14:0390(63)CA - Air Force, Air Force Systems Command, Electronic Systems Division and NAGE Local R1-8 -- 1984 FLRAdec CA
[ v14 p390 ]
14:0390(63)CA
The decision of the Authority follows:
14 FLRA No. 63
DEPARTMENT OF THE AIR FORCE,
AIR FORCE SYSTEMS COMMAND, ELECTRONIC
SYSTEMS DIVISION
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R1-8
Charging Party
Case No. 1-CA-150
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practices alleged in the complaint, and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. Exceptions to the Judge's Decision were filed by
the Respondent and the General Counsel, and the Respondent filed an
opposition to the General Counsel's exceptions.
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, as modified below.
The Judge concluded that the Respondent's promulgation and
application of performance standards and critical elements for the
position of Contract Negotiator GS-11 without first giving the National
Association of Government Employees, Local R1-8 (the Union), prior
notice and an opportunity to negotiate regarding the procedures to be
observed and the impact thereof on adversely affected employees
(including specifically Lee Tennyson), constituted a violation of
section 7116(a)(1) and (5) of the Statute. The Authority adopts the
Judge's rationale and conclusion that the Respondent violated section
7116(a)(1) and (5) of the Statute by the foregoing conduct. /1/
To remedy the violation, the Judge ordered the Respondent to cease
and desist from the unfair labor practice found; to cease applying the
performance standards and critical elements until the exclusive
representative is given notice and an opportunity to bargain concerning
the impact and implementation thereof; to accord to Tennyson all appeal
rights that may have existed at the time that the unfair labor practice
occurred; and to post the customary notice to its employees. The Judge
concluded that an order reinstating Tennyson with full backpay was not
appropriate, inasmuch as it was not demonstrated that the discharge
would not have occurred but for the unfair labor practice. The General
Counsel excepted to the denial of reinstatement and backpay.
Subsequent to the Judge's Decision, the Merit Systems Protection
Board (MSPB) ordered Tennyson's discharge reduced to a ten-day
suspension (Lee Tennyson v. Department of the Air Force, Docket Number
BN 075219001, August 23, 1981). /2/ Thus, the action taken by MSPB made
Tennyson whole except for the ten-day suspension.
The remaining issue concerns ten days of the period sought by the
General Counsel. In this regard, the Respondent asserts that an
Authority order to reinstate Tennyson with backpay would conflict with
the action taken by MSPB and with section 7116(d) of the Statute, which
provides that issues which can properly be raised under an appeals
procedure may not be raised as unfair labor practices. Contrary to the
Respondent's assertion, an Authority order reinstating Tennyson with
backpay would not conflict with section 7116(d). While the Authority
recognizes that section 7116(d) of the Statute provides that "(i)ssues
which can properly be raised under an appeals procedure may not be
raised as unfair labor practices . . .," when an issue is properly
raised as an unfair labor practice under section 7116, nothing therein
would prevent the Authority from remedying any violation found. /3/
Nevertheless, the Authority concludes that backpay for the ten-day
period in question is not permissible in the circumstances of this case.
Section 7118(a)(7)(C) of the Statute empowers the Authority to order
backpay only in accordance with the criteria set forth in the Back Pay
Act, 5 U.S.C. 5596. Accordingly, the Authority has held that, in order
to warrant an award of backpay under the Statute, it is necessary to
establish not only that an employee has been adversely affected by an
unjustified or unwarranted personnel action, but also that but for the
improper action such employee would not have suffered a loss or
reduction in pay, allowances, or differentials. See, e.g., Internal
Revenue Service, Austin District and National Treasury Employees Union,
NTEU Chapter 52, 9 FLRA 672 (1982); Action and Action Employees Union,
AFSCME Local 2027, 11 FLRA No. 89 (1983).
Inasmuch as it has not been established herein that, but for the
Respondent's improper refusal to negotiate over the impact and
implementation of the performance standards, Tennyson would not have
suffered a loss of pay, the Authority rejects the General Counsel's
request for an award of backpay.
ORDER /4/
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 Department of the Air Force, Air Force Systems
Command, Electronic Systems Division and the 3245th Air Base Group,
Hanscom Air Force Base, Bedford, Massachusetts, shall:
1. Cease and desist from:
(a) Implementing performance standards and critical elements for the
position of Contract Negotiator GS-11, or any other unit position,
without giving prior notice to the National Association of Government
Employees, Local R1-8, the employees' exclusive representative, and
affording it the opportunity to negotiate concerning the procedures to
be observed in implementing them and concerning appropriate arrangements
for employees adversely affected thereby.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Cease applying the performance standards and critical elements
for the position of Contract Negotiator GS-11 and withdraw the
evaluation of Lee Tennyson which was based upon those performance
standards and critical elements.
