48:0306(26)CA - - EEOC, Washington, DC and National Council of EEOC Locals # 216, AFGE - - 1993 FLRAdec CA - - v48 p306



[ v48 p306 ]
48:0306(26)CA
The decision of the Authority follows:


48 FLRA No. 26

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

WASHINGTON, D.C.

(Respondent/Agency)

and

NATIONAL COUNCIL OF EEOC LOCALS #216

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

(Charging Party/Union)

WA-CA-20558

_____

DECISION AND ORDER

August 19, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The Respondent and the General Counsel filed briefs.

The complaint alleges that the Respondent violated section 7116(a)(1) and (6) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing a 30-day period for Performance Improvement Plans (PIPs) for bargaining unit employees after the Union had requested the assistance of the Federal Service Impasses Panel (the Panel) regarding negotiations over the matter, and the Panel had accepted jurisdiction.

For the reasons stated below, we will dismiss the complaint.

II. Facts

The Union is the exclusive representative of a nationwide collective bargaining unit of the Respondent's employees, and the parties have a collective bargaining agreement that covers employees in the nationwide unit. The agreement includes a provision giving employees on PIPs "a reasonable opportunity to demonstrate acceptable performance and to correct any noted deficiencies." Exhibit 4 at 62.

On March 6, 1992, the Respondent published a directive that stated its intention to revise its performance appraisal system handbook, effective April 1. Among other things, the directive stated that, under the revised system, PIPs for bargaining unit employees would have a duration of 30 to 90 days.

On March 20, 1992, the Union sent to the Panel a pre-printed document captioned "Request for Assistance," including an attachment stating that it was filing a "negotiability appeal"

of a single proposal relating to the Agency's performance appraisal and recognition system. The proposal submitted by the Union relates to a modification to the length of the performance improvement plan (PIP) contained in the parties['] current collective bargaining agreement and the Agency's performance appraisal and recognition system handbook . . . .

Issue: Length of the performance improvement plan (PIP)

Exhibit 5. That memorandum then set forth the Union's proposal, which provided that, in most instances, PIPs would extend for a period of at least 90 days. The Union also included an attachment setting forth the portion of the Agency's plan concerning PIPs.

On March 23, 1992, the Panel sent letters to the parties informing them that it had received a "request for Panel consideration of an impasse . . . concerning performance appraisal and recognition system." Exhibit 6 (emphasis in original).

On April 1, 1992, the Respondent implemented the revisions to its performance appraisal system contained in the March 6 directive, including the provision concerning the duration of PIPs.

In a letter to the Panel dated April 6, 1992, the Union amended its letter of March 20, 1992. The April 6 submission stated:

[I]n reviewing our original request (dated 3-20-92) to the [P]anel to consider a negotiation impasse, we discovered that in our position letter our request was stated as a "negotiability appeal" and that the dispute concerned the "negotiability" of one proposal relating to the agency performance and appraisal and recognition system.

Exhibit 8. The amended submission stated that the Union was filing a "negotiation impasse appeal" under the appropriate provision of the Statute. The Union reiterated that the issue concerned the duration of PIPs, and restated the proposal providing that PIPs shall last for not less than 90 days.

The record does not contain certificates of service for either the Union's March 20, 1992, request for Panel assistance or the Panel's letter to the parties dated March 23, 1993. In addition, neither the stipulation nor the exhibits affirmatively establish that the Respondent received the Union's March 20 request to the Panel, or that the Respondent received the Panel's March 23 letter prior to April 1, when it implemented the change.

III. Positions of the Parties

A. General Counsel

The General Counsel argues that under Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466 (1985), an agency's failure to maintain the status quo to the maximum extent possible while disputed matters are before the Panel constitutes a violation of section 7116(a)(1), (5), and (6) of the Statute.(1) According to the General Counsel, "[t]o the maximum extent possible has been interpreted to mean that maintenance of the status quo is required only to the extent consistent with the necessary functioning of the agency in order to allow the Panel to take whatever action is deemed appropriate." General Counsel's brief at 3. The General Counsel contends that as the Respondent has made no claim that maintaining the status quo would have impeded the necessary functioning of the Agency, or that it has maintained the status quo to the maximum extent possible while the impasse was pending before the Panel, the Respondent's conduct violates section 7116(a)(1) and (6), as alleged.

B. Respondent

First, the Respondent asserts that it had no duty to bargain over the length of PIPs because that issue is included in the master agreement. The Respondent argues that when a matter is included in the master agreement, management has met its obligation to bargain, citing Department of the Navy, Marine Corps Logistics Base, Albany v. FLRA, 962 F.2d 48 (D.C. Cir. 1992). The Respondent further contends that if there is no obligation to bargain over a matter, a respondent cannot be held to have violated the Statute by failing to bargain over that matter when a dispute concerning the matter is pending before the Panel.

Second, the Respondent asserts that there was no duty to bargain because the record does not show that the impact of any change in the duration of PIPs was other than insignificant or de minimis.

