45:0533(46)CA - - Marine Corps Logistics Base, Barstow, CA and AFGE Local 1482 - - 1992 FLRAdec CA - - v45 p533

[ v45 p533 ]
The decision of the Authority follows:

45 FLRA No. 46








LOCAL 1482


(Charging Party/Union)


(39 FLRA 1126 (1991))


July 16, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit. Marine Corps Logistics Base, Albany, Georgia v. FLRA, Nos. 91-1211 and 91-1212 (D.C. Cir. Apr. 24, 1992) (Marine Corps Logistics Base v. FLRA). The complaint alleges 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 without giving notice to the Union and affording it the opportunity to bargain on the impact and implementation of the changes. In accordance with the instructions of the court, we will dismiss the complaint.

II. Background

This case involves the interpretation of the Master Labor Agreement (MLA) between the Marine Corps and the American Federation of Government Employees, AFL-CIO, which governed the relations between the parties herein. Article 31 of that agreement deals with the performance appraisal system and provides, among other things, that "(1) management will establish 'performance elements' and 'performance standards'; (2) employees must be given the chance to participate in the establishment of performance standards; (3) employees must be given adequate notice of the standards that apply to them; (4) employees may propose changes in performance standards at any time; and (5) the standards established must be 'fair and reasonable.'" Marine Corps Logistics Base v. FLRA, slip op. at 9.

In July 1987, when the Respondent decided to modify the performance criteria applicable to some of its production employees, supervisors held a meeting with the affected employees to discuss the proposed changes. The shop foreman also met individually with each employee and solicited comments regarding the proposed new standards. In taking these actions, the Respondent "fully complied with the requirements of Article 31." Id. On August 7, 1987, the Union requested bargaining over the new performance appraisal system. The Respondent refused to bargain and, in November 1987, implemented the changes. The Union then filed the charge in this case, alleging that the Respondent had violated the Statute by changing the working conditions of unit employees without engaging in impact and implementation bargaining.

The Administrative Law Judge concluded that the Respondent had violated the Statute as alleged, finding that the Union had not waived its statutory right to bargain over the impact and implementation of the new performance appraisal system. The Authority affirmed the Judge's decision. Marine Corps Logistics Base, Barstow, California, 39 FLRA 1126 (1991) (Marine Corps, Barstow). The Authority concluded that the particular subject matters involved in the changes to the performance appraisal system were not contained in or covered by the agreement and that the Union had not waived its right to bargain in any other manner. The Authority held that "[t]he test is whether the negotiated agreement specifically addresses the particular subject matter of a union's bargaining request." 39 FLRA at 1133 (emphasis in original). Finding that "the agreement does not specifically address the full range of impact and implementation issues[,]" and that it contains no express waiver of such bargaining, the Authority concluded that by entering into the MLA the Union had not clearly and unmistakably waived its right to bargain over all impact and implementation issues that could arise when the Respondent exercised its right to change performance standards. Id. The Authority also concluded that there had been no waiver by acquiescence, past practice, or bargaining history. Accordingly, the Authority found a violation of section 7116(a)(1) and (5) of the Statute and ordered the Respondent to negotiate with the Union over the impact and implementation of the decision to revise the performance appraisal system.

In Marine Corps Logistics Base v. FLRA, the court granted the Respondent's petition for review and denied enforcement of the Authority's order. The court concluded that the Authority had departed, without sufficient justification, from the precedent established in Internal Revenue Service, 29 FLRA 162 (1987). The court stated that under Internal Revenue Service an "agency must engage in mid-term negotiations over an otherwise bargainable matter raised by the union, except when: (1) the matter is covered by the parties' collective bargaining agreement; or (2) the union has 'clearly and unmistakably' waived its right to bargain, either by express agreement (e.g., a zipper clause), or through its bargaining history with the agency." Slip op. at 16. The court held that in Marine Corps, Barstow the Authority had "conflated the two steps" of this analysis by applying the same test for whether a matter is "covered by" an agreement as it applies when determining when a union has waived its right to negotiate through bargaining history. Id. at 17.

The court also held that the approach taken by the Authority in Marine Corps, Barstow is "impermissible" because it "contravenes the policies" of the Statute. Id. at 22. Finally, the court held that the Authority's decision in Marine Corps, Barstow is inconsistent with the principles of private sector labor law, upon which the Authority relied before the court. For all of these reasons, the court held that the Authority had improperly applied a waiver analysis to determine when a matter is "covered by" a negotiated agreement.

The court then concluded that the impact and implementation of performance standards are "covered by" the MLA, which "establishes comprehensive procedures that the agency must follow when it modifies performance criteria[.]" Id. at