17:0088(20)CA - NLRB and NLRBU and its Washington, DC Local -- 1985 FLRAdec CA
[ v17 p88 ]
17:0088(20)CA
The decision of the Authority follows:
17 FLRA No. 20
NATIONAL LABOR RELATIONS BOARD
Respondent
and
NATIONAL LABOR RELATIONS BOARD UNION
AND ITS WASHINGTON, D.C. LOCAL
Charging Party
Case No. 3-CA-20604
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in
certain unfair labor practices and recommending that it be ordered to
cease and desist therefrom and take certain affirmative action.
Exceptions to the Judge's Decision were filed by the Respondent and the
General Counsel with supporting briefs.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommendations only to the extent
consistent herewith.
In this case, near the end of an employee's first year of employment
(about the middle of 1981), the employee's first-line and second-line
supervisors determined that the employee's job performance was
unsatisfactory. They decided to advise the employee of the problem and
to try to assist the employee to improve. The employee and a
representative of the National Labor Relations Board Union and its
Washington, D.C. Local (the Union) were informed. Numerous conferences
and meetings were held with the employee and a Union representative to
discuss the problem. Disputes developed concerning the nature of the
employee's deficiencies and what management should do to assist the
employee. Over a period of months, the Union representative insisted
that the supervisors should provide the employee with a more specific
and detailed description of his deficiencies. The supervisors sought a
transfer for the employee to an assignment which they considered more
suitable to his skills and abilities.
By April 1982 the supervisors had concluded that the employee had not
demonstrated discernible improvement and that something more formal had
to be done. They would provide the employee with a detailed description
of his deficiencies based on the critical elements of his position. He
would be provided with a specified period of time to show improvement.
Owing to conflicts which had developed between the employee and the
first-line supervisor, the employee would be given on-the-job training
by the second-line supervisor. If the employee did not improve during
this training and evaluation period, an adverse action would be
contemplated.
The employee was provided with the plan by memorandum on or about May
27, 1982, which stated that the plan would be implemented on or about
June 15, but that the employee should consult with the Union and come
forward with any comments or suggestions. The employee immediately went
to the Union. A meeting was set up for very late May or very early June
to discuss the matter. At the meeting the Union objected to the plan,
asserting that the Respondent had created a new type of improvement plan
for this employee as compared to prior plans and that, accordingly, the
Respondent had changed a condition of employment without providing the
Union advance notice and an opportunity to bargain. The Union also
asserted that the matter of "Performance Improvement Plans" was
currently under negotiation in the parties' master contract negotiations
and that the Respondent could not implement such a plan for this
employee while these continued. The Respondent's officials offered to
negotiate. The Union refused to negotiate, asserting that an unfair
labor practice had been committed and declared that it would file a
charge. The Union filed its charge on June 7, 1982. The plan for the
employee was implemented, as proposed, on June 16. The employee
continued in the Respondent's employ. If anything resulted from
implementation of the plan for him, positive or negative, it is not
contained in the record.
The Judge found that the Respondent had changed a condition of
employment. He found that the Respondent had provided performance
improvement plans to employees in the past, but this was the first time
detailed references to the "critical elements" of an employee's position
had been used to describe an employee's deficiencies. In this regard,
it is the Authority's view that insofar as the Respondent had provided
employees with such performance improvement plans in the past which did
describe the employee's job requirements and deficiencies in performing
them, the mere reference to "critical elements" in describing the
employee's job requirements and deficiencies herein did not constitute a
change in that past practice. /1A/ It is also noted that the
supervisors had dealt with the Union on this problem for a number of
months and the Union had repeatedly urged the supervisors to be more
specific and detailed in describing the employee's deficiencies. In
these circumstances, where the supervisors attempt to be responsive to
these requests, the Authority concludes that the Respondent did not
violate section 7116(a)(1) and (5) of the Statute as alleged in the
complaint. Accordingly, the Authority shall order that the complaint be
dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 3-CA-20604 be, and it
hereby is, dismissed.
Issued, Washington, D.C., February 28, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
Case No. 3-CA-20604
-------------------- ALJ$ DECISION FOLLOWS --------------------
Sharon Prost, Esq.
For the General Counsel
Raymond Forster, Esq.
For the Respondent
Mr. Stephen Lueke
For the Charging Party
Before: ELI NASH, JR.
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on August 31,
1982 by the Regional Director for the Federal Labor Relations Authority,
Region III, a hearing was held before the undersigned on November 15,
1982.
