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The decision of the Authority follows:
39 FLRA No. 97
FEDERAL LABOR RELATIONS AUTHORITY
MARINE CORPS LOGISTICS BASE
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
March 13, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge. The Respondent filed exceptions to the Judge's decision, and the General Counsel filed an opposition to the exceptions. The Respondent also filed a motion for leave to supplement its brief, and the General Counsel filed an opposition to the motion.(1)
The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by making changes in its Job Performance Appraisal System (JPAS) and its Production Tracking System without giving notice to the Union and affording it the opportunity to bargain on the impact and implementation of the changes.
The Judge found that the Respondent violated the Statute as alleged. The Respondent concedes it had an obligation to bargain about the impact and implementation of the JPAS and admits that it made the changes without notifying the Union and affording it an opportunity to bargain. However, it asserts that it had fulfilled its obligation and that the Union had waived its right to bargain over this matter. There were no exceptions to the finding that the Respondent violated the Statute with regard to its failure to bargain about the Production Tracking System, which we hereby adopt.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm those rulings. We adopt the Judge's findings, conclusions, and recommendations, consistent with the following discussion.
American Federation of Government Employees, AFL-CIO, (AFGE) is the certified representative of a national consolidated bargaining unit of employees of the United States Marine Corps. The Charging Party, Local 1482, (the Union) is the agent for local bargaining involving employees at Respondent Marine Corps Logistics Base, Barstow, California. Local bargaining is subject to the Master Labor Agreement (MLA) between the Marine Corps and AFGE.
As summarized by the Judge, relevant portions of the MLA relied upon by the Respondent include a Preamble, which contains a clause stating that the agreement as executed, together with any later amendments, constitutes a "total agreement," and an article entitled "Duration." Article 31 deals with the performance appraisal system, and, as characterized by the Judge, provides, among other things, that "(1) management will establish 'performance elements' and 'performance standards'; (2) employees will be given the opportunity to participate in the establishment of performance standards; (3) employees will [be] given adequate notice of the applicable performance elements and standards according to which they will be appraised; (4) the elements and standards will be consistent with the employee's duties and responsibilities; (5) the performance standards will be 'fair and reasonable'; and (6) 'employees may advise management at any time they believe performance standards should be changed.'" ALJ Decision at 2-3.
On July 31, 1987, supervisors called a meeting with the Respondent's unit employees and discussed management's proposed modifications of the performance appraisal system and procedures for reporting and recording individual employee production output. Subsequently, the shop foreman met individually with each employee and solicited input regarding the proposed new performance standards.
On August 7, 1987, the Union requested bargaining over the new performance appraisal system and procedures for reporting production. The Respondent answered that it had no obligation to bargain and that it was complying with the MLA provisions for employee participation in establishing new performance standards. In November, the Respondent implemented changes that had been discussed at the July 31 meeting. It is conceded that these changes were more than de minimis.
III. Administrative Law Judge's Decision
The Judge concluded that the Union had not waived its statutory right to bargain over the impact and implementation of the JPAS. The Judge rejected the Respondent's principal argument, which is that it had satisfied any obligation to bargain about modification of the performance appraisal system when it negotiated provisions of the MLA that provided for advance notice to employees and their participation in the establishment of standards. He noted that "the Authority definitively rejected a similar contention in Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio and Newark Air Force Station, Newark, Ohio, 21 FLRA 609 (1986) (Wright-Patterson), where the contractual provisions relied on were to the same effect as the provisions on which the Respondent relies." ALJ Decision at 5.
The Judge noted that an agency is bound by the statutory obligation to bargain over impact and implementation of changes made pursuant to a reserved management right, absent a waiver by the union of its right to bargain. However, he stated that Wright-Patterson held that the contractual provisions setting forth management rights and obligations in making decisions to revise the performance appraisal system did not affect the agency's obligation to bargain over the impact and implementation of the revisions decided upon. Thus, the Judge characterized Wright-Patterson as holding that "provisions recognizing management's right to revise performance appraisal systems and giving employees the right to participate in that decision-making process do not relieve the employer agency of its obligation to bargain over the impact and implementation of the revisions." Id. at 6.
The Judge also distinguished other cases relied on by the Respondent for the proposition that agencies do not violate the Statute when they unilaterally implement personnel actions by following contract procedures. For example, in Naval Amphibious Base, Little Creek, Norfolk, Virginia, 9 FLRA 774 (1982), "the contractual procedures followed were the very procedures on which the parties had agreed as a result of their prior bargaining on impact and implementation. Here, no such bargaining occurred." ALJ Decision at 6 n.7.
The Respondent's argument was based on a theory that provisions in the MLA concerning the performance appraisal system constitute an "accord and satisfaction" by which the parties had agreed on the extent and limit of management's obligation to consult before modifying the system. The Judge found that this was merely a rephrasing of a waiver defense, and concluded that under either description, the Respondent's argument failed because both defenses "presume that the Union has given up its right to bargain over impact and implementation in return for, as argued here and in Wright-Patterson, a contractual right of employee participation in the revision process. However rationalized or articulated," the Judge continued, "this contention cannot survive the holding in Wright-Patterson that the union did not, by equivalent contractual language, give up its statutory right." ALJ Decision at 6.
