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The decision of the Authority follows:
17 FLRA No. 20 NATIONAL LABOR RELATIONS BOARD Respondent and NATIONAL LABOR RELATIONS BOARD UNION AND ITS WASHINGTON, D.C. LOCAL Charging Party Case No. 3-CA-20604 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding finding that the Respondent had engaged in certain unfair labor practices and recommending that it be ordered to cease and desist therefrom and take certain affirmative action. Exceptions to the Judge's Decision were filed by the Respondent and the General Counsel with supporting briefs. 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. In this case, near the end of an employee's first year of employment (about the middle of 1981), the employee's first-line and second-line supervisors determined that the employee's job performance was unsatisfactory. They decided to advise the employee of the problem and to try to assist the employee to improve. The employee and a representative of the National Labor Relations Board Union and its Washington, D.C. Local (the Union) were informed. Numerous conferences and meetings were held with the employee and a Union representative to discuss the problem. Disputes developed concerning the nature of the employee's deficiencies and what management should do to assist the employee. Over a period of months, the Union representative insisted that the supervisors should provide the employee with a more specific and detailed description of his deficiencies. The supervisors sought a transfer for the employee to an assignment which they considered more suitable to his skills and abilities. By April 1982 the supervisors had concluded that the employee had not demonstrated discernible improvement and that something more formal had to be done. They would provide the employee with a detailed description of his deficiencies based on the critical elements of his position. He would be provided with a specified period of time to show improvement. Owing to conflicts which had developed between the employee and the first-line supervisor, the employee would be given on-the-job training by the second-line supervisor. If the employee did not improve during this training and evaluation period, an adverse action would be contemplated. The employee was provided with the plan by memorandum on or about May 27, 1982, which stated that the plan would be implemented on or about June 15, but that the employee should consult with the Union and come forward with any comments or suggestions. The employee immediately went to the Union. A meeting was set up for very late May or very early June to discuss the matter. At the meeting the Union objected to the plan, asserting that the Respondent had created a new type of improvement plan for this employee as compared to prior plans and that, accordingly, the Respondent had changed a condition of employment without providing the Union advance notice and an opportunity to bargain. The Union also asserted that the matter of "Performance Improvement Plans" was currently under negotiation in the parties' master contract negotiations and that the Respondent could not implement such a plan for this employee while these continued. The Respondent's officials offered to negotiate. The Union refused to negotiate, asserting that an unfair labor practice had been committed and declared that it would file a charge. The Union filed its charge on June 7, 1982. The plan for the employee was implemented, as proposed, on June 16. The employee continued in the Respondent's employ. If anything resulted from implementation of the plan for him, positive or negative, it is not contained in the record. The Judge found that the Respondent had changed a condition of employment. He found that the Respondent had provided performance improvement plans to employees in the past, but this was the first time detailed references to the "critical elements" of an employee's position had been used to describe an employee's deficiencies. In this regard, it is the Authority's view that insofar as the Respondent had provided employees with such performance improvement plans in the past which did describe the employee's job requirements and deficiencies in performing them, the mere reference to "critical elements" in describing the employee's job requirements and deficiencies herein did not constitute a change in that past practice. /1A/ It is also noted that the supervisors had dealt with the Union on this problem for a number of months and the Union had repeatedly urged the supervisors to be more specific and detailed in describing the employee's deficiencies. In these circumstances, where the supervisors attempt to be responsive to these requests, the Authority concludes that the Respondent did not violate section 7116(a)(1) and (5) of the Statute as alleged in the complaint. Accordingly, the Authority shall order that the complaint be dismissed. ORDER IT IS ORDERED that the complaint in Case No. 3-CA-20604 be, and it hereby is, dismissed. Issued, Washington, D.C., February 28, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY Case No. 3-CA-20604 -------------------- ALJ$ DECISION FOLLOWS -------------------- Sharon Prost, Esq. For the General Counsel Raymond Forster, Esq. For the Respondent Mr. Stephen Lueke For the Charging Party Before: ELI NASH, JR. Administrative Law Judge DECISION Statement of the Case Pursuant to a Complaint and Notice of Hearing issued on August 31, 1982 by the Regional Director for the Federal Labor Relations Authority, Region III, a hearing was held before the undersigned on November 15, 1982. This case arose under the Federal Service Labor-Management Relations Statute (herein called the Statute). It is based upon a charge filed on June 7, 1982 by National Labor Relations Board Union and its Washington Local (herein called the Union), against the National Labor Relations Board (herein called the Board or Respondent). the complaint alleged, in substance that on or about May 27, 1982 Respondent informed a bargaining unit employee that he would be operating and would be evaluated under a thirty (30) day performance improvement plan beginning no later than June 15, 1982 and that on June 16, 1982, Respondent implemented the above-mentioned plan without notice or negotiation with the Union although the matter of such performance improvement plan was a subject of negotiations then being conducted. /1/ Respondent filed an answer dated September 27, 1982 which denied the material allegations in the Complaint as well as the commission of any unfair labor practices. All parties were represented at the hearing. Each was afforded an opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed with the undersigned which have been duly considered. Upon the entire record herein, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence addressed at the hearing, I make the following findings and conclusions: Findings of Fact The Board and the Union were parties to a collective bargaining agreement covering clerical employees in the Board's Washington, D.C. headquarters unit, at all times material herein. The most recent collective bargaining agreement contains articles concerning a grievance procedure, training, promotions, adverse actions and other subjects, as well as language specifying that the agreement be read in accordance with applicable law. This latest agreement also provided for periodic appraisal of employees. A. The Performance Improvement Plan was Subject of Negotiations During Summer 1982. The material agreement herein was executed on April 1, 1980 and continued in effect at least through the summer of 1982, by mutual agreement of the parties despite its expiration date of December 31, 1981. Negotiations for a new agreement commenced during the summer of 1981, but recessed sometime around September 1981, without any agreement having been reached, resumed in May 1982, and thereafter continued through the summer of 1982. Since performance improvement plans (PIP's) were not a part of the existing agreement the parties negotiated concerning performance appraisals with an aim toward modifying the existing contract. Such modification included tailoring the contract to the then new Civil Service law of 1978 and including a new performance appraisal system. When negotiations resumed in May 1982, the parties made performance appraisal negotiations part of the overall negotiations for the new agreement. The performance appraisal negotiations beginning in 1981 involved the exchange of proposals by the parties which included a PIP. The PIP proposals which were exchanged not only identified the PIP, but defined it, established procedures and time frames for its use and detailed the circumstances in which it was necessary or required. The Board's proposals with regard to the PIP which were received by the Union on May 26, 1982, and is closest to the event which triggered the unfair labor practice charge herein under Section 1(k)(1), read as follows: 'Performance Improvement Plan' means the plan formulated to provide an employee with an identification of the critical elements in which the employee's performance falls below the required level and the required improvements and results in performance necessary to avoid the denial of a within grade step increase or the taking of a performance-based adverse action (a reduction in grade or a removal). Such plan will include the identification of the assistance which will be provided to the employee to correct his/her performance so as to avoid the action specified. Prior to the completion of a written Performance Improvement Plan, the affected employee will be afforded an opportunity to submit suggestions with respect to the assistance to be provided. The Union's June 29, 1982 counter-proposal modified somewhat the language of the first sentence substituting the following: the taking of a performance-based adverse action or the denial of a noncompetitive promotion. Similar language was adopted by the Board in its July 8, 1982 proposals. In any event, it was clearly established on the record that the parties were involved in negotiations concerning the PIP during the summer of 1982, at least as early as May and that those negotiations continued during the period in question herein. B. Past Practice Under Agreement Prior to promulgation of the Civil Service Reform Act of 1978, the Board used several methods to evaluate employee performance and to assist employees, where the need was present, in improving their performance. Clearly, performance improvement plans, as anticipated by the parties in the 1981-82 negotiations, which would bring the Board's performance appraisal system in line with Civil Service Reform Act of 1978 requirements by utilizing critical elements and performance standards were not used by the Board prior to May 1982. As shown by the evidence, numerous methods were employed by the Board to reprimand or warn employees that adverse action was anticipated based on unsatisfactory work performance or leave abuse. The evidence indicates that these Board actions were taken in conformity with then existing Civil Service requirements and the Board's 1970 Administrative Manual, section 2068.1. Although most employees were informed of the areas in which they were deficient, were informed what was expected to bring their performance to an acceptable level and were given specific time periods to improve whatever performance was unacceptable, not until May 1982, did any such Board actions mention critical elements of a specific job since no such elements for appraisal were used prior to that time. C. The Performance Improvement Plan