27:0488(70)AR - INS and AFGE (National INS Council) -- 1987 FLRAdec AR

[ v27 p488 ]
The decision of the Authority follows:

 27 FLRA No. 70
                                            Case No. 0-AR-1317
                         I.  Statement of the Case
    This matter is before us on exceptions to the award of Arbitrator
 Albert V. Carter filed by the Agency under section 7122(a) of the
 Federal Service Labor-Management Relations Statute (the Statute) and
 part 2425 of the Authority's Rules and Regulations.  The Union filed an
                  II.  Background and Arbitrator's Award
    The Union filed a grievance charging that the Agency violated Article
 9 of the collective bargaining agreement when it implemented a new and
 revised performance work plan for Immigration Inspectors without first
 notifying the Union in writing of the revisions.  The grievance also
 charged that the Agency violated Article 5-E of the agreement by failing
 to notify the Union of a change in the past practice which allowed
 Immigration Inspectors to conduct vehicle inspections while they were
 seated.  The grievance was submitted to arbitration.
    The Arbitrator compared the old and new performance work plans and
 found that there had been a change in the standards used to evaluate
 Immigration Inspectors.  He ruled that under Article 9 of the agreement,
 which covers midterm and impact bargaining, the Agency was obligated to
 notify the Union in writing of the proposed changes and to give the
 Union an opportunity to respond.  He found that the Agency did not
 comply with Article 9 because it had failed to do that in this case.
 The Arbitrator specifically pointed out that he was aware that
 management has the right to establish performance standards and that his
 decision was not to be construed to imply otherwise.  The Arbitrator
 also found that the Union failed to establish that there was a binding
 past practice which allowed Immigration Inspectors to sit while
 conducting vehicle inspections and concluded that the Agency had not
 violated Article 5-E.
    As his award, the Arbitrator ordered the Agency to immediately
 invalidate the new performance work plan and to leave the old plan in
 effect until the changes to be made were presented to the Union in
 writing for the Union's response within 10 working days as provided by
 Article 9 of the agreement.  He further ordered that all ratings which
 had been given to employees under the new performance work plan should
 be nullified and a new rating calculated for each employee according to
 the standards of the old plan.
                             III.  Exceptions
                       A.  Positions of the Parties
    The Agency contends that the award violates its rights to direct
 employees and to assign work under section 7106(a)(2)(A) and (B) of the
 Statute because it would require negotiations over the establishment and
 content of performance standards.  The Agency maintains that because the
 establishment of performance standards is outside the duty to bargain,
 there was no requirement to notify the Union in writing of changes in
 the standards.  The Agency also contends that the Arbitrator
 misinterpreted Article 9 of the agreement when he found that there was a
 requirement for written notice of the changes.
    The Union contends that the Arbitrator's award requires bargaining on
 only the impact and not the content of the proposed changes in
 performance standards and that the Arbitrator correctly applied the
 notice requirements of Article 9 of the agreement.
                       B.  Analysis and Conclusions
    We find that the Agency's exceptions fail to show that the award is
    The Authority has held consistently that proposals which
 substantively restrict management in its identification of critical
 elements of a position and establishment of performance standards are
 contrary to section 7106(a)(2)(A) and (B) of the Statute as improper
 interferences with management's rights to direct employees and to assign
 work.  See Bureau of Engraving and Printing, U.S. Department of the
 Treasury and Washington Plate Printers Union, Local No. 2, IPDEU,
 AFL-CIO, 20 FLRA 380 (1985).  In Bureau of Engraving, the Authority
 discussed the role of an arbitrator in resolving grievances involving
 performance appraisal matters.  The Authority held that a grievance
 directly challenging an agency's identification of job elements or its
 establishment of performance standards is not grievable and arbitrable
 and that an arbitrator can not render an award substituting his or her
 judgment for that of management.  Id. at 381.
    However, we do not agree with the Agency that the grievance and the
 Arbitrator's award in this case directly challenge or restrict
 management's right to establish performance standards.  The Arbitrator
 expressly recognized that Agency management has the right to establish
 performance standards.  His award addressed only the Agency's failure to
 comply with the agreement requirement that the Union be notified in
 writing that revised performance work plans would be issued.  The
 Arbitrator made no comment or judgment in his opinion and award as to
 the content or appropriateness of the revised performance work plan, and
 he placed no obligation on the Agency to negotiate over the content of
 the plan.  He merely interpreted and applied the agreement provision
 requiring notice to the Union and the opportunity to respond concerning
 the impact and implementation of the changes in the plan.
    Procedures by which employees can bring disputes concerning the
 application of their performance elements and standards to the attention
 of management are subject to the duty to bargain.  See National Treasury
 Employees Union and U.S. Department of Agriculture, Food and Nutrition
 Service, Midwest Region, 25 FLRA No. 90 (1987) (Proposal 3), petition
 for review filed sub nom. National Treasury Employees Union v. FLRA, No.
 87-1178 (D.C. Cir. Apr. 21, 1987);  American Federation of Governmesnt
 Employees, AFL-CIO, Local 3028 and Department of Health and Human
 Services, Public Health Service, Alaska Area Native Health Service, 13
 FLRA 697 (1984) (Proposal 1).  See also Department of the Air Force, Air
 Force Systems Command, Electronic Systems Division, 14 FLRA 390 (1984),
 where the Authority affirmed the decision of an Administrative Law Judge
 who concluded that an agency's promulgation and application of
 performance standards and critical elements for an employee's position
 without giving the union prior notice and an opportunity to negotiate on
 the procedures to be observed and the impact on adversely affected
 employees violated section 7116(a)(1) and (5) of the Statute.  As part
 of the remedy in that case the Authority ordered the agency to cease and
 desist from implementing the performance standards and critical elements
 which were challenged without first giving notice to the union and
 affording it the opportunity to negotiate on procedures and appropriate
 arrangements for employees