21:0471(63)CA - National Weather Service, Silver Spring, MD and National Weather Service Employees Organization (MEBA) -- 1986 FLRAdec CA
[ v21 p471 ]
The decision of the Authority follows:
21 FLRA No. 63 NATIONAL WEATHER SERVICE SILVER SPRING, MARYLAND Respondent and NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION (MEBA/AFL-CIO) Charging Party Case No. 7-CA-40108 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had engaged in the unfair labor practices alleged in the complaint, and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Thereafter, the Respondent filed exceptions to the Judge's Decision and the General Counsel filed an opposition thereto. 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. The complaint alleges that the Respondent, National Weather Service, violated the Statute when, in October 1981, it unilaterally implemented the use of an instructor evaluation sheet to evaluate unit employees at its National Weather Service Training Center (NWSTC) in connection with a critical element of their performance standards without first notifying the Charging Party and affording it an opportunity to bargain over the impact and implementation of such change. The Judge concluded that the Respondent's implementation of the use of such form was a violation of the Statute. The Authority disagrees. The Authority finds that the General Counsel has failed to sustain the burden of proving that the Respondent unilaterally changed a condition of employment without notifying and bargaining with the Charging Party, as alleged in the complaint. The facts are essentially not in dispute. As found by the Judge, it had long been the practice of NWSTC supervisors to conduct in-class evaluations of instructors. Such practice allowed supervisors to use whatever methods they wished to accomplish these evaluations, including the use of "cuff" records, personal notes, "Sample Guidelines," forms such as an "Observation Report" (OR) and a lesson evaluation sheet, as checklists for recording such evaluations. Supervisor James Nelson developed the form at issue here, the Instruction Evaluation Sheet (IES), because he believed the OR form to be incomplete and not in the exact form he wanted to use. He distributed copies of the IES to some of the other supervisors, and started to use the form himself in October 1981. The Respondent thereafter continued to allow supervisors to use any or all of the above tools to record evaluations of instructors. In the Authority's view, the General Counsel has not shown that the nature of the supervisory evaluations or the criteria to be applied in evaluating instructor performance changed because Nelson (and possibly other supervisors) began using the IES form. Although the IES had a different format and was more specific than the OR, the same concepts of classroom presentation and delivery techniques were measured. Thus, the record also shows that, in developing the IES form, Nelson used the OR form as a guide, and the IES conformed exactly to the rating elements set forth in the "Sample Guidelines." Additionally, the record indicates that, at all times material herein, there was no change in the Respondent's policy of permitting individual supervisors to use any form to record their observations of the instructors' in-class performance. The Authority therefore concludes that it has not been demonstrated that there was a change in unit employees' conditions of employment caused by the distribution and use of the IES. Consequently, the Respondent was under no obligation to notify or bargain with the Charging Party concerning the use of such form. Thus, no violation of section 7116(a)(1) or (5) of the Statute has been established, and we shall order that the complaint be dismissed. See Social Security Administration, Baltimore, Maryland, 19 FLRA No. 79 (1985). See also United States Department of the Treasury, Internal Revenue Service, Chicago, Illinois, 13 FLRA 636 (1984). ORDER IT IS ORDERED that the complaint in Case No. 7-CA-40108 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., April 24, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 7-CA-40108 NATIONAL WEATHER SERVICE, SILVER SPRING, MARYLAND Respondent and NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION (MEBA/AFL-CIO) Charging Party George E. Maden, Esquire For the Respondent Cathy A. Auble, Esquire Joseph Swerdzewski, Esquire For the General Counsel, FLRA Before: GARVIN LEE OLIVER Administrative Law Judge DECISION Statement of the Case This decision concerns an unfair labor practice complaint issued by the Regional Director, Region Seven, Federal Labor Relations Authority, Denver, Colorado against the National Weather Service, Silver Spring, Maryland (Respondent), based on a charge filed by the National Weather Service Employees Organization (Charging Party or Union). The complaint alleged, in substance, that Respondent violated sections 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. Section 7101 et seq. (the Statute), by unilaterally implementing on or about October 1981, the use of an instructor evaluation sheet to evaluate unit employees in connection with a performance appraisal critical element without first notifying the Union and affording the Union an opportunity to bargain over the impact and implementation of such change. The complaint further alleged that the Union first discovered the unilateral change on or about September 1, 1983. Respondent's answer denied the unfair labor practice alleged in the complaint. A hearing was held in Kansas City, Missouri. The Respondent, and the General Counsel were represented by counsel and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. Based on the entire record, /1/ including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations. Findings of Fact In approximately May 1981, the Union was certified as the exclusive representative of a nationwide consolidated unit of Respondent's employees. Respondent's National Weather Service Training Center (NWSTC), Kansas City, Missouri, which is part of the consolidated unit, is charged with the responsibility of providing training programs for