16:0379(62)CA - National Weather Service Training Center, Kansas City, MO and National Weather Service Employees Organization, (MEBA) -- 1984 FLRAdec CA



[ v16 p379 ]
16:0379(62)CA
The decision of the Authority follows:


 16 FLRA No. 62
 
 NATIONAL WEATHER SERVICE TRAINING
 CENTER, KANSAS CITY, MISSOURI
 Respondent
 
 and
 
 NATIONAL WEATHER SERVICE EMPLOYEES
 ORGANIZATION, (MEBA/AFL-CIO)
 Charging Party
 
                                            Case Nos. 7-CA-30183 
                                                      7-CA-30185 
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that Respondent had engaged in the
 unfair labor practices alleged in the consolidated complaint, and
 recommending that it cease and desist therefrom and take certain
 affirmative action.  The Respondent filed exceptions with respect to the
 Judge's Decision.  /1/
 
    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 Recommended Order.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the National Weather Service Training Center, Kansas
 City, Missouri, shall:
 
    1.  Cease and desist from:
 
    (a) Making statements or remarks to a union steward indicating that
 he would be getting better performance evaluations if he were not
 continually questioning management decisions and pursuing union matters.
 
    (b) Awarding a union steward a lower evaluation for a promotion
 opportunity because of his participation in protected union activities.
 
    (c) In any like or related manner interfering with, restraining, or
 coercing 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) Expunge from Union Steward Michael Silvestri's record any
 reference to the performance appraisal for a promotion opportunity
 prepared for him on August 13, 1982.
 
    (b) Post at its facilities in Kansas City, Missouri, 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
 Director of the Training Center, or his designee, and shall be posted
 and maintained for 60 consecutive days thereafter in conspicuous places,
 including all bulletin boards and other places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 insure that said 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 of Region VII, in writing,
 within 30 days from the date of this Order, as to what steps have been
 taken to comply herewith.  
 
 Issued, Washington, D.C., October 31, 1984
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                         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
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT make statements or remarks to a union steward indicating
 that he would be getting better performance evaluations if he were not
 continually questioning management decisions and pursuing union matters.
 
    WE WILL NOT award a union steward a lower evaluation for a promotion
 opportunity because of his participation in protected union activities.
 
    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
 Federal Service Labor-Management Relations Statute.
 
    WE WILL expunge from Union Steward Michael Silvestri's records any
 reference to the performance appraisal for a promotion opportunity
 prepared for him on August 13, 1982.
                                       (Activity)
 
    Dated:  By:  (Signature) (Title)
 
    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 employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director for the Federal Labor Relations Authority, Region VII, whose
 address is:  Federal Building & U.S. Customs House, 1531 Stout Street,
 Suite 301, Denver, Colorado 80202 and whose telephone number is:  (303)
 837-5224.
 
 
 
 
 
 
 
 
 
  FOLLOWS --------------------
 
 CISION
    CENTER, KANSAS CITY, MISSOURI
                                Respondent
 
    and
 
    NATIONAL WEATHER SERVICE EMPLOYEES
    ORGANIZATION, (MEBA/AFL-CIO)
                              Charging Party
 
                                       Case Nos.: 7-CA-30183
                                                  7-CA-30185
 
    John Kosloske, Esquire
    For the Respondent
 
    Daniel Minahan, Esquire
    Joseph Swerdzewski, Esquire
 
    For the General Counsel
    Before:  BURTON S. STERNBURG
 
    Administrative Law Judge
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 7101, et seq. and the Rules and Regulations issued thereunder, Fed.
 Reg., Vol. 45, No. 12, January 17, 1980 and Vol. 46, No. 154, August 11,
 1981, 5 C.F.R. Chapter XIV, Part 2411, et seq.
 
    Pursuant to amended charges first filed on February 7, 1983, by the
 National Weather Service Employees Organization (MEBA/AFL-CIO),
 (hereinafter called the Union or NWSEO), a Consolidated Complaint and
 Notice of Hearing was issued on April 19, 1983, by the Acting Regional
 Director for Region VII, Federal Labor Relations Authority, Denver,
 Colorado.  The Consolidated Complaint alleges, in substance, that the
 National Weather Service Training Center, Kansas City, Missouri,
 (hereinafter called the Weather Service or Respondent), violated Section
 7116(a)(1) of the Federal Service Labor-Management Relations Statute,
 (hereinafter called the Statute), by virtue of the actions of a
 supervisor in (1) telling a union steward that he could not expect
 better treatment from management if he continued to engage in Union
 activities and that he would be getting better evaluations if he were
 not constantly questioning management's actions, and (2) giving the same
 union steward a reduced performance appraisal because of his
 participation in protected activities on behalf of the Union.
 
