United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF THE INTERIOR U.S. FISH AND WILDLIFE SERVICE HADLEY, MASSACHUSETTS
and LOCAL R1-203, NATIONAL ASSOCIATION    OF GOVERNMENT EMPLOYEES, SEIU,  AFL-CIO	Case No. 02 FSIP 96

DECISION AND ORDER

    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.

BACKGROUND

    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.

ISSUES AT IMPASSE

   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.

POSITIONS OF THE PARTIES

   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 also should be retained which provides that, while the parties recognize rating and reviewing officials do not have to be qualified to perform their employees’ jobs, they are expected to develop a basic understanding of the employees’ duties so their work can be objectively evaluated. The parties tentatively agreed to this because it avoided assignment of work issues, and provided a better alternative than requiring rating officials to have "technical competence," a term they found hard to define. Procedures for modifying performance plans should be retained because they were agreed upon after protracted, repeated negotiations between the parties; moreover, the Union’s new alternative provision does not add any value to the wording in the tentative agreement, or change its essence. In addition, the tentative agreement adequately addresses situations where a supervisor may have delayed informing an employee about a performance problem, so there is no need for it to be supplemented, as the Union proposes.⁽⁴⁾ Finally, the portion of the tentative agreement which notifies employees that they have an opportunity, under 5 C.F.R. § 432.105, to demonstrate acceptable performance following a period of unacceptable performance, should not be modified. Under a section of the tentative agreement not in dispute, if the Employer rescinds a performance-based action, and the employee’s performance continues to be acceptable for the period of time required by law (currently 1 year), management must destroy any entry, or other notation, of unacceptable performance on which the action was based. Thus, there is no need to add the wording the Union proposes to address this matter.

CONCLUSIONS

    After carefully considering the parties’ responses to the Order to Show Cause with respect to the issues in dispute, we conclude that the impasse should be resolved by imposing the terms that were reached voluntarily in December 2001. In our view, the Employer has demonstrated that the parties’ tentative agreement concerning the Incentive Awards and Performance Management articles should be imposed without modification. Conversely, by devoting its response entirely to the validity of our procedural determination, rather than the merits of the issues, the Union has failed to establish a basis for adopting any of its proposals. To illustrate this point, under the terms of the tentative agreement, employees appear to have a measure of control over the awards process because they can nominate their peers for incentive awards. The Union has not shown, nor is it otherwise apparent, that there is a need for a committee consisting of Union-management representatives whose primary function would be the nomination of employees for awards. As another example, the Union’s proposal for productivity gainsharing appears difficult to implement because of the problem the Employer raises concerning the quantification of cost savings generated by increases in employee productivity or efficiency. Since the Union has not provided any explanation to counter the Employer’s argument, there is little in the record to dispute the Employer’s contention that the issue is adequately addressed in the agreement previously reached by the parties. Accordingly, we shall order the adoption of the terms of the December 2001 tentative agreement on incentive awards and performance management.

ORDER

 

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the parties’ failure to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel, under § 2471.11(a) of its regulations, hereby orders the following:

 

    The parties shall adopt the terms of the December 2001 tentative agreement on the Incentive Awards and Performance Management articles.

By direction of the Panel.

H. Joseph Schimansky
Executive Director

November 8, 2002
Washington, D.C.

1. Professional employees are not represented by a labor organization.

2. Under a five-level performance appraisal system employees receive one of the following performance ratings annually: outstanding, exceeds fully successful, fully successful, minimally acceptable, or unacceptable.

3. In its response to the Panel’s Order to Show Cause, the Union did not address the merits of its proposals to modify the December 2001 tentative agreement. Rather, it contests the merits of the procedure directed by the Panel to resolve the parties’ dispute. The description of the Union’s position on the issues is based on information the Union’s representatives provided during the initial investigation into the request for Panel assistance.

4. Although not specifically stated in the tentative agreement, it is the Employer’s intent that a “delayed disclosure would normally be followed by a reasonable period of time for the employee to attempt to resolve the deficiency without being given a formal opportunity period.”