[ v24 p255 ]
24:0255(31)CA
The decision of the Authority follows:
24 FLRA No. 31
VETERANS ADMINISTRATION AND
VETERANS ADMINISTRATION MEDICAL
CENTER, LYONS, NEW JERSEY
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1012
Charging Party
Case No. 2-CA-50428
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the Charging Party (the Union) to the attached decision of the
Administrative Law Judge. The Respondent filed an opposition to the
exceptions. The complaint alleged that the Respondent violated section
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute when in or around April 1984, it unilaterally changed the
performance standards for a clerk typist position in one of the
divisions of the medical center without notifying the designated
representative of the Union and affording the Union an opportunity to
bargain over the impact and implementation of the new standards. The
complaint further alleged that the Union first became apprised of the
change in or around April 1985.
II. Background and Judge's Conclusion
The Judge concluded that the charge was untimely under section 7118
of the Statute. Specifically, he found that in April 1984, Charlene
Cozart, the only employee in the clerk typist position in dispute and at
all relevant times a shop steward of the Union, was fully informed of
the change in the performance standards for the position and was given a
copy of the new standards. He further found that in October 1984 at a
mid-term performance evaluation conference, Ms. Cozart was evaluated
under the new standards and again given a copy of the new standards.
The Judge in particular noted Ms. Cozart's status as a shop steward and
emphasized that, as a steward and representative of the Union, she had
very direct knowledge of the change in her performance standards.
Accordingly, he decided that the Respondent's conduct did not preclude
the Union, the charging party, from filing the charge within six months
after the change in 1984 of the performance standards for the clerk
typist position and that the July 29, 1985 charge was therefore
untimely. He accordingly recommended that the complaint be dismissed.
III. Positions of the Parties
In its exceptions the Union principally argues that the Judge erred
by concluding that the charge was untimely. The Union maintains that
the charge was filed within two weeks of the time that the Union
discovered the change in the performance standards. The Union also
argues that the Judge erred by permitting the Respondent's assistant
personnel officer, Alan Osman, to testify without having been
sequestered. The Union also disputes certain credibility findings of
the Judge.
In its opposition the Respondent maintains that the Judge properly
concluded that the charge was untimely. The Respondent also asserts
that the testimony of Mr. Osman was proper. The Respondent maintains
that the Judge specifically and appropriately ruled that each party was
permitted to have one person serve as a technical advisor who could
testify without having been sequestered and that Mr. Osman was
designated by the Respondent. The Respondent further disputes the
Union's objections to the credibility findings of the Judge.
IV. Analysis and Conclusions
We agree with the Judge and reject the exceptions of the Union. We
reject the Union's contention concerning the testimony of Mr. Osman and
adopt the Judge's ruling. We also find no basis for reversing the
Judge's credibility findings. See, for example, Department of the Air
Force, Lowry Air Force Base, Denver, Colorado, 22 FLRA No. 47 (1986),
slip op. at 8 n.2. Thus, we adopt for the reasons stated by the Judge
his finding and conclusion that the charge was untimely and his order
recommending that the complaint be dismissed.
V. ORDER
The complaint in Case No. 2-CA-50428 is dismissed.
Issued, Washington, D.C., November 26, 1986
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 2-CA-50428
VETERANS ADMINISTRATION AND VETERANS
ADMINISTRATION MEDICAL CENTER, LYONS, NEW JERSEY
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT,
AFL-CIO, LOCAL 1012
Charging Party
LESLIE S. Vincent, Esquire
For the Respondent
Susan M. Roche, Esquire
For the General Counsel
Mr. George Hall
For the Charging Party
Before: William B. Devaney
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
Section 7101, et seq., /1/ and the Final Rules and Regulations issued
thereunder, 5 C.F.R. Section 2423.1, et seq., concerns an asserted
unilateral change of working conditions "In or around April 1984 . . .
