20:0199(27)CA - VA Central Office, Washington, DC and VA Regional Office, Cleveland, OH -- 1985 FLRAdec CA
[ v20 p199 ]
20:0199(27)CA
The decision of the Authority follows:
20 FLRA No. 27
VETERANS ADMINISTRATION
CENTRAL OFFICE, WASHINGTON, D.C.
AND VETERANS ADMINISTRATION
REGIONAL OFFICE, CLEVELAND, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2823, AFL-CIO
Charging Party
Case No. 5-CA-40091
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. Thereafter, the Respondent filed exceptions to the Judge's
Decision and the General Counsel filed an opposition thereto.
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 with the following
modification.
The Judge concluded that the Respondent violated section 7116(a)(1)
and (5) of the Statute when it instituted changes in the performance
standards of certain of its employees in the Cleveland, Ohio Regional
Office without affording the Charging Party an opportunity to negotiate
concerning the procedures to be used in the implementation of the change
and any appropriate arrangements for employees adversely affected by
such change. The Respondent's exceptions are limited to the Judge's
conclusion that the Charging Party, in effect, at no time surrendered
its right to negotiate, and to the Judge's recommendation that a status
quo ante remedy is warranted.
In agreement with the Judge, and based on his rationale, the
Authority finds that the Charging Party had not surrendered or waived
its right to negotiate concerning the procedures to be used in the
implementation of changes to unit employees' performance standards and
concerning appropriate arrangements for employees adversely affected by
such changes.
However, in disagreement with the Judge, the Authority finds that a
status quo ante order is not warranted herein. Thus, balancing the
nature and circumstances of the violation against the degree of
disruption in the Respondent's operations that would be caused by such a
remedy, and taking into consideration the factors set forth in Federal
Correctional Institution, 8 FLRA 604(1982), the Authority concludes that
an order giving the employees' exclusive representative an opportunity
to bargain concerning appropriate arrangements for unit employees
adversely affected by the Respondent's decision to change the
performance standards of unit employees, will best effectuate the
purposes and policies of the Statute. In this regard, the Authority
notes that the Respondent provided the Charging Party with prior notice
of the proposed new performance standards in question, furnished certain
requested information and discussed the matter with the Charging Party,
but ultimately refused to negotiate on the basis of its good faith but
erroneous belief that the Charging Party had surrendered the right to
negotiate pursuant to the terms of the applicable collective bargaining
agreement. Moreover, the Authority further notes that a requirement
that management rescind the revised performance standards and reevaluate
the subject employees under the preexisting standards would cause
serious disruption in the Respondent's operations, and that an order
requiring such action is not indicated where, as here, the record
contains no evidence which would support a conclusion that any unit
employees evaluated under the revised performance standards were
adversely affected thereby.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Authority hereby orders that the Veterans Administration
Central Office, Washington, D.C., and the Veterans Administration
Regional Office, Cleveland, Ohio, shall:
1. Cease and desist from:
(a) Instituting changes in the performance standards of its employees
without affording the American Federation of Government Employees,
AFL-CIO (or its designated agent), the exclusive representative of the
employees in the Cleveland, Ohio Regional Office, the opportunity to
bargain concerning the procedures for implementing such changes and
appropriate arrangements for employees adversely affected by such
changes.
(b) In any like or related manner interfering with, restraining, or
coercing 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) Notify the American Federation of Government Employees, AFL-CIO,
or its designated agent, of any intended changes in the performance
standards for Veterans Benefits Counselors at its Cleveland, Ohio
Regional Office, and, upon request, negotiate concerning the procedures
to be observed in implementing such changes and concerning appropriate
arrangements for employees adversely affected by such changes.
(b) Post at its Cleveland, Ohio, facility, copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Director for the Cleveland, Ohio Regional Office, or a designee, and
shall be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including bulletin boards and other 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.
(c) Notify the Regional Director, Region V, 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., September 20, 1985
(s) HENRY B. FRAZIER III
Henry B. Frazier III, Acting
Chairman
(s) WILLIAM J. MCGINNIS JR.
William J. McGinnis, Jr., 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 changes in the performance standards of
employees at our Cleveland, Ohio Regional Office without affording the
American Federation of Government Employees, AFL-CIO, or its designated
agent, the employees' exclusive representative, an opportunity to
bargain concerning the procedures for implementing such changes and
concerning appropriate arrangements for employees adversely affected by
such changes.