    A hearing was held in the captioned matter on May 18, 1983, in Kansas
 City, Missouri.  All parties were afforded the full opportunity to be
 heard, to examine and cross-examine witnesses, and to introduce evidence
 bearing on the issues involved herein.  The General Counsel and the
 Respondent submitted post-hearing briefs which have been duly
 considered.  /2/
 
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings of fact,
 conclusions and recommendations.
 
                             Findings of Fact
 
    Background
 
    The Union is the certified exclusive bargaining representative of a
 consolidated unit of a nationwide unit of Respondent's employees, which
 includes the employees at the National Weather Training Center, Kansas
 City, Missouri.  Shortly after the Union's certification in 1981, Mr.
 Michael Silvestri, an Electronic Technician Instructor, became the
 Branch Steward at the Kansas City facility.  In such capacity, Mr.
 Silvestri was responsible for, among other things, representing the unit
 employees in collective bargaining, grievances and unfair labor practice
 proceedings.
 
    Mr. Silvestri did not become active as a union steward until the
 Spring of 1982, when he began representing an employee in connection
 with an unsuccessful attempt by such employee to be upgraded to a GS-12
 position.  Thereafter, Mr. Silvestri had constant contact with Weather
 Service management concerning his request for information which he
 deemed necessary for proper representation of the affected employee.
 According to Mr. Silvestri, management was reluctant to supply him with
 the requested information and began harassing him.  Subsequently, on May
 12, 1982, the Union filed an unfair labor practice charge based upon the
 alleged harrassment of Mr. Silvestri and the refusal to supply
 information necessary for intelligent bargaining.  Thereafter, and
 continuing through August 18, 1982, Mr. Silvestri participated in the
 Denver Regional Office's investigation of the charge.  Mr. Fred Cherry,
 Mr. Silvestri's supervisor, acknowledges that Mr. Silvestri was involved
 in union activities during the summer of 1982.
 
    According to Mr. Silvestri, he was reprimanded by Mr. Cherry in May
 1982 for discussing union business with other employees in the hallway
 of the Weather Service.  Further, according to Mr. Silvestri, in June of
 1982 he overheard Mr. Cherry inform another supervisor that he was not
 happy having Mr. Silvestri under his supervision.  Mr. Cherry
 acknowledges that he might have given Mr. Silvestri an oral reprimand
 but attributes such reprimand to a telephone call made by Mr. Silvestri.
  /3/
 
    Alleged unfair labor practices:
 
    In August of 1982, Mr. Silvestri became aware of a Merit Vacancy
 Announcement for a Senior Instructor, GS-12, in the Computer Base Group
 at the Weather Service Training Center.  Inasmuch as an application for
 an announced vacancy had to be accompanied by a supervisory appraisal,
 Mr. Silvestri on August 12, 1982, gave Mr. Cherry a blank appraisal Form
 CD-362 and asked him to fill it out.  /4/ According to Mr. Silvestri,
 during an ensuing conversation, Mr. Cherry informed him that he would be
 getting a better evaluation if he were not constantly questioning
 management on everything that was going on;  and that he would get
 better treatment from Dr. Meyers, the Director of the Training Center,
 if he were not "kicking him . . . all the time with Union matters".
 Finally, according to Mr. Silvestri, Mr. Cherry told him that he, Mr.
 Silvestri, was making his, Mr. Cherry's life miserable since people were
 forever asking him whether Mr. Silvestri was working on union business
 behind the locked door of the classroom which was used by all the
 instructors for teaching purposes.  When Mr. Silvestri gave his
 explanation for the locked door, i.e. preparation of tests, Mr. Cherry
 instructed him not to lock the door in the future because people were
 getting the wrong idea.
 
    On August 13, 1982, Mr. Cherry gave Mr. Silvestri the completed
 appraisal Form CD-362 which he had been asked by Mr. Silvestri to fill
 out the day before.  Mr. Silvestri was shocked by the ratings appearing
 on the Form CD-362 because they were substantially different from the
 ratings which appeared on his annual appraisal.  /5/ In view of the
 ratings, Mr. Silvestri decided not to apply for the Senior Instructor,
 GS-12, vacancy.  /6/
 
    On the August 13, 1982 appraisal Form CD-362 there were five possible
 ratings, namely, outstanding, commendable, satisfactory, marginally
 satisfactory and unsatisfactory.  Mr. Silvestri was given 24 commendable
 ratings and four satisfactory ratings.
 
    As noted above, on or about March 5, 1982, Mr. Silvestri had received
 a vacancy appraisal Form CD-332 from Mr. Cherry in connection with
 another vacancy.  At that time Mr. Cherry rated Mr. Silvestri
 "outstanding" on 12 of the 15 rating categories appearing on the
 appraisal.  Mr. Cherry rated Mr. Silvestri "very good" on the other
 three categories.  "Outstanding" was the highest rating possible and
 "very good" the next highest rating.  The other three ratings on the
 form were satisfactory, marginally satisfactory and unsatisfactory.
 