by changing the performance standards for the VRT/ITP Clerk Typist
without notifying designated representative and affording it an
opportunity to bargain over the impact and implementation of the new
standards." (Complaint, G.C. Exh. 1(c), Par. 6). The charge was not
filed until July 29, 1985, well over a year after the asserted
unilateral change, and the threshold, and controlling, question is
whether the alleged unfair labor practice is barred by Section
18(a)(4)(A) of the Statute. Although the Complaint alleges that, "The
Charging Party (Local 1012) first learned of the change referred to in
paragraph 6 . . . in or around April 1985" (Complaint, G.C. Exh. 1(c),
Par. 7), Respondent asserts that the change of performance standards was
discussed with the shop steward in April, 1984, indeed that the shop
steward, who was also the VRT/ITP Clerk Typist, and the only VRT/ITP
Clerk Typist, typed the new performance standards in April, 1984, not
only for her position as VRT/ITP Clerk Typist but also the new
performance standards for therapists who are outside the bargaining unit
and for therapy assistants who are in the bargaining unit, and that the
shop steward was given a copy of her new performance standards in April,
1984, to retain. Respondent further asserts that the shop steward-clerk
typist was provided a copy of the new performance standard on October
31, 1984, during a mid-term appraisal conference, which was nine months
prior to the date the charge was filed. For reasons more fully set
forth hereinafter, I find that this proceeding is barred by Section
18(a)(4)(A) of the Statute.
This case was initiated by a charge filed on July 29, 1985 (G.C. Exh.
1(a)); the Complaint and Notice of Hearing issued on October 7, 1985
(G.C. Exh. 1(c)); and set the hearing for December 9, 1985, pursuant to
which a hearing was duly held on December 9, 1985, in New York City
before the undersigned. All parties were represented at the hearing,
were afforded full opportunity to be heard, to introduce evidence
bearing on the issues involved, and were afforded the opportunity to
present oral argument, which counsel for Respondent exercised but
General Counsel waived. At the close of the hearing, January 9, 1986,
was fixed as the date for mailing post-hearing briefs and each party
timely mailed an excellent brief, received on, or before, January 10,
1986, which have been carefully considered. Upon the basis of the
entire record, including my observation of the witnesses and their
demeanor, I make the following findings and conclusions:
Findings
1. On, or about, April, 1983, Ms. Charlene Cozart, who had been
employed at VAMC Lyons since about 1978 (Tr. 17), became the
Clerk/Typist of the Vocational Rehabilitation Therapy/Incentive Therapy
Program (VRT/ITP) which is a division within the Rehabilitation Medicine
Service (RMS) Department at Veterans Administration Medical Center
(VAMC) Lyons, New Jersey (Tr. 16-17). Ms. Cozart is the only Clerk
Typist in VRT/ITP (Tr. 97); but there a total of ten employees in
VRT/ITP, the other nine being therapists, who are outside the bargaining
unit, and therapy assistants, who are bargaining unit employees (Tr.
97). There are about 30 employees in RSM (Tr. 28). American Federation
of Government Employees, AFL-CIO, Local 1012 (hereinafter referred to as
the "Union") represents about 1200 bargaining unit employees at VMAC
Lyons (Tr. 59).
2. Mr. Ferdinand Hammonds is Chief, VRT/ITP, and supervises the ten
people in VRT/ITP, including Ms. Cozart (Tr. 64, 65). On April 6, 1984,
Mr. Hammonds met with Ms. Cozart to discuss her performance appraisal
for the 1983-84 evaluation period. Mr. Hammonds gave Ms. Cozart an
"Outstanding" rating for the 1983-84 period (Tr. 20, 67; Jt. Exh. 2).
Mr. Hammonds also recommended Ms. Cozart for a special achievement award
of $273.00 (2%) (Res. Exh. 1). Sometime in 1984, after April 6, 1984,
Ms. Cozart received a step increase from GS-4, Step 4 to GS-4, Step 5
(see, Res. Exhs, 1 and 3).
3. Ms Cozart in April, 1984, was shop steward, /2/ a fact well known
by Mr. Hammonds who testified that Ms. Cozart was very active as a
steward (Tr. 71), with which Ms. Cozart fully agreed (Tr. 43).