The Judge also addressed the Respondent's alternative contention, that other provisions of the MLA constitute express waivers of the Union's right to bargain over the impact and implementation of the revisions. He found that while various clauses, including the Preamble, which he characterizes as a "form of 'zipper clause,'" ALJ Decision at 2, limit the Union's right to reopen subjects covered by the agreement, none amounts to a waiver of the right to bargain over impact and implementation. He also concluded that there was insufficient evidence to find a waiver based on acquiescence by past practice, especially absent any contention by the Respondent that such inaction constituted a waiver. Finally, he found that a provision of the MLA that maintains in effect all past practices not altered by the agreement does not amount to a waiver, "[i]n light of Respondent's failure to argue that the Union's prior acquiescence in similar unilateral changes created a past practice[.]" ALJ Decision at 7 n.9.
Finally, the Judge found that the Respondent violated the Statute by changing its Production Tracking System without giving notice to the Union and affording it the opportunity to bargain on the impact and implementation of the changes. As noted above, there were no exceptions to this finding.
In regard to the remedy, the General Counsel did not seek a return to the status quo ante, and on that basis the Judge recommended a prospective bargaining order. He noted that the evidence left uncertainty as to whether an attempt to settle another aspect of the complaint, not here at issue, satisfied the Respondent's obligation to bargain over the impact and implementation of the revisions. Therefore, he recommended that the Respondent be permitted to offer evidence of compliance, if it chooses to take such a position, at the compliance stage of this case.
IV. Positions of the Parties
The Respondent argues, as it did before the Judge, that it has no obligation to bargain over the impact and implementation of the revisions to the performance appraisal system because the changes were permitted by the MLA and were implemented in accordance with the MLA, which covered the subject. It argues that the "establishment, modification and application of performance elements and standards are clearly matters that are addressed, both substantively and procedurally, by the MLA[,]" and the Union had already exercised its bargaining right. Respondent's brief at 11-12.(2) As matters covered by a negotiated agreement are not subject to mid-term bargaining, the
Respondent contends that its obligation was satisfied when it acted in accordance with provisions of the MLA that cover the appraisal system.
In summary, the Respondent concedes it has a duty to bargain over the impact and implementation of a change in conditions of employment, but argues that, by negotiating the MLA and acting in compliance with it, it met its obligation to bargain over matters covered by the MLA.
The General Counsel supports the Judge's decision.
V. Analysis and Conclusions
The Respondent concedes that it has a duty to bargain over the impact and implementation of changes in the performance appraisal system unless that particular subject matter is contained in the agreement, or has been waived in some other manner. In agreement with the Judge, we find that the particular subject matter is not contained in or covered by the agreement, and that the MLA does not otherwise waive the Union's right to bargain over this matter. Therefore, we conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to bargain with the Union.
The Respondent argues that matters covered by the agreement are exempt from bargaining "because the bargaining obligation on covered matters was satisfied by negotiating those matters into the agreement." Respondent's brief at 10. The Respondent would indeed be correct if the "matter" at issue were contained in the agreement because no bargaining obligation continues during the term of an agreement concerning negotiable matters that are contained in that agreement. See Internal Revenue Service, 29 FLRA at 166. However, the flaw in the Respondent's argument is that negotiation of a contract containing reference to a particular subject does not mean that anything relating to that subject necessarily is a "matter" that is "covered by" or "contained in" the agreement. The test is whether the negotiated agreement specifically addresses the particular subject matter of a union's bargaining request. Marine Corps Logistics Base, 39 FLRA No. 91, slip op. at 6 (1991). Here, as in that case, the agreement does not specifically address the full range of impact and implementation issues.
We agree with the Judge's finding that the Respondent's argument that it has satisfied its bargaining obligation essentially presents a type of waiver defense. Thus, as found in Wright-Patterson, provisions in the MLA permitting the Respondent to establish performance elements and standards and requiring notice to employees and their participation in the establishment of performance standards do not represent a clear and unmistakable waiver by the Union of its right to bargain over all impact and implementation issues that arise when the Respondent exercises its right to change performance standards. See Wright-Patterson, 21 FLRA at 611. A waiver may be by express agreement, as established by a comprehensive zipper clause or by the specification of a particular subject matter in the parties' negotiated agreement. Marine Corps Logistics Base, 39 FLRA No. 91, slip op. at 7. We adopt the Judge's conclusions, for the reasons he stated, that the MLA contains no express agreement that impact and implementation bargaining be waived either as to all matters or specifically as to changes in performance standards.(3) We further agree that the record and the arguments of the Respondent do not establish a basis for finding a waiver by acquiescence or past practice.