(b) Provide the National Association of Government Employees, Local
R1-8, with prior notice of a decision to establish written performance
standards and critical elements for the position of Contract Negotiator
GS-11, or any other unit position, and, upon request, negotiate
concerning the procedures to be observed in implementing them and
concerning the appropriate arrangements for employees adversely affected
thereby.
(c) Post at its facility at Hanscom Air Force Base, Bedford,
Massachusetts, 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 Commander of the 3245th Air Base Group, or his
designee, and shall be posted for 60 consecutive days thereafter in
conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that such
Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region I, 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.
Issued, Washington, D.C., May 3, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, 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 institute performance standards and critical elements for
the position of Contract Negotiator GS-11, or any other unit position,
without giving adequate notice to the National Association of Government
Employees, Local R1-8, the employees' exclusive representative, and
affording it the opportunity to negotiate concerning the procedures to
be observed in implementing them 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
Federal Service Labor-Management Relations Statute.
WE WILL cease applying the performance standards and critical
elements for the position of Contract Negotiator GS-11 and withdraw the
evaluation of Lee Tennyson which was based upon these performance
standards and critical elements.
WE WILL provide the National Association of Government Employees,
Local R1-8, with prior notice of a decision to establish written
performance standards and critical elements for the position of Contract
Negotiator GS-11, or any other unit position, and, upon request,
negotiate concerning the procedures to be observed in implementing them
and concerning the appropriate arrangements for employees adversely
affected thereby.
(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, Region I, Federal Labor Relations Authority, whose address is:
441 Stuart Street, 9th Floor, Boston, MA 02116 and whose telephone
number is: (617) 223-0920.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 1-CA-150
James E. Dumerer, Esquire
John G. Abizaid, Esquire
For the Respondent
Richard Blazar, Esquire
Richard Zaiger, Esquire
For the General Counsel
David C. Jenkins, Esquire
For the Charging Party
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.C. Code, 5
U.S.C.Section 7101, et seq., and the Rules and Regulations issued
thereunder, Fed. Reg., Vol. 45, No. 12, January 17, 1980, 5
C.F.R.Chapter XIV, Part 2411, et seq.
Pursuant to an amended charge first filed on September 5, 1979, by
the National Association of Government Employees, Local R1-8,
(hereinafter called the Union or NAGE), a Complaint and Notice of
Hearing was issued on October 27, 1980, by the Regional Director for
Region I, Federal Labor Relations Authority, Boston, Massachusetts. The
Complaint alleges, in substance, that the Department of the Air Force,
Air Force Systems Command, Electronic Systems Division and 3245th Air
Base Group, Hanscom Air Force Base, New Bedford, Massachusetts,
(hereinafter called the Respondent or Air Force), violated Sections
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute, (hereinafter called the Statute), by virtue of its action in
unilaterally establishing Performance Standards and Critical Elements
for the position of Contract Negotiator without giving the Union prior
notice and the opportunity to request bargaining with respect to the
impact and manner of implementation of such Performance Standards and
Critical Elements.
A hearing was held in the captioned matter on January 28, 1981, in
Boston, Massachusetts. All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues involved herein. The parties submitted post
hearing briefs on March 21, 1981, which have been duly considered.
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
The Union, the charging party herein, is the certified exclusive
representative of all non-supervisory employees, non-professional
General Schedule employees serviced by the Central Civilian Personnel
Office, Hanscom Air Force Base, Bedford, Massachusetts. Mr. Lee
Tennyson, a Contract Negotiator GS-11, was a member of the above
described unit.
On December 28, 1978, Mr. Tennyson was issued a letter entitled
"Decision to Withhold Within Grade Increase". Paragraph 2 of the letter
informed Mr. Tennyson that his within grade pay increase scheduled to be
effective 31 December 1978, was not going to be granted because his
performance during the period 5 January 1976 through 30 December 1978,
did not establish that he possessed the necessary professional and
technical knowledge to warrant the within grade increase. The letter
went on to point out Mr. Tennyson's deficiencies and give examples
thereof. Specifically, Mr. Tennyson was charged with, among other
things, requiring more than normal supervision in the areas of (1)
creating and maintaining good interpersonal relationships, (2)
reflecting office policy and a positive organizational image, (3)
working closely with others as a team member, (4) attention to details
and close accuracy, and (5) analyzing problems and providing appropriate
solutions.
