United States of America


In the Matter of




Case No. 02 FSIP 96


    The Department of the Interior, U.S. Fish and Wildlife Service, Hadley, Massachusetts (Employer), 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 Local R1-203, National Association of Government Employees, SEIU, AFL-CIO (Union).

    Following an investigation of the dispute, arising from negotiations over the Incentive Awards and Performance Management articles of the parties’ collective-bargaining agreement (CBA), the Panel determined that the matter should be resolved through the issuance of an Order to Show Cause. In this regard, the Panel directed the parties to show cause why their dispute should not be resolved by directing them to adopt the tentative agreement they reached in December 2001 concerning incentive awards and performance management. After considering the entire record, including any proposals which may differ from the wording in the December 2001 tentative agreement, and the parties’ statements of position, the Panel would issue a binding decision to resolve the impasse. The parties submitted final offers and written statements of position pursuant to this procedure. The Panel has now considered the entire record.


    The Employer’s mission is to operate the systems of National Wildlife Refuges and National Fish Hatcheries; enforce the Endangered Species Act; inspect imports at ports of entry; and provide financial aid to state fish and wildlife agencies. The Union represents a bargaining unit consisting of approximately 100 non-professional employees,(1) most of whom are stationed in the Regional Office in Hadley. Typical bargaining-unit positions are real estate appraiser, real estate surveyor, realty specialist, secretary, and clerk. The parties’ previous CBA expired on January 13, 2002. Although it has not been extended, the parties continue to follow its terms as past practices.

    In 1996, the Department of the Interior implemented a new performance management system which included converting its five-level performance rating system(2) to a two-level or pass/fail plan. All non-bargaining unit employees in the Northeast Region have been under the new system since 1996; bargaining-unit employees remain under the five-level performance rating system, pending the outcome of these negotiations. The parties commenced bargaining in 1995 over the impact and implementation of the new performance management system, but negotiations waned until 1999 when the Employer, motivated by its Headquarters Office, decided to reconvene bargaining. At the time, another issue concerning incentive awards was pending in contract reopener negotiations. Ultimately, the parties agreed to combine negotiations over incentive awards and the new performance management system.

    In December 2001, the parties reached a tentative agreement over incentive awards and performance management. On January 10, 2002, however, the Union informed management that the Union’s membership had failed to ratify the agreement. Accordingly, the Union requested to resume bargaining over certain provisions which it cited as the basis for non-ratification. Ultimately, the parties reached a bargaining impasse and the Employer requested the Panel’s assistance.


   In the Incentive Awards article, the unresolved issues include: (1) the establishment of an awards committee; (2) whether employees should be notified of the criteria for obtaining an award; and (3) productivity gainsharing. In the Performance Management article, the parties essentially disagree over: (1) whether there should be references in the article to laws and Government-wide regulations which relate to performance management; (2) the extent to which supervisors should have knowledge of the job requirements of the positions held by the employees whose job performance they rate; (3) whether the Employer should have a time limit in which to respond to an employee request that a performance plan be modified; (4) whether all progress reviews should be completed before an employee is removed or reduced in grade due to poor performance; and (5) in the event that management rescinds a performance-based disciplinary action against an employee, whether certain management documents relating to the rescinded action should be destroyed.


   1. The Union’s Position(3)

   The Union opposes the implementation of the parties’ December 2001 tentative agreement. It basically proposes that the Incentive Awards article be modified to: (1) establish a joint Union-management awards committee responsible for recommending employees for awards; (2) require the Employer to provide written notice to employees at the beginning of each "performance period" which describes the level of employee performance that would result in an award; and (3) implement productivity gainsharing to allow employees to share in any cost savings which they help create. In the Performance Management article, the Union proposes that changes in the tentative agreement should include: (1) the addition of statutory references to 5 U.S.C. Chapters 43 and 45, and 5 C.F.R. § 430; (2) a requirement that whenever supervisors lack the "technical competence" to perform the work of employees whose performance they evaluate, they would be expected to develop a sufficient understanding of their employees’ jobs to objectively evaluate performance; (3) Union representation of employees during any stage of the process for modifying performance plans; (4) a 10-day time limit for rating and reviewing officials to respond to employee requests for modifications of their performance plans; (5) a requirement that all progress reviews take place before an employee could be removed or reduced in grade; and (6) in the event that management withdraws a decision to take a performance-based action against an employee, the Employer would be required to destroy all papers relating to the now rescinded performance-based disciplinary action, except its grievance or Merit Systems Protection Board (MSPB) case files.

