[ v05 p173 ]
05:0173(22)CA
The decision of the Authority follows:
5 FLRA No. 22
SAN ANTONIO AIR LOGISTICS CENTER (AFLC)
KELLY AIR FORCE BASE, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1617
Charging Party
Case No(s). 6-CA-32,
6-CA-105
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
ENGAGED IN CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT IT CEASE
AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTIONS AS SET FORTH
IN THE ATTACHED ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER. THE ADMINISTRATIVE LAW JUDGE ALSO FOUND THAT THE RESPONDENT HAD
NOT ENGAGED IN CERTAIN OTHER ALLEGED UNFAIR LABOR PRACTICES AND
RECOMMENDED THAT THOSE PORTIONS OF THE COMPLAINT BE DISMISSED.
THEREAFTER THE RESPONDENT AND THE CHARGING PARTY FILED EXCEPTIONS WITH
RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
ORDER, THE GENERAL COUNSEL FILED CROSS-EXCEPTIONS, AND THE RESPONDENT
FILED AN OPPOSITION TO THE CHARGING PARTY'S EXCEPTIONS.
THEREFORE, PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 C.F.R. SEC. 2423.29) AND SECTION 7118 OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, 5 U.S.C. 7101-7135 (THE
STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE ADMINISTRATIVE
LAW JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND ORDER, AND THE
ENTIRE RECORD IN THE SUBJECT CASES, INCLUDING THE EXCEPTIONS,
CROSS-EXCEPTIONS AND OPPOSITION, THE AUTHORITY HEREBY ADOPTS THE
ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.
AS MORE FULLY SET FORTH IN THE ATTACHED RECOMMENDED DECISION AND
ORDER, THE ADMINISTRATIVE LAW JUDGE CONCLUDED IN CASE NO. 6-CA-32 THAT
RESPONDENT'S REFUSAL AND FAILURE TO NEGOTIATE REGARDING THE IMPACT AND
IMPLEMENTATION OF THE LEVEL OF REVIEW UNDER THE 1979
APPRAISAL/EVALUATION GUIDE CONSTITUTED A VIOLATION OF SECTIONS
7116(A)(1) AND (5) OF THE STATUTE. IN CASE NO. 6-CA-105, THE
ADMINISTRATIVE LAW JUDGE FOUND THE RESPONDENT, BY REASON OF ITS FAILURE
TO NEGOTIATE IN GOOD FAITH REGARDING THE IMPACT AND IMPLEMENTATION OF
THE CANCELLATION AND REESTABLISHMENT OF CERTAIN BARGAINING UNIT
POSITIONS, VIOLATED SECTIONS 7116(A)(1) AND (5) OF THE STATUTE. THE
AUTHORITY NOTES PARTICULARLY THAT IN BOTH INSTANCES THE CHARGING PARTY
REQUESTED BARGAINING OVER IMPACT AND IMPLEMENTATION OF THE CHANGES AT
ISSUE BUT SUCH REQUESTS WERE DENIED BY THE RESPONDENT AS BEING
NONNEGOTIABLE.
IN ORDER TO REMEDY THE VIOLATIONS HE FOUND, THE ADMINISTRATIVE LAW
JUDGE RECOMMENDED A STATUS QUO ANTE REMEDY. IN THIS REGARD, HE ORDERED
THE RESPONDENT TO RESCIND AND WITHDRAW ALL EVALUATIONS OF EMPLOYEES
WHICH WERE MADE UNDER THE 1979 APPRAISAL/EVALUATION GUIDE AND TO RESCIND
AND REVOKE THE CANCELLATION AND THE REESTABLISHMENT OF THE JOBS IN
QUESTION. THE RESPONDENT'S EXCEPTIONS ARE DIRECTED TO THE RECOMMENDED
ORDER OF THE ADMINISTRATIVE LAW JUDGE CONTENDING THAT SUCH ORDER WOULD
CREATE HARDSHIP ON THE PART OF THE ACTIVITY AND CONSTITUTE A POTENTIAL
DISRUPTION OF THE RESPONDENT'S OPERATION. THE AUTHORITY DOES NOT AGREE.
RATHER, THE AUTHORITY IS OF THE OPINION THAT THE PROPOSED ORDER OF THE
ADMINISTRATIVE LAW JUDGE HEREIN WHICH WAS A STATUS QUO ANTE REMEDY WOULD
NOT CREATE A SERIOUS DISRUPTION OF THE ACTIVITY'S OPERATION. THE
EVIDENCE REVEALS THAT THE ACTIVITY EVALUATES ITS EMPLOYEES AT LEAST ONCE
A YEAR, AND THUS THE RECOMMENDED ORDER WOULD MERELY REQUIRE WITHDRAWAL
AND RESCINDING OF EMPLOYEE EVALUATIONS MADE UNDER THE GUIDE IN QUESTION,
REEVALUATING EMPLOYEES WHERE NECESSARY AND THE REESTABLISHMENT OF THE
JOBS WHICH HAD BEEN CANCELLED. ACCORDINGLY, THE AUTHORITY FINDS THAT
THE ORDER HEREIN IS ONE WELL WITHIN THE ACTIVITY'S AUTHORITY TO
EFFECTUATE, AND, IS APPROPRIATE PARTICULARLY IN VIEW OF THE VIOLATIONS
HEREIN. /1/
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, THE
AUTHORITY HEREBY ORDERS THAT THE SAN ANTONIO AIR LOGISTICS CENTER (AFLC)
KELLY AIR FORCE BASE, TEXAS, SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING ANY CHANGE IN METHOD OF REVIEW OF
APPRAISAL/EVALUATION WITH RESPECT TO
EMPLOYEES REPRESENTED BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1617,
WITHOUT FIRST NOTIFYING SUCH 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 CHANGE.
(B) CANCELLING AND REESTABLISHING JOB POSITIONS OF EMPLOYEES
REPRESENTED BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1617, WITHOUT
FIRST NOTIFYING SUCH
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 ACTION.
(C) 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) RESCIND AND WITHDRAW ALL EVALUATIONS OF EMPLOYEES REPRESENTED BY
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1617, WHICH WERE MADE UNDER THE
1979 APPRAISAL/EVALUATION
GUIDE, REEAVALUTING EMPLOYEES WHERE NECESSARY.