Pursuant to Mr. Tennyson's request for reconsideration, on February
27, 1979, Mr. Tennyson was issued a memorandum, entitled
"Redetermination of Within Grade Increase Withheld", wherein Mr.
Tennyson was informed that his work was "still not at an acceptable
level of competence". In support of this decision, Mr. Dean Stewart, a
Supervisory Control Specialist and author of the memorandum, made it
clear that Mr. Tennyson had not overcome his deficiencies in the area of
attention to detail and close accuracy, analyzing problems and providing
appropriate solutions, and use of independent judgement based upon
application of current regulations and directives.
On May 17, 1979, Mr. Tennyson was sent a memorandum from Mr. Stewart
entitled "Annual Performance Rating". Attached to the memorandum was a
five page document entitled "Performance Standards For GS-1102-11
Contract Negotiator". The document contained two columns of eight
paragraphs each. One column was entitled "Duties" /5/ and the other
"Standards". The memorandum which is self-explanatory, reads in
pertinent part as follows:
1. During the seventeen months that I have supervised you, I
have had to make many judgements concerning the adequacy of your
performance as a GS-1102-11 Contract Negotiator. With the arrival
of the 15 May annual performance rating date, I have noticed
slight, but little significant improvement in your performance of
duties despite numerous counseling sessions I've held with you
since October of 1978. Therefore, in accordance with Federal
Personnel Manual Chapter 430, Performance Evaluation and Rating,
and Air Force Regulation 40-451, Performance Evaluation, I am
providing you warning that I am considering assigning you an
unsatisfactory performance rating. Your annual performance rating
will be postponed for a period of 90 calendar days from 15 May
1979. During the 90 day period your performance will be assessed
according to the attached performance standards for a GS-1102-11
Contract Negotiator position. The standards are based upon the
GS-11 duties of the Contract Negotiator GS-1102-12 position
description number 0-14162-0, pertinent information provided in
the Position Classification Standards for the GS-1102-11 series,
and guidance contained in PK OI 11-2.
2. You may review the standards, discuss them with me and
recommend any changes concerning their content as they apply to
you. Duties listed as 1 through 8 represent the critical elements
of the position while the standards represents a performance
requirement which is exemplary of the incumbent to satisfactorily
complete the task. With reference to my 28 December 1978 Decision
to Withhold Your Within Grade Increase and subsequent 27 February
1979 Redetermination of Within Grade Increase Withheld, I stressed
that your weak areas were: (a) attention to detail and close
accuracy, (b) analyzing problems and providing appropriate
solutions, and (c) use of independent judgement based upon
application of current regulations and directives. An additional
area which I believe you should improve upon is your interpersonal
relationship with both internal and external personnel.
3. Examples of the above mentioned areas which I consider to
be your weaknesses were explained to you in my 27 February 1979
letter concerning the Redetermination of Within Grade Increase
Withheld. With reference to the eight items mentioned in
subparagraphs 3.a. through 3.h, items a., b. and h. illustrate
weakness in attention to detail and close accuracy. Close
accuracy is an essential element in performing duties 4, 5 and 6
of the attached document. More recently, errors in the DD Form
350 for P00003 to Contract . . . again illustrated this weakness.
Secondly, items c. and e. illustrate weakness in analyzing
problems and providing appropriate solutions, and such analysis is
a necessary ingredient in performing duties 2., 6. and 7. A
further illustration is your desire to delete all Air Force
technical requirements from proposed Contract . . . in preference
for the technical proposal of . . . vendor. Finally, items d.,
f., g. and h. illustrate weaknesses in use of independence. Using
independent judgement based upon regulatory material and
experience is a key element throughout the attached performance
standards, but particularly in duties 2., 4., 5., 6. and 7.
Again, you repeated errors in a current action that had been
pointed out to you in previous actions. Solicitation No. . . . is
a case in point. You appeared anxious to release the solicitation
on 3 April 1979 without authority to negotiate and many other
errors, including an entirely inappropriate type of contract.
. . . .
6. The attached "Performance Standards for GS-1102-11 Contract
Negotiator" are based on the position description and standards
that had always been expected of you. Nevertheless, they had
never before been expressed to you in one written body before this
time. Consequently, you are being given the additional time to
perform under written standards with my objective being to gain
significant improvement from you.
