United States, Department of the Air Force, Eglin Air Force Base, Florida (Respondent) and American Federation of Government Employees, Local 1942 (Charging Party/Union) (Authority decision, February 17, 2005)

Read the official release (flra.gov)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair labor practice case under 5 U.S.C. § 7118. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). No remand remains pending in this order.

Plain-English summary

An Eglin Air Force Base nurse who was union president received a lower performance rating after seeking additional official time. An administrative law judge found retaliation for protected union activity and also found that the agency had changed performance standards without bargaining. The Authority dismissed the retaliation claim, concluding that the nurse's documented workplace behavior explained the rating and that the agency would have given it without the union activity. The separate, unchallenged bargaining violation remained. The Authority kept the remedy requiring reevaluation under the earlier standards but removed the parts tied to the dismissed retaliation claim.

Decision snapshot

• Authority: 5 U.S.C. §§ 7116(a)(1), 7116(a)(2), 7116(a)(5), and 7118.
• Outcome: Retaliation claim dismissed; bargaining violation and reevaluation remedy retained in modified form.
• Key point: The record supported a lawful reason for the lower rating, but the rating had used unlawfully changed performance standards.

Full text (FLRA public release)

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60 FLRA No. 125

UNITED STATES

DEPARTMENT OF THE AIR FORCE

EGLIN AIR FORCE BASE

EGLIN AIR FORCE BASE, FLORIDA

(Respondent)

and

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 1942

(Charging Party/Union)

AT-CA-02-0595

_____

DECISION AND ORDER

February 17, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and

Carol Waller Pope and Tony Armendariz, Members [n1]

I. Statement of the Case

This unfair labor practice case is before the Authority on an exception to the attached decision of the Administrative Law Judge filed by the Respondent.

The complaint alleges that the Respondent violated § 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (the Statute) by lowering the Union President's performance appraisal in retaliation for his protected activity. [n2] The Judge found that the Respondent violated the Statute as alleged.

Upon consideration of the Judge's decision and the entire record, we conclude for the reasons discussed below that the Respondent did not commit the unfair labor practice alleged in the complaint. Accordingly, we will dismiss the portion of the complaint alleging a violation of § 7116(a)(1) and (2) of the Statute.

II. Background and Judge's Decision

The facts are fully set out in the Judge's decision and are only briefly summarized here. The Union President, a nurse assigned to the Respondent's operating room, received a letter of counseling in October 2001, during the 2002 performance year. The letter, which was authored by the Union President's third-line supervisor, advised the Union President that numerous of his co-workers viewed his behavior on the job as "overly aggressive, disrespectful to others and disruptive[,]" which created a hostile work environment. Judge's Decision at 5. The letter also stated that the Union President frequently lost his temper, went into "tirades," and "deride[d] others" and that he was "verbally abusive." Id. at 4-5. The Union President filed an informal grievance over the counseling, but the counseling was upheld.

Also during the 2002 performance year, the Union President was allowed to use six hours of official time per week. In December 2001 and January and February 2002, the Union President "began requesting additional official time . . . ." Id. at 5. The Union President's third-line supervisor sent him an email addressing "last minute requests for [additional] official time" and indicating that "five (5) days lead time" was needed "to balance . . . mission requirements while considering time away from work requests for anyone." Id. at 5-6. Two weeks later, the third-line supervisor followed up with another email reiterating the need for advance notice for additional official time and setting forth his expectation that the Union President adhere to "the same performance and conduct standards as other personnel assigned to [the] organization." Id. at 6. The Union President was never denied any of his requests for additional official time.

On January 29, the Union President's immediate supervisor met with him for his quarterly performance discussion. No performance issues were raised during that meeting. Subsequently, in draft form, the immediate supervisor rated each individual element of the Union President's performance plan as "exceeds," which would have resulted in an overall rating of "superior." Id. at 8. She also included explanatory language supporting the ratings. However, the third-line supervisor advised her to "rethink portions of the appraisal and . . . take the counseling into consideration." Id. Thereafter, the immediate supervisor lowered each individual element to "met" but she left the explanatory language intact. Id. At the hearing, she explained that she considered [ v60 p621 ] the Union President's "demeanor and how he interacted with other staff and that there were difficulties working with him that she could not ignore as a supervisor." Id. at 9. After reviewing the revisions, the third-line supervisor raised one element from "met" to "exceeds[,]" but eliminated the narrative statements "since explanatory language is not required." Id. at 8. Consequently, the Union President received an overall rating of "fully successful" and he did not receive a performance award. Id. at 10.