(B) RESCIND AND REVOKE THE CANCELLATION OF THE GS QUALITY INSPECTION
SPECIALIST POSITIONS
AND THEIR REESTABLISHMENT AS WG AIRCRAFT WORK INSPECTORS AT THE 433RD
TACTICAL AIR WING.
(C) NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1617, OF ANY
INTENTION TO CANCEL AND REESTABLISH JOB POSITIONS OF EMPLOYEES
REPRESENTED BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1617, AND, UPON
REQUEST, CONSULT AND
NEGOTIATE WITH SUCH REPRESENTATIVE, TO THE EXTENT CONSONANT WITH LAW
AND REGULATIONS,
CONCERNING THE IMPACT AND IMPLEMENTATION OF SUCH ACTION.
(D) POST AT ITS FACILITY AT THE SAN ANTONIO AIR LOGISTICS COMMAND
(AFLC) KELLY AIR FORCE
BASE, SAN ANTONIO, TEXAS, COPIES OF THE ATTACHED NOTICE MARKED
"APPENDIX", ON FORMS TO BE BE
FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF
SUCH FORMS THEY SHALL BE
SIGNED BY THE COMMANDER OF THE SAN ANTONIO AIR LOGISTICS CENTER
(AFLC) 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.
(E) 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.
ISSUED, WASHINGTON, D.C., FEBRUARY 17, 1981
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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 ANY CHANGE IN THE METHOD OF REVIEW OF
APPRAISAL/EVALUATIONS WITH RESPECT TO EMPLOYEES REPRESENTED BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1617, WITHOUT FIRST
NOTIFYING SUCH 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 CHANGE.
WE WILL NOT CANCEL AND REESTABLISH JOB POSITIONS OF EMPLOYEES
REPRESENTED BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1617, WITHOUT FIRST NOTIFYING SUCH 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
ACTION.
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 RESCIND AND WITHDRAW ALL EVALUATIONS OF EMPLOYEES REPRESENTED
BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1617,
WHICH WERE MADE UNDER THE 1979 APPRAISAL/EVALUATION GUIDE, AND WILL
ISSUE REEVALUATIONS WHERE NECESSARY.
WE WILL NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1617, OF ANY INTENDED CHANGE IN THE METHOD OF REVIEW OF
APPRAISAL/EVALUATIONS OF UNIT EMPLOYEES, AND, UPON REQUEST, CONSULT AND
NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
IMPACT AND IMPLEMENTATION OF SUCH CHANGE.
WE WILL RESCIND AND REVOKE THE CANCELLATION OF THE GS QUALITY
INSPECTION SPECIALIST POSITIONS AND THEIR REESTABLISHMENT AS WG AIRCRAFT
WORK INSPECTORS AT THE 433RD TACTICAL AIR WING.
WE WILL NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1617 OF ANY INTENTION TO CANCEL AND REESTABLISH JOB
POSITIONS OF EMPLOYEES REPRESENTED BY AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1617, AND UPON REQUEST, CONSULT AND NEGOTIATE,
TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE IMPACT AND
IMPLEMENTATION OF SUCH ACTION.
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 OF THE FEDERAL LABOR RELATIONS AUTHORITY,
WHOSE ADDRESS IS: FEDERAL LABOR RELATIONS AUTHORITY, REGION 6, DOWNTOWN
POST OFFICE STATION, BRYAN AND ERVAY STREETS, P.O. BOX 2640, DALLAS,
TEXAS, 75221, AND WHOSE TELEPHONE NUMBER IS: (214) 767-4996.
-------------------- ALJ$ DECISION FOLLOWS --------------------
MAJOR LEWIS G. BREWER, ESQ.
OFFICE OF THE JUDGE ADVOCATE
SAN ANTONIO AIR LOGISTICS CENTER
KELLY AIR FORCE BASE, TEXAS 78211
FOR THE RESPONDENT
STEVEN M. ANGEL, ESQ.
FEDERAL LABOR RELATIONS AUTHORITY
P.O. BOX 2640, OLD POST OFFICE STATION
DALLAS, TEXAS 75231
FOR THE GENERAL COUNSEL
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DECISION AND ORDER
STATEMENT OF THE CASE
PURSUANT TO AN ORDER CONSOLIDATING CASES, /2/ AMENDED COMPLAINT, AND
NOTICE OF HEARING ISSUED BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR
RELATIONS AUTHORITY, REGION 6, ON NOVEMBER 6, 1979, A HEARING WAS HELD
BEFORE THE UNDERSIGNED ON NOVEMBER 27, 1979.
THE AMENDED COMPLAINT, UPON WHICH THIS PROCEEDING IS BASED, STEMS
FROM CHARGES FILED BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1617 (HEREIN CALLED AFGE OR THE UNION) AGAINST SAN
ANTONIO AIR LOGISTICS CENTER (AFLC), KELLY AIR FORCE BASE (HEREIN CALLED
RESPONDENT OR THE EMPLOYER.) IT IS ALLEGED IN SAID COMPLAINT, IN RESPECT
TO CASE NO. 6-CA-32, THAT ON OR ABOUT MARCH 7 AND 15, 1979 RESPONDENT
UNILATERALLY CHANGED ITS PERFORMANCE APPRAISALS BY IMPLEMENTING A 1979
APPRAISAL/EVALUATION GUIDE WITH AFFORDING THE UNION AN OPPORTUNITY TO
BARGAIN RE ITS IMPACT AND IMPLEMENTATION. THE COMPLAINT HEREIN ALSO
ALLEGED, IN RESPECT TO CASE NO. 6-CA-105, THAT SINCE APRIL 23, 1979
RESPONDENT REFUSED TO BARGAIN WITH THE UNION RE THE CANCELLATION AND
ESTABLISHMENT OF JOB POSITIONS AT THE 433RD TACTICAL AIR WING; AND THAT
ON MAY 14, 1979 RESPONDENT UNILATERALLY CANCELLED AND ESTABLISHED SUCH
JOB POSITIONS WITHOUT AFFORDING THE UNION AN OPPORTUNITY TO BARGAIN RE
ITS IMPACT AND IMPLEMENTATION-- ALL IN VIOLATION OF SECTIONS 7116(A)(5)
AND (1) OF THE FEDERAL SERVICE LABOR MANAGEMENT RELATIONS STATUTE
(HEREIN CALLED THE ACT).
