16:0379(62)CA - National Weather Service Training Center, Kansas City, MO and National Weather Service Employees Organization, (MEBA) -- 1984 FLRAdec CA
[ v16 p379 ]
16:0379(62)CA
The decision of the Authority follows:
16 FLRA No. 62
NATIONAL WEATHER SERVICE TRAINING
CENTER, KANSAS CITY, MISSOURI
Respondent
and
NATIONAL WEATHER SERVICE EMPLOYEES
ORGANIZATION, (MEBA/AFL-CIO)
Charging Party
Case Nos. 7-CA-30183
7-CA-30185
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that Respondent had engaged in the
unfair labor practices alleged in the consolidated complaint, and
recommending that it cease and desist therefrom and take certain
affirmative action. The Respondent filed exceptions with respect to the
Judge's Decision. /1/
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 Recommended Order.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the National Weather Service Training Center, Kansas
City, Missouri, shall:
1. Cease and desist from:
(a) Making statements or remarks to a union steward indicating that
he would be getting better performance evaluations if he were not
continually questioning management decisions and pursuing union matters.
(b) Awarding a union steward a lower evaluation for a promotion
opportunity because of his participation in protected union activities.
(c) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute.
(a) Expunge from Union Steward Michael Silvestri's record any
reference to the performance appraisal for a promotion opportunity
prepared for him on August 13, 1982.
(b) Post at its facilities in Kansas City, Missouri, copies of the
attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Director of the Training Center, or his designee, 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. Reasonable steps shall be taken to
insure that said Notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region VII, in writing,
within 30 days from the date of this Order, as to what steps have been
taken to comply herewith.
Issued, Washington, D.C., October 31, 1984
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
FEDERAL LABOR RELATIONS AUTHORITY
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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT make statements or remarks to a union steward indicating
that he would be getting better performance evaluations if he were not
continually questioning management decisions and pursuing union matters.
WE WILL NOT award a union steward a lower evaluation for a promotion
opportunity because of his participation in protected union activities.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL expunge from Union Steward Michael Silvestri's records any
reference to the performance appraisal for a promotion opportunity
prepared for him on August 13, 1982.
(Activity)
Dated: By: (Signature) (Title)
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 its provisions, they may communicate directly with the Regional
Director for the Federal Labor Relations Authority, Region VII, whose
address is: Federal Building & U.S. Customs House, 1531 Stout Street,
Suite 301, Denver, Colorado 80202 and whose telephone number is: (303)
837-5224.
FOLLOWS --------------------
CISION
CENTER, KANSAS CITY, MISSOURI
Respondent
and
NATIONAL WEATHER SERVICE EMPLOYEES
ORGANIZATION, (MEBA/AFL-CIO)
Charging Party
Case Nos.: 7-CA-30183
7-CA-30185
John Kosloske, Esquire
For the Respondent
Daniel Minahan, Esquire
Joseph Swerdzewski, Esquire
For the General Counsel
Before: BURTON S. STERNBURG
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
7101, et seq. and the Rules and Regulations issued thereunder, Fed.
Reg., Vol. 45, No. 12, January 17, 1980 and Vol. 46, No. 154, August 11,
1981, 5 C.F.R. Chapter XIV, Part 2411, et seq.
Pursuant to amended charges first filed on February 7, 1983, by the
National Weather Service Employees Organization (MEBA/AFL-CIO),
(hereinafter called the Union or NWSEO), a Consolidated Complaint and
Notice of Hearing was issued on April 19, 1983, by the Acting Regional
Director for Region VII, Federal Labor Relations Authority, Denver,
Colorado. The Consolidated Complaint alleges, in substance, that the
National Weather Service Training Center, Kansas City, Missouri,
(hereinafter called the Weather Service or Respondent), violated Section
7116(a)(1) of the Federal Service Labor-Management Relations Statute,
(hereinafter called the Statute), by virtue of the actions of a
supervisor in (1) telling a union steward that he could not expect
better treatment from management if he continued to engage in Union
activities and that he would be getting better evaluations if he were
not constantly questioning management's actions, and (2) giving the same
union steward a reduced performance appraisal because of his
participation in protected activities on behalf of the Union.