4. In April, 1984, the performance standards for the VRT/ITP Clerk
Typist position, i.e., the performance standards for Ms. Cozart's then
and present position (Tr. 16, 17, 68), were changed. Ms. Cozart was,
and is, the only Clerk Typist in VRT/ITP /3/ (Tr. 18, 97). Mr. Hammonds
testified that the reason for the change was the very large number of
awards given for the 1983-84 rating period and the desire of
administration to make the performance standards more stringent (Tr.
69). Accordingly, Mr. Hammonds changed the numerical standards on most,
but not all, of the standards. For example: under 1, "Primary Clerical
Activity" A "Meets Criteria", which had been 85% was increased to 90%,
"Far Exceeds" remained 95%; B through E, "Meets Criteria", which had
been 85% was increased to 90%, "Far Exceeds" was increased from 95% to
98%; under 2. "Transcription" A, "Meets Criteria" was increased from
85% to 90% and "Far Exceeds" was not changed; B "Meets Criteria" was
increased from 85% to 90% and "Far Exceeds" was increased from 95% to
98%; 3. "Reports" A and B were not changed; and a new category
"Safety & Preventive Maintenance" was added (Jt. Exh. 3, compare with
Jt. Exh. 2).
The 1983-84 Performance Standards had not contained a numerical
rating for "Exceeds", nor did the 1984-85 Performance Standards as
prepared by Mr. Hammonds contain a numerical rating for "Exceeds" (Tr.
79); however, a personnel clerk later added a numerical rating for
"Exceeds" on the 1984-85 Performance Standards (Tr. 69, 81).
Notwithstanding that the 1983-84 Standards, and the 1984-85 Standards as
prepared by Mr. Hammonds, did not give a numerical rating for "Exceeds",
the "Level of Achievement" had always provided four categories: Failed
to Meet; Met; Exceeded; and Far Exceeded (see, also, Jt. Exh. 1, Art.
32, Section 5), and I fully agree with Mr. Hammonds that, whether
defined or not, "Exceeded" plainly meant that level of achievement
between "Met", which was defined, and "Far Exceeds", which was defined.
/4/
Ms. Cozart typed the new performance standards for her VRT/ITP Clerk
Typist position in April, 1984 (Tr. 70, 110). Indeed, Mr. Hammonds
testified without contradiction that in April, 1984, Ms. Cozart also
typed new performance standards for the other nine employees under his
supervision in VRT/ITP (Tr. 70). Ms. Cozart, while admitting that she
typed the performance standards for her VRT/ITP Clerk Typist position in
April, 1984, asserted she, " . . . wasn't aware that it was the change .
. . I didn't have them both there at the same time." (Tr. 110). Mr.
Hammonds, on the other hand, testified that, ". . . we (Mr. Hammonds and
Ms. Cozart) discussed those somewhat at length, because I wanted to be
assured of the fact that she recognized the difference between the '83
and '84 to make sure she carried the changes over into the new standards
. . . I discussed the differences with her, yes." (Tr. 70). On cross
examination, Mr. Hammonds further stated, "She had the two of them
together, (the 1983-1984 appraisal levels and the 1984-1985 appraisal
levels) and she was the one who was going to do the work. I had to show
her the difference between the two, yes, she had both of those
accessible to her. They were discussed, yes, the differences were
discussed in detail." (Tr. 88). I fully credit the testimony of Mr.