RESPONDENT'S ANSWER TO THE AMENDED COMPLAINT, DATED NOVEMBER 16,
1979, DENIED THE ESSENTIAL ALLEGATIONS THEREOF AND THAT IT VIOLATED THE
ACT HEREIN.
BOTH PARTIES WERE REPRESENTED AT THE HEARING. EACH WAS AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER BOTH PARTIES FILED BRIEFS 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 ADDUCED AT THE
HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN THE UNION HAS BEEN THE COLLECTIVE
BARGAINING REPRESENTATIVE OF ALL NONSUPERVISORY AND NONPROFESSIONAL
EMPLOYEES WHO ARE EMPLOYED BY RESPONDENT.
2. BOTH PARTIES EXECUTED A COLLECTIVE BARGAINING AGREEMENT ON
NOVEMBER 9, 1977 COVERING APPROPRIATE UNIT EMPLOYEES, AND THE AGREEMENT
IS EFFECTIVE, BY ITS TERMS, FOR A PERIOD OF THREE YEARS.
3. PRIOR TO MARCH 7, 1979 ALL 14,500 UNIT EMPLOYEES WERE EVALUATED
AND APPRAISED ACCORDING TO THE PROCEDURE ESTABLISHED IN AIR FORCE
REGULATIONS 40-6 AND INSTRUCTIONS ON THE EVALUATION FORMS. THIS
PROCEDURE PROVIDED FOR A 2 STEP RATING SYSTEM. THE IMMEDIATE SUPERVISOR
APPRAISED AN EMPLOYEE UNDER HIS SUPERVISION, RATING HIM AS TO AT LEAST
10 RELEVANT ELEMENTS; THE NEXT LEVEL SUPERVISOR (THE REVIEWING
OFFICIAL) THEN REVIEWS THE APPRAISAL MADE BY THE IMMEDIATE SUPERVISOR.
IF THERE IS DISAGREEMENT BETWEEN THESE SUPERVISORS AS TO THE APPRAISAL,
THE REVIEWING OFFICIAL'S RATING BECOMES THE OFFICIAL EVALUATION.
FURTHER, PURSUANT TO REGULATION 40-6, THE IMMEDIATE SUPERVISOR IS
REQUIRED TO SHOW THE APPRAISAL TO THE EMPLOYEE AND DISCUSS ITS CONTENTS
WITH HIM.
4. FOR SEVERAL YEARS PRIOR TO 1979 RESPONDENT WAS CONCERNED ABOUT
THE FACT THAT TOO MANY EMPLOYEES WERE RECEIVING VERY HIGH RATINGS.
UNDER DATE OF FEBRUARY 6, 1978 COMMANDER LYNWOOD E. CLARK SENT A MEMO TO
ALL SUPERVISORS OF CIVILIAN EMPLOYEES. CLARK ADVERTED TO THE FACT THAT
ANNUAL RATING PERIOD FOR COMPLETION OF APPRAISALS WOULD BE MARCH 1-15;
THAT THE SCORES FOR THE APPRAISAL OF KELLY AIR FORCE BASE CIVILIAN
EMPLOYEES HAD BEEN EXTREMELY HIGH (THE BASE-WIDE ARRANGE SCORE FOR MARCH
1977 WAS 97.3). HE STATED IN THE MEMO THAT SUPERVISORS MUST BE MORE
REALISTIC AND OBJECTIVE; THAT APPRAISALS MUST REFLECT DIFFERENCE AMONG
LEVELS OF PERFORMANCE. ALTHOUGH NO SET DISTRIBUTION OF SCORES WERE TO
BE IMPOSED, CLARK MENTIONED THAT AFTER APPRAISALS WERE COMPLETED, THEY
WOULD BE REVIEWED BY HIGHER LEVELS OF MANAGEMENT.
5. IN A MEMO DATED SEPTEMBER 8, 1978, ADDRESSED TO THE VARIOUS
LOGISTICS CENTERS, INCLUDING RESPONDENT, MAJOR GENERAL CARL G. SCHNEIDER
RECITED THE FACT THAT A COMPARATIVE REVIEW OF MARCH 1977 AND 1978
CIVILIAN APPRAISALS DISCLOSED THAT A LARGE NUMBER OF EMPLOYEES RECEIVED
NEAR PERFECT SCORES. EACH INSTALLATION WAS DIRECTED TO DEVELOP A PLAN
TO IMPROVE THE EFFECTIVENESS OF SUCH APPRAISALS FOR THE MARCH 1979
RATING PERIOD. FURTHER, HE STATED THAT RECOGNIZED UNIONS SHOULD BE
INFORMED OF THE PLAN PRIOR TO IMPLEMENTATION; THAT EACH UNION SHOULD BE
GIVEN THE OPPORTUNITY TO MEET AND CONFER RE THE PLAN.
6. ON MARCH 7, 1979 RESPONDENT ISSUED TO ITS MANAGEMENT PERSONNEL,
AS WELL AS THE PRESIDENT OF THE UNION HEREIN, ITS 1979
APPRAISAL/EVALUATION GUIDE. THIS DOCUMENT REITERATED THE
DISPROPORTIONATE NUMBER OF HIGH APPRAISAL SCORES WHICH RESULTED AFTER
THE 1978 APPRAISALS. IT STATED THAT THERE MUST BE A MORE REALISTIC
ASSESSMENT OF PERFORMANCES TO HAVE A VALID PROMOTION PROGRAM. ALTHOUGH
NO CHANGE WAS INSTITUTED AS TO REGULATORY GUIDANCE ON APPRAISALS, THE
1979 GUIDE DID INSTITUTE THE "PERFORMANCE APPRAISAL REVIEW PROCESS".
7. UNDER THE NEW REVIEW PROCESS THE IMMEDIATE SUPERVISOR WAS
REQUIRED TO PREPARE A STATISTICAL SUMMARY WHICH DEPICTED, WITHOUT NAMES,
THE APPRAISAL/EVALUATION AND A "WORK FORCE DATA ARRAY". THE STATISTICAL
DATA WOULD BE PASSED UP THROUGH SUCCESSIVE LEVELS OF MANAGEMENT FOR
REVIEW. EACH SUCH LEVEL IS REQUIRED TO REVIEW THE RATING OFFICIALS'
CONSISTENCY AND "CONCISENESS IN DEPICTING WORKERS' PERFORMANCE." /3/
THIS DATA WOULD THEN BE REVIEWED BY THE DEPUTY DIRECTOR, AND THE
LATTER'S APPROVAL MUST BE OBTAINED BEFORE APPRAISAL/EVALUATIONS ARE
FINALIZED AND DISCUSSED WITH INDIVIDUAL EMPLOYEES. ANY REVIEWING LEVEL
MAY DIRECT THAT APPRAISALS BE RETURNED FOR REEVALUATION.