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 notify the American Federation of Government Employees,
AFL-CIO, or its designated agent, of any intended changes in the
performance standards for Veterans Benefits Counselors at our Cleveland,
Ohio Regional Office, and, upon request, negotiate concerning the
procedures to be observed in implementing such changes and concerning
appropriate arrangements for employees adversely affected by such
changes.
(Agency or Activity)
Dated: By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region V, Federal Labor Relations Authority, whose address is:
Suite 1359-A, 175 Jackson Boulevard, Chicago, Illinois 60604 and whose
telephone number is: (312) 353-6306.
---------------
LOWS -----
For the Respondent
Thomas J. Sudik
For The Charging Party
Sandra LeBold, Esq.
For the General Counsel
Before: JOHN H. FENTON
Chief 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 United States Code (5
U.S.C. 7101 et seq.) and the Rules and Regulations of the Federal Labor
Relations Authority (5 C.F.R. Chapter XIV Section 2410 et seq.). It
arose upon the filing of an unfair labor practice charge by Local 2823,
American Federation of Government Employees, (Local 2823, AFGE), on
January 4, 1984. The Complaint and Notice of Hearing was issued by the
Regional Director of the Federal Labor Relations Authority's Chicago
Region on February 8, 1984. At issue is whether Respondent unlawfully
refused to bargain concerning the impact and implementation of certain
revisions in the performance standards of Veterans Benefits Counselors.
A hearing was held on April 10, 1984 in Cleveland, Ohio. The parties
were afforded full opportunity to present evidence, to examine and
cross-examine witnesses, and to file briefs. Upon the entire record I
make the following findings:
Findings of Fact
The Social Security Administration and the American Federation of
Government Employees have been parties to a Master Agreement since
August 13, 1982. It provides, in Section 5 of Article 4, for mid-term
bargaining of local level changes as follows:
"Proposed changes affecting personnel policies, practices or
conditions of employment which are initiated by local management
at a single facility will be forwarded to the designated local
union official. Upon request the parties will negotiate as
appropriate."
In Section 2 of Article 32, it establishes a performance appraisal
system designed to:
" . . . permit the accurate evaluation of job performance on
the basis of objective criteria . . . (which) . . . will be fair,
reasonable, equitable and job-related . . . (and which) will be
used as a basis for other personnel management actions including
training, promotions, rewards, reassignments, reductions-in-grade,
retaining and removing employees."
It defines a critical element as a "responsibility of such importance
that if it is not performed adequately, acceptable performance of the
job as a whole is not possible", and performance standard as a
"statement of requirements measuring various levels of achievement for
critical and non-critical elements . . . (including) . . . , but . . .
not limited to, elements such as quantity, quality and timeliness"
(Section 3B and D).
The meaning of Section 4 of Article 32 is central to this
controversy. Its text is as follows:
Section 4-- Procedures for Developing Key Responsibilities and
Performance Standards
"A. Critical element(s), other key responsibilities, and
performance standards will be established, in writing, for each
position at the beginning of each appraisal period. They will be
consistent with the duties and responsibilities covered in each
employee's position description. This does not preclude
modifications to or additions to the performance plan during the
appraisal period. The employee will not be rated against these
modifications or additions for a reasonable period of time, which
will be dependent upon the degree of modification or the nature of
the addition. The immediate supervisor will clarify, explain, or
answer any questions or concerns the employee may have regarding
the critical elements, key responsibilities or performance
standards of his/her position.
"B. Performance standards will be established in accordance
with 5 USC 4301, et seq. and this Article. Employees will be
given the opportunity to participate in the establishment of
performance standards. The Union, acting as the exclusive
spokesman of unit employees, will be given an opportunity to
present its views and recommendations regarding the performance
standards.
"C. Where unit jobs are involved, the Union will be advised,
in advance, of job analysis sessions which are being conducted to
develop or review performance standards. The Union will be
provided with an opportunity to be present at the job analysis
session as an observer. If work measurement studies are to be
used in formulating employees' performance standards, the Union
will be notified, in advance, of the conduct of the study and be
given the opportunity to bargain as appropriate."