The Union filed a charge, and the GC issued a complaint, alleging, as relevant here, that the Respondent violated the Statute by lowering the Union President's performance appraisal because of his protected activity.

Applying the Authority's framework established in Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny), the Judge found that the GC established a prima facie case of discrimination based on protected activity. Initially, the Judge found that it was "undisputed" that the Union President "engaged in protected activity . . . ." See id. at 14. Moreover, the Judge found that the Union President and his third-line supervisor "had engaged in escalating conflict over the issues of official time and [the Union President's] perceived inappropriate behavior." Id. at 14-15. The Judge found that the Union President's increased "need for official time . . . intensified" the overall conflict. Id. at 15.

Consistent with the foregoing, the Judge found "substantial evidence of the [third-line supervisor's] frustration with the [Union President's] increased need" for official time. Id. This frustration, according to the Judge, "was a motivating factor in [the Union President's] lowered performance appraisal." Id.

Turning to the Respondent's affirmative defense, the Judge noted the immediate supervisor's testimony that she considered the Union President's counseling and certain "unspecified complaints about him during the year[,]" as well as "his performance." Id. at 16. However, the Judge found "no evidence that [the Union President] was ever counseled or even criticized regarding his work performance during the rating period." Id. In this connection, the Judge noted that the Union President's "immediate supervisor had even worked to increase his grade during this period." Id. According to the Judge, the Union President's behavior "appears" to have "sometimes bordered on abusive[,]" but given that "he was only counseled once about this behavior[,]" the Judge did not find "sufficient explanation for the lowered appraisal." Id. Accordingly, the Judge found that the Respondent did not establish that it would have rated the Union President the same even in the absence of protected activity.

Thus, the Judge found that the Respondent violated § 7116(a)(1) and (2) of the Statute. To remedy the violations, the Judge recommended ordering the Respondent to rescind the Union President's performance appraisal and reevaluate him without considering his protected activity, as well as a cease and desist order and a notice to be posted for all employees.

III. Positions of the Parties

A. Respondent's Exceptions

The Respondent disputes the Judge's finding that the GC established a prima facie case of unlawful discrimination. According to the Respondent, the Judge failed to find that the lowered performance appraisal was motivated by anti-union animus, as required by United States Dep't of the Air Force, 315th Airlift Wing, Charleston Air Force Base, Charleston, S.C., 56 FLRA 927 (2000) (Charleston Air Force Base). In this connection, the Respondent asserts that neither the immediate supervisor nor the third-line supervisor had anti-union animus. In addition, the Respondent asserts that both supervisors testified that the third-line supervisor did not direct the immediate supervisor to lower the Union President's performance appraisal. In support of this claim, the Respondent notes that the immediate supervisor changed elements "that she and [the third-line supervisor] had not discussed." Exception at 14.

The Respondent claims the Judge's decision is not supported by the third-line supervisor's decision to eliminate the narrative comments from the Union President's performance appraisal. In this regard, the Respondent claims the supervisor was merely complying with the Respondent's policy, consistent with the rating form's instructions, "that elements rated as met not be accompanied by comments . . . ." Id. at 15. Also, according to the Respondent, the closeness in time of the Union President's increased protected activity and the lowered performance appraisal is insignificant because performance appraisals occur at the same time each year.

The Respondent also disputes the Judge's finding that an "`escalating conflict' . . . over official time" motivated the lowered performance appraisal. Id. at 16. According to the Respondent, the conflict between the Union President and the third-line supervisor was "actually over last minute requests for official time [which] created scheduling problems" affecting "the hospital's mission . . . ." Id. The Respondent notes the Judge's [ v60 p622 ] acknowledgment that the Union President "always received the additional official time" he requested. Id.

