatives, and one voting peer of the appellant who is also a member of the bargaining unit. These modifications to the State appeals process demonstrate that the Employer is willing to address Union concerns that the current State Board has a management bias because of its composition. Under the new scheme, the majority of voting State Board members would be either Union representatives or bargaining-unit employees. The Employer would make this change to help improve employees’ perceptions that the State Board process is fair and equitable.

    The shortened time frames would make the procedure relatively expeditious, thereby assuring that timely decisions are rendered. This is preferable to the long delays frequently encountered by parties when a dispute is before a grievance arbitrator. Timely decisions are critical in RIF situations where a performance appraisal is an integral part of the RIF process and the Employer could suffer "severe financial impact" if it is unable to implement a RIF because an arbitrator’s decision with respect to a performance appraisal remains pending. The Employer crafted its proposal as a result of interest-based bargaining (IBB) after taking into consideration Union interests, including Union representation of employees during all phases of an appeal. Its efforts to "embrace the IBB theme of President Clinton’s Executive Order (should) be rewarded" by the Panel.

CONCLUSIONS

    Having carefully reviewed the entire record in this case, we find that the Employer has failed to show cause why the subject of performance ratings should continue to be excluded from the negotiated grievance procedure and, therefore, we shall order the parties to resolve their dispute on the basis of the Union’s proposals. Preliminarily, the Employer’s contention that the Union’s proposal is contrary to law is not supported by either the plain meaning of the Technicians Act or case precedent. In this regard, unlike adverse actions, there is no provision within the Technicians Act which allows state Adjutant Generals to act as the sole arbiters of matters pertaining to performance appraisals. Therefore, nothing in the Technicians Act would prevent employees from utilizing a negotiated grievance procedure to resolve disputes over performance appraisals. Furthermore, no case law has been cited by the Employer, nor are we aware of any, which interprets the Technicians Act as prohibiting the use of a negotiated grievance/arbitration procedure to resolve those issues. To the contrary, the NGB, which reviews all CBAs with labor organizations, has approved similar contract wording with respect to at least 10 other state National Guard activities of which we are aware. Moreover, even though the NGB may have made changes to TPR 430, by eliminating references to grievance/arbitration procedures to resolve matters pertaining to employee performance appraisals, the regulations do not specifically require that only the state Adjutant Generals have the authority to resolve those matters.

    We note that under § 7121(c) of the Statute certain matters must be excluded from resolution under negotiated grievance procedures.(4) Performance ratings/evaluations, however, are not subjects that are required, by law, to be excluded from the scope of negotiated grievance/arbitration procedures. Rather, under FLRA case precedent, other than the required statutory exclusions from the grievance procedure, the scope of a negotiated grievance procedure has been determined to be a mandatory subject of bargaining. In Vermont Air National Guard, Burlington, Vermont, 9 FLRA 737, 742 (1982), the FLRA found that the party seeking to narrow the scope of the negotiated grievance procedure bears the burden of justifying exceptions. Moreover, as the Court of Appeals for the D.C. Circuit has stated, where an impasse is reached in bargaining over the scope of the negotiated grievance procedure, the Panel "is to impose a broad scope grievance procedure unless the limited-scope proponent can persuade it to do otherwise."(5) Thus, the party proposing to narrow what otherwise would be a broad-scope grievance procedure, in this case the Employer, bears the burden of proof. We find, however, that the Employer has not met this burden. We are unpersuaded that the Employer’s proposed procedures, and modifications to the current State Board process, would restore employee confidence in a process which allows the Employer to retain final decision-making authority on performance appraisal matters. For this reason, we find that employees should be permitted to utilize the negotiated grievance/arbitration procedure which culminates in a decision rendered by a neutral arbitrator selected by the parties, either of whom is entitled to seek administrative review of the award. Accordingly, the parties shall be ordered to adopt the Union’s proposals.

ORDER

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the parties’ failure to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel, under § 2471.11(a) of its regulations, hereby orders the following:

    The parties shall adopt the Union’s proposals.

 

By direction of the Panel.

Ellen J. Kolansky

Acting Executive Director

April 18, 2000

Washington, D.C.

 

1.A third article, concerning reduction-in-force procedures, is the subject of a pending negotiability appeal with the Federal Labor Relations Authority (FLRA).

2.The National Guard Technicians Act of 1968, 32 U.S.C. § 709(e)(4) and (5) provides:

 

(e) Notwithstanding any other provision of law and under regulations prescribed by the Secretary concerned-

(4) a reduction in force, removal, or an adverse action involving discharge from technician employment, suspension, furlough without pay, or reduction in rank or compensation shall be accomplished by the adjutant general of the jurisdiction concerned;

(5) a right of appeal which may exist with respect to clause [] (4) shall not extend beyond the adjutant general of the jurisdiction concerned [].

3.By letter dated June 18, 1998, from the NGB to all state activities, the Agency directed that “pen and ink changes to TPR 430, National Guard Technician Appraisal Program” be made which delete the second sentence of para. 7d(2), “(i)f the exclusive representative (Labor Organization) has negotiated that unacceptable performance ratings are grievable, the technician may appeal or grieve, but not both.” Also deleted was the last sentence in para. 8 which provided that “technicians covered by a negotiated grievance procedure that does not exclude performance ratings from its coverage may use the State Appellate Program or the negotiated grievance procedure but not both.”

4.In this regard, § 7121(c) of the Statute requires that the following items be excluded from all negotiated grievance procedures:

 

The preceding subsections of this section shall not apply with respect to any grievance concerning–

(1) any claimed violation of subchapter III of chapter 73 of this title (relating to prohibited political activities);

(2) retirement, life insurance, or health insurance;

(3) a suspension or removal under section 7532 of this title;

(4) any examination, certification, or appointment; or

(5) the classification of any position which does not result in the reduction in grade or pay of an employee.

5.See American Federation of Government Employees v. FLRA, 712 F.2d 640, 649 (D.C. Cir. 1983), where the court s