A hearing was held in the captioned matter on May 18, 1983, in Kansas
City, Missouri. All parties were afforded the full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The General Counsel and the
Respondent submitted post-hearing briefs which have been duly
considered. /2/
Upon the basis of the entire record, including my observation of the
witnesses and their demeanor, I make the following findings of fact,
conclusions and recommendations.
Findings of Fact
Background
The Union is the certified exclusive bargaining representative of a
consolidated unit of a nationwide unit of Respondent's employees, which
includes the employees at the National Weather Training Center, Kansas
City, Missouri. Shortly after the Union's certification in 1981, Mr.
Michael Silvestri, an Electronic Technician Instructor, became the
Branch Steward at the Kansas City facility. In such capacity, Mr.
Silvestri was responsible for, among other things, representing the unit
employees in collective bargaining, grievances and unfair labor practice
proceedings.
Mr. Silvestri did not become active as a union steward until the
Spring of 1982, when he began representing an employee in connection
with an unsuccessful attempt by such employee to be upgraded to a GS-12
position. Thereafter, Mr. Silvestri had constant contact with Weather
Service management concerning his request for information which he
deemed necessary for proper representation of the affected employee.
According to Mr. Silvestri, management was reluctant to supply him with
the requested information and began harassing him. Subsequently, on May
12, 1982, the Union filed an unfair labor practice charge based upon the
alleged harrassment of Mr. Silvestri and the refusal to supply
information necessary for intelligent bargaining. Thereafter, and
continuing through August 18, 1982, Mr. Silvestri participated in the
Denver Regional Office's investigation of the charge. Mr. Fred Cherry,
Mr. Silvestri's supervisor, acknowledges that Mr. Silvestri was involved
in union activities during the summer of 1982.
According to Mr. Silvestri, he was reprimanded by Mr. Cherry in May
1982 for discussing union business with other employees in the hallway
of the Weather Service. Further, according to Mr. Silvestri, in June of
1982 he overheard Mr. Cherry inform another supervisor that he was not
happy having Mr. Silvestri under his supervision. Mr. Cherry
acknowledges that he might have given Mr. Silvestri an oral reprimand
but attributes such reprimand to a telephone call made by Mr. Silvestri.
/3/
Alleged unfair labor practices:
In August of 1982, Mr. Silvestri became aware of a Merit Vacancy
Announcement for a Senior Instructor, GS-12, in the Computer Base Group
at the Weather Service Training Center. Inasmuch as an application for
an announced vacancy had to be accompanied by a supervisory appraisal,
Mr. Silvestri on August 12, 1982, gave Mr. Cherry a blank appraisal Form
CD-362 and asked him to fill it out. /4/ According to Mr. Silvestri,
during an ensuing conversation, Mr. Cherry informed him that he would be
getting a better evaluation if he were not constantly questioning
management on everything that was going on; and that he would get
better treatment from Dr. Meyers, the Director of the Training Center,
if he were not "kicking him . . . all the time with Union matters".
Finally, according to Mr. Silvestri, Mr. Cherry told him that he, Mr.
Silvestri, was making his, Mr. Cherry's life miserable since people were
forever asking him whether Mr. Silvestri was working on union business
behind the locked door of the classroom which was used by all the
instructors for teaching purposes. When Mr. Silvestri gave his
explanation for the locked door, i.e. preparation of tests, Mr. Cherry
instructed him not to lock the door in the future because people were
getting the wrong idea.
On August 13, 1982, Mr. Cherry gave Mr. Silvestri the completed
appraisal Form CD-362 which he had been asked by Mr. Silvestri to fill
out the day before. Mr. Silvestri was shocked by the ratings appearing
on the Form CD-362 because they were substantially different from the
ratings which appeared on his annual appraisal. /5/ In view of the
ratings, Mr. Silvestri decided not to apply for the Senior Instructor,
GS-12, vacancy. /6/
On the August 13, 1982 appraisal Form CD-362 there were five possible
ratings, namely, outstanding, commendable, satisfactory, marginally
satisfactory and unsatisfactory. Mr. Silvestri was given 24 commendable
ratings and four satisfactory ratings.
As noted above, on or about March 5, 1982, Mr. Silvestri had received
a vacancy appraisal Form CD-332 from Mr. Cherry in connection with
another vacancy. At that time Mr. Cherry rated Mr. Silvestri
"outstanding" on 12 of the 15 rating categories appearing on the
appraisal. Mr. Cherry rated Mr. Silvestri "very good" on the other
three categories. "Outstanding" was the highest rating possible and
"very good" the next highest rating. The other three ratings on the
form were satisfactory, marginally satisfactory and unsatisfactory.