This case arose under the Federal Service Labor-Management Relations
Statute (herein called the Statute). It is based upon a charge filed on
June 7, 1982 by National Labor Relations Board Union and its Washington
Local (herein called the Union), against the National Labor Relations
Board (herein called the Board or Respondent). the complaint alleged,
in substance that on or about May 27, 1982 Respondent informed a
bargaining unit employee that he would be operating and would be
evaluated under a thirty (30) day performance improvement plan beginning
no later than June 15, 1982 and that on June 16, 1982, Respondent
implemented the above-mentioned plan without notice or negotiation with
the Union although the matter of such performance improvement plan was a
subject of negotiations then being conducted. /1/
Respondent filed an answer dated September 27, 1982 which denied the
material allegations in the Complaint as well as the commission of any
unfair labor practices.
All parties were represented at the hearing. Each was afforded an
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed with the
undersigned which have been duly considered.
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony and evidence addressed
at the hearing, I make the following findings and conclusions:
Findings of Fact
The Board and the Union were parties to a collective bargaining
agreement covering clerical employees in the Board's Washington, D.C.
headquarters unit, at all times material herein. The most recent
collective bargaining agreement contains articles concerning a grievance
procedure, training, promotions, adverse actions and other subjects, as
well as language specifying that the agreement be read in accordance
with applicable law. This latest agreement also provided for periodic
appraisal of employees.
A. The Performance Improvement Plan was Subject of Negotiations
During Summer 1982.
The material agreement herein was executed on April 1, 1980 and
continued in effect at least through the summer of 1982, by mutual
agreement of the parties despite its expiration date of December 31,
1981.
Negotiations for a new agreement commenced during the summer of 1981,
but recessed sometime around September 1981, without any agreement
having been reached, resumed in May 1982, and thereafter continued
through the summer of 1982.
Since performance improvement plans (PIP's) were not a part of the
existing agreement the parties negotiated concerning performance
appraisals with an aim toward modifying the existing contract. Such
modification included tailoring the contract to the then new Civil
Service law of 1978 and including a new performance appraisal system.
When negotiations resumed in May 1982, the parties made performance
appraisal negotiations part of the overall negotiations for the new
agreement. The performance appraisal negotiations beginning in 1981
involved the exchange of proposals by the parties which included a PIP.
The PIP proposals which were exchanged not only identified the PIP, but
defined it, established procedures and time frames for its use and
detailed the circumstances in which it was necessary or required.
The Board's proposals with regard to the PIP which were received by
the Union on May 26, 1982, and is closest to the event which triggered
the unfair labor practice charge herein under Section 1(k)(1), read as
follows:
'Performance Improvement Plan' means the plan formulated to
provide an employee with an identification of the critical
elements in which the employee's performance falls below the
required level and the required improvements and results in
performance necessary to avoid the denial of a within grade step
increase or the taking of a performance-based adverse action (a
reduction in grade or a removal). Such plan will include the
identification of the assistance which will be provided to the
employee to correct his/her performance so as to avoid the action
specified. Prior to the completion of a written Performance
Improvement Plan, the affected employee will be afforded an
opportunity to submit suggestions with respect to the assistance
to be provided.
The Union's June 29, 1982 counter-proposal modified somewhat the
language of the first sentence substituting the following:
the taking of a performance-based adverse action or the denial
of a noncompetitive promotion.
Similar language was adopted by the Board in its July 8, 1982
proposals.
In any event, it was clearly established on the record that the
parties were involved in negotiations concerning the PIP during the
summer of 1982, at least as early as May and that those negotiations
continued during the period in question herein.
B. Past Practice Under Agreement
Prior to promulgation of the Civil Service Reform Act of 1978, the
Board used several methods to evaluate employee performance and to
assist employees, where the need was present, in improving their
performance. Clearly, performance improvement plans, as anticipated by
the parties in the 1981-82 negotiations, which would bring the Board's
performance appraisal system in line with Civil Service Reform Act of
1978 requirements by utilizing critical elements and performance
standards were not used by the Board prior to May 1982.
As shown by the evidence, numerous methods were employed by the Board
to reprimand or warn employees that adverse action was anticipated based
on unsatisfactory work performance or leave abuse. The evidence
indicates that these Board actions were taken in conformity with then
existing Civil Service requirements and the Board's 1970 Administrative
Manual, section 2068.1. Although most employees were informed of the
areas in which they were deficient, were informed what was expected to
bring their performance to an acceptable level and were given specific
time periods to improve whatever performance was unacceptable, not until
May 1982, did any such Board actions mention critical elements of a
specific job since no such elements for appraisal were used prior to
that time.