8. THE 1979 APPRAISAL/EVALUATION GUIDE ALSO ADMONISHED SUPERVISORS
TO BASE REALISTIC ADJUSTMENTS OF APPRAISALS ON (A) ROUTINE DAY-TO-DAY
ACTIONS AS PROMOTIONS AND REASSIGNMENTS TO DIFFERENT SERIES POSITIONS;
(B) CORRECTIVE MEASURES AS DISCIPLINARY ACTIONS, ENROLLMENT IN THE
PERFORMANCE EFFECTIVENESS PROGRAM AND WITHHOLDING STEP INCREASES; (C)
ACTIONS BRINGING LAUDABLE OR UNFAVORABLE NOTICE TO THE ORGANIZATION SUCH
AS A WRITE-UP OR A REPORT. EACH ACTION SHOULD, UNDER THIS DIRECTIVE, BE
DOCUMENTED ON APPROPRIATE EMPLOYEES. /4/
9. BY LETTER DATED MARCH 9, 1979 THE UNION NOTIFIED RESPONDENT THAT
THE PROPOSED 1979 APPRAISAL GUIDELINES DID CHANGE PAST PRACTICES AND
PERSONNEL POLICIES; THAT, AS SUCH, IT HAD AN IMPACT UPON UNIT
EMPLOYEES. AFGE REQUESTED THAT THE EMPLOYER NEGOTIATE ON THE MATTER.
10. IN REPLY TO THE UNION'S LETTER OF MARCH 9, RESPONDENT WROTE RUDY
QUIROGA, PRESIDENT OF THE AFGE LOCAL, ON MARCH 14 AND STATED THAT THE
MATTER WAS NOT NEGOTIABLE. /5/ THE UNION OFFICIAL WAS, HOWEVER, INVITED
TO SUBMIT WRITTEN PROPOSALS RE THE 1979 APPRAISALS GUIDELINES TO
MANAGEMENT.
11. THE 1979 APPRAISAL SYSTEM DID RESULT IN LOWERING OF SCORES.
WHILE THE RECORD IS NOT CLEAR AS TO THE PRECISE NUMBER OF INDIVIDUALS
WHOSE SCORES WERE LOWERED, IT APPEARS THAT 24 OF THOSE APPRAISED IN 1979
RECEIVED SCORES WHICH WERE BELOW THEIR RATINGS IN 1978.
12. IN A MEMO DATED APRIL 4, 1979 THE HEADQUARTERS AIR FORCE RESERVE
NOTIFIED RESPONDENT THAT CERTAIN GS 8 QUALITY INSPECTORS SPECIALIST
POSITIONS WERE CANCELLED. FURTHER, THESE POSITIONS WERE REPLACED BY THE
ESTABLISHMENT OF WG 11 AIRCRAFT WORK INSPECTORS. THE MEMO RECITED THAT
THE DEVELOPMENT RESULTED FROM MANAGEMENT'S DESIRE TO RECONSTITUTE THE
DUTIES OF THE QUALITY CONTROL POSITIONS. THE PURPOSE, AS STATED, WAS TO
REQUIRE INSPECTION OF AIRCRAFT COMPONENTS AND EQUIPMENT TO DETERMINE
ACCEPTABILITY IN COMPLYING WITH ESTABLISHED QUALITY STANDARDS. THIS
CONTRASTED WITH THE CURRENT PROCEDURAL COMPLIANCE INSPECTION. THE
RECONSTITUTION OF DUTIES WAS DECLARED TO REPRESENT NEW POSITIONS RATHER
THAN RECLASSIFICATION OF EXISTING ONES.
13. THE AFORESAID CHANGE RESULTED IN A LOWER PAY SCALE. THE REASON
FOR SUCH RESULT LIES IN THE FACT THAT A WG SCALE IS DETERMINED BY THE
ANNUAL WAGE SURVEY IN A PARTICULAR AREA WHERE THE POSITION IS LOCATED.
ON THE OTHER HAND THE GS SCALE IS SET BY CONGRESS. HOWEVER NONE OF THE
INDIVIDUALS WHOSE JOB WAS CANCELLED HAD THEIR IMMEDIATE PAY REDUCED.
14. ON OR ABOUT APRIL 14, 1979 COLONEL FEDERICO AGUIRRE, CHIEF OF
MAINTENANCE FOR RESPONDENT, WAS NOTIFIED OF THE DIRECTIVE. SINCE HE
INTENDED TO TAKE TEMPORARY DUTY LEAVE IN A FEW WEEKS. /6/ AGUIRRE TOLD
MAJOR MCKENZIE TO "CUT THE FORM 52'S ON THIS CHANGE".
15. THE EMPLOYEES WERE INFORMED OF THE CHANGE THROUGH SUPERVISORY
CHANNELS SHORTLY AFTER THE DIRECTIVE WAS RECEIVED. THEREAFTER, IN
APRIL, AN ANNUAL CLASS SURVEY MEETING WAS HELD. HECTOR QUESADA,
DIRECTOR CHIEF STEWARD OF THE UNION, ATTENDED THE MEETING AND LEARNED OF
THE NEW POSITIONS WHICH WERE ESTABLISHED. HE TOLD MAJOR MCKENZIE THAT
THE UNION DESIRED TO NEGOTIATE RE THE IMPACT AND IMPLEMENTATION OF THE
CHANGE. THE MANAGEMENT OFFICIAL REPLIED THE MATTER WAS NOT NEGOTIABLE
SINCE IT WAS A DIRECTIVE TO BE FOLLOWED. IT WAS AGREED THAT
IMPLEMENTATION AT THE LOCAL LEVEL WOULD BE DEFERRED UNTIL AGUIRRE
RETURNED ON APRIL 30.