Mr. Cherry acknowledges having a conversation with Mr. Silvestri
concerning his, Mr. Silvestri's, practice of locking the door to the
classroom while he was working alone there and cautioning him about
continuing such practice in the future. He denies, however, ever making
any mention of the Union in connection with his concerns about the
locked door. Mr. Cherry further denies telling Mr. Silvestri that he,
Mr. Silvestri, would be getting better evaluations if he were not
constantly questioning management on everything that was going on and
challenging Dr. Meyers with respect to union matters.
With respect to the difference in the ratings accorded Mr. Silvestri
on March 5 and August 13, 1982, Mr. Cherry attributes the difference to
the changes in the ratings available on the respective appraisal forms.
Thus, Mr. Cherry testified that on Form CD-322 which was used for the
March 5, 1982 appraisal, he was faced with the choice of "outstanding"
as the highest rating and "very good" as the next highest rating. In
his opinion, "very good" was not an appropriate description of Mr.
Silvestri in many, if not most of the categories, because he deemed Mr.
Silvestri's performance to be better than "very good". Not having a
choice between "very good" and "outstanding", he decided to give Mr.
Silvestri the benefit of the "outstanding" rating. When he faced the
task of giving Mr. Silvestri an appraisal in August of 1982, he had the
opportunity to utilize the new form CD-362 which listed "commendable"
rather than "very good" as the second highest rating. In Mr. Cherry's
opinion "commendable" denoted a higher rating than "very good" and more
aptly described Mr. Silvestri's performance. Accordingly, he opted for
the "commendable" rating rather than stretch the truth as he did in
March of 1982 and give him the highest rating of "outstanding".
Mr. Cherry's only explanation for the different ratings given to Mr.
Silvestri on the March 31, 1982, annual appraisal and the August 13,
1982 vacancy Form CD-362, both of which carried "outstanding" and
"commendable" as the highest and second highest ratings, was that the
appraisals were for different purposes. Mr. Cherry acknowledges,
however, that the instructions for filling out Form CD-362 directed that
the annual appraisal and the Form CD-362 should be similar for like
elements. Mr. Cherry further acknowledges that Mr. Silvestri's work
performance did not deteriorate between the time he gave him the annual
appraisal and August of 1982, when he filled out vacancy Form CD-362.
Finally, the record reveals that while there was a difference between
the ratings available on Forms CS-362 and CD-332, the categories for
appraisal on the forms were substantially the same, the main difference
being the numbering of such categories.
Discussion and Conclusions
With respect to that portion of the complaint which alleges a Section
7116(a)(1) violation predicated upon Mr. Cherry's statements, i.e. that
he, Mr. Silvestri, would be receiving better evaluations if he was not
constantly questioning management on everything that was going on and
kicking Dr. Meyers . . . all the time with union matters, it is obvious
that resolution of this allegation of the complaint turns on
credibility.
Having observed the witnesses and their demeanor and analyzed their
respective testimony, I credit Mr. Silvestri's account of the
conversation. Accordingly, and since such statements and/or remarks
have a tendency to interfere with, restrain and coerce employees in the
exercise of their Statutory rights, I find that Respondent violated
Section 7116(a)(1) of the Statute by virtue of the actions of Mr. Cherry
in uttering such remarks. Cf. Social Security Administration, 7 FLRA
No. 140; Portsmouth Naval Shipyard, 7 FLRA No. 129.
I further find that the Respondent committed an additional violation
of Section 7116(a)(1) when it gave Mr. Silvestri a lower performance
appraisal on August 13, 1982. In reaching this conclusion I rely on the
timing of the appraisal, i.e. subsequent to Mr. Silvestri's active
participation in union activities, the credited testimony of Mr.
Silvestri that he had been warned by Mr. Cherry that a lower appraisal
was in the offing because of his union activities, the admitted fact
that Mr. Silvestri's work performance had not deteriorated since his
annual appraisal for the period through March 31, 1982, and the absence
of a persuasive reason for the lower appraisal.
In this latter connection, Mr. Cherry's sole reason for awarding Mr.
