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52:0572(54)CA - - DLA, Defense Contract Management District South, Defense Contract Area Operations Dallas, Dallas, TX and AFGE, Local 2128 - - 1996 FLRAdec CA - - v52 p572

[ v52 p572 ]
The decision of the Authority follows:

52 FLRA No. 54











LOCAL 2128





November 14, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs.

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally implementing new performance elements and standards for certain unit employees. For the reasons stated below, we find that the Respondent did not violate the Statute.

II. Stipulation

The parties agree that the Respondent implemented new performance elements and standards, which had more than a de minimis effect on unit employees, without first notifying the Union or giving it an opportunity to bargain. The parties also agree that "the subject matter" of the new elements and standards is "covered by" section 3.A.4 of a supplement to Article 18 of their nationwide agreement.(1) Stip. para. 14. Before the Union filed the charge in this case, the Respondent never asserted that implementation of the elements and standards was covered by the agreement.

III. Positions of the Parties

A. The General Counsel

The General Counsel contends that the Respondent should be precluded from relying on the parties' agreement in this proceeding because it failed to inform the Union "prior to the filing of the . . . charge" that it considered "the subject matter of the change" (i.e., the new elements and standards) to be covered by the agreement. General Counsel's Brief at 4. The General Counsel asserts that a dispute of this sort "[o]rdinarily . . . should be raised in a grievance[,]" but that the Union is now barred from filing a grievance by section 7116(d) of the Statute. Id. Consequently, according to the General Counsel, the Union is left "with no redress for Respondent's unilateral change." Id.

The General Counsel requests a status quo ante remedy. In the alternative, "[s]hould the Authority find that the subject matter of this dispute is covered by the collective bargaining agreement," the General Counsel asks for an order directing the Respondent to inform the Union of any future defense based on the parties' agreement and afford the Union an opportunity to file a grievance. Id. at 6.

B. The Respondent

The Respondent argues that it and the Union are both capable of monitoring each other's compliance with their agreement and are obligated to do so. The Respondent contends that it is not required to inform the Union of its reliance on the agreement when it makes changes that the agreement entitles it to make without bargaining.

IV. Analysis and Conclusions

The parties have stipulated that "the subject matter of the change" in elements and standards is covered by their agreement. There is no dispute that, as a result, the Respondent was not obligated to bargain with the Union over the impact and implementation of the new elements and standards. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993). The General Counsel's argument that the Respondent should now be precluded from asserting that the subject matter is covered by the agreement because it did not make that assertion to the Union before the Union filed the charge is similar to the General Counsel's argument in Equal Employment Opportunity Commission, Washington, D.C., 52 FLRA No. 45 (Oct. 23, 1996) (EEOC). In that case, the agency had initially refused to bargain about certain union proposals by asserting, in effect, that they were nonnegotiable. The Judge found that the proposals were covered by the parties' agreement. In rejecting the General Counsel's claim that the agency could not raise the agreement as a defense because it failed to do so when it initially refused to bargain, the Authority observed that "if a matter is contained in or covered by a collective bargaining agreement an agency may act unilaterally without providing any reason for so doing." Id., slip op. at 2 (emphasis in original).

Our decision in EEOC is dispositive of this case as well. Moreover, unlike in EEOC, the stipulated facts in this case do not show that the Union ever objected to the new elements and standards, or that the Union in any other way questioned the Respondent's failure to bargain before filing its charge.(2) Nothing suggests that, had the Union done so, the Respondent would not then have invoked the parties' agreement to explain why it failed to bargain -- an explanation which the Union now stipulates is correct.

Our decision in this case, like our decision in EEOC, in no way obviates the duty of an agency to deal with a union in good faith. As in EEOC, however, this case presents nothing to suggest that the Respondent acted in bad faith or that it otherwise attempted to impede the Union in fully exercising its rights under the Statute or the parties' agreement. Although other circumstances may warrant a finding that an agency violated the Statute by engaging in misleading, obstructive or deceitful conduct that prevented a union from filing a timely grievance or otherwise pursuing its rights, those circumstances clearly do not exist here.

V. Order

The complaint is dismissed.

(If blank, the decision does not have footnotes.)

1. Article 18 of the parties' agreement is entitled "Performance Evaluation." Stip. Exhs. 2, 3. It sets forth a number of definitions and procedures, both for appraising employees as well as for dealing with deficient performance. The supplement to Article 18 adds a new subsection (3.A.4), which provides, in its entirety, that "[t]he respective Local(s) shall be advised of proposed new performance plans affecting employees and will be given an opportunity to present its views prior to implementation." Stip. Exh. 4.

2. The Union's charge did not allege that it asked to bargain or that the Respondent ever expressly refused to bargain. Apparently in response to the charge, the Respondent sent the Union a memorandum entitled "Unfair Labor Practice, Performance Standards[,]" in which it acknowledged its failure to "coordinat[e] with the Union as required by the Supplemental Agreement, Article 18, Section 3A.4" and apologized for its "oversight." Stip. Exh. 5.