Respondent's employees. The Training Center is divided into two branches, only one of which, the Engineering Branch, is at issue in this case. There are approximately 16 instructors in the Engineering Branch. The nonsupervisory instructors are part of the bargaining unit. Instructor Michael Silvestri has served in various representational capacities for the Union on behalf of the Training Center employees from the Union's certification to the present and has been the only Union official empowered to receive notice from Respondent's agents concerning matters affecting, and to bargain on behalf of, the Training Center employees. Respondent has been aware of Silvestri's authority to receive notice and to bargain on behalf of the Union. Prior to October 1981, there was a longstanding NWSTC practice of conducting in-class evaluations of instructors. Supervisors, or program instructors as they were known after the reorganization of 1981, were free to use whatever methods they wished to accomplish the in-class evaluations. Some used "cuff" records, or personal notes, others used forms as a checklist for the evaluations. Since approximately 1973, a form entitled, "Observation Report" (OR) had been available for supervisory use. The OR was an optional form which was originally issued by the Federal Aviation Administration. The OR is a one-page document horizontally printed on both sides. The top of the front page has a space for the name of the instructor and the lesson observed. The remainder of the front page is divided into three vertical blocks. The remainder of the front page is divided into three vertical blocks. The left block lists the following items: Identification and Clarification of Objectives, Development and Maintenance of Interest and Motivation, Evaluative Techniques, Lesson Development, Provision for Student Application and Delivery Techniques. The middle block contains a five-element evaluation system (outstanding, excellent, good, satisfactory and unsatisfactory), along with blank spaces for checking the rating for each item. The right block has blank spaces for comments. On the back, the top-third of the OR contains a continuation of the three-block pattern: Summarization Techniques, Utilization of Training Aids and Materials, and Total Instructional Effectiveness. The middle third is a blank space entitled Recommendations for Development. The bottom third sets forth the "adjective rating" and a comparative description of the five rating elements. Also available for supervisory use during this period was a document entitled, "Sample Guidelines," which was also obtained from the Federal Aviation Administration. This document set forth standards for use with a lesson evaluation sheet. Most of the specific rating elements set forth in these guidelines were not identical to those set forth in the OR. Although the record reflects that the OR and sample guidelines were available for use, unlike the Instructor Evaluation Sheet (IES), to be discussed later, there is only hearsay evidence in the record of any actual use of the OR form. It was reportedly not retained by the supervisors. Since October 1981, instructors have been evaluated on their performance on an annual basis under a system known as the General Workforce Performance Appraisal System or GWPAS. Of the performance elements expected of instructors, one of the critical elements is instruction which consumes approximately 40% of an instructor's time. During June 1981, James D. Nelson, a program instructor-supervisor, developed an Instruction Evaluation Sheet (IES) to evaluate instructors. He used the available OR form as a guide, but believed the OR to be incomplete and not in the exact form he wanted to use. In the process of developing the IES form, Nelson first made nonsubstantive changes in the sample guidelines. Then he made the IES conform exactly to the rating elements set forth in the guidelines. The IES is a one-page document horizontally printed on both sides. The top of the front page has a space for the name of the instructor and the course being observed. The remainder of the front page is divided into three vertical blocks. The left block lists the following items: Initial Readiness, Statement of Objectives, Ability to Explain Subject, Development and Stress of Key Points, Use of Questioning Techniques, Use of Training and Class Participation and Summarization Techniques. The middle block contains a five-element evaluation system (outstanding, very good, average, fair, and poor), along with blank spaces for checking the rating for each item. The right block has blank spaces for comments. The back of the IES contains, in addition to the brief continuation of the three-block pattern from the front page (Voice, Diction, Delivery and Enthusiasm, Appearance, Mannerisms), a large blank space for summary comments, as well as the rating standards (numerical score ranges and description of each range), and a space for the supervisor's signature. Neither the IES nor the sample guidelines used the same format as the GWPAS. The same concepts of classroom presentation and delivery techniques are measured, but the IES is more specific, particularly in terms of specific delivery techniques. The IES rating system uses categories of outstanding, very good, average, fair and poor which are achieved by attaining the appropriate numerical score within a range of scores identified on the back of the IES form. The GWPAS uses categories of outstanding, commendable, satisfactory, minimally satisfactory and unsatisfactory which are achieved by attaining a certain proportion of the Exceeded, Met and Not Met ratings for all of the performance elements listed in the GWPAS. The use of the IES can result in an evaluation which would be different than an evaluation reached by using the GWPAS without reference to the IES. The IES and the GWPAS are two different evaluation systems which concern the critical element of instruction. Nelson distributed copies of the IES and its sample guidelines to at least three of the five other program instructors/supervisors at the Training Center, including the two other supervisors in the