   The tentative agreement should not be imposed upon the parties by the Panel because the Union’s membership indicated dissatisfaction with certain provisions when it was not ratified. Directing that the agreement be implemented would remove "one of the major benefits to Union membership," namely, the right of the membership to ratify negotiated agreements. Consequently, this would have a chilling effect on bargaining-unit employees becoming dues-paying members of the Union. The Employer spent very little time and effort in bargaining with the Union following the non-ratification vote; imposing the December 2001 tentative agreement would be tantamount to rewarding the Employer for bargaining in bad faith.

    With respect to the Incentive Awards article, an awards committee is necessary so that the Union may be afforded some input and oversight of the awards process to help ensure that employees are treated fairly and equitably when awards are distributed. The criteria should be published so that employees know what they must do to receive an award; without criteria, the issuance of awards would become a subjective process that could be abused by managers who wish to reward their "favored employees." The Union’s proposal for productivity gainsharing should be included in the Incentive Awards article because it addresses how employees might increase productivity and, should that occur, would permit them to benefit financially from their efforts.

    Concerning the Performance Management article, if supervisors are to review employee performance fairly, they should attain "technical competence" whenever possible in the positions held by the employees they are evaluating. The Employer should be given 10 days to respond when an employee disagrees with his or her performance plan; unless a fixed time frame is established, the Employer is unlikely to provide employees with timely responses to their requests.

    2. The Employer’s Position

    The Employer favors the imposition of the terms of the parties’ December 2001 tentative agreement to resolve the dispute over both the Incentive Awards and Performance Management articles. The tentative agreement was reached after protracted negotiations with the Union’s representatives, who should have been aware of employee interests when they bargained. The Panel should not alter any of the terms of the tentative agreement because they are not deficient, nor has the Union demonstrated why they should be changed. Moreover, some of the provisions tentatively agreed upon by the parties’ negotiators were part of a "package deal." Therefore, it would be disruptive to the bargaining process to allow the Union to make changes on provisions it objects to, but retain other parts of the "package" that the membership did not reject.

    As to the merits of the provisions in the tentative agreement concerning incentive awards, contrary to the Union’s assertions, the program would motivate employees to greater achievement. In this regard, it provides for timely recognition of employees because they may be considered for incentive awards on at least a quarterly basis. Moreover, the awards process envisioned under the tentative agreement would not be protracted, which helps ensure that employees receive awards shortly after the occurrence of the event which warranted the recognition. An awards committee, on the other hand, which nominates and reviews awards, most likely would delay the time it takes for employees to receive awards. Furthermore, the Union’s claims about the need for employee input notwithstanding, employees already have a right under the tentative agreement to nominate their peers for awards. Under the tentative agreement there also is no limitation on the types of events/occurrences/achievements for which employees may be rewarded. It sets out a non-inclusive list of criteria for award eligibility, thereby providing notice to employees of the sort of events and achievements for which an employee may receive an incentive award. The Union’s proposal on productivity gainsharing is without merit because the Employer’s mission is not conducive to such an approach; nevertheless, under the terms of the tentative agreement, the Employer would be able to consider employees for awards who reduce costs and/or improve work processes.

    On the performance management issues, citations and references to the new two-tier performance appraisal system should be retained because they would provide employees and supervisors with detailed information and practical direction. Similarly, wording a