Issued To Barbano The instant dispute was occasioned by an alleged PIP given to employee Edward F. Barbano on May 27, 1982 and implemented on June 16, 1982. As already noted the parties during this same period were engaged in bargaining concerning the PIP to be contained in the newest collective bargaining agreement. The Union upon being informed of Bardano's plan raised objection to its implementation on June 7, 1982. There is no dispute that employee Barbano, had performed unsatisfactorily in the position of Public Affairs Specialist over a protracted period of time and that several meetings between Barbano, his supervisors and the Union had been held, specifically to discuss Barbano's work situation and the possibilities for his improvement. There is also no dispute that the Board, without input from the Union prepared a plan to assist Bardano in improving his work performance and that this plan was based on Barbano's not performing at least one of the critical elements of his position "i.e. summarizing NLRB decisions and orders" and that it prepared a plan providing 30 working days for Barbano to improve his performance. Further, there is no dispute that on June 16, 1982, the Board granted Barbano a 70-day period in which to bring his work performance to an acceptable level "simultaneously with the beginning of the 30 working day training period recently developed for you," and that the 70-day notice was premised entirely on the critical elements of his job. While it is contended that the Union had previously advocated some sort of assistance for Barbano, the record is clear that it was not aware that a PIP similar to the plan being discussed in negotiations, had been prepared for Barbano until after Barbano received the May 27 memorandum from the Director of Information, Thomas W. Miller, Jr., advising him of the plan and providing "a 30 working day period in which to improve your performance." As already stated, the evidence reveals that in similar situations the Board had issued memoranda and guidance to employees concerning work related problems and performance. These memoranda, however, were for the most part, issued prior to the new Civil Service Reform Act of 1978 and contained no formal performance improvement plan involving critical elements such as the plan received by Barbano. The explanation why such criteria was missing is obvious, since critical elements and performance standards were an entirely new concept not considered by the parties or included in previous collective bargaining agreement. /2/ Discussion and Conclusions The General Counsel's position is simply that the May 27, 1982 memorandum to Barbano was a performance improvement plan; that this plan was a change in previous practice at the Board with respect to bargaining unit employees; and, that its unilateral implementation without proper notice to the collective bargaining representation while the matter was a subject of negotiations between the parties constitutes a violation of section 7116(a)(1) and (5) of the Statute. Normally, a unilateral change by an employer during the course of negotiations would be regarded as a per se violation. The Board, however, asserts that a question arises as to whether the training program given Barbano was indeed a performance improvement plan within the meaning of the collective bargaining agreement then being negotiated; and whether it instituted a new term of condition of employment or practice without giving proper notice to the Union. The Board claims that the plan given Barbano was not a performance improvement plan because it was not so labeled and there are no existing PIP's with which it might be compared. However, the Board, admits and the evidence clearly disclosed that the plan issued to Barbano comes within the definition of such a plan as anticipated by the parties during negotiations. In such circumstances, comparison with other plans is not the only criterion for consideration. Instead the question is whether or not the memoranda given Barbano involved matters which were then under negotiation between the parties. The instant record reveals that the plan Barbano received matches what the parties had by definition anticipated a PIP to contain. Furthermore, there was no agreement on a PIP during May or June 1982 when Barbano received his plan. No one questions that Barbano's work performance was unsatisfactory and the Board sought to allow him an opportunity to improve that performance through a plan designed by its own personnel office which conformed, it felt, with the requirements of the Civil Service Reform Act of 1978. Such a plan, as it appears on the record, was designed to offer Barbano an opportunity to improve his performance within a specific period of time, and essentially tracked what the parties were negotiating in this respect, which was to be ultimately called a performance improvement plan. Whatever label is now used, training program, as suggested by the Board, or performance improvement plan, most clearly was an item on the bargaining table when Barbano's plan was implemented. The Board's argument that the Barbano plan must be found not to be a PIP, therefore, must be rejected. As stated in United States Department of Labor, 7 FLRA 688 (1982) the General rule is that an agency is free to make changes in conditions of employment which are not covered by a collective bargaining agreement after timely notice of the proposed change to a union and absent a timely request to bargain thereon by the union. Here it is revealed that a condition of employment involving employee appraisals was established by previous practice. As a practical matter, the Board has an obligation to perform certain personnel functions such as issuing memoranda to employees with work related difficulty, aiding employees in improving performance