U.S. Immigration and Naturalization Service and AFGE National INS Council (Authority decision, June 23, 1987)

Final FLRA decision. The Authority denies INS's exceptions to an arbitration award requiring written union notice before revised performance plans take effect and replacement of ratings made under the unannounced plan. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

INS revised immigration inspectors' performance work plans without first giving AFGE written notice and a chance to respond under their agreement. An arbitrator ordered INS to return to the old plan until it provided notice and to recalculate ratings issued under the new plan. The arbitrator rejected a separate claim about a supposed past practice allowing seated vehicle inspections. INS argued that the performance remedy infringed its right to set standards. The Authority held that the award addressed notice and bargaining over implementation, without dictating the content of standards, and denied the exceptions.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a) and management rights under § 7106(a)(2).
• Outcome: Agency exceptions denied; notice and rating recalculation award stands.
• Key point: Enforcing contract notice before a performance plan change did not substitute the arbitrator's judgment for management's choice of standards.

Full text (FLRA public release)

[ v27 p488 ]

27:0488(70)AR

The decision of the Authority follows:

27 FLRA No. 70

U.S. IMMIGRATION AND
NATURALIZATION SERVICE
Agency

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES (NATIONAL IMMIGRATION AND
NATURALIZATION SERVICE COUNCIL)
Union

Case No. 0-AR-1317

DECISION

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 opposition.

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 deficient.

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 adversely affected. Id. at 393. We conclude, therefore, that the Arbitrator's award in this case, ordering the Agency to comply with the agreement and ordering a return to the old performance work plan until the Union is given the opportunity to negotiate on impact and implementation of the new plan, is not contrary to the Statute and is consistent with Authority precedent.

The Agency also contends that the Arbitrator misinterpreted and misapplied Article 9 of the agreement when he directed the Agency to issue a written notice to the Union and allow comment on the revised performance work plan. That contention is nothing more than disagreement with the Arbitrator's interpretation and application of the agreement and provides no basis for finding the award deficient. See The Columbia Basin Trades Council, Grand Coulee, Washington and The Grand Coulee Project Office, Bureau of Reclamation, U.S. Department of the Interior, Grand Coulee, Washington, 20 FLRA 385, 390 (1985).

IV. Decision

The Agency's exceptions are denied.

Issued, Washington, D.C., June 23, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY