21:0471(63)CA - National Weather Service, Silver Spring, MD and National Weather Service Employees Organization (MEBA) -- 1986 FLRAdec CA



[ v21 p471 ]
21:0471(63)CA
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