and in general following Civil Service regulations regarding such actions. Indeed, as the record shows, the Board in fulfilling this obligation had in the past issued memoranda to employees in several categories appraising them that some action was anticipated. However, as the parties recognized, those earlier regulations were altered and the Board had an obligation to negotiate with the Union concerning how it would implement such alterations prior to promulgation. Thus, the Board recognized its obligation and had engaged in negotiations regarding the implementation of a new performance improvement plan in order to conform to the new Civil Service regulations. The Barbano PIP unquestionably contained new standards for employee performance, including critical elements and performance standards never before used by the Board in appraising its employees. The General Counsel concedes that in the past the Board indeed issued notices of deficiencies or warnings, but counters that prior to the Barbano plan, no practice or policy existed regarding the use of PIP's based on an employees' critical elements and containing a detailed outline and timetable designed to raise employee performance to an acceptable level. The inclusion of such criteria in an appraisal or warning, the General Counsel maintains, is a substantial departure from previous Board policy. The Board insists that this is not a new term or condition of employment, even though no performance standards or critical elements previously existed which affected employees' rating. /3/ In rejecting the Board's contention, it is found that previous appraisal memoranda issued by it did not take critical elements, performance standards or detailed timetables into consideration. It is further found, an employee appraisal is without doubt a condition of employment and that Barbano's PIP represented a substantial departure from the Board's prior practice in employee appraisals, and that any change in that practice without good faith negotiations is prohibited. Social Security Administration, Sutter District Office, San Francisco, California, 5 FLRA No. 63 (1981). Alternately the Board contends that notice was given through various meetings held with the Union concerning Barbano's performance. Notice given in such circumstances has been found by the Authority to be insufficient. See for example, Department of the Air Force, Hanscom AFB, Massachusetts, 5 FLRA No. 88 (1981) where it was found that an agency must give specific notice of any intended change to the union. Although it is uncontraverted on the record that several meetings were held, there is no evidence of any notification to the Union that the Board intended to develop a PIP for Barbano or that a PIP was in any way discussed at any of these meetings. It therefore, cannot be inferred from general discussions concerning Barbano's employment that notification of a PIP was given the Union. Furthermore, the record does not suggest that the Board, during any of these meetings, made any reference to establishing a training plan or PIP, as was given to Barbano in May and June 1982, in which the Union acquiesced. Case law prohibits an agency from initiating changes in employee working conditions during negotiations, absent agreement or impasse. Department of the Navy, 3 FLRA 413 (1980); Social Security Administration, San Francisco Region, 9 FLRA No. 11 (1982). Accordingly, while in the midst of negotiations, to effect such a change would be violative of the Statute. Clearly no impasse or agreement had been reached on the PIP. The evidence discloses that the parties continued to exchange proposals on the PIP, even after the May 27 memorandum was received by Barbano. Such an exchange of proposals during the entire period in question negates any potential for finding that impasse or agreement had been reached on the PIP. The Board also argues that the memorandum to Barbano lacked "substantial adverse impact" on bargaining unit employees. Moreover, it maintains that an absurd result would be reached were it unable to give employees training with reference to work and job duties even after notice until a full agreement had been reached on an agreement and the agreement ratified and implemented. The short answer to the latter contention is simply that the Board could have continued to comply with the terms of the existing agreement in taking whatever action it sought in assisting Barbano. With regard to "substantial impact," while it is true that only one employee received such a PIP, the negotiations for a new appraisal system and PIP involved all unit employees and unilaterally implementation during the course of bargaining necessarily impacts on all unit employees. Notwithstanding that the direct impact of the particular plan is limited to employee Barbano, if taken in its proper context, the implementation of such a plan while the parties were engaged in negotiation certainly affected every unit employee. Under such circumstances, it cannot be contended that substantial adverse impact is not shown. /4/ Based on the foregoing, it is found that employee appraisals are a condition of employment, the parties had not reached an impasse or agreement regarding the PIP and that the Union was not given sufficient notice of the Barbano PIP to allow it to engage in meaningful negotiations concerning such a plan, or to justify any inference that it had acquiesced in such a plan for Barbano. Accordingly, it is found that the Board violated section 7116(a)(1) and (5) of the Statute by unilaterally implementing a performance improvement plan for employee Barbano while performance improvement plans were a subject of negotiations and without giving proper notification to the Union and allowing it to bargain prior to implementation. The Remedy The General Counsel urges that in order to