A waiver may also be established by bargaining history, showing that contract negotiations involved a full discussion and exploration of all such issues at the bargaining table. Internal Revenue Service, 29 FLRA 162 (1987). Here, however, the Respondent does not argue that the parties bargained about an extensive range of implementation issues. Rather, it argues that the fact that there was negotiation and agreement over some issues that arguably go to impact and implementation extinguishes its duty to bargain over the impact and implementation of its decision. Thus, we conclude that the circumstances do not support a finding of waiver by bargaining history.
For the reasons expressed by the Judge, we adopt his recommended order, including his recommendation that if a dispute develops over compliance, the Respondent be permitted in compliance proceedings to offer evidence that it has already complied with our order.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service
Labor-Management Relations Statute, Marine Corps Logistics Base, Barstow, California, shall:
1. Cease and desist from:
(a) Refusing to negotiate in good faith with the American Federation of Government Employees, AFL-CIO, the exclusive representative of its employees, concerning the procedures to be observed in implementing the decision to institute a new individual production reporting system and revise its performance appraisal system, and concerning appropriate arrangements for employees adversely affected by such changes.
(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured 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, negotiate in good faith with the American Federation of Government Employees, AFL-CIO, the exclusive representative of its employees, concerning the procedures to be observed in implementing, and appropriate arrangements for employees adversely affected by, the decision to institute a new individual production reporting system and revise its performance appraisal system.
(b) Post at its Marine Corps Logistics Base, Barstow, California, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding Officer, Marine Corps Logistics Base, Barstow, California, and shall be posted and maintained 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 Authority's
Rules and Regulations, notify the Regional Director, San Francisco, California Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
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 HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to negotiate in good faith with the American Federation of Government Employees, AFL-CIO, the exclusive representative of our employees, concerning the procedures to be observed in implementing, and appropriate arrangements for employees adversely affected by, the decision to institute a new individual production reporting system and revise its performance appraisal system.
WE WILL NOT in any like or related manner, interfere with, restrain or coerce our employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.
WE WILL, upon request, negotiate in good faith with the American Federation of Government Employees, AFL-CIO, the exclusive representative of our employees, concerning the procedures to be observed in implementing, and appropriate arrangements for employees adversely affected by, the decision to institute a new individual production reporting system and revise our performance appraisal system.
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, San Francisco, California Regional Office, Federal Labor Relations Authority, whose address is 901 Market Street, Suite 220, San Francisco, CA 94103 and whose telephone number is: (415) 744-4000.
(If blank, the decision does not have footnotes.)
1. In its motion to supplement its brief, the Respondent seeks to add for consideration a decision of a court of appeals that issued after the submission of its brief. United Mine Workers of America, District 31 v. NLRB, 879 F.2d 939 (D.C. Cir. 1989). It is the obligation of parties to inform the Authority of cases deemed pertinent to a pending case. The Authority can then determine their pertinence, and, if necessary, request supplemental statements from the parties. Department of the Navy, Marine Corps Logistics Base, Albany, Georgia, 39 FLRA No. 91 (1991) (Marine Corps Logistics Base). In this case, the Authority takes notice of the decision of the court. However, the motion to supplement Respondent's brief is denied to the extent that statements in support of the motion are deemed unnecessary.
2. In its brief, the Respondent specifically relies on provisions of both Article 31, "pertaining to how standards are to be established and/or modified, the restrictions regarding their use or application by management," and Article 13, "permitting grievances over the requirements of Article 31," which it characterizes as "matters relating to the [impact and implementation] of Respondent's exercise of its reserved rights respecting performance standards[.]" Respondent's brief at 11-12.
As pertinent, Article 31, Performance Appraisal System, specifically provides:
Section 3 Program Requirements and Procedures.
a. Establishment of Performance Elements and Performance Standards.
(1) Performance elements and performance standards for each element will be established in writing in accordance with applicable regulations and communicated to the employee at the beginning of each appraisal period. They must be consistent with the employee's duties and responsibilities. Each position must have at least one critical performance element, however, 3 to 5 may be ideal.
(2) Employees will be rated by rating officials in accordance with DON regulations relating to levels of performance.
(3) Duties not considered critical may be identified in writing and performance standards established. When noncritical performance elements are used as part of the overall appraisal process, the standards must be in writing.
(4) Employees will be given the opportunity to participate in the establishment of performance standards. The standards will be fair and reasonable and employees may advise management at any time they believe performance standards should be changed.
(5) Performance elements and standards may be modified but must be in writing on the Appraisal Form and given to the employee during the appraisal period as work requirements change. Employees may not be rated on the modified elements and standards for at least 90 days.
(6) Employees on extended temporary assignments/ appointments of over 120 days will have elements and standards established for that assignment/appointment.
3/ We do not adopt the Judge's characterization of the Preamble as containing "a form of 'zipper' clause." As we held in Marine Corps Logistics Base, referring to the same preamble, such language has no effect on the statutory duty to bargain. 39 FLRA No. 91, slip op. at 10-11 n.4.