16. PRIOR TO HIS LEAVING ON TDY, AGUIRRE SPOKE TO QUESADA. HE
MENTIONED THAT MAJOR MCKENZIE WOULD LOOK INTO THE MECHANICS OF THE
DIRECTIVE TO DETERMINE MANAGEMENT'S RESPONSIBILITIES; THAT THE UNION
OFFICIAL SHOULD BECOME FAMILIAR WITH IT AND "ONCE MAJOR MCKENZIE GETS
ALL THE MECHANICS HE WILL IMPLEMENT."
17. SHORTLY THEREAFTER AGUIRRE TOLD QUESADA THERE WERE ONLY TWO
OPTIONS AVAILABLE TO THE LOCAL MANAGEMENT. IT COULD HAVE THE NEW
POSITIONS FILLED IMMEDIATELY, OR IT REQUEST THAT THEY REMAIN
ENCUMBERED-- WHICH MEANT THAT SOMEONE WAS ON THE JOB DOING THE WORK EVEN
THOUGH THE POSITION WAS ABOLISHED. AGUIRRE FELT THE LATTER APPROACH WAS
THE BEST FOR THE EMPLOYEES, AND DECIDED TO FOLLOW THIS PROCEDURE.
18. ON APRIL 30, 1979 QUESADA AND TIM BROWN, DIVISION STEWARD, MET
WITH AGUIRRE AND VARIOUS OTHER MANAGEMENT OFFICIALS. DISCUSSION
CENTERED AROUND THE QUALITY CONTROL POSITIONS AND THEIR CANCELLATION AS
GS POSITIONS WITH CONVERSION TO WG LEVELS. ALTHOUGH QUESADA INSISTED
THE CHANGE SHOULD BE NEGOTIATED WITH THE UNION RE IMPACT AND
IMPLEMENTATION, AGUIRRE REMARKED THERE WAS NOTHING HE COULD DO SINCE IT
WAS A DIRECTIVE FROM AIR FORCE RESERVE WHICH MUST BE IMPLEMENTED.
19. ON MAY 11 FORM 52 FOR THE CANCELLATION AND REESTABLISHMENT OF
THOSE POSITIONS WAS PROCESSED. AGUIRRE TESTIFIED THAT ON MAY 18 BE
SUGGESTED TO THE UNION THEY SHOULD LET HIM KNOW IF IT HAD ANY IDEAS TO
"DO IT DIFFERENTLY".
20. RECORD FACTS REFLECT THAT WHILE THE POSITIONS HAD BEEN CANCELLED
AT HEADQUARTERS, ACTION STILL HAD TO BE TAKEN BY AGUIRRE TO COMPLETE THE
CHANGE AT THE LOCAL LEVEL. THE COLONEL TESTIFIED HE HAD TO DISCUSS IT
WITH THE EMPLOYEES IMPACTED, AS WELL AS THE UNION, AND ADVISE THEM HE
HAD TO COMPLY THEREWITH.
CONCLUSIONS
THE PRINCIPAL ISSUES FOR DETERMINATION HEREIN ARE AS FOLLOWS: (1)
WHETHER THE 1979 APPRAISAL/EVALUATION GUIDE CONSTITUTED A UNILATERAL
CHANGE IN THE SYSTEM OF EVALUATING UNIT EMPLOYEES SO AS TO REQUIRE
RESPONDENT TO BARGAIN RE THE IMPACT AND IMPLEMENTATION, (2) WHETHER THE
RESPONDENT DID, IN FACT, NEGOTIATE OVER THE IMPACT AND IMPLEMENTATION OF
THE CANCELLATION OF THE QUALITY INSPECTION SPECIALIST POSITIONS AT THE
433RD TACTICAL AIR WING, AND THEIR REESTABLISHMENT AS AIRCRAFT WORK
INSPECTORS.
(1) IT IS CONTENDED BY THE GENERAL COUNSEL THAT THE 1979 APPRAISAL
EVALUATION GUIDE ALTERED THE PREVIOUS PROCEDURE FOR EVALUATING UNIT
EMPLOYEES, AS SET FORTH IN REGULATION 40-6. THE 1979 GUIDE CHANGED THE
SYSTEM, IT IS ALLEGED, IN TWO /7/ RESPECTS; (A) LEVELS OF SUPERVISORS
ARE NOW REQUIRED TO KEEP STATISTICAL TABULATIONS OF APPRAISAL SCORES;
(B) THE REVIEW PROCEDURE, WHICH FORMERLY WAS LIMITED TO FIRST AND SECOND
LINE SUPERVISORS, NOW PROVIDES FOR REVIEW BY HIGHER LEVELS OF
SUPERVISION-- ALL OF WHICH RESULTS IN HOLDING UP THE EMPLOYEE'S
EVALUATION UNTIL THE REVIEW PROCESS IS COMPLETED, AS WELL AS A POSSIBLE
CHANGE THEREOF BY HIGHER MANAGEMENT.
IN RESPECT TO THE REQUIREMENT THAT LEVELS OF SUPERVISION MAINTAIN
STATISTICS OF THOSE RECEIVING DIFFERENT APPRAISAL SCORES, I AM NOT
PERSUADED THAT SUCH A DIRECTIVE IS A SIGNIFICANT CHANGE IN PAST PRACTICE
REEVALUATION OF EMPLOYEES. THE EMPLOYER HEREIN WAS UNDERSTANDABLY
CONCERNED THAT TOO MANY INDIVIDUALS WERE RECEIVING HIGH SCORES AFTER
THEIR APPRAISALS. THIS RESULTED IN AN UNREALISTIC EVALUATION,
COMPARATIVELY SPEAKING, OF THE UNIT EMPLOYEES. IT IS, THUS, FURTHER
UNDERSTANDABLE THAT MANAGEMENT DESIRED TO HAVE A STATISTICAL RECORD OF
THE SCORES IN THE FUTURE. APART FROM THE FACT THAT SUPERVISORS MAY
HAVE, IN FACT, KEPT THIS DATA IN THE PAST, I DO NOT FIND SUCH A
PROCEDURE TO BE SO MATERIAL A CHANGE AS TO REQUIRE MANAGEMENT TO BARGAIN
OVER ITS IMPACT WITH THE UNION. THE MAINTENANCE OF SUCH DETAILS IS, IN
MY OPINION, AN INTEGRAL PART OF SUPERVISION AND QUITE MINISTERIAL IN
NATURE. ACCORDINGLY, I FIND THAT ITS INSTITUTION DOES NOT RUN AFOUL OF
RESPONDENT'S OBLIGATION TO BARGAIN UNDER THE ACT.