In addition, the Respondent disputes the Judge's finding that it did not establish its affirmative defense. According to the Respondent, the evidence shows that the Union President's performance appraisal was lowered because "management did not like the way he interacted with subordinates, co-workers, and superiors." Id. at 22. The Respondent argues that it demonstrated "a legitimate justification" for the Union President's lowered performance appraisal and established that the immediate supervisor "would have reached the same rating decision even absent any discriminatory animus . . . ." Id.

B. GC's Opposition

The GC argues that the Judge's finding of a violation is "well-supported by the factual record and the law." Opposition at 3. As to the law, the GC cites private sector precedent holding that "an employer may not launder thebad' motives of certain of its supervisors' by having the discriminatory action carried out by someone neutral within the organization." Id. (citing Boston Mutual Life Ins., Co., 692 F.2d 169, 171 (1st Cir. 1982)). As to the facts, the GC claims the evidence demonstrates that the third-line supervisor harbored anti-union animus toward the Union President, and the Union President's performance appraisal was lowered after he told the immediate supervisor to "rethink her position." Id. at 4. According to the GC, this demonstrates "a causal relation between the animus and the discriminatory action." Id.

The GC argues that the Judge's finding of an escalating conflict over official time is supported by testimony at the hearing, as well as several e-mails relied on by the Judge. Therefore, according to the GC, it is irrelevant whether the third-line supervisor ordered the immediate supervisor to lower the Union President's performance appraisal. See id. at 6.

IV. Analysis and Conclusions

In Letterkenny, the Authority articulated its analytical framework for addressing allegations of discrimination claimed to violate § 7116(a)(2) of the Statute. Under that framework, the GC has the burden to establish by a preponderance of the evidence that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in connection with hiring, tenure, promotion, or other conditions of employment. See Indian Health Serv., Crow Hosp., Crow Agency, Mont., 57 FLRA 109, 113 (2001); Letterkenny, 35 FLRA at 118. Once the GC makes the required prima facie showing, the respondent may seek to establish the affirmative defense that: (1) there was a legitimate justification for the action; and (2) the same action would have been taken in the absence of the protected activity. See id. If the respondent establishes an affirmative defense, then the Authority will conclude that the GC has not established a violation of the Statute. See Letterkenny, 35 FLRA at 119.

There is no dispute that the Union President engaged in protected activities, and the Judge found that the GC established a prima facie case that these protected activities motivated the Respondent's decision to lower the Union President's performance appraisal. We find it unnecessary to determine whether the Judge's conclusion in this regard is correct because, even assuming a prima facie case was established, we conclude, for the reasons that follow, that the Respondent established its affirmative defense.

The Respondent presented evidence that it lowered the Union President's performance appraisal because of his "abusive" and "disruptive" behavior. Judge's Decision at 5. In this connection, the record shows that the Union President received a letter of counseling concerning his behavior, which the Judge found "sometimes bordered on abusive." Id. at 16. We note that the counseling letter was upheld by the Respondent in an informal grievance. Moreover, the letter of counseling was issued in October 2001, two months before the Union President began requesting additional official time, which is at the heart of the Judge's finding of a violation.

The Judge found the letter of counseling unpersuasive to demonstrate that the Respondent had a valid reason to lower the appraisal because the Union President was only counseled once about his behavior. However, neither the Judge nor the GC cites any requirement that behavior issues must be part of any counseling -- let alone multiple counselings -- before they can be considered in an employee's performance appraisal. Therefore, we conclude that the Respondent properly based the lowered performance rating on the Union President's behavior that was addressed in the letter of counseling.

The Judge found significant the fact that the Union President's supervisors had worked during the performance year to upgrade his position. However, there is no requirement that an employee must be performing at an outstanding -- as opposed to fully successful -- level before his or her position can be upgraded. Moreover, [ v60 p623 ] a review of the "Position Evaluation Summary" used to classify the position shows that the Union President's performance level was not a factor in the Respondent's classification decision. Respondent's Ex. 7. Nevertheless, even assuming performance level is a relevant factor, that fact would not establish a violation of the Statute in this case because the Union President's position ultimately was not reclassified. See Judge's Decision at 4. We note that there is no indication or allegation that the Respondent's classification decision was improper.