Hammonds, who was a wholly credible witness and whose testimony was,
ultimately, corroborated in critical respects by Ms. Cozart's
admissions, while I found Ms. Cozart's testimony in this regard to be
neither credible nor consistent. First, as to the date she typed the
new performance standards for her VRT/ITP Clerk Typist position, she
first asserted it was March, 1985 (Tr. 23, 44); then ". . . sometime
prior to March, and I don't want to say an exact date, because I don't
know an exact date" (Tr. 45), and finally admitted it was April, 1984
(Tr. 110, 111). Second, the performance standards for 1983-84 and for
1984-85 contain lengthy statements under each Section which are
identical. It is highly probable that the text would have been hand
written by Mr. Hammonds and even more improbable that the format would
have been so identical unless the 1984-85 performance standard had been
copied, either manually or from stored memory, and in either case the
1983-84 percentages would have been present. Third, the new "Safety &
Preventive Maintenance" section, added to the 1984-85 performance
standards, appears clearly to have been added to the last page of the
1983-84 standards. Fourth, Ms. Cozart avoided any reference to her
typing of new performance standards for nine other employees of VRT/ITP
in April, 1984, despite the fact that, after Ms. Hammonds so testified,
she was recalled and testified concerning other matters. Fifth, Ms.
Cozart admitted that, as Mr. Hammonds had testified (Tr. 70-71), she had
a copy of the 1983-84 standards (Tr. 110-111) and got a copy of the
1984-85 standards (Tr. 111) which she asserted, ". . . disappeared."
(Tr. 111).
5. On October 31, 1984, Mr. Hammonds met with Ms. Cozart for a
mid-term evaluation conference (Tr. 25, 73). Mr. Hammonds testified, in
part, that on October 31, 1984.
"I told her that I had reviewed her standards, gave her a copy
of the standards and suggested that she look at them if she didn't
have her copy available, which she didn't, and I told her that I
had reviewed them and I found that was Exceeded in all levels of
her performance requirements." (Tr. 73-74).
On the same date, October 31, 1984, Mr. Hammonds wrote a memorandum
to Ms. Cozart summarizing the appraisal conference in which he stated,
in part, as follows:
" . . .
"2. At that time (10/31/84), I reviewed with you your
performance during April 1, 1984 thru October 31, 1984, in all
elements of your 'performance requirements;' also, I made
suggestions as to how you may improve specific elements.
"3. More specifically, you concurred with my appraisal of your
exceeding all elements one (1) through five (5). /5/" (Res. Exh.
2).
Mr. Hammonds testified that Ms. Cozart typed Respondent Exhibit 2 and
that he, ". . . provided her a copy." (Tr. 75). Ms. Cozart denied that
she received a copy of the October 31, 1984, "Summary of Appraisal
Conference" (Res. Exh. 2); but Respondent's Exhibit 2 was received
without objection. I fully credit Mr. Hammonds' testimony both as to
his conversation with Ms. Cozart on October 31, 1984, and as to her
typing Respondent Exhibit 2 and having been provided a copy.
6. On April 17, 1985, Mr. Hammonds rated Ms. Cozart's level of
achievement on each of the four elements as "Exceeds" and gave her an
overall rating of "Highly Satisfactory" (By definition, to obtain an
overall rating of "Outstanding", "All levels of achievement for each Key
Responsibility/Task are designated as Far Exceeded." There was no change
in the Overall Ratings Section (Section C) requirements -- see, Jt.
Exhs. 2 & 3). Joint Exhibit 3 shows that the performance plan review
took place on Aprl 17 (see, also, Tr. 83), at which time Mr. Hammonds
testified, in part, that, "I told her that I had rated her as Exceeded,
and she accepted those. She seemed to be pleased with it." (Tr. 83).
Mr. Hammonds further testified that, ". . . after I had rated her
Exceeded, I took it over to my supervisor, which he was the reviewer,
and we reviewed it and jointly, we agreed that she should be recommended
for an award for the second year in a row." (Tr. 83-84). On April 22,
1985, Mr. Hammonds recommended Ms. Cozart for a special achievement
award of $291.56 (2% - the same percentage as in 1984), which was
approved on April 23, 1985 (Res. Exh. 3). Although Mr. Hammonds had
signed the appraisal on April 17, 1985, the recommendation for a 2%
monetary award was added and Ms. Cozart signed the appraisal on April
22, 1985, and checked the block, "I do not wish to respond" (Jt. Exh. 3.
last page).