IN RESPECT TO THE REVIEW PROCEDURE UNDER THE 1979 APPRAISAL
EVALUATION GUIDE, RESPONDENT DOES NOT DISPUTE THE FACT THAT IT REFUSED
TO NEGOTIATE RE ITS IMPACT AND IMPLEMENTATION. IT TAKES THE POSITION,
HOWEVER, THAT THERE WAS NO ESSENTIAL CHANGE FROM THE PROCEDURE IN FORCE
UNDER REGULATION 40-6; THAT, IN ANY EVENT, NO DEMONSTRABLE IMPACT
RESULTED FROM THE REVIEW BY HIGHER LEVELS OF MANAGEMENT.
A CASE WHICH AROSE UNDER EXECUTIVE ORDER 11491, AS AMENDED, INVOLVED
A CHANGE IN REVIEW PROCEDURE WITH AN ATTENDANT REFUSAL BY THE EMPLOYER
TO BARGAIN RE ITS IMPACT AND IMPLEMENTATION. IN DEPARTMENT OF THE
TREASURY, INTERNAL REVENUE SERVICE, CINCINNATI DISTRICT OFFICE, A/SLMR
NO. 1107 THE EMPLOYER INSTITUTED AND IMPLEMENTED A CHANGE IN THE LEVEL
OF REVIEW OF AN ARBITRATOR'S RECOMMENDATION FROM THE REGIONAL
COMMISSIONER TO THE DISTRICT DIRECTOR. NO OPPORTUNITY WAS AFFORDED THE
BARGAINING AGENT TO NEGOTIATE ON THE IMPACT AND IMPLEMENTATION OF THE
CHANGE IN THE REVIEW LEVEL. IN THE CITED CASE THE ARBITRATOR
RECOMMENDED THAT AN EMPLOYEE BE REINSTATED AFTER ADVERSE ACTION HAD BEEN
TAKEN AGAINST THE INDIVIDUAL. THIS RECOMMENDATION WAS REVIEWED BY THE
DIRECTOR, IN ACCORD WITH THE ALTERED PROCEDURE, WHO REJECTED IT AND
SUSTAINED THE EMPLOYEE'S REMOVAL. IT WAS HELD BY THE ASSISTANT
SECRETARY THAT SUCH A CHANGE IN REVIEW PROCESS AFFECTED THE WORKING
CONDITIONS OF EMPLOYEES. ACCORDINGLY, AN IMPACT THEREON RESULTS FROM
THE CHANGE IN THE LEVEL OF REVIEW. BY FAILING AND REFUSING TO NEGOTIATE
AS TO THIS NEW REVIEW PROCEDURE, THE RESPONDENT THEREIN VIOLATED ITS
OBLIGATION TO BARGAIN UNDER 19(A)(1) AND (6) OF THE ORDER.
THE REASONING AND HOLDING IN THE CITED CASE IS APPOSITE TO THE CASE
AT BAR. IN THE INSTANT MATTER RESPONDENT LIKEWISE CHANGED THE LEVEL OF
REVIEW. ORIGINALLY, UNDER REGULATION 40-6, THE FIRST AND SECOND LINE
SUPERVISORS REVIEWED THE APPRAISALS. DESPITE RESPONDENT'S ARGUMENT THAT
HIGHER MANAGEMENT LEVELS ALWAYS REVIEWED EVALUATION, IT DOES NOT APPEAR
THAT SUCH PROCEDURE WAS FORMALIZED UNDER THE REGULATION OR UNIFORMLY
ADOPTED AS A REVIEW PRACTICE. FURTHER, THE RECORD DOES NOT REFLECT THAT
THE DEPUTY DIRECTOR WAS FORMERLY REQUIRED-- AS IS THE CASE UNDER THE
1979 GUIDE-- TO APPROVE ALL APPRAISAL/EVALUATIONS BEFORE THEY WERE
FINALIZED AND THEN DISCUSSED WITH THE EMPLOYEE. UNDER THE NEW
PROCEDURE, THE EVALUATION IS HELD UP UNTIL SUCH APPROVAL IS OBTAINED.
IN MY OPINION THIS CHANGE IN REVIEW SYSTEM IS EVEN MORE MARKED AND
SIGNIFICANT THAN THAT INVOLVED IN THE INTERNAL REVENUE CASE AND RESULTS
IN A SUBSTANTIAL IMPACT UPON WORKING CONDITIONS OF EMPLOYEES.
ACCORDINGLY, I REJECT RESPONDENT'S CONTENTION THAT THERE WAS NO
CHANGE IN THE REVIEW LEVEL UNDER THE NEW SYSTEM AS WELL AS ITS ARGUMENT
THAT NO IMPACT RESULTS FROM THIS REVIEW PROCEDURE. RESPONDENT'S REFUSAL
AND FAILURE TO NEGOTIATE RE THE IMPACT AND IMPLEMENTATION OF THE LEVEL
OF REVIEW UNDER THE 1979 APPRAISAL EVALUATION GUIDE CONSTITUTES A
VIOLATION OF SECTION 7116(A)(1) AND (5) OF THE ACT.
(2) RESPONDENT DOES NOT DISPUTE ITS OBLIGATION TO BARGAIN RE THE
IMPACT AND IMPLEMENTATION OF THE CANCELLATION AND REESTABLISHMENT OF THE
POSITIONS AT THE 433RD TACTICAL AIR WING. IT ARGUES, HOWEVER, THAT SUCH
OBLIGATION WAS FULFILLED AND THE MATTER WAS DISCUSSED WITH AFGE; THAT
THE UNION WAS AFFORDED THE OPPORTUNITY TO PRESENT ALTERNATIVES TO THE
TWO OPTIONS OPEN TO MANAGEMENT, BUT THE BARGAINING AGENT FAILED TO DO
SO. I DO NOT AGREE.