Finally, the Judge considered the third-line supervisor's removal of the narrative statements from the Union President's performance appraisal as evidence of unlawful motive. However, consistent with the express instructions on the appraisal form, there is no dispute that such statements are not required for ratings of "met." GC Exh. 54.

We find that a preponderance of the record evidence demonstrates that the Union President's inappropriate behavior, and not his protected activities, motivated his lowered performance appraisal. In so finding, we agree with the Respondent that behavior on the job is a valid consideration for evaluating job performance. Indeed, even the Judge found that the Union President's inappropriate behavior was an "issue" that the Respondent "attempted to deal with." Judge's Decision at 16. The Respondent has established that it properly dealt with that issue by lowering the Union President's performance appraisal. Accordingly, we conclude that the GC has not met its burden of proof that the Respondent violated § 7116(a)(1) and (2) of the Statute.

Finally, having found that the Respondent did not violate § 7116(a)(1) and (2) of the Statute, we must nonetheless address the matter of a remedy for the violation of § 7116(a)(1) and (5) of the Statute, to which the Respondent did not except. See supra, slip op. at 2 n.2.

The Judge ordered the Respondent to: (1) cease and desist from making changes to the Union President's performance standards without giving the Union notice and an opportunity to bargain, as required by law; (2) rescind the performance standards that were used during the 2001-2002 performance year; and (3) notify the Union before implementing new standards. As noted, there was no exception to this remedy, which the Authority has ordered in similar situations. See, e.g., United States Dep't of Housing and Urban Development, 56 FLRA 592 (2000); 56th Combat Support Group (TAC) MacDill Air Force Base, Fla., 43 FLRA 434 (1991). Accordingly, we will direct the Respondent to take such action consistent with the Judge's decision.

However, we modify the Judge's remedy to exclude portions that relate to the alleged violation of the Statute that the Judge found but which we are dismissing. In this regard, the Judge ordered the Respondent to cease and desist from discriminating against the Union President based on his protected activity, to rescind the performance appraisal he had been given for the 2001-2002 performance year, and to reevaluate his performance using the prior performance standards without any consideration of protected activity. As explained above, we have determined that the Respondent did not discriminate against the Union President. Therefore, we strike from the Judge's remedy all references to discrimination based on protected activity. We leave intact the portion of the Judge's remedy requiring the Respondent to reevaluate the Union President using the previous performance standards. We do so because, as found by the Judge and not excepted to by the Respondent, the evaluation given to the Union President for performance year 2001-2002 was based on performance standards that were unlawfully implemented. Thus, an appropriate remedy is to require the Respondent to reevaluate the Union President's performance, including the issue of inappropriate behavior discussed above, based on the previous standards.

V. Order

Pursuant to § 2423.41(c) of the Regulations of the Federal Labor Relations Authority and § 7118 of the Federal Service Labor-Management Relations Statute, the United States Department of the Air Force, Eglin Air Force Base, Eglin Air Force Base, Florida, shall:

1. Cease and desist from:

(a) Making changes to the Union President's performance standards without giving the AFGE, Local 1942 (Union) notice and the opportunity to bargain to the extent required by law.

(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) Rescind the performance standards found in the new core document used for the Union President's appraisal during the 2001-2002 performance [ v60 p624 ] year and reinstate the Union President's prior performance standards. Provide proper notice and opportunity to bargain to the Union before implementing new performance standards for the Union President's position.

(b) Rescind the performance appraisal given to the Union President for performance year 2001-2002. Reevaluate the Union President, using the previous performance standards.

(c) Post at the United States Department of the Air Force, Eglin Air Force Base, Eglin Air Force Base, Florida, where bargaining-unit employees are located, 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, Eglin Air Force Base, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Boston Regional Office, Federal Labor Relations Authority, 99 Summer Street, Suite 1500, Boston, MA 02110-1200, in writing, within 30 days of this Order, as to what steps have been taken to comply.