C. The Performance Improvement Plan Issued To Barbano
The instant dispute was occasioned by an alleged PIP given to
employee Edward F. Barbano on May 27, 1982 and implemented on June 16,
1982. As already noted the parties during this same period were engaged
in bargaining concerning the PIP to be contained in the newest
collective bargaining agreement. The Union upon being informed of
Bardano's plan raised objection to its implementation on June 7, 1982.
There is no dispute that employee Barbano, had performed
unsatisfactorily in the position of Public Affairs Specialist over a
protracted period of time and that several meetings between Barbano, his
supervisors and the Union had been held, specifically to discuss
Barbano's work situation and the possibilities for his improvement.
There is also no dispute that the Board, without input from the Union
prepared a plan to assist Bardano in improving his work performance and
that this plan was based on Barbano's not performing at least one of the
critical elements of his position "i.e. summarizing NLRB decisions and
orders" and that it prepared a plan providing 30 working days for
Barbano to improve his performance. Further, there is no dispute that
on June 16, 1982, the Board granted Barbano a 70-day period in which to
bring his work performance to an acceptable level "simultaneously with
the beginning of the 30 working day training period recently developed
for you," and that the 70-day notice was premised entirely on the
critical elements of his job.
While it is contended that the Union had previously advocated some
sort of assistance for Barbano, the record is clear that it was not
aware that a PIP similar to the plan being discussed in negotiations,
had been prepared for Barbano until after Barbano received the May 27
memorandum from the Director of Information, Thomas W. Miller, Jr.,
advising him of the plan and providing "a 30 working day period in which
to improve your performance."
As already stated, the evidence reveals that in similar situations
the Board had issued memoranda and guidance to employees concerning work
related problems and performance. These memoranda, however, were for
the most part, issued prior to the new Civil Service Reform Act of 1978
and contained no formal performance improvement plan involving critical
elements such as the plan received by Barbano. The explanation why such
criteria was missing is obvious, since critical elements and performance
standards were an entirely new concept not considered by the parties or
included in previous collective bargaining agreement. /2/
Discussion and Conclusions
The General Counsel's position is simply that the May 27, 1982
memorandum to Barbano was a performance improvement plan; that this
plan was a change in previous practice at the Board with respect to
bargaining unit employees; and, that its unilateral implementation
without proper notice to the collective bargaining representation while
the matter was a subject of negotiations between the parties constitutes
a violation of section 7116(a)(1) and (5) of the Statute.
Normally, a unilateral change by an employer during the course of
negotiations would be regarded as a per se violation. The Board,
however, asserts that a question arises as to whether the training
program given Barbano was indeed a performance improvement plan within
the meaning of the collective bargaining agreement then being
negotiated; and whether it instituted a new term of condition of
employment or practice without giving proper notice to the Union.
The Board claims that the plan given Barbano was not a performance
improvement plan because it was not so labeled and there are no existing
PIP's with which it might be compared. However, the Board, admits and
the evidence clearly disclosed that the plan issued to Barbano comes
within the definition of such a plan as anticipated by the parties
during negotiations. In such circumstances, comparison with other plans
is not the only criterion for consideration. Instead the question is
whether or not the memoranda given Barbano involved matters which were
then under negotiation between the parties. The instant record reveals
that the plan Barbano received matches what the parties had by
definition anticipated a PIP to contain. Furthermore, there was no
agreement on a PIP during May or June 1982 when Barbano received his
plan.
No one questions that Barbano's work performance was unsatisfactory
and the Board sought to allow him an opportunity to improve that
performance through a plan designed by its own personnel office which
conformed, it felt, with the requirements of the Civil Service Reform
Act of 1978. Such a plan, as it appears on the record, was designed to
offer Barbano an opportunity to improve his performance within a
specific period of time, and essentially tracked what the parties were
negotiating in this respect, which was to be ultimately called a
performance improvement plan. Whatever label is now used, training
program, as suggested by the Board, or performance improvement plan,
most clearly was an item on the bargaining table when Barbano's plan was
implemented. The Board's argument that the Barbano plan must be found
not to be a PIP, therefore, must be rejected.
As stated in United States Department of Labor, 7 FLRA 688 (1982) the
General rule is that an agency is free to make changes in conditions of
employment which are not covered by a collective bargaining agreement
after timely notice of the proposed change to a union and absent a
timely request to bargain thereon by the union. Here it is revealed
that a condition of employment involving employee appraisals was
established by previous practice.
As a practical matter, the Board has an obligation to perform certain
personnel functions such as issuing memoranda to employees with work
related difficulty, aiding employees in improving performance and in
general following Civil Service regulations regarding such actions.