This case concerns Veterans Benefits Counselors at Grades GS-5, 7 and
9, who spend most of their time dealing with the public in personal or
telephone interviews. Each is a critical element. There are about 50
Counselors who rotate monthly from the telephone unit, to the operations
unit (where questions presented in calls are resolved), to the
interviewing unit (although only about six Counselors serve in the
latter at any one time). Each unit has one rotating supervisor, and the
telephone unit has a second, lower-level supervisor permanently assigned
to it. One major concern of the Local about the manner in which such
performance is evaluated is that Counselors are requested to handle a
minimum of 75 calls a day, which, of course, makes it difficult for
supervisors to accurately observe and monitor the quality of work and
for the employee to recall and defend effectively against clients'
complaints.
On October 18, 1983 Respondent announced a revision in the
performance standard for GS-9 Counselors. It added a "subelement"
entitled Professional Conduct, having to do with conduct during personal
and telephone interviews, and provided for the use of "consumer sampling
letters, complaint letters and supervisory observations" in a
supervisor's evaluation of a Counselor's performance. What were termed
"(e)ditorial changes" were also made in the critical elements for
telephone interviews and personal interviews by deleting the statement
that "quality of work will be measured by the unit SOP" and substituting
therefore the statement that it is "measured by supervisory observation
with the minimum number of observation items as stated in the
performance standard for each category." The announcement of these
changes requested the Union's comments and recommendations "as outlined
in Regional Office Circular 25-83-1, paragraph 5d."
Circular 25-83-1, issued on March 18, 1983, provides in paragraph 5
for an evaluation period for all employees to run from April 1 through
March 31, and for the development of performance plans before the
beginning of each evaluation period. Subparagraph d requires Division
Chiefs to provide the Union President with copies of all performance
standards for bargaining unit positions before the standards become
effective, and thereafter with a copy of any plan different from the
prior plan before it becomes effective. It further provides that:
". . . the union will present its views and recommendations
regarding a performance standard within 10 working days after
receipt of a performance standard. Division Chiefs are
responsible for being sure that the union's views and
recommendations are considered before a standard becomes
effective. The union will be provided in writing the basis for
not adopting their recommendation(s) before implementation of a
standard."
On October 27 the Union responded to the proposed revision of October
18, requesting negotiation on the impact and implementation of the
proposed performance standard changes. On November 2 the Union
requested information in order to prepare for negotiations. It asked
for a written detailed definition of what constitutes a "courteous,
helpful and otherwise professional attitude that promotes good human
relations designed to assist the public with advice or information in a
respectful and compassionate manner", a written description of the
system to be used to ensure that "supervisory observation" would conform
to the requirement of Article 32, Section 2 that there be an "accurate
evaluation of job performance on the basis of objective criteria and . .
. be fair, reasonable, equitable and job-related", and a description of
the procedures which would enable an employee to challenge an
attribution of error based on "supervisory observation."
The parties met on November 4, and management gave the Union a
package of materials from the Operating Manual of the VA Central Office.
These materials describe an elaborate method for monitoring the
timeliness, the number and the quality of interviews conducted by an
office. There appears to have been considerable discussion, and a
handout of materials, concerning how consumer sampling letters,
complaint letters and supervisory observation would be used, how
professional conduct would be assessed, and how employees can defend
themselves.
The parties met again on November 10. They agreed to set up ground
rules, and to limit meetings to one hour. The Union asked for a list of
the kinds of activities that would be considered unprofessional conduct,
and for an explanation of how the "random samplings" would be used in a
fair and equitable manner. Management assured the Union that the
standards would not be implemented until negotiations were completed.
They agreed to meet again. But no further meetings were held. Rather,
on November 23, management wrote the Union the following memorandum:
"1. The new performance standards for the Contact
Representative, GS-962-9, have been developed using the AFGE
Master Agreement and RO Circular 25-83-1.
"2. The AFGE Master Agreement provided AFGE Unions the
opportunity to negotiate on the impact and implementation of
performance standards. Further, RO Circular 25-83-1 provides the
Union with a copy of all performance standards prior to their
becoming effective. The Union may present its views and
recommendations regarding a performance standard within ten
working days after notification and, in turn, will be provided in
writing the basis for any rejection of its recommendation prior to
the implementation of the performance standards. This RO Circular
25-83-1 provides the Union with impact and implementation
bargaining for all standards in this Regional Office.