The remaining portion of the complaint alleging a violation of § 7116(a)(1) and (2) of the Statute is dismissed.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the United States Department of the Air Force, Eglin Air Force Base, Eglin Air Force Base, Florida, violated the Federal Service Labor-Management Relations Statute (the Statute), and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY EMPLOYEES THAT:

WE WILL NOT make changes to the Union President's performance standards without giving the AFGE, Local 1942 notice and the opportunity to bargain to the extent required by the Statute.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute.

WE WILL rescind the performance standards found in the new core document used for the Union President's appraisal during the 2001-2002 performance year and reinstate the Union President's prior performance standards.

WE WILL provide proper notice and opportunity to bargain to the Union before implementing new performance standards for the Union President's position.

WE WILL rescind the performance appraisal given to the Union President for performance year 2001-2002 and WE WILL reevaluate the Union President, using the previous performance standards.

____

(Activity)

Date: _ 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 any of its provisions, they may communicate directly with the Regional Director, Boston Region, Federal Labor Relations Authority, whose address is: 99 Summer Street, Suite 1500, Boston, MA 02110-1200, and telephone number is: 617-424-5730. [ v60 p625 ]

Dissenting Opinion of Member Pope:

I disagree with my colleagues that the GC failed to establish the violation at issue in the Respondent's exception. In my view, a preponderance of the record evidence supports the Judge's conclusion that the Union President's lowered performance appraisal was in retaliation for his protected activities. Therefore, I would leave intact, and not modify, the Judge's recommended order.

The Judge found that the third-line supervisor's "frustration" with the Union President's official time use "was a motivating factor in [the] lowered performance appraisal." Judge's Decision at 15. In this regard, the Judge found that the Union President and his third-line supervisor had an "escalating conflict" over the Union President's need for official time, which "intensified" the more his "need for official time increased[.]" Id. This frustration is clearly established in the record, which contains several e-mails demonstrating the parties' ongoing conflict over official time. See GC's Exh. 2, 3, 4, 5, 9, and 24. In fact, the Respondent acknowledges the parties' ongoing conflict over the Union President's "last minute requests for official time[,]" which the Respondent claims "created scheduling problems" for the unit. Exception at 16. Although the Respondent attempts to characterize the conflict in terms of timeliness of the Union President's requests for official time, I find that the precise nature of the conflict is immaterial, as it is clear that the conflict involved the Union President's use of official time. Most importantly, there is no dispute that the immediate supervisor initially rated the Union President "exceed" in every performance factor, consistent with his stellar record over the prior five years and then lowered the performance appraisal only after the third-line supervisor -- who was frustrated with the Union President's use of official time -- instructed her to "rethink" the appraisal. Judge's Decision at 8.

The Judge's finding of a violation in these circumstances is consistent with Authority precedent finding a prima facie showing of discrimination where a supervisor lowered an employee's rating based in part on timeliness of her work after making a statement to the employee "linking official time usage to [the] lack of timeliness . . . ." United States Dep't of Agric., United States Forest Serv., Frenchburg Job Corps, Mariba, Ky., 49 FLRA 1020, 1024, 1032-33 (1994); see also Dep't of the Air Force, Ogden Air Logistics Ctr., Hill Air Force Base, Utah, 35 FLRA 891, 900 (1990) (prima facie case established where supervisor connected employee's protected activities with his chances of obtaining a higher performance appraisal). Similarly, a prima facie case was established when a supervisor lowered an employee's performance rating shortly after the employee filed a grievance, where the supervisor expressed chagrin over that filing, and where the supervisor testified that the employee's performance was "great" and had remained the same during the later appraisal period. 22nd Combat Support Group (SAC), March Air Force Base, Cal., 27 FLRA 279, 283-85 (1987).

For the following reasons, I find that the Respondent did not establish its affirmative defense. The Respondent claimed that it lowered the appraisal because the Union President had not performed his job as well as he had in years past, and because of the Union President's abusive behavior at work. In rejecting the Respondent's asserted affirmative defense, the Judge found "no evidence that [the Union President] was ever counseled or even criticized regarding his work performance during the rating period" and that his "immediate supervisors had even worked to increase his grade during this period." Judge's Decision at 16. The Judge also found "little specific evidence relating to [the Union President's] behavior" to justify the lowered rating, noting that the Union President was counseled only once about his behavior. Id. at 15.