Engineering Branch. The IES was first used by them or him in October 1981. Nelson evaluated five different unit employee/instructors by using the IES, and at least two of these instructors were twice evaluated by Nelson using the IES. Within a few days after Nelson completed the IES concerning a particular instructor, he would give a copy to that instructor, discuss the ratings given to the instructor, and make suggestions for improvement. Such in-class evaluation occurred on an irregular basis. Richard F. Myers, as director and Respondent's principal agent at the Training Center, was aware of the development of both the IES and sample guidelines and condoned their use. It is undisputed that Respondent never notified the Union of the institution of the IES and Sample Guidelines prior to its implementation in October 1981. On September 1, 1983, Nelson evaluated Silvestri by using the IES. After Silvestri reviewed the IES, he told Nelson that he had never seen that form and that he was unaware of the procedures to be used in connection with the IES or the areas in which he was to be evaluated. Nelson agreed and tore up Silvestri's IES. This was the first time that Silvestri saw the IES. By letter dated October 21, 1983, Respondent advised the Union's National President, Leo Harrison, of Respondent's intent to revise the IES and Sample Guidelines which, it stated, "is used to rate instructors in the classroom . . . . " (G.C. Ex. 7). Respondent concedes that this was the first time that it gave the Union any notice concerning any form of the IES or its use. Sometime after receiving a copy of the proposed revisions, Silvestri realized the connection between the proposed revision and the IES given to him by Nelson in September. Based on this realization, Silvestri sent a letter dated November 18, 1983, to Respondent objecting to the proposed revision because the Union had never been notified of the initial IES implementation. The Union has concerns as to how the IES would be used in connection with an instructor's rating under GWPAS or otherwise, the frequency of use, application to the style of training in engineering, whether the instructor would be notified in advance, and what consideration would be given to such matters as an instructor's first time teaching a course, or having a group of difficult students, or of the rating instructor's familiarity with the course. Discussions, Conclusions and Recommendations The General Counsel contends that Respondent's implementation of the IES in October 1981 was a unilateral change in conditions of employment of unit employees without prior notice or an opportunity to bargain being afforded to the Union, thus violating sections 7116(a)(1) and (5) of the Statute. The General Counsel asserts that the impact and implementation of the IES, which had a reasonably foreseeable impact on unit employees, was negotiable. Respondent defends on the basis, inter alia, that the use of the IES was not a departure from longstanding practice of allowing individual supervisors to accomplish in-class evaluation by use of forms, notes, or other methods; the changes made to the pre-existing form were not substantive changes giving rise to a bargaining obligation; and the IES had no impact, or de minimus impact, on bargaining unit employees. /2/ The evidence establishes that the implementation of the IES was a change in conditions of employment. There is little persuasive evidence of actual use of the OR form or FAA sample guidelines on the engineering side. Moreover, the specific items evaluated were different than the OR previously available for use. Initial readiness, class participation, and personal elements,such as voice, diction, enthusiasm, appearance, and mannerisms, were not on the OR form. Aside from the different descriptive words used, the IES rating system has a numerical score range within which an instructor must fall in order to receive a particular rating. The OR rating system was merely descriptive, to receipt of any given score on the OR was strictly subjective. It is concluded that the creation of the IES was a major alteration of the OR, with additions of several job-related evaluation considerations and a new rating system. Accordingly, especially in light of the fact that the IES was specifically to be used in conjunction with the GWPAS which did not come into existence until October 1981, this change cannot be construed as a mere reaffirmation of existing policy. The IES had an impact, or reasonably foreseeable impact, on unit employees. I cannot accept Respondent's position that the terms of the GWPAS, sample guidelines, and the evaluation forms all conveyed the same meaning, or that the in-house evaluation is an insignificant aspect of instructor evaluation. As noted, the Union had concerns as to just how the IES would be used, the frequency of use, application to the style of training in engineering, whether advance notice would be given, and what consideration would be given to such matters as an instructor's first time teaching a course, or having a group of difficult students, or of the rating instructor's familiarity with the course. A performance appraisal system is clearly an appropriate matter for bargaining. National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), enforced sub nom National Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982). While the establishment of performance standards or the identification of critical elements is not bargainable, procedures and adverse impact on unit employees due to these matters are negotiable. Department of the Air Force, Air Force Systems Command, Electronic Systems Division; 14 FLRA No. 63, 14 FLRA 390 (1984); Environmental Protection Agency, 16 FLRA No. 87 (1984). For example, where a union proposed that management be required to notify employees regarding which performance elements would be subject to appraisal, the Authority held that the proposal was negotiable. American Federation of Government Employees, Local 3028 and Department of Health and Human Services, Public Health Service, Alaska Native Health Service, 13 FLRA No. 112 (1984). Likewise, a