On August 14, 1979, Mr. Stewart issued a memorandum to Mr. Tennyson
which was entitled "Notice of Proposed Removal." The memorandum noted
that his removal was based upon his (Mr. Tennyson) failure to improve in
"three areas, or critical elements of his position". The memorandum
went on to list the three critical elements as (1) attention to detail
and close accuracy, (b) analyzing problems and providing appropriate
solutions, and (3) use of independent judgement based upon application
of current regulations and directives. Examples of Mr. Tennyson's
deficiencies in the aforementioned critical elements were also set forth
in the memorandum. Mr. Stewart also informed Mr. Tennyson that he would
request Mr. Fowler, the senior contracting officer to remove Mr.
Tennyson because of "unacceptable performance within the meaning of 5
U.S.C.Chapter 43". The memorandum closed with instructions concerning
how Mr. Tennyson could appeal the proposed removal action.
On August 21, 1979, Mr. Norman Downes, President of Local R1-8, sent
a letter to Colonel Thomas O. Duff, Commander of the 3245th Air Base
Group, Hanscom AFB, wherein he requested "negotiation of the
'Performance Standards for GS-1102-11' imposed upon Mr. Lee Tennyson by
letter from his Supervisor, Mr. Dean Stewart dated 17 May 1979". On
September 5, 1979, Colonel Duff sent a reply to Mr. Downes' letter.
Colonel Duff's letter reads in pertinent part as follows:
2. As Mr. Dean Stewart stated in his 17 May 1979 letter to Mr.
Tennyson concerning the Annual Performance Rating, the Performance
Standards for the position of GS-1102-11, Contract Negotiator, are
based on Mr. Tennyson's current position description and standards
that had always been expected of him. The reason for reducing the
standards to writing was to enable Mr. Tennyson to understand the
seriousness of his less than satisfactory performance and to show
what was expected of him to attain a satisfactory rating in the
future. It is my understanding that Mr. Stewart gave Mr. Tennyson
the opportunity to review these standards, discuss them with him
and recommend changes concerning their content. It is also my
understanding that Mr. Tennyson refused to discuss these standards
with Mr. Stewart.
3. Because there was neither a change in an existing personnel
policy or practice nor in the working conditions of Mr. Tennyson,
I find no requirement to negotiate with you on this matter. I do,
however, contemplate encouraging employee participation in
establishing performance standards when the Air Force performance
appraisal system is developed in accordance with Section 4302 of
the Civil Service Reform Act of 1978 and implementing regulations.
That participation will be obtained through your exclusively
recognized union when members of your bargaining unit are
involved.
On November 2, 1979, Mr. Maurice Fowler, Assistant Deputy for
Contracting, sent a memorandum to Mr. Tennyson entitled "Notice of
Decision". The memorandum informed Mr. Tennyson that it was Mr.
Fowler's decision that he, Mr. Tennyson, "be removed from his position
of Contract Negotiator GS-1102-11 and separated from the Federal Service
effective November 9, 1979". In support of his decision to separate Mr.
Tennyson, Mr. Fowler pointed out, among other things, that Mr. Tennyson
had failed to meet the "critical elements" and "sub-elements" of the
"performance standards" for his job. Examples of Mr. Tennyson's
deficiencies were also set forth in the memorandum. Additionally, with
respect to the "legality of the performance standards", Mr. Fowler found
that the "procedures mandated by 5 U.S.C. 4303 had been followed".
According to Mr. Stewart, who was the author of the May 17, 1979,
memorandum in which "critical elements" and "performance standards" were
first mentioned, he wrote the memorandum pursuant to Air Force
Regulation 40-451 which requires in Section F that the supervisor must
advise the employee of his short comings in detail. Mr. Stewart further
testified that attention to detail and close accuracy was always a
standard of performance, albeit not written. When questioned with
respect to the significance of the words "critical elements" and
"production standards", Mr. Stewart made it clear that the wording and
the format of the May 17, 1979, memorandum was the product of the
personnel department and that prior to the issuance of the memorandum he
had never heard of the phrase "critical elements".
Discussion and Conclusions
Inasmuch as the Federal Labor Relations Authority has concluded that
the impact on adversely affected employees occasioned by, and the manner
of implementation of, performance standards and critical elements
established pursuant to Section 4302 of the Civil Service Reform Act, 5
U.S.C. 4302, are negotiable items, /6/ the sole question to be decided
herein is whether the May 17, 1979, memorandum to Mr. Tennyson did in
fact establish for the first time performance standards and critical
elements for the position of Contract Negotiator GS-11.