Third, the Respondent contends that any change in the duration of PIPs occurred on March 6, 1992, when the Agency publicly issued the directive, and not on April 1, 1992, "which is merely the effective date of the Order." Respondent's brief at 7. The Respondent asserts that it did nothing to implement the directive after March 20. The Respondent points out that the stipulation "does not address the date the change, if any, . . . was implemented[.]" Id. at 8. The Respondent argues that its position is supported by the Authority's holding in Department of the Air Force, Scott Air Force Base, Illinois, 35 FLRA 844 (1990) (Scott Air Force Base) that the service of specific reduction-in-force (RIF) notices constitutes the implementation of a RIF.

Fourth, the Respondent notes that the Panel's March 23, 1992, letter did not inform the Respondent that the Union had requested Panel consideration of an impasse concerning PIP length. The Respondent contends that as the "PIP length was one of hundreds of matters addressed" in the directive, it was not alerted to any "alleged impasse in PIP length." Respondent's brief at 8.

Next, the Respondent contends that there is no evidence that the Union served it with the document that it filed with the Panel on March 20, and that the record does not prove that the Respondent received the Panel's March 23, 1992, correspondence prior to April 1, 1992, the date of the alleged unfair labor practice. Based on these contentions, the Respondent asserts that the General Counsel has not established that the Respondent had knowledge that the PIP matter was before the Panel when it implemented the new policy on April 1. The Respondent contends, rather, that it did not receive notice of the dispute until it received a copy of the April 6, 1992, document and, accordingly, that it "cannot possibly be found to have violated the status quo . . . one week before that date." Id. at 10.

Finally, the Respondent asserts that, by filing the Amended Position Statement with the Panel dated April 6, 1992, in which it informed the Panel for the first time that it was filing a negotiation impasse appeal, the Union admitted that its original submission to the Panel was "flawed". Id.

IV. Analysis and Conclusions

Initially, we conclude that the new PIP policy had more than a de minimis effect on unit employees' conditions of employment. In determining whether a change is more than de minimis, the Authority will look to "the nature and extent of the effect or reasonably foreseeable effect of the change on conditions of employment of bargaining unit employees." Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 408 (1986). Prior to the change in policy at issue in this case, employees were given "a reasonable opportunity" to improve performance and to correct deficiencies. Exhibit 4 at 62. Under the new standard, employees under a PIP would have a limit of 30 to 90 days to reach an acceptable level of performance. Given this change in language, it was reasonably foreseeable that there could be a considerable difference in the duration of PIP periods after the new policy took effect, and that this change would affect the ability of employees to show the improvement necessary to correct deficiencies in their work performance. Accordingly, we conclude that the change was more than de minimis.

We also conclude that the Respondent implemented the new policy on April 1, 1992, after the Union had requested Panel assistance in resolving a dispute over the matter. Thus, we do not view the Respondent's issuance of its directive on March 6 as the event that necessarily changed its policy regarding the duration of PIPs. Although that directive announced the intention to implement certain changes on April 1, there is no indication that the Respondent was precluded from modifying or changing the policy before it took effect. Significantly, there is no reason to believe that the Respondent could not have delayed implementation of the new policy pending Panel action. In this regard, we find that Scott Air Force Base is inapposite. The allegation in Scott Air Force Base involved a refusal to bargain over the impact and implementation of a RIF once the RIF was announced. In contrast, the issue in this case does not involve the Respondent's bargaining obligations but, rather, concerns the Respondent's obligation to maintain the status quo in terms and conditions of employment while a matter was pending before the Panel.

We conclude, however, that the General Counsel has not established that the Respondent violated section 7116(a)(6) of the Statute, as alleged, because the General Counsel has not established a prima facie case that a violation of section 7116(a)(6) has occurred. The Authority has held that

[i]n order to establish a prima facie showing that an unfair labor practice has occurred, the General Counsel must present evidence that would establish the elements of the statutory violation alleged, if such evidence is presumed to be true and the evidence presented by the opposing party is disregarded.

U.S. Department of Veterans Affairs, Veterans Administration Medical Center, Memphis, Tennessee, 42 FLRA 712, 713 (1991). See also Action, 26 FLRA 299 (1987).

The gravamen of the complaint is that the Respondent violated section 7116(a)(6) of the Statute by failing or refusing to cooperate in impasse procedures when it failed to maintain the status quo regarding the duration of PIPs while that matter was before the Panel. In our view, a violation of section 7116(a)(6) cannot be found if the agency had no knowledge that a matter was pending before the Panel at the time it effected a change. Therefore, in order to establish a prima facie showing of a violation in the circumstances here, the General Counsel was required to present evidence that the Respondent knew that the issue of the duration of PIPs was before the Panel at the time it failed to maintain the status quo in that regard.

The record does not establish that the Union served the Respondent with a copy of its March 20 submission to the Panel; nor does the record show that the Respondent received the Panel's March 23 letter before April 1, when the Respondent implemented the change concerning the duration of PIPs. In agreement with the Respondent, we conclude that by failing to present evidence establishing that the Respondent knew that the issue of PIP durations was before the Panel when it put the new policy into effect, the General Counsel has failed to establish a prima facie showing of a section 7116(a)(6) violation. Therefore, the General Counsel's burden of proof has not been met, and the complaint must be dismissed.(2)

V.