    Mr. Cherry acknowledges having a conversation with Mr. Silvestri
 concerning his, Mr. Silvestri's, practice of locking the door to the
 classroom while he was working alone there and cautioning him about
 continuing such practice in the future.  He denies, however, ever making
 any mention of the Union in connection with his concerns about the
 locked door.  Mr. Cherry further denies telling Mr. Silvestri that he,
 Mr. Silvestri, would be getting better evaluations if he were not
 constantly questioning management on everything that was going on and
 challenging Dr. Meyers with respect to union matters.
 
    With respect to the difference in the ratings accorded Mr. Silvestri
 on March 5 and August 13, 1982, Mr. Cherry attributes the difference to
 the changes in the ratings available on the respective appraisal forms.
 Thus, Mr. Cherry testified that on Form CD-322 which was used for the
 March 5, 1982 appraisal, he was faced with the choice of "outstanding"
 as the highest rating and "very good" as the next highest rating.  In
 his opinion, "very good" was not an appropriate description of Mr.
 Silvestri in many, if not most of the categories, because he deemed Mr.
 Silvestri's performance to be better than "very good".  Not having a
 choice between "very good" and "outstanding", he decided to give Mr.
 Silvestri the benefit of the "outstanding" rating.  When he faced the
 task of giving Mr. Silvestri an appraisal in August of 1982, he had the
 opportunity to utilize the new form CD-362 which listed "commendable"
 rather than "very good" as the second highest rating.  In Mr. Cherry's
 opinion "commendable" denoted a higher rating than "very good" and more
 aptly described Mr. Silvestri's performance.  Accordingly, he opted for
 the "commendable" rating rather than stretch the truth as he did in
 March of 1982 and give him the highest rating of "outstanding".
 
    Mr. Cherry's only explanation for the different ratings given to Mr.
 Silvestri on the March 31, 1982, annual appraisal and the August 13,
 1982 vacancy Form CD-362, both of which carried "outstanding" and
 "commendable" as the highest and second highest ratings, was that the
 appraisals were for different purposes.  Mr. Cherry acknowledges,
 however, that the instructions for filling out Form CD-362 directed that
 the annual appraisal and the Form CD-362 should be similar for like
 elements.  Mr. Cherry further acknowledges that Mr. Silvestri's work
 performance did not deteriorate between the time he gave him the annual
 appraisal and August of 1982, when he filled out vacancy Form CD-362.
 
    Finally, the record reveals that while there was a difference between
 the ratings available on Forms CS-362 and CD-332, the categories for
 appraisal on the forms were substantially the same, the main difference
 being the numbering of such categories.
 
                        Discussion and Conclusions
 
    With respect to that portion of the complaint which alleges a Section
 7116(a)(1) violation predicated upon Mr. Cherry's statements, i.e. that
 he, Mr. Silvestri, would be receiving better evaluations if he was not
 constantly questioning management on everything that was going on and
 kicking Dr. Meyers . . . all the time with union matters, it is obvious
 that resolution of this allegation of the complaint turns on
 credibility.
 
    Having observed the witnesses and their demeanor and analyzed their
 respective testimony, I credit Mr. Silvestri's account of the
 conversation.  Accordingly, and since such statements and/or remarks
 have a tendency to interfere with, restrain and coerce employees in the
 exercise of their Statutory rights, I find that Respondent violated
 Section 7116(a)(1) of the Statute by virtue of the actions of Mr. Cherry
 in uttering such remarks.  Cf. Social Security Administration, 7 FLRA
 No. 140;  Portsmouth Naval Shipyard, 7 FLRA No. 129.
 
    I further find that the Respondent committed an additional violation
 of Section 7116(a)(1) when it gave Mr. Silvestri a lower performance
 appraisal on August 13, 1982.  In reaching this conclusion I rely on the
 timing of the appraisal, i.e. subsequent to Mr. Silvestri's active
 participation in union activities, the credited testimony of Mr.
 Silvestri that he had been warned by Mr. Cherry that a lower appraisal
 was in the offing because of his union activities, the admitted fact
 that Mr. Silvestri's work performance had not deteriorated since his
 annual appraisal for the period through March 31, 1982, and the absence
 of a persuasive reason for the lower appraisal.
 