"3. Management has provided impact and implementation
bargaining in the above Master Agreement and RO Circular and has
determined that no further bargaining is required. The standards
for the Contact Representative, GS-962-9, will, therefore, be
implemented effective December 7, 1983."
On or about November 30, the Union responded:
"1. I have reviewed you (sic) memo of November 23, 1983. Your
memo, as the Union sees it, is a misinterpretation of the Civil
Service Reform Act of 1978 and the Master Agreement between the
Veterans Administration and AFGE.
"2. The Union is available for further negotiation sessions on
the implementation and impact of the standards at any time when
other negotiations do not conflict. It is expected that you will
not take action to implement a new standard until such time as a
written agreement is signed by both parties."
On December 5 Respondent sent the Union new standards for GS-5 and 7
Veterans Benefits Counselor trainees, solicited its comments and
recommendations "as outlined in R.O. Circular 25-83-1, Paragraph 5d,"
and expressed the hope that the standards could be issued by December
22. The Union responded on December 13, requesting impact and
implementation bargaining, and expressing its assumption that
Respondent's failure to answer would mean that it did not intend to
implement.
On December 21, Respondent declared its intention to implement on the
proposed schedule, noting that the Union had requested "negotiations"
rather than offering its "views and recommendations regarding the
standards". It said that the Standards were not negotiable and noted
that the Union had failed to offer its comments (constructive ideas or
suggestions) within the 10 workdays contemplated by RO Circular 25-81-1.
In short order, the unfair labor practice charge was filed.
VA's principal negotiator of Article 32 testified credibly that VA
intended, in negotiating Section 4, to secure agreement to a set of
limited procedures to be followed in discharge of its obligation to
bargain concerning the impact and implementation of changes in its
performance standards, and thereby to avoid full-fledged negotiations
whenever local management modified such standards somewhere in this unit
of over 100,000 employees. As Section 4(a) and (b), in his view, speak
to matters of impact and implementation-- for example by providing for a
reasonable period of time before measuring an individual's performance
against a new standard-- and because the Union spoke to such concerns,
it is his view that "negotiations" of the kind not there described are
foreclosed. With equal candor however, he admitted that the Union
negotiators never expressly gave up the right to negotiate the adverse
impact of changes in the standards, and that most of the "discussion
under this Article would presumably surround the substance of the
standard and some clarification of what it means . . . "
A Union negotiator testified that Section 4 simply provides a
procedure for the Union to have input into performance standards, and
that the subject of impact and implementation bargaining "did not come
up for any extensive discussion."
Finally, it was stipulated that the negotiated RO Circular contains
no waiver of the Union's right to impact and implementation bargaining.
Discussion and Conclusions of Law
The General Counsel contends that Respondent unlawfully cut off
negotiation concerning the impact and implementation of its proposed
performance standards, and implemented them, and did so in the absence
of any waiver of the Union's bargaining rights. Respondent does not
contend that a waiver ever occurred in the sense of the Union's having
expressly surrendered its rights or having "consciously yielded" them.
/1/ Nor does it deny that there would ordinarily exist at the local
level a duty to negotiate with the exclusive representative. /2/
Rather, it asserts that the duty was met by the Master Agreement
bargaining, which in Article 32, Section 4 sets forth the procedures to
be observed by Respondent in exercising its authority to change
performance standards as well as the appropriate arrangements for
employees adversely affected by such exercise, and that it in turn
discharged the contractual obligations it had assumed by providing the
Union with notice and by its willingness to receive and consider the
Union's "views and recommendations." It further asserts that any
disputes regarding what Section 4 requires of it should be referred to
the grievance/arbitration machinery.
Clearly, Respondent changed important conditions of employment when
it altered the performance standards, and it did so unilaterally, i.e.
it cut off negotiations on the ground the contract contemplated merely
its receipt of the Union's "views and recommendations." While it does
not rely on waiver, it at bottom contends that the Union waived the
right to negotiate concerning the impact and implementation of changes
in performance standards by agreeing to some form of consultation in
Section 4. Its defense seems to rest on an unarticulated theory that
the Union consciously yielded its right to bargain.
