17:0088(20)CA - NLRB and NLRBU and its Washington, DC Local -- 1985 FLRAdec CA

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The decision of the Authority follows:

 17 FLRA No. 20
 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
    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
    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
                                       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
                           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,
    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,
    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
          '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
    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
    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.
    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
          (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
                          NOTICE TO ALL EMPLOYEES
 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