    In this latter connection, Mr. Cherry's sole reason for awarding Mr.
 Silvestri a lower rating than what appeared on Mr. Silvestri's March 31,
 1982, annual appraisal and his March 5, 1982 vacancy appraisal was the
 availability of the new appraisal form of a "commendable" rating which
 Mr. Cherry considered to be higher than a "very good" rating and a more
 apt description of Mr. Silvestri's work performance.  If a "commendable"
 rating had not been available to Mr. Cherry prior to August of 1982, Mr.
 Cherry's explanation might well be worthy of credence.  However, such is
 not the case.  Thus the record shows that when Mr. Cherry was faced with
 the option of "outstanding" as the highest rating and "commendable" as
 the second highest rating on the March 31, 1982 annual appraisal, he,
 Mr. Cherry, opted to rate Mr. Silvestri as "outstanding" overall.  In
 such circumstances and since Mr. Silvestri's work performance admittedly
 had not deteriorated, I cannot accept Mr. Cherry's asserted reason for
 the lower rating.  This is particularly true in view of the published
 instructions which make it clear that vacancy appraisal ratings should
 be similar to annual appraisal ratings for similar elements.
 
    In sum, I find that the record evidence supports the conclusion that
 Mr. Silvestri was awarded a lower performance appraisal on August 13,
 1982, because of his active participation in union activities.
 
    In view of the above findings and conclusions, it is hereby
 recommended that the Authority issue the following order which is
 designed to remedy the Section 7116(a)(1) violations of the Statute
 found herein.
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and Section 7118 of the Statute, it is
 hereby ordered that the National Weather Service Training Center, Kansas
 City, Missouri, shall:
 
    1.  Cease and desist from:
 
          (a) Making statements or remarks to a union steward indicating
       that he would be getting better performance evaluations if he were
       not continually questioning management decisions and pursuing
       union matters.
 
          (b) Awarding a union steward a lower vacancy evaluation because
       of his participation in protected union activities.
 
          (c) In any like or related manner interfering with,
       restraining, or coercing 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) Expunge from Union Steward Michael Silvestri's records any
       reference to the vacancy appraisal prepared for him on August 13,
       1982.
 
          (b) Post at its facilities in Kansas City, Missouri, copies of
       the attached notice marked "Appendix" on forms to be furnished by
       the Federal Labor Relations Authority.  Upon receipt of such
       forms, they shall be signed by the Director of the Training
       Center, 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.  Reasonable steps shall be taken to insure
       that said 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 of Region VII, Federal
       Labor Relations Authority, in writing, within 30 days from the
       date of this Order, as to what steps have been taken to comply
       herewith.
 
                                       BURTON S. STERNBURG
                                       Administrative Law Judge
 
    Dated:  August 8, 1983
    Washington, D.C.
 
 
 
 
                                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
 STATUTE We
 Hereby Notify Our Employees That:
 
    WE WILL NOT make statements or remarks to a union steward indicating
 that he would be getting better performance evaluations if he were not
 continually questioning management decisions and pursuing union matters.
 
    WE WILL NOT award a union steward a lower vacancy evaluation because
 of his participation in protected union activities.
 
    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
 Federal Service Labor-Management Relations Statute.
 
    WE WILL expunge from Union Steward Michael Silvestri's records any
 reference to the vacancy appraisal prepared for him on August 13, 1982.
                                       (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 employees have any questions concerning this Notice or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director of the Federal Labor Relations Authority, Region VII,
 whose address is:  1531 Stout Street, Suite 301, Denver, Colorado 80202,
 and whose telephone number is:  (303) 837-5224.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Respondent excepted to certain credibility findings made by
 the Judge.  The demeanor of witnesses is a factor of consequence in
 resolving issues of credibility, and the Judge has had the advantage of
 observing the witnesses while they testified.  The Authority will not
 overrule a Judge's resolution with respect to credibility unless a clear
 preponderance of all the relevant evidence demonstrates that such
 resolution was incorrect.  The Authority has examined the record
 carefully, and finds no basis for reversing the Judge's credibility
 findings.
 
 
    /2/ In the absence of any objection, General Counsel's motion to
 correct the transcript is granted.
 
 
    /3/ The reprimand is not alleged as an unfair labor practice in the
 instant complaint.
 
 
    /4/ Form 362 was a new form which superseded vacancy appraisal Form
 CD-332.  Mr. Cherry had filled out a Form CD-332 on March 5, 1982 for
 Mr. Silvestri when he had unsuccessfully applied for another vacancy
 announcement.  This appraisal will be discussed in detail infra.
 
 
    /5/ On the annual appraisal which covered the period 10/81 to
 3/31/82, Mr. Cherry had the opportunity to rate Mr. Silvestri as
 unsatisfactory, minimally satisfactory, satisfactory, commendable or
 outstanding.  Mr. Cherry rated Mr. Silvestri as "outstanding" overall.
 With respect to performance standards, Mr. Cherry had his choice of
 three ratings, i.e. exceeded expectations, met expectations or not met
 expectations.  Mr. Cherry checked off "exceeded" for all the elements on
 the performance standards page of the appraisal.
 
 
    /5/ The instructions for completing Form CD-362 read in pertin