Neither the bargaining history nor the text of Section 4 persuasively
suggests that that any waiver ever occurred. As noted, no express
waiver was uttered. While there must have been some discussion of
arrangements for employees adversely affected, e.g. that resulting in
the provision in Section 4A prohibiting the application of a revised
standard for a reasonable period of time, there is otherwise no
indication that the Union was consciously surrendering its bargaining
rights for this small recognition of the right to become accustomed to a
new yardstick before being measured against it. The text generally,
including its title ("Procedures for Developing Performance Standards")
is most reasonably read as a grant of consultation rights to the Union
over the substance, or content, of proposed changes. Thus, while the
Union gained something which Respondent did not have to give; there is
simply no evidence, never mind the required clear and unmistakable
evidence, that a trade-off occurred in which it surrendered its right to
negotiate concerning the impact and implementation of changes. I
conclude that Respondent violated Section 7116(a)(1) and (5) when it cut
off discussion and unilaterally instituted its revised performance
standards for GS-5, 7 and 9 Veterans Benefits Counselors.
The Remedy
The General Counsel seeks an order restoring the status quo ante
based on the criteria set forth in Federal Correctional Institution (8
FLRA 111). The General Counsel relies on the claimed willfulness of the
violation, the potentially severe impact upon retention, promotion and
other job rights of the Counselors and the lack of any evidence that
such a remedy would disrupt or impair the efficiency and effectiveness
of the Agency's operation. Major stress is placed on the willfulness
factor, which the General Counsel argues is present because the VA
bargaining stance in Cleveland was consistent with its deliberately
fashioned national policy, i.e. derived from its interpretation of its
Master Agreement.
Although "willful" is defined as deliberate or intentional, it seems
to me that it must mean more than that in a bargaining context. Few
bargaining violations arise simply as the consequence of mistake,
accident or other unintentional course of conduct. I assume that the
Authority meant more. If the term does not import an element of animus,
it would seem at a minimum to require some showing of a determined or
obstinate resistance to the discharge of a bargaining obligation which
is sufficiently clear in the circumstances to charge the Agency with
knowledge of its duty: a record on which to conclude that it indeed
knew or should have know, and thus can fairly be charged with
deliberately flouting the law.
I think that test is met here, given the rather well settled law on
the waiver of bargaining rights. Again, there is no contention that the
Union expressly waived its rights, and it cannot be persuasively argued
that the relevant contract clauses contain such an elaborate or
comprehensive scheme for addressing matters of impact and implementation
as to call for the conclusion that the scope of all such bargaining had
been consciously and purposely limited to that described in the
contract. /3/ In short, I find Respondent's defense sufficiently
untenable, as a matter of law, to warrant the conclusion that its
decision to limit the Union to a consultative role meets the
"willfulness" test.
Concerning that nature and extent of the impact experienced by
adversely affected employees, it is obvious that application of the new
standards could have grave consequences on job retention, promotion and
other rights.
Restoration of the status quo ante will potentially affect the
performance valuations of about 50 Counselors. We of course do not
know, and cannot know whether new evaluations for the period since this
matter was litigated would affect layoffs, promotions, transfers or
other personnel actions so as to require their undoing. Any restoration
necessarily will have some disruptive affect, and will impair the
agency's operation to some degree. Not to order a reevaluation based on
the original standards will, on the other hand, unmistakably advertise
the power of management to have its way at no significant cost to it
save those of litigation and such impairment of its efficiency as may
result from the impact of such power upon the motivation of employees
who feel powerless to compel respect for their collective bargaining
rights.
It is clear that the burden is not light for demonstrating the need
for restoration of the status quo ante where the violation is based on
refusal to negotiate impact and implementation, as opposed to the change
itself. /4/ The balance of factors set forth in Federal Correction
Institution can be read as indicating that the most serious violations
are those whose correction will be most difficult to secure, precisely
because correction of serious matters is likely to be seriously
disruptive.
Discussion of such matters is, unavoidably, highly speculative since
we don't and ordinarily won't know what has happened as a result of
unlawful application of the new performance standards. It is possible
that no one has in fact been injured or that real injuries can be easily
repaired. It is also possible that successful candidates for promotions
will be reevaluated and found wanting so as to call for their removal
and replacement. Weighing the willfulness of the violation against the
anticipated disruption or impairment of Respondent's Cleveland Office,
in the light of Authority precedent, /5/ I conclude that it is necessary
and appropriate in this instance to require Respondent to return to its
preexisting performance standards, to reevaluate employees by that
standard, and to make whole any adversely affected employees for any
loss of pay and/or benefits occasioned by their evaluation under the new
performance standards.