Respondent takes the position that it did not create new performance
standards and critical elements on May 17, 1979. According to
Respondent, such elements as "close accuracy and attention to detail"
were always performance requirements and the mere fact that they were
designated "critical elements" in the May 17, 1979, memorandum did not
establish any new criterion for job performance. Further, according to
Respondent, the May 17, 1979, memorandum to Mr. Tennyson was an attempt
to comply with the existing Air Force Regulations concerning adverse
actions and not Sections 4302 and 4303 of the Civil Service Reform Act
which deal with the establishment of performance standards, critical
elements, and adverse actions thereunder.
Contrary to the contention of the Respondent, I find that the record
as a whole supports the conclusion that the attachment to the May 17,
1979, memorandum did in fact create and/or establish performance
standards and critical elements for the position of Contract Negotiator
GS-11. In reaching this conclusion I note the testimony of Mr. Stewart
that there had never been any written performance standards for the
position of Contract Negotiator GS-11, the fact that the August 14,
1979, memorandum entitled "Notice of Proposed Removal" states that Mr.
Tennyson was being removed because of "unacceptable performance within
the meaning of 5 U.S.C.Chapter 43" of the Civil Service Reform Act which
deals with the establishment of performance standards, critical
elements, and adverse actions thereunder, and the fact that phrases or
terms such as critical elements and performance standards had never been
used in prior discussions between Mr. Stewart and Mr. Tennyson. In fact
Mr. Stewart testified that the first time he heard or was aware of the
expression "critical elements" was when his written draft concerning Mr.
Tennyson's appraisal was returned from the personnel department.
While I do not doubt that Mr. Stewart was attempting to comply with
the Air Force Regulations concerning adverse actions when he committed
his annual performance rating of Mr. Tennyson to writing and sent same
to the personnel department for approval, the fact remains that the
personnel department, intentionally or otherwise, attempted to kill two
birds with one stone, i.e. comply with both the Air Force Regulations
and Section 4303 of the Civil Service Reform Act. In doing the latter,
the personnel department which, of course, is an agent of the
Respondent, violated Sections 7116(a)(1) and (5) of the Federal Labor
Relations Statute since it established performance standards and
critical elements for the position of Contract Negotiator GS-11 without
first giving the Union prior notice of its decision and the opportunity
to bargain over the impact of such decision on adversely affected
employees and the manner of implementation. /7/
Accordingly, I shall recommend that the Authority issue the following
Order. /8/
ORDER
Pursuant to Section 7118(a)(7)(A) of the Federal Service
Labor-Management Relations Statute, 5 U.S.C. 7118(a)(7)(A), and Section
2423.29(b)(1) of the Rules and Regulations, 5 C.F.R.Section
2423.29(b)(1), the Authority hereby orders that the Department of the
Air Force, Air Force Systems Command, Electronic Systems Division and
3245th Air Base Group, Hanscom Air Force Base, Bedford, Massachusetts,
shall:
1. Cease and desist from:
(a) Instituting Performance Standards and Critical Elements for
the position of Contract Negotiator GS-11 without first notifying
the National Association of Government Employees, Local R1-8, the
unit employees' exclusive representative, and affording it the
opportunity to consult and negotiate, to the extent consonant with
law and regulations, concerning the impact and implementation of
such Performance Standards and Critical Elements.
(b) In any like or related manner, interfering with,
restraining, or coercing its employees in the rights assured by
the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative actions in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute.
(a) Cease applying the Performance Standards and Critical
Elements for the position of Contract Negotiator GS-11 until such
time as the National Association of Government Employees, Local
R1-8 has been given adequate notice thereof and the opportunity to
consult and negotiate thereon, to the extent consonant with law
and regulations, concerning the impact and implementation of the
Performance Standards and Critical Elements for the position of
Contract Negotiator GS-11.
(b) Accord Mr. Lee Tennyson all appeal rights that may have
existed under the Air Force or Civil Service regulations on
November 9, 1979, irrespective of any time restrictions which may
have been included in such regulations.
(c) Post at its Hanscom Air Force Base, Bedford, Massachusetts,
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 Commander of the 3245th
Air Base Group and they shall be posted for 60 consecutive days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted. The Commander shall
take reasonable steps to insure that such notices are not altered,
defaced, or covered by any other material.
(d) Notify the Federal Labor Relations Authority in writing,
within 30 days from the date of this Order, what steps have been
taken to comply therewith.