I find that the record supports the Judge's findings, as neither of the Respondent's asserted reasons for lowering the appraisal withstands scrutiny. In this regard, there is no evidence that the Union President had any job performance problems. In fact, I find the record contains absolutely no evidence that the Respondent ever criticized the Union President's work, and there is no dispute that there were no "performance issues" raised at his performance meeting in January 2002, just prior to his performance appraisal. Id. at 8.

In addition, while there is a letter of counseling dated October 2001 addressing the Union President's behavior on the job, there is no evidence to support the Respondent's bare assertion that this was the basis for its decision to lower the Union President's performance appraisal. In this connection, it is reasonable to conclude that, if the Union President's behavior was such a problem that it could jeopardize every element of his performance appraisal and his potential to receive a performance award, as he had received for the past five years, then the issue would have been at least mentioned during his January performance meeting. Nevertheless, there is no dispute that the issue was not raised either directly or indirectly. There is, likewise, no other support in the record for the Respondent's claim that it lowered the performance appraisal because of the Union President's behavior.

Based on the foregoing, I find that a preponderance of the record evidence supports the Judge's conclusion that the Union President's performance appraisal was lowered in retaliation for his protected activities. Consequently, I cannot join with the majority's decision to dismiss the complaint in this case. Therefore, I dissent.

File 1: Authority's Decision in 60
FLRA No.
125

File 2: ALJ's Decision

Footnote # 1 for
60
FLRA No. 125

• Authority's Decision

Member Pope's dissenting opinion is set forth at the end of this decision.

Footnote # 2 for
60
FLRA No. 125

• Authority's Decision

The complaint also alleges that the Respondent violated § 7116(a)(1) and (5) of the Statute by failing to notify the Union and bargain before changing the number of critical elements in the Union President's performance plan. The Judge found a violation as alleged and ordered an appropriate remedy. The Respondent does not except to this finding or order. Therefore, we adopt this finding without precedential significance pursuant to § 2423.41(a) of the Authority's Regulations, and order appropriate relief. See, e.g., United States Dep't of the Air Force, Seymour Johnson Air Force Base, 57 FLRA 884, 884 n.2 (2002).

[ v60
p626 ]

Office of Administrative Law Judges

U.S. DEPARTMENT OF THE AIR FORCE

EGLIN AIR FORCE BASE

EGLIN AFB, FLORIDA

Respondent

and

AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES

LOCAL 1942

Charging Party

Case No. AT-CA-02-0595

Christopher D. Thurner, Esquire

For the Respondent

Laurie R. Houle, Esquire

For the General Counsel

Before: SUSAN E. JELEN

Administrative Law Judge

DECISION

Statement of the Case

On January 31, 2003, the Regional Director for the Atlanta Region of the Federal Labor Relations Authority (herein called the Authority), issued a Complaint and Notice of Hearing in the captioned matter. (G.C. Ex. 1(b)) This proceeding was initiated by an unfair labor practice charge filed on July 25, 2002, by the American Federation of Government Employees, Local 1942 (herein called the Union). (G.C. Ex. 1(a)) The Complaint alleged that the U.S. Department of the Air Force, Eglin Air Force Base, Eglin AFB, Florida (herein called Respondent or Eglin AFB) violated section 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute (herein called the Statute) by lowering the performance appraisal of Union President Earle "Rocky" Tasse due to his protected activity. The Complaint further alleges that the Respondent violated section 7116(a)(1) and (5) of the Statute by changing the number of critical elements in Mr. Tasse's performance standards, without providing the Union with notice and opportunity to negotiate the changes.

On February 14, 2003, Respondent filed its Answer, denying the substantive allegations made in the Complaint. (G.C. Ex 1(c)) On April 3, 2003, the Complaint was transferred to the Boston Region of the FLRA for further proceedings.

A hearing was held in the captioned matter in Shalimar, Florida. All parties were afforded the full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The Respondent and the General Counsel submitted post hearing briefs which have been fully considered.