7. Article 4, Section 5 of the parties' Agreement provides, in part,
as follows:
"Section 5 - Local Level Changes
"Proposed changes affecting personnel policies, practices or
conditions of employment which are initiated by local management
at a single facility will be forwarded to the designated local
official . . ." (Jt. Exh. 1, Article 4, Section 5).
Article 6 of the parties' agreement provides, in part, as follows:
"Section 3 - Notification of Union Officials
"A. The Union will present management at each facility with an
updated list of union officers and representatives annually . . ."
(Jt. Exh. 1, Art. 6, Section 3A).
"Section 6 - Notification of Changes in Conditions of
Employment
"The Agency shall notify the appropriate union official prior
to changing conditions of employment which affect bargaining unit
employees . . . " (Jt. Exh. 1, Art. 6, Section 6).
Mr. Lee E. Whitaker, President of the Union, testified that "the
designated local official" in Article 4, Section 5, meant the President
(Tr. 50); however, Mr. Whitaker admitted that he had never given
management overall notice in writing that when performance standards are
going to be changed that the President was the designated representative
to be notified (Tr. 59). Mr. Whitaker stated that five or six of the
more than 25 services at VAMC (Tr. 103) had notified him of some type of
change in performance standards (Tr. 59). Mr. Alan E. Osman, Assistant
Personnel Officer (Tr. 101), testified that there is no designated union
official to be given notice of any change in a performance standard by a
supervisor (Tr. 102). Mr. Osman further testified that, when
performance standards are to be changed by a supervisor, he had told the
supervisor to give notice to the shop steward if there was a shop
steward in that service, and if there were no shop steward in that
service, to send it to the Union office (Tr. 104-105).
8. Although Mr. Hammonds was well aware that Ms. Cozart was the shop
steward (Tr. 71), he conceded he never told her he was giving her notice
of the change in performance standards as the shop steward or because
she was the shop steward (Tr. 88; see, also Tr. 58).
Conclusions
In United States Department of Labor, 20 FLRA No. 34, 20 FLRA 296
(1985), the Authority considered Section 18(a)(4)(A) and (B), and
stated, in part, as follows:
". . . any charge alleging an unfair labor practice which is
necessarily based on conduct or events which occurred more than 6
months before the filing of the charge is untimely under the
provisions of section 7118(a)(4)(A) of the Statute, unless it is
established that the respondent agency . . . prevented the person
filing the charge from discovering the allegedly unlawful conduct
within the 6-month limitations period by concealment or by failing
to perform a duty owed to the charging party . . . ." (20 FLRA at
297).
The Authority further noted that,
". . . the House Committee Report accompanying H.R. 11280
stated with respect to section 7118(a)(4), which was ultimately
enacted and signed into law without change, as follows:
"Subsection (a)(4) prohibits the issuance of a complaint based
upon an unfair labor practice which occurred more than 6 months
before the filing of the charge with the Authority unless the
person aggrieved was prevented from filing the charge because the
agency or labor organization against whom the charge is made
failed to perform a duty owed to the aggrieved person, or due to
concealment. In addition, the concealment or failure to perform a
duty must have prevented the discovery of the unfair labor
practice within 6 months of its occurrence. (footnote omitted)."
(20 FLRA at 298).
See, also, United States Department of the Treasury, Internal Revenue
Service and United States Department of the Treasury, Internal Revenue
Service, Houston District, 20 FLRA No. 7, 20 FLRA 51 (1985).