BURTON S. STERNBURG
Administrative Law Judge
Dated: April 23, 1981
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
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT institute Performance Standards and Critical Elements for
the position of Contract Negotiator GS-11 without first notifying the
National Association of Government Employees, Local R1-8, the unit
employees' exclusive representative, and affording it the opportunity to
consult and negotiate, to the extent consonant with law and regulations,
concerning the impact on adversely affected employees and the manner of
implementation of such Performance Standards and Critical Elements.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the rights assured by the Federal Service
Labor-Management Statute.
WE WILL cease applying any Performance Standards and Critical
Elements for the position of Contract Negotiator GS-11 until such times
as the National Association of Government Employees, Local R1-8 has been
given adequate notice thereof and the opportunity to consult and
negotiate thereon, to the extent consonant with law and regulations,
concerning the impact on adversely affected employees and the manner of
implementation of such Performance Standards and Critical Elements.
WE WILL accord Mr. Lee Tennyson all appeal rights that may have
existed under the applicable Air Force or Civil Service regulations on
November 9, 1979, irrespective of any time restrictions which may have
been included in such regulations.
(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 question concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director for the Federal Labor Relations Authority whose address is:
441 Stuart Street, 9th Floor, Boston, Massachusetts 02116. Telephone
No.: (617) 223-0920.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(a)(1) and (5) provides in pertinent part:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
. . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/2/ Section 2429.5 of the Authority's Rules and Regulations provides:
The Authority will not consider evidence offered by a party, or
any issue, which was not presented in the proceedings before the
Regional Director, Hearing Officer, Administrative Law Judge, or
arbitrator. The Authority may, however, take official notice of
such matters as would be proper.
/3/ Section 7135(b) of the Statute provides that "decisions issued
under Executive Order 11491 . . . shall remain in full force and effect
. . . unless superseded by . . . decisions issued pursuant to (the
Statute)." Thus, Department of the Interior, Bureau of Reclamation, Yuma
Projects Office, Yuma, Arizona, 4 FLRC 484 (1976), a decision issued
under Executive Order 11491, as amended, is no longer in full force or
effect to the extent it is inconsistent with the instant decision.
/4/ Inasmuch as Tennyson took advantage of his applicable statutory
appeal rights and received a final decision and order from the MSPB with
respect to such appeal, paragraph 2(b) of the Judge's recommended order
has been modified to delete the reference to such rights.
/5/ According to the record testimony, "duties" are the same as
"critical elements" and, indeed, were referred to as such in later
memorandum.
/6/ National Treasury Employees Union and Department of the Treasury,
Bureau of Public Debt, 3 FLRA No. 119. In the aforecited case the FLRA
stated in pertinent part as follows: "Thus, to the extent consonant
with law and regulation, the procedural context of performance
evaluation, including procedures related to the identification of
critical elements and the establishment of performance standards, and
appropriate arrangements for employees adversely affected by actions
taken under those standards, are subject to bargaining".
/7/ Even if, as contended by Respondent, the specific performance
standards and critical elements set forth in the May 17, 1979 memorandum
had existed in an unwritten general form prior thereto, Respondent was
still obligated to give the Union appropriate notice and the opportunity
to bargain over impact and implementation when it opted to codify and
make specific such unwritten standards and critical elements pursuant to
Section 4303 of the Civil Service Reform Act. The references to 5
U.S.C. 4303 in subsequent memoranda make it clear that the May 17, 1979,
memorandum was indeed an attempt to codify and make specific the
unwritten standards.
/8/ The General Counsel has requested as a remedy not only a cease
and desist order, but an order reinstating Mr. Tennyson with full back
pay. However, inasmuch, based upon the record as a whole, I cannot
conclude that Mr. Tennyson would not have been discharged but for the
unfair labor practice found herein, a reinstatement and back pay order
is not appropriate. Cf. Mare Island Shipyard Mare Island Navy Yard
Metal Trades Council, AFO-CIO; 4 FLRC 143, FLRC No. 74A-64 (1976);
Internal Revenue Service Center & NTEU, Chapter 97, A/SLMR No. 1119,
Footnote 8. However, inasmuch as Respondent's action, described in
detail above, may well have raised some confusion with respect to what
avenues of appeal were available to Mr. Tennyson on November 9, 1979,
under either the Air Force or existing Civil Service regulations, I
shall order Respondent to accord Mr. Tennyson such rights irrespective
of any time restrictions included in the respective regulations.