Findings of Fact

The hospital at Eglin Air Force Base falls under the 96th Air Base Wing, which is part of the Air Armament Command (AAC) of the Department of the Air Force. (Tr. 14-15) Earle "Rocky" Tasse has been a Registered Nurse, GS-9, at the Eglin Hospital for about ten years, assigned to the operating room/surgical services (OR). (Tr. 14-15) During his tenure in the operating room, Tasse was the only civilian employee; the remaining staff were all military personnel. (Tr. 16)

From approximately March 2001 through August 2001, Tasse's first line supervisor was Major Karen Jones. (Tr. 21) His supervisor both immediately before and after Major Jones was Major Mary Jaco, from approximately January 2000 and ending in February 2002. Major Jaco maintained a working relationship with Tasse during this entire period as the operations officer of the surgical unit. (Tr. 198) From early February 2002 until he began 100% official time, Tasse's first line supervisor was Lieutenant Colonel (then Major) Harriet Young. (Tr. 19) Colonel (Dr.) David Noll was Tasse's third line supervisor as the commander of the surgical operations squadron from the summer of 1999 until Tasse began 100% official time. (Tr. 292)

Tasse's position is part of a bargaining unit represented by the Union. Tasse has held the position of President for about eight years. Tasse represents approximately 840 bargaining unit employee on three bases in the surrounding area, as well as unit employees located at the hospital. (Tr. 15-16) [n1]

Beginning on April 1, 2002, Tasse was placed on 100% official time. Prior to that time, Tasse was allowed a set amount of official time of six hours per week. The Union and the Respondent had worked an agreement that Tasse was on official time two afternoons a week, for three hours each afternoon. If he needed additional official time, he put in a request to his immediate supervisor, generally the Operations (Ops) Officer. Major Mary Jaco served as Ops Officer for most of the time involved in this particular matter. [ v60 p627 ] Tasse and Major Jaco were apparently able to work out any additional official time usage. If the additional time requested was not suitable for the OR, Tasse was provided with alternative times. (Tr. 16-19, 49, 70-71, 154-156, 216)

Tasse primarily functioned as a circulating nurse in the OR. During the pre-operative stage, Tasse made sure that the OR was ready, that the necessary supplies were available, conducted the patient history and made sure the patient and family understood the surgical procedure as well as the risks involved. (Tr. 21-22) The patient was then pre-medicated and brought into the OR. In the OR, Tasse ensured that the patient was positioned properly and was secure so that the anesthesia could be administered. (Tr. 22)

During the actual surgery, Tasse was not usually scrubbed at the operating table, but he remained in the OR to help in whatever capacity was needed. For example, he ensured that equipment ran properly and that all instruments were accounted for prior to closing. (Tr. 23-24) He also used the computer or phone in the OR for lab, x-ray and specimen information. (Tr. 24) While in the OR, some circulating nurses, including Tasse, checked their e-mails or did paperwork. Personal calls were also taken during this time. For most of his years as Union President, Tasse was allowed to answer union-related e-mails or phone calls without issue and he ensured that he kept such communications brief. (Tr. 24-25)

During the post-operative phase, Tasse was responsible for securing the dressing and surgical site and would transport the patient from the table to a stretcher. He was responsible for waking the patient and ensuring the patient was stabilized before being sent back to recovery. (Tr. 26)

Tasse also served as the nurse manager of the oral surgery department. He was the laser surgery officer and was in charge of education and training. (Tr. 26-27)

The appraisal year at issue in this matter was from April 1, 2001 through March 31, 2002. (Tr. 29)

During the spring and summer of 2001, Major Jones was involved in an attempt to have Tasse's position reclassified from GS-9 to a GS-11. She did most of the work herself, contacting other facilities and reviewing position descriptions. She also discussed this with Tasse. As part of this effort, she rewrote Tasse's position description, with a finalized version called a core document that was signed off by Major Jaco in March 2001. All of the paperwork for the position upgrade was submitted in the fall of 2001. Col. Noll was aware of the efforts to get Tasse's position upgraded, but did not involve himself in the process. (Tr. 168, 204-206)