fully remedy the unlawful conduct herein, the Board must be ordered to revoke the June 16, 1982 performance improvement plan and that any action taken against Barbano as a result of his performance under the plan be rescinded. In my view, a prospective bargaining order should fully remedy the bargaining violation herein. See Federal Correctional Institution, 8 FLRA 604 (1982). The performance improvement plan herein involves only one employee, Barbano and since the parties have bargained to a new agreement which includes a performance improvement plan, such an action as found violative of the Statute herein cannot be anticipated to recur. Furthermore, it is undisputed that the Board, as a practical matter, was required to take some action concerning Barbano's employment situation. While its action may have been improper, its impact, since such an action cannot recur is nevertheless limited. In such circumstances, a status quo ante remedy would appear unwarranted. Having concluded that Respondent violated section 7116(a)(1) and (5) of the Statute by its implementation of a performance improvement plan while the matter was a subject of negotiations and without affording the Union proper notice and a reasonable opportunity to bargain concerning the implementation of the performance improvement plan, I recommend that the Authority issue the following order. ORDER Pursuant to Section 7118 of the Statute and Section 2423.29 of the Authority's Rules and Regulations, the Authority hereby orders that the National Labor Relations Board, Washington, D.C., shall: 1. Cease and desist from: (a) Instituting any change in procedures concerning performance improvement plans for its employees without first notifying the National Labor Relations Board Union and its Washington, D.C. Local, and affording it the opportunity to negotiate concerning the procedures to be observed in implementing any such change and concerning the impact such change will have on adversely affected employees. (b) In any like or related manner interfering with, restraining or coercing its 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) Notify and, upon request, bargain with the National Labor Relations Board Union and Its Washington, D.C. Local, concerning the procedures to be observed in any performance improvement plans resulting from any adverse or unacceptable performance appraisals for employees adversely affected by such change. (b) Post at its facilities at its Washington, D.C. Headquarters, 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 Chairman of the National Labor Relations Board, or his designee, 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. The Chairman shall take reasonable steps to insure that the 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, Region III, in writing, within 30 days from the date of this Order as to what steps have been taken to comply herewith. ELI NASH, JR. Administrative Law Judge Dated: June 1, 1983 Washington, DC 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 institute any change in procedure concerning performance improvement plans for our employees without first notifying the National Labor Relations Board Union and Its Washington, D.C. Local, the employees' exclusive bargaining representative, upon request and allow an opportunity to negotiate with respect to the procedures which management will observe in implementing such changes and concerning appropriate arrangements for employees adversely affected thereby. 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 Statute. WE WILL notify and bargain in good faith with the National Labor Relations Board Union and Its Washington, D.C. Local, upon request, concerning the procedures to be observed in implementing any changes concerning performance improvement plans resulting from any adverse or unacceptable performance appraisals. . . . (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 any employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Region III, Federal Labor Relations Authority, whose address is: Washington Regional Office, P.O. Box 33758, Washington, D.C. 20033-0758, and whose telephone number is: (202) 653-8452. --------------- FOOTNOTES$ --------------- /1A/ See United States Department of the Treasury, Internal Revenue Service, Chicago, Illinois, 13 FLRA 636 (1984), wherein the Authority found that rubber stamping of daily reports with "smiley faces" or "frowns," rather than written descriptions such as "good work" or "busy day," did not constitute a change in working conditions. Compare Department of the Air Force, Air Force Systems Command, Electronic Systems Division, 14 FLRA 390 (1984), wherein the Authority adopted the Judge's finding that the unilateral promulgation and implementation of performance standards, where none had been previously established, without affording the employees' exclusive representative prior notice and an opportunity to negotiate concerning the impact and implementation of those standards, violated the Statute. /1/ The charge herein dated June 7, 1982 makes no mention of the June 16, 1982 implementation. However, the General Counsel premises a major portion of the violation in this matter and, indeed requests a remedy which would set aside that implementation. /2/ The General Counsel's unopposed Motion to Correct Transcript is granted. /3/ The Board's argument that the mention of critical elements and performance standards in the Barbano document misses the point. The question here is not the basis of evaluation for Barbano, rather, it is that certain aspects of the matter which were negotiable and indeed lawful were matters being discussed by the parties when it instituted certain unilateral changes with regard to the subject matter. /4/ The General Counsel's motion to strike certain portions of Respondent's brief is granted.