IT IS WELL ESTABLISHED, AT THE OUTSET, THAT AN EMPLOYER MUST NOTIFY
THE BARGAINING AGENT OF AN INTENDED CHANGE AND PROVIDE SUFFICIENT TIME
FOR THE UNION TO OFFER PROPOSALS AND EXCHANGE VIEWS IN RESPECT THERETO.
OTHERWISE, AND UNLESS SUCH AN OPPORTUNITY IS OFFERED TO CONFER AND
NEGOTIATE ON IMPACT CONSIDERATIONS, THE BARGAINING PROCESS IS
MEANINGLESS. DEPARTMENT OF HEW, SOCIAL SECURITY ADMINISTRATION, BRS 1,
NORTHEASTERN PROGRAM CENTER, A/SLMR NO. 1101. IN THE CASE AT BAR THE
UNION WAS NOT NOTIFIED ON THE CANCELLATION OF POSITIONS UNTIL AFTER IT
HAD BEEN DIRECTED BY HEADQUARTERS. MOREOVER, AT THE LOCAL LEVEL
MANAGEMENT ADVISED UNION REPRESENTATIVE OF THE CONVERSION NEAR THE END
OF APRIL 1979. ALTHOUGH THE PARTIES MET ON APRIL 30 TO DISCUSS THE
CHANGE IN THESE POSITIONS. AGUIRRE INSISTED THE DIRECTIVE MUST BE
IMPLEMENTED, AND THE FORMS WERE PROCESSED ON MAY 11 FOR THE
REESTABLISHMENT OF THE POSITION. I CANNOT SUBSCRIBE TO THE VIEW THAT
SINCE AGUIRRE TOLD THE UNION REPRESENTATIVE ON MAY 18 HE SHOULD LET HIM
KNOW IF THE HAD ANY IDEAS TO "DO IT DIFFERENTLY", THE UNION THEREFORE
RECEIVED SUFFICIENT NOTICE TO OFFER PROPOSALS. NOT ONLY HAD THE
REESTABLISHMENT BEEN PROCESSED PRIOR TO MAY 18, BUT MANAGEMENT MADE IT
CLEAR IN APRIL AND MAY THAT THE CONVERSION WOULD BE IMPLEMENTED, AND
THAT THE OPTION SELECTED BY AGUIRRE WOULD BE ADOPTED BY THE RESPONDENT
AS THE BEST PROCEDURE. IN THIS POSTURE THE UNION SCARCELY HAD
SUFFICIENT TIME TO WEIGH THE CONVERSION AND PREPARE PROPOSALS FOR
DISCUSSION WITH MANAGEMENT RELATIVE TO THE IMPACT AND IMPLEMENTATION.
FURTHER, I AM NOT CONVINCED THAT RESPONDENT DID, IN GOOD FAITH,
BARGAIN WITH AFGE RE THE IMPACT AND IMPLEMENTATION OF THE CONVERSION.
DESPITE THE UNION'S REQUEST TO SO BARGAIN IN APRIL, MANAGEMENT
STEADFASTLY INSISTED THERE WAS LITTLE ROOM FOR NEGOTIATION. BOTH
AGUIRRE AND MCKENZIE CONTINUED TO STATE THAT THE DIRECTIVE WOULD BE
FOLLOWED. AGUIRRE ALSO INFORMED QUESADA THAT AFTER MCKENZIE OBTAINED
"ALL THE MECHANICS" HE WOULD IMPLEMENT THE CONVERSION. MOREOVER,
AGUIRRE ADVISED THE UNION THAT MANAGEMENT HAD SELECTED THE OPTION IT
DEEMED BEST FOR ALL CONCERNED, TO WIT, RETAINING THE NEW POSITIONS AS
ENCUMBERED WITHOUT FILLING THEM AT THAT TIME. ALTHOUGH THE COLONEL
SUGGESTED ON MAY 18 THAT THE UNION COULD OFFER OTHER IDEAS RE THE
CONVERSION, MANAGEMENT'S SUGGESTION WAS LITTLE MORE THAN AN IDLE GESTURE
SINCE THE RECLASSIFICATION SOUGHT BY RESPONDENT HAD ALREADY BEEN
PROCESSED. UNDER THESE CIRCUMSTANCES, THE UNION HEREIN WAS LEFT WITH
THE BELIEF THAT THE RECLASSIFICATION WAS, AS FAR AS RESPONDENT WAS
CONCERNED, AN ACCOMPLISHED FACT. IN THIS POSTURE THE UNION WAS NOT
AFFORDED MUCH OPPORTUNITY TO INJECT ANY INPUT INTO THE IMPLEMENTATION OF
THE DECISION. ACCORDINGLY, THE EMPLOYER DID NOT NEGOTIATE IN GOOD FAITH
RE THE IMPACT AND IMPLEMENTATION OF THE CONVERSION, AND I FIND IT
VIOLATED SECTIONS 7116(A)(1) AND (5) BY REASON THEREOF. SEE ARMY AND
AIR FORCE EXCHANGE SERVICE, PACIFIC EXCHANGE SYSTEM, HAWAII REGIONAL
EXCHANGE, A/SLMR NO. 454.
HAVING FOUND THAT RESPONDENT HAS ENGAGED IN CONDUCT VIOLATIVE OF
SECTIONS 7116(A)(1) AND (5) OF THE ACT, I HEREBY ISSUE THE FOLLOWING
ORDER DESIGNED TO EFFECTUATE THE PURPOSE OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
ORDER
PURSUANT TO SECTION 7105(G)(3) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE, AND SECTION 2400.2 OF ITS
REGULATIONS, IT IS HEREBY ORDERED THAT THE SAN ANTONIO AIR LOGISTICS
CENTER (AFLC), KELLY AIR FORCE BASE SHALL:
1. CEASE AND DESIST FROM:
(A) INSTITUTING ANY CHANGE IN THE METHOD OF REVIEW OF
APPRAISAL/EVALUATIONS WITH RESPECT TO
EMPLOYEES REPRESENTED BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1617,
WITHOUT FIRST NOTIFYING SUCH 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 CHANGE.
(B) CANCELLING AND REESTABLISHING JOB POSITIONS OF EMPLOYEES
REPRESENTED BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1617 WITHOUT FIRST
NOTIFYING SUCH
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 ACTION.
(C) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSE AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT STATUTE:
(A) RESCIND AND WITHDRAW ALL EVALUATIONS OF EMPLOYEES REPRESENTED BY
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1617, WHICH WERE MADE UNDER THE
1979 APPRAISAL/EVALUATION
GUIDE.