Indeed, as the record shows, the Board in fulfilling this obligation had
in the past issued memoranda to employees in several categories
appraising them that some action was anticipated. However, as the
parties recognized, those earlier regulations were altered and the Board
had an obligation to negotiate with the Union concerning how it would
implement such alterations prior to promulgation. Thus, the Board
recognized its obligation and had engaged in negotiations regarding the
implementation of a new performance improvement plan in order to conform
to the new Civil Service regulations. The Barbano PIP unquestionably
contained new standards for employee performance, including critical
elements and performance standards never before used by the Board in
appraising its employees. The General Counsel concedes that in the past
the Board indeed issued notices of deficiencies or warnings, but
counters that prior to the Barbano plan, no practice or policy existed
regarding the use of PIP's based on an employees' critical elements and
containing a detailed outline and timetable designed to raise employee
performance to an acceptable level. The inclusion of such criteria in
an appraisal or warning, the General Counsel maintains, is a substantial
departure from previous Board policy. The Board insists that this is
not a new term or condition of employment, even though no performance
standards or critical elements previously existed which affected
employees' rating. /3/ In rejecting the Board's contention, it is found
that previous appraisal memoranda issued by it did not take critical
elements, performance standards or detailed timetables into
consideration. It is further found, an employee appraisal is without
doubt a condition of employment and that Barbano's PIP represented a
substantial departure from the Board's prior practice in employee
appraisals, and that any change in that practice without good faith
negotiations is prohibited. Social Security Administration, Sutter
District Office, San Francisco, California, 5 FLRA No. 63 (1981).
Alternately the Board contends that notice was given through various
meetings held with the Union concerning Barbano's performance. Notice
given in such circumstances has been found by the Authority to be
insufficient. See for example, Department of the Air Force, Hanscom
AFB, Massachusetts, 5 FLRA No. 88 (1981) where it was found that an
agency must give specific notice of any intended change to the union.
Although it is uncontraverted on the record that several meetings were
held, there is no evidence of any notification to the Union that the
Board intended to develop a PIP for Barbano or that a PIP was in any way
discussed at any of these meetings. It therefore, cannot be inferred
from general discussions concerning Barbano's employment that
notification of a PIP was given the Union. Furthermore, the record does
not suggest that the Board, during any of these meetings, made any
reference to establishing a training plan or PIP, as was given to
Barbano in May and June 1982, in which the Union acquiesced.
Case law prohibits an agency from initiating changes in employee
working conditions during negotiations, absent agreement or impasse.
Department of the Navy, 3 FLRA 413 (1980); Social Security
Administration, San Francisco Region, 9 FLRA No. 11 (1982).
Accordingly, while in the midst of negotiations, to effect such a change
would be violative of the Statute. Clearly no impasse or agreement had
been reached on the PIP. The evidence discloses that the parties
continued to exchange proposals on the PIP, even after the May 27
memorandum was received by Barbano. Such an exchange of proposals
during the entire period in question negates any potential for finding
that impasse or agreement had been reached on the PIP.
The Board also argues that the memorandum to Barbano lacked
"substantial adverse impact" on bargaining unit employees. Moreover, it
maintains that an absurd result would be reached were it unable to give
employees training with reference to work and job duties even after
notice until a full agreement had been reached on an agreement and the
agreement ratified and implemented. The short answer to the latter
contention is simply that the Board could have continued to comply with
the terms of the existing agreement in taking whatever action it sought
in assisting Barbano. With regard to "substantial impact," while it is
true that only one employee received such a PIP, the negotiations for a
new appraisal system and PIP involved all unit employees and
unilaterally implementation during the course of bargaining necessarily
impacts on all unit employees. Notwithstanding that the direct impact
of the particular plan is limited to employee Barbano, if taken in its
proper context, the implementation of such a plan while the parties were
engaged in negotiation certainly affected every unit employee. Under
such circumstances, it cannot be contended that substantial adverse
impact is not shown. /4/
Based on the foregoing, it is found that employee appraisals are a
condition of employment, the parties had not reached an impasse or
agreement regarding the PIP and that the Union was not given sufficient
notice of the Barbano PIP to allow it to engage in meaningful
negotiations concerning such a plan, or to justify any inference that it
had acquiesced in such a plan for Barbano. Accordingly, it is found
that the Board violated section 7116(a)(1) and (5) of the Statute by
unilaterally implementing a performance improvement plan for employee
Barbano while performance improvement plans were a subject of
negotiations and without giving proper notification to the Union and
allowing it to bargain prior to implementation.
The Remedy
The General Counsel urges that in order to fully remedy the unlawful
conduct herein, the Board must be ordered to revoke the June 16, 1982
performance improvement plan and that any action taken against Barbano
as a result of his performance under the plan be rescinded.