Accordingly, I recommend that the Authority enter the following:
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, it is
hereby ordered that the Veterans Administration Central Office,
Washington, D.C. and Veterans Administration Regional Office, Cleveland,
Ohio, shall:
1. Cease and desist from:
(a) Instituting changes in the performance standards of its
employees without affording Local 2823, American Federation of
Government Employees, the exclusive representative of its Regional
Office employees, the opportunity to bargain concerning the
procedures for implementing such changes and appropriate
arrangements for employees adversely affected by such changes.
(b) In any like or related manner interfering with, restraining
or coercing employees in the exercise of their rights assured by
the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action:
(a) Return to the performance standards that were in use prior
to December 7, 1983, for its Veterans Benefits Counselors.
(b) Notify Local 2823, American Federation of Government
Employees of any intended changes in the performance standards for
Veterans Benefits Counselors, and upon request, negotiate
concerning the procedures to be observed in implementing such
changes and concerning appropriate arrangements for employees
adversely affected by such changes.
(c) Upon request, reevaluate the performance of any Counselor
designated by Local 2823, by reference to the performance
standards in existence prior to December 7, 1983.
(d) Make whole any adversely affected, Counselors for any loss
of pay and/or benefits they may have suffered by reason of the
unlawful application of the new performance standards to them.
(e) Post at its Cleveland, Ohio, facility, copies of the
attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms they shall be
signed by the Director for the Cleveland Regional Office, or his
designee, and shall be posted and maintained for 60 consecutive
days thereafter, in conspicuous places, including bulletin boards
and other 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.
(f) Notify the Regional Director for Region V, 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.
(s) JOHN H. FENTON
JOHN H. FENTON
Chief Administrative Law Judges
Dated: April 18, 1985
Washington, DC
NOTICE OF 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 changes in the performance standards of our
employees without affording Local 2823, American Federation of
Government Employees, their exclusive representative, the opportunity to
bargain concerning the procedures for implementing such changes and
concerning appropriate arrangements for employees adversely affected by
such changes.
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 return to the practice which existed prior to December 7,
1983, concerning the performance standards applicable to our Veterans
Benefits Counselors.
WE WILL notify Local 2823, American Federation of Government
Employees of any intended changes in the performance standards for
Veterans Benefits Counselors, and upon request, bargain concerning the
procedures to be observed in implementing such changes and concerning
appropriate arrangements for employees adversely affected by such
changes.
WE WILL, upon request, reevaluate the performance of any Counselor
designated by Local 2823, by reference to the performance standards in
effect prior to December 7, 1983.
WE WILL make whole any adversely affected Counselors for any loss of
pay and/or benefits they may have suffered as a result of Respondent's
unlawful change in its performance standards.
(Agency or Activity)
Dated: By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region V,
whose address is: 175 West Jackson Boulevard, Suite 1359-A, Chicago, IL
60604 and whose telephone number is: (312) 353-6306.
--------------- FOOTNOTES$ ---------------
/1/ See Scott Air Force Base, 5 FLRA 9.
/2/ Thus, Respondent does not contend that there is no statutory
bargaining obligation at the Cleveland level, although this case
involves the same contract as did VA Central Office and VA Medical
Center, Cincinnati, Ohio, 5-CA-40056, 40059; OALJ 85-026. I there
recommended dismissal of the Complaint in a respectful effort to show
what I considered the erroneous consequences of a literal reading of
Interpretation and Guidance, 7 FLRA 682. Since then the U.S. Circuit
Court for the District of Columbia has rejected the Authority's approach
to local bargaining in AFGE v. FLRA, 750 F.2d 143 (12-21-84), and the
Authority has not sought review or reconsideration. In the
circumstances, particularly the fact that this controversy is founded on
the waiver issue, I think it impractical to address the fundamental
bargaining issue here.
/3/ Cf. Naval Amphibious Base, Little Creek, Norfolk, VA, 9 FLRA 774.
/4/ See, e.g., Headquarters, 77th U.S. Army Command, Fort Totten, NY,
9 FLRA 762.
/5/ See FAA, Northwest Mountain Region, 14 FLRA 644; U.S. Department
of the Treasury, Internal Revenue Service, Dallas District, 13 FLRA 459.