Silvestri a lower rating than what appeared on Mr. Silvestri's March 31,
1982, annual appraisal and his March 5, 1982 vacancy appraisal was the
availability of the new appraisal form of a "commendable" rating which
Mr. Cherry considered to be higher than a "very good" rating and a more
apt description of Mr. Silvestri's work performance. If a "commendable"
rating had not been available to Mr. Cherry prior to August of 1982, Mr.
Cherry's explanation might well be worthy of credence. However, such is
not the case. Thus the record shows that when Mr. Cherry was faced with
the option of "outstanding" as the highest rating and "commendable" as
the second highest rating on the March 31, 1982 annual appraisal, he,
Mr. Cherry, opted to rate Mr. Silvestri as "outstanding" overall. In
such circumstances and since Mr. Silvestri's work performance admittedly
had not deteriorated, I cannot accept Mr. Cherry's asserted reason for
the lower rating. This is particularly true in view of the published
instructions which make it clear that vacancy appraisal ratings should
be similar to annual appraisal ratings for similar elements.
In sum, I find that the record evidence supports the conclusion that
Mr. Silvestri was awarded a lower performance appraisal on August 13,
1982, because of his active participation in union activities.
In view of the above findings and conclusions, it is hereby
recommended that the Authority issue the following order which is
designed to remedy the Section 7116(a)(1) violations of the Statute
found herein.
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, it is
hereby ordered that the National Weather Service Training Center, Kansas
City, Missouri, shall:
1. Cease and desist from:
(a) Making statements or remarks to a union steward indicating
that he would be getting better performance evaluations if he were
not continually questioning management decisions and pursuing
union matters.
(b) Awarding a union steward a lower vacancy evaluation because
of his participation in protected union activities.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute.
(a) Expunge from Union Steward Michael Silvestri's records any
reference to the vacancy appraisal prepared for him on August 13,
1982.
(b) Post at its facilities in Kansas City, Missouri, copies of
the attached notice marked "Appendix" on forms to be furnished by
the Federal Labor Relations Authority. Upon receipt of such
forms, they shall be signed by the Director of the Training
Center, and shall be posted and maintained by him for 60
consecutive days thereafter in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by any
other material.
(c) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region VII, Federal
Labor Relations Authority, in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
BURTON S. STERNBURG
Administrative Law Judge
Dated: August 8, 1983
Washington, D.C.
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
STATUTE We
Hereby Notify Our Employees That:
WE WILL NOT make statements or remarks to a union steward indicating
that he would be getting better performance evaluations if he were not
continually questioning management decisions and pursuing union matters.
WE WILL NOT award a union steward a lower vacancy evaluation because
of his participation in protected union activities.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL expunge from Union Steward Michael Silvestri's records any
reference to the vacancy appraisal prepared for him on August 13, 1982.
(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.
--------------- FOOTNOTES$ ---------------
/1/ The Respondent excepted to certain credibility findings made by
the Judge. The demeanor of witnesses is a factor of consequence in
resolving issues of credibility, and the Judge has had the advantage of
observing the witnesses while they testified. The Authority will not
overrule a Judge's resolution with respect to credibility unless a clear
preponderance of all the relevant evidence demonstrates that such
resolution was incorrect. The Authority has examined the record
carefully, and finds no basis for reversing the Judge's credibility
findings.
/2/ In the absence of any objection, General Counsel's motion to
correct the transcript is granted.
/3/ The reprimand is not alleged as an unfair labor practice in the
instant complaint.
/4/ Form 362 was a new form which superseded vacancy appraisal Form
CD-332. Mr. Cherry had filled out a Form CD-332 on March 5, 1982 for
Mr. Silvestri when he had unsuccessfully applied for another vacancy
announcement. This appraisal will be discussed in detail infra.
/5/ On the annual appraisal which covered the period 10/81 to
3/31/82, Mr. Cherry had the opportunity to rate Mr. Silvestri as
unsatisfactory, minimally satisfactory, satisfactory, commendable or
outstanding. Mr. Cherry rated Mr. Silvestri as "outstanding" overall.
With respect to performance standards, Mr. Cherry had his choice of
three ratings, i.e. exceeded expectations, met expectations or not met
expectations. Mr. Cherry checked off "exceeded" for all the elements on
the performance standards page of the appraisal.
/5/ The instructions for completing Form CD-362 read in pertinent
part as follows:
Ratings on this appraisal and on the employee's annual
performance appraisal should be similar for like elements . . . .