In my view, a prospective bargaining order should fully remedy the
bargaining violation herein. See Federal Correctional Institution, 8
FLRA 604 (1982). The performance improvement plan herein involves only
one employee, Barbano and since the parties have bargained to a new
agreement which includes a performance improvement plan, such an action
as found violative of the Statute herein cannot be anticipated to recur.
Furthermore, it is undisputed that the Board, as a practical matter,
was required to take some action concerning Barbano's employment
situation. While its action may have been improper, its impact, since
such an action cannot recur is nevertheless limited. In such
circumstances, a status quo ante remedy would appear unwarranted.
Having concluded that Respondent violated section 7116(a)(1) and (5)
of the Statute by its implementation of a performance improvement plan
while the matter was a subject of negotiations and without affording the
Union proper notice and a reasonable opportunity to bargain concerning
the implementation of the performance improvement plan, I recommend that
the Authority issue the following order.
ORDER
Pursuant to Section 7118 of the Statute and Section 2423.29 of the
Authority's Rules and Regulations, the Authority hereby orders that the
National Labor Relations Board, Washington, D.C., shall:
1. Cease and desist from:
(a) Instituting any change in procedures concerning performance
improvement plans for its employees without first notifying the
National Labor Relations Board Union and its Washington, D.C.
Local, and affording it the opportunity to negotiate concerning
the procedures to be observed in implementing any such change and
concerning the impact such change will have on adversely affected
employees.
(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 Statute:
(a) Notify and, upon request, bargain with the National Labor
Relations Board Union and Its Washington, D.C. Local, concerning
the procedures to be observed in any performance improvement plans
resulting from any adverse or unacceptable performance appraisals
for employees adversely affected by such change.
(b) Post at its facilities at its Washington, D.C.
Headquarters, 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 Chairman of the
National Labor Relations Board, or his designee, and shall be
posted and maintained by him for 60 consecutive days thereafter in
conspicuous places, including all bulletin boards and other places
where notices to employees are customarily posted. The Chairman
shall take reasonable steps to insure that the 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, Region III, in writing,
within 30 days from the date of this Order as to what steps have
been taken to comply herewith.
ELI NASH, JR.
Administrative Law Judge
Dated: June 1, 1983
Washington, DC
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute any change in procedure concerning performance
improvement plans for our employees without first notifying the National
Labor Relations Board Union and Its Washington, D.C. Local, the
employees' exclusive bargaining representative, upon request and allow
an opportunity to negotiate with respect to the procedures which
management will observe in implementing such changes and concerning
appropriate arrangements for employees adversely affected thereby. WE
WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in the exercise of their rights assured by the
Statute. WE WILL notify and bargain in good faith with the National
Labor Relations Board Union and Its Washington, D.C. Local, upon
request, concerning the procedures to be observed in implementing any
changes concerning performance improvement plans resulting from any
adverse or unacceptable performance appraisals.
. . . (Agency or Activity)
Dated: . . . By . . . (Signature) 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 any employees have any
questions concerning this Notice or compliance with any of its
provisions, they may communicate directly with the Regional Director,
Region III, Federal Labor Relations Authority, whose address is:
Washington Regional Office, P.O. Box 33758, Washington, D.C. 20033-0758,
and whose telephone number is: (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1A/ See United States Department of the Treasury, Internal Revenue
Service, Chicago, Illinois, 13 FLRA 636 (1984), wherein the Authority
found that rubber stamping of daily reports with "smiley faces" or
"frowns," rather than written descriptions such as "good work" or "busy
day," did not constitute a change in working conditions. Compare
Department of the Air Force, Air Force Systems Command, Electronic
Systems Division, 14 FLRA 390 (1984), wherein the Authority adopted the
Judge's finding that the unilateral promulgation and implementation of
performance standards, where none had been previously established,
without affording the employees' exclusive representative prior notice
and an opportunity to negotiate concerning the impact and implementation
of those standards, violated the Statute.
/1/ The charge herein dated June 7, 1982 makes no mention of the June
16, 1982 implementation. However, the General Counsel premises a major
portion of the violation in this matter and, indeed requests a remedy
which would set aside that implementation.
/2/ The General Counsel's unopposed Motion to Correct Transcript is
granted.
/3/ The Board's argument that the mention of critical elements and
performance standards in the Barbano document misses the point. The
question here is not the basis of evaluation for Barbano, rather, it is
that certain aspects of the matter which were negotiable and indeed
lawful were matters being discussed by the parties when it instituted
certain unilateral changes with regard to the subject matter.
/4/ The General Counsel's motion to strike certain portions of
Respondent's brief is granted.