24:0255(31)CA - VA and VA Medical Center, Lyons, NJ and AFGE Local 1012 -- 1986 FLRAdec CA



[ v24 p255 ]
24:0255(31)CA
The decision of the Authority follows:


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