(B) RESCIND AND REVOKE THE CANCELLATION OF THE GS QUALITY INSPECTION
SPECIALIST POSITIONS
AND THEIR REESTABLISHMENT AS WG AIRCRAFT WORK INSPECTORS AT THE 433RD
TACTICAL AIR WING.
(C) NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1617, OF ANY
INTENDED CHANGE IN THE LEVEL OF REVIEW OF ITS APPRAISAL-EVALUATIONS
WITH RESPECT TO EMPLOYEES
REPRESENTED BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1617, AND, UPON
REQUEST, CONSULT AND NEGOTIATE WITH SUCH REPRESENTATIVE TO THE EXTENT
CONSONANT WITH LAW AND
REGULATIONS CONCERNING THE IMPACT AND IMPLEMENTATION OF SUCH INTENDED
CHANGE.
(D) NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1617, OF ANY
INTENTION TO CANCEL AND REESTABLISH JOB POSITIONS OF EMPLOYEES
REPRESENTED BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1617, AND, UPON
REQUEST, CONSULT AND
NEGOTIATE WITH SUCH REPRESENTATIVE, TO THE EXTENT CONSONANT WITH LAW
AND REGULATIONS,
CONCERNING THE IMPACT AND IMPLEMENTATION OF SUCH ACTION.
(E) POST AT ITS FACILITY AT THE SAN ANTONIO AIR LOGISTICS COMMAND
(AFLC), KELLY AIR FORCE
BASE, SAN ANTONIO, TEXAS 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 SAN ANTONIO AIR LOGISTICS CENTER
(AFLC), 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 NOTICE ARE NOT ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
(F) 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.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 11, 1980
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 FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT INSTITUTE ANY CHANGE IN THE METHOD OF REVIEW OF
APPRAISAL/EVALUATIONS WITH RESPECT TO EMPLOYEES REPRESENTED BY AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1617 WITHOUT FIRST
NOTIFYING SUCH 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 CHANGE.
WE WILL NOT CANCEL AND REESTABLISH JOB POSITIONS OF EMPLOYEES
REPRESENTED BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 1617 WITHOUT FIRST NOTIFYING SUCH 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
ACTION.
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 RESCIND AND WITHDRAW ALL EVALUATIONS OF EMPLOYEES REPRESENTED
BY AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1617,
WHICH WERE MADE UNDER THE 1979 APPRAISAL/EVALUATION GUIDE.
WE WILL NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1617 OF ANY INTENDED CHANGE IN THE METHOD OF REVIEW OF
APPRAISAL/EVALUATIONS OF UNIT EMPLOYEES, AND, UPON REQUEST, CONSULT AND
NEGOTIATE, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE
IMPACT AND IMPLEMENTATION OF SUCH CHANGE.
WE WILL RESCIND AND REVOKE THE CANCELLATION OF THE GS QUALITY
INSPECTION SPECIALIST POSITIONS AND THEIR REESTABLISHMENT AS WG AIRCRAFT
WORK INSPECTORS AT THE 433RD TACTICAL AIR WING.
WE WILL NOTIFY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1617 OF ANY INTENTION TO CANCEL AND REESTABLISH JOB
POSITIONS OF EMPLOYEES REPRESENTED BY AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1617, AND UPON REQUEST, CONSULT AND NEGOTIATE,
TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, ON THE IMPACT AND
IMPLEMENTATION OF SUCH ACTION.
AGENCY OR ACTIVITY
DATED: BY: SIGNATURE
--------------- FOOTNOTES$ ---------------
/1/ THE AUTHORITY IS EMPOWERED TO "REQUIRE AN AGENCY OR A LABOR
ORGANIZATION TO CEASE AND DESIST FROM VIOLATIONS OF THIS CHAPTER AND
REQUIRE IT TO TAKE ANY REMEDIAL ACTION IT CONSIDERS APPROPRIATE TO CARRY
OUT THE POLICIES OF THIS CHAPTER." 5 U.S.C. 7105(G)(3).
/2/ THE SAID ORDER CONSOLIDATED FOR HEARING CASE NOS. 6-CA-32,
6-CA-66, AND 6-CA-105 AND 6-CA-115. AT THE HEARING THE GENERAL COUNSEL
MOVED TO SEVER CASES 6-CA-66 AND 6-CA-115 SINCE THOSE TWO CASES HAD BEEN
SETTLED. THE MOTION WAS GRANTED AND THE INSTANT PROCEEDING RELATES TO
CASES 6-CA-32 AND 6-CA-105.
/3/ A SIMILAR REVIEW PROCESS HAD BEEN UTILIZED PREVIOUSLY IN ONE
MAJOR DIRECTORATE WITHIN THE SAN ANTONIO AIR LOGISTICS CENTER.
/4/ RESPONDENT'S CIVILIAN PERSONNEL OFFICIAL, EDWARD GRAHAM,
TESTIFIED, AND I FIND, THE NEW GUIDELINE SET FORTH DETAILS FOR THE
SUPERVISOR TO CONSIDER WHICH WERE NOT INCLUDED IN THE ORIGINAL
REGULATIONS, IN EVALUATING THE EMPLOYEES.
/5/ QUIROGA ALSO SPOKE TO MURRELL CIVILIAN PERSONNEL OFFICER RE THE
1979 APPRAISAL PROCEDURE AND REQUESTED AN OPPORTUNITY TO BARGAIN RE THE
EVALUATION SYSTEM. MURRELL INSISTED THE MATTER WAS NOT NEGOTIABLE.
/6/ HIS TDY COMMENCED ON APRIL 27.
/7/ WHILE THE NEW GUIDE ALSO SETS FORTH CERTAIN ITEM" WHICH MIGHT BE
CONSIDERED BY THE SUPERVISOR IN APPRAISING EMPLOYEES, GENERAL COUNSEL
DOES NOT INSIST THESE SUGGESTIONS CONSTITUTE A CHANGE IN THE SYSTEM. IN
ANY EVENT, I DO NOT CONSTRUE SUCH SUGGESTIONS AS SO CONSTITUTING A
"CHANGE", IN EVALUATION PROCEDURE SO AS TO REQUIRE NEGOTIATIONS THEREON.