Consequently, contrary to the position of the General Counsel and,
somewhat at variance with the position of Respondent, although
Respondent does assert that this proceeding is barred by Section
18(a)(4)(A), timeliness of the charge in this case is governed by the
provisions of "Section 18(a) (4) and by the Authority's admonition that,
". . . any charge alleging an unfair labor practice which is necessarily
based on conduct or events which occurred more than 6 months before the
filing of the charge (here, as the Complaint states, a unilateral change
of working conditions in April, 1984, by changing the performance
standards for the VRT/ITP Clerk Typist) is untimely . . . unless it is
established that the . . . agency . . . prevented the person filing the
charge from discovering the allegedly unlawful conduct within the
6-month limitations period by concealment or by failing to perform a
duty owed to the charging party"; and further as the House Committee
Report states, and as the Authority noted, ". . . the . . . failure to
perform a duty must have prevented the discovery of the unfair labor
practice within 6 months of its occurrence." Here, the record shows, and
I have found, that the VRT/ITP Clerk Typist, Ms. Cozart, was fully
informed of the change of her performance standards in April, 1984;
that Ms. Cozart, who typed the new performance standards, was given both
the prior performance standards (1983-84 standard) as well as the new
(1984-85) appraisal levels. ". . . to make sure she carried the changes
over into the new standards . . . ."; and Ms. Cozart was given a copy
of the new standards to retain. Further, in April, 1984, like changes
in the performance standards of the other nine employees in the VRT/ITP
section were made and Ms. Cozart also typed the new performance
standards for the other nine employees in the VRT/ITP section; the new
requirements were explained to each of the other nine employees of
VRT/ITP (therapy assistants, who are in the bargaining unit were
notified in April, 1984; and those outside the bargaining unit were
notified in May, 1984); and each was given a copy of the new standards
(Tr. 70-71; 96-97).
To be sure, Ms. Cozart was shop steward; and, while it is conceded
that Respondent never told her as shop steward that it was changing her,
or the other nine employees' performance standards, there can be no
doubt that she, as shop steward, well knew in April, 1984, of the
changes of the performance standards in VRT/ITP. Again, on October 31,
1984, in a mid-term evaluation conference, Ms. Cozart, as an employee,
was given a copy of the new, 1984-85, performance standards to review.
Respondent, relying on decisions of the Authority, such as Veterans
Administration, Veterans Administration Medical Center, Muskogee,
Oklahoma, 19 FLRA No. 122, 19 FLRA 1054 (1985), asserts that, ". . .
actual representation by an exclusive representative at a formal
discussion is sufficient to demonstrate compliance with the requirement
of section 7114(a)(2)(A) . . . although they (the representatives
present) had not been notified in their capacities as union officials
but rather as employees. . . " (19 FLRA at 1056), and argues that, "This
same philosophy can and should be carried over into a situation . . .
where notice was given to an employee (who was also a union steward)
about a change in her performance standards . . . ." (Respondent's
Brief, p. 6). General Counsel, in essence, argues that notice of a
change of a condition of employment must be given to the Union, qua
Union, otherwise, ". . . the Union would have had no chance to bargain
prior to implementation of the new standards" (General Counsel's Brief,
p. 12) and asserts that cases such as: Veterans Administration,
Veterans Administration Medical Center, Muskogee, Oklahoma, supra, and
United States Department of Labor, Employment Standards Administration,
20 FLRA No. 2, 20 FLRA 5 (1985), are inapposite for the reason that, ".
. . they involve formal discussions where Union officials attended even
though the Union per se was not given formal notice of the meeting . . .
This is distinguishable from a failure to give formal notice prior to a
unilateral change. The purpose of a notice in that situation is to give
the Union an opportunity to request bargaining over the change and to
submit proposals if it so desires . . . ." (General Counsel's Brief, n.
13, pp. 12-13). General Counsel distinguishes United States Air Force
v. Federal Labor Relations Authority, 681 F. 2d 466 (6th Cir. 1982) on
the ground that, ". . . there the steward was the Union official
designated to be notified of unilateral changes . . . At VAMC Lyons no
such designation was ever made of Charlene Cozart. /6/ . . ." (General
Counsel's Brief, n. 13, pp. 12-13).