proposal to give notice to employees concerning which performance elements are deemed critical is a negotiable matter. Alaska Native Health Service, supra. Other negotiable matters related to performance appraisal systems include informing the union should management elect to conduct a study of performance appraisals, requiring management to discuss a proposed evaluation or appraisal with an employee prior to sending it to higher level supervisor or reviewer, requiring that employees be evaluated solely on duties contained in their position descriptions, and insisting on uniform application of performance standards for identical duties in similar circumstances. American Federation of Government Employees, Local 3483 and Federal Home Loan Bank Board, New York District Office, 13 FLRA No. 80 (1983); National Federation of Federal Employees and Department of the Army, Fort Monmouth, New Jersey, 13 FLRA No. 75 (1983); American Federation of Government Employees Council of Social Security District Office Locals and Department of Health and Human Services, Social Security Administration, 11 FLRA No. 103 (1983); National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 9 FLRA 983 (1983). Furthermore, a requirement that performance standards for critical elements be objective and directly related to an employee's position is negotiable. American Federation of Government Employees, Local 2192 and Veterans Administration Regional Office, St. Louis, Missouri, 9 FLRA 716 (1982). Thus, it is clear based on the above that the impact and implementation of a form which was used in evaluating a critical element of an employee's performance appraisal was an appropriate matter for bargaining. It is concluded that Respondent's implementation in October 1981 of an instructor evaluation sheet to evaluate unit employees in connection with a performance appraisal critical element without first notifying the Union and affording it an opportunity to bargain over the impact and implementation of such change in conditions of employment violated sections 7116(a)(1) and (5) of the Statute, as alleged. Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following Order: ORDER Pursuant to Section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and Section 7118 of the Statute, the Authority hereby orders that the National Weather Service, Silver Spring, Maryland, shall: 1. Cease and desist from: (a) Changing any instructor evaluation sheet at the National Weather Service Training Center, Kansas City, Missouri, or otherwise changing existing terms and conditions of employment with respect to evaluation forms used in conjunction with performance appraisal systems, without first notifying the National Weather Service Employees Organization (MEBA/AFL-CIO), the exclusive bargaining representative of its employees, and affording such representative the opportunity to bargain, upon request, to the extent consonant with law. (b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute. (a) Rescind the Instructor Evaluation Sheet implemented in October 1981. (b) Rescind and remove or expunge from its files all references to ratings issued to bargaining unit employees as a result of the implementation of the Instructor Evaluation Sheet at the National Weather Service Training Center, Kansas City, Missouri. (c) Notify the National Weather Service Employees Organization (MEBA/AFL-CIO) the exclusive bargaining representative of its employees, of any proposed change in existing terms and conditions of employment with respect to evaluation forms used in conjunction with performance appraisal systems, and, upon request, bargain in good faith to the full extent consonant with law. (d) Post at its facilities at the National Weather Service Training Center, Kansas City, Missouri copies of the attached Notice marked "Appendix" on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Director, National Weather Service Training Center, 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. The Director shall take reasonable steps to insure that such notices are not altered, defaced, or covered by any other material. (e) Pursuant to 5 C.F.R. Section 2423.30 notify the Regional Director, Region VII, Federal Labor Relations Authority, Denver, Colorado, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. /s/ GARVIN LEE OLIVER Administrative Law Judge Dated: January 9, 1985 Washington, D.C. FOOTNOTES$ -------- (1) The unopposed motions of the General Counsel and the Respondent to correct the transcript are hereby granted. The transcript is corrected as set forth therein. (2) Respondent does not appear to contest the General Counsel's assertion that the complaint meets the requirements of section 7118(a)(4)(B) and was, therefore, timely filed. In any event, I so find. 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 change the instructor evaluation sheets at the National Weather Service Training Center, Kansas City, Missouri, or otherwise change existing terms and conditions of employment with respect to a performance appraisal system, without first notifying the National Weather Service Employees Organization (MEBA/AFL-CIO), the exclusive bargaining representative of our employees, and affording such representative the opportunity to bargain, upon request, to the extent consonant with law. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL rescind the Instructor Evaluation Sheet implemented in October 1981. WE WILL rescind and remove or expunge from our files all references to ratings issued to bargaining unit employees as a result of the implementation of the Instructor Evaluation Sheet in October 1981 at the National Weather Service Training Center, Kansas City, Missouri. WE WILL notify the National Weather Service Employees Organization (MEBA/AFL-CIO), the exclusive representative of our employees, of any proposed change in existing terms and conditions of employment with respect to the evaluation forms used in conjunction with the performance appraisal system, and, upon request, bargain in good faith to the full extent consonant with law. (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, FTS-8-327-5224.