Although I agree with General Counsel that adequacy of notice for
purposes of Section 14(a)(2)(A) is to be distinguished from adequacy of
notice of a change of conditions of employment, Department of Health and
Human Services, Social Security Administration, Baltimore, Maryland, 19
FLRA No. 123, 19 FLRA 1085 (1985) (Activity notified the three on-duty
employees and the union steward of a meeting; at the meeting. Activity
announced a new lunch and break schedule. Held, actual representation
of the exclusive representative at a formal discussion is sufficient
compliance with Section 14(a)(2) (A); but failure to give union notice
and opportunity to bargain concerning the change violated Section
16(a)(1) and (5)), the assertions of both Respondent and the General
Counsel are wide of the mark.
Where, as here, the conduct on which the unfair labor practice is
based, here, the change of a performance standard, occurred more than
six months prior to the filing of the charge, the charge is untimely
under the provisions of Section 18(a)(4)(A) unless, ". . . it is
established that the respondent agency . . . prevented the person filing
the charge from discovering the allegedly unlawful conduct within the
6-month limitations period by concealment or by failing to perform a
duty owed to the charging party . . . ." (United States Department of
Labor, supra, 20 FLRA at 297) and further that, ". . . the concealment
or failure to perform a duty must have prevented the discovery of the
unfair labor practice within 6 months of its occurrence. (United States
Department of Labor, supra, 20 FLRA at 298). Here, of course, there was
no concealment of the change of performance standards. The breach of
duty, if there were a failure to perform a duty owed to the changing
party, was the failure to give notice to the Union, which is the
Charging Party, in April, 1984, of the change of the performance
standards for the VRT/ITP Clerk Typist; but a breach of duty, alone, is
not enough. The failure to perform a duty must have prevented the
discovery of the unfair labor practice within 6 months of its
occurrence. This is the governing test in this case, not whether notice
of a change given to an employee who is also the shop steward
constitutes notice to the Union, a question I specifically do not
decide.
Did the failure of Respondent to give the Union notice of the change
in the performance standards for the VRT/ITP Clerk Typist in April,
1984, prevent the discovery of this unfair labor practice within 6
months of its occurrence? I conclude that it did not. Notwithstanding
that President Whitaker testified that he did not learn of the change
until April, 1985 (the charge having been filed on July 29, 1985), the
record fails to establish that the failure to give the Union notice of
the change of Ms. Cozart's performance standard, she being the VRT/ITP
Clerk Typist, in April, 1984, prevented discovery of the unfair labor
practice within 6 months of its occurrence. First, Ms. Cozart, the
VRT/ITP Clerk Typist was, as I have found, fully informed of the change
of her performance standard in April, 1984. Not only was the change
discussed with her, but she was given both the prior standard and the
new evaluation standards in order that she could type the new
performance standard. After she typed the new performance standard she
was given a copy to retain. Indeed, General Counsel concedes that, ". .
. If Cozart had been told of the change in April or October of 1984 . .
. (as I have found she was) it is only reasonable to believe she would
have complained to the Union about the change at that time . . ."
(General Counsel's Brief, n. 11, p. 10). Certainly, as Ms. Cozart was
told of the change in her performance standard in April, 1984, she could
then have informed the Union. Second, in April, 1984, the performance
standards for the other nine employees in the VRT/ITP section were
changed in a like manner; Ms. Cozart typed all of the new performance
standards for all employees in the VRT/ITP section; the new performance
standards were discussed by Mr. Hammonds with each of the VRT/ITP
bargaining unit employees in April, 1984, and with each of the
nonbargaining unit employees in VRT/ITP in May, 1984. As the new
performance standards were fully implemented in April and May, 1984, for
the entire VRT/ITP section, following discussion of the new standards
with all employees of the VRT/ITP section, Respondent's conduct did not
preclude the Union, the Charging Party, from filing the charge within
six months after April or May of 1984 when the new performance standards
were announced. United States Department of the Treasury, Internal
Revenue Service and United States Department of the Treasury, Internal
Revenue Service, Houston District, 20 FLRA No. 7, 20 FLRA 51 (1985).
Third, on October 31, 1984, at a mid-term evaluation conference, Ms.
Cozart was again given a copy of the new performance standards to review
and having again been confronted with the new performance standards she
could then have informed the Union. Fourth, Ms. Cozart was at all
times, i.e. both in April and October, 1984, the shop steward.
Notwithstanding that she was not informed of the new performance
standards as shop steward, she, as shop steward, was certainly aware of
the new performance standards in April, 1984. Her knowledge was far
more than casual. To the contrary, she had a very direct involvement in
the change of performance standards inasmuch as she typed the new
performance standards, not only for herself (the VRT/ITP Clerk Typist)
but for all employees of the VRT/ITP section. Fifth, as the charge and
complaint related solely to the change of Ms. Cozart's performance
standard in April, 1984, Ms. Cozart's knowledge in April, 1984, of the
change in her performance standard, as a steward and representative of
the Union, must be imputed to the Union for the purpose of Section
18(a)(4)(A).
Accordingly, as the charge was untimely filed, the Complaint must be
dismissed pursuant to Section 18(a)(4) of the Statute, and in view of my
conclusion that the charge was untimely, it is unnecessary to reach
other issues raised. It is, therefore, recommended that the Authority
adopt the following:
ORDER
The Complaint in Case No. 2-CA-50428 be, and the same is hereby,
dismissed.
/s/ WILLIAM B. DEVANEY
Administrative Law Judge
Dated: March 31, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
statutory reference, e.g., Section 7116(a)(5) will be referred to,
simply, as "Section 16(a)(5)."
(2) At some point, Ms. Cozart was elected Secretary-Treasurer of
Local 1012 and became a member of the Executive Board; however, she
testified, in December, 1985, that she had held that position one year
(Tr. 19). As the record fails to show that she was Secretary-Treasurer
either in the March-April or October, 1984, time frame, I shall assume
that she was only shop steward at such times.
(3) There are other Clerk Typists in RMS (Tr. 18).
(4) The issue is not before me, but pure logic would dictate that all
performance above "Meets Criteria", but below "Far Exceeds" must fall in
the category of "Exceeds"; however, somewhat strangely, "Exceeds" was
placed higher rather than, simply, being better than "Meets Criteria".
For example, where "Meets Criteria" is 90%, "Exceeds" is defined either
as 92% or 95% (rather than any level of achievement greater than 90%)
but less than the defined level for "Far Exceeds Criteria".
Nevertheless, since Ms. Cozart met the standard for "Exceeds", I express
no opinion concerning the propriety of Respondent's definition of
"Exceeds".
(5) This would appear to be an error as there were four elements:
"Primary Clerical Duties"; "Transscription"; "Reports"; and "Safety &
Preventative Maintenance" (See, Jt. Exh. 3, Section A (second page)) not
five elements.
(6) While it is quite correct that Ms. Cozart was not designated to
receive notice of unilateral changes, no overall notice had ever been
given by the Union of the official to receive notice of any change.
Article 4, Section 5 of the parties' Agreement provides that notice will
be "forwarded to the designated local official" (Jt. Exh. 1, Art. 4,
Sec. 5) while Article 6, Section 6, provides that "The Agency shall
notify the appropriate union official prior to changing any condition of
employment . . . ") Jt. Exh. 1, Art. 6, Sec. 6). It is not clear from
the Agreement either why two different provisions address notice of
changes or the significance of the difference in language. Perhaps, as
the testimony of President Whitaker and Mr. Osman tends to suggest,
Article 4, Section 5, governs across-the-board changes by Respondent,
while Article 6, Section 6, governs changes that are not applicable
throughout VAMC, such as changes by individual supervisors or services.
In any event, President Whitaker stated that he had never given
management overall notice in writing that when performance standards
were going to be changed the President was the designated representative
to be notified. Mr. Whitaker stated that five or six of the more that
25 services had notified him of some type of change in performance
standards, which would certainly imply that the other 19 or 20 services
had not given him notice. Mr. Osman testified that there was no
designated union official to be given notice of any change in
performance standards by a supervisor and further testified that he had
advised supervisors to give notice to the shop steward if there were a
steward in that service, or, if there were no shop steward in that
service, to send it to the Union office.