In the fall of 2001, the request to upgrade the position was denied. Col. Noll informed Tasse of this decision in September or October, 2001. According to Col. Noll, Tasse was very upset with the decision and thought that Col. Noll should have done more to have his position upgraded. (R. Ex. 8; Tr. 336-337, 341-342, 363) Major Jones testified that at some point Col. Noll told her that Tasse would not be upgraded because of who he was, but Col. Noll did not remember making such a statement. (Tr. 172, 343)

On October 22, 2001, Col. Noll gave Tasse a letter of counseling, which states:

1. From personal observation and multiple inputs from numerous squadron members, you often display unacceptable
   behavior. You frequently lose your temper, go into tirades, deride others and are verbally abusive. The environment you create is hostile. You are viewed as being overly aggressive, disrespectful to others and disruptive.

2. This behavior pattern must stop and will not be tolerated. While I also recognize the many positive contributions
   you make--too often what you do is negative. You should make every effort to improve your conduct.

(R. Ex. 5)

Tasse filed an informal grievance over the counseling, which went through the informal stages without resolution. In January 2002 the grievance was elevated to the formal level. [n2] During the processing of the grievance, some letters containing unfavorable information were discovered. [n3] Eventually the counseling was upheld, while some of the letters were to be destroyed. [n4] (Tr. 82-85, 86, 298)

Starting in December 2001 and January and February 2002, Tasse became the sole negotiator for the [ v60 p628 ] Union in the contract negotiations and apparently began requesting additional official time over his pre-approved six hours per week. On January 14, 2002, Col. Noll sent an email to Tasse, indicating that there was a problem with last minute requests for official time and indicating that he was going to need five (5) days lead time for such requests. "We need the advance notice to balance our mission requirements while considering time away from work requests for anyone." (G.C. Ex. 4)

On January 28, 2002, Col. Noll also sent a letter to Tasse, primarily regarding official time for his union representational duties. The letter states:

I fully understand that you are afforded certain statutory protections when you are functioning in your representational role. However, aside from your role of union president, you are an employee in my organization. I am aware of your statutory rights when you are functioning in your role as union president. In order for you to perform your statutory role as a union representative during your official duty hours, you must have my advance permission. You are not permitted to perform your union representational duties, even to represent yourself, outside your officially approved release time, without my permission. You are not free to move back and forth at will from your employee status to your union president role in order to insulate yourself from the rules that apply to both you and the other employees of my organization.

You are authorized to perform your union representational duties during your duty hours only when you have requested, and been granted, official time to do so by me or my deputy. Therefore, your personal behavior, and my reaction to it, will be governed by whether, or not, you have been granted official time to accomplish your representational duties, including those times you act as your own union representative. If you are not on approved official time to act as a union representative during your official hours of work, you will be considered to be in your official capacity as my employee. As an employee you will be expected to meet the same performance and conduct standards as other personnel assigned to my organization.

At present, you are permitted two afternoons per week to perform your union representational duties. You are released for this purpose when you start your one hour unpaid lunch break at 1115 (or as soon thereafter as mission needs dictate) and your official time continues for the remainder of your duty day on Mondays and Wednesdays. The only exceptions to this scheduled official time will be bone fide mission needs. If you have additional need to use official time for representational purposes, I request that you provide me 5 duty days advance notice to permit acceptable schedule adjustments. Bone fide mission needs will take precedence.

Major Jaco (or other designated successor) remains your first-level supervisor. As such, she assigns your work; rates your performance, approves your annual and sick leave (either I or my deputy approves your requests for official time to perform representational duties outside your two afternoons per week), recommends you for appropriate recognition, counsels you as may be appropriate, initiates appropriate disciplinary action as may be required. Regarding your performance feedback, official records indicate you were provided feedback for the first quarter on 21 June 2001 and for the second quarter on 19 September 2001. Major Jaco will provide you third quarter performance feedback on or before 31 Jan 02. The feedback you receive from her will be her own.

A copy of this email will be placed in your AF Form 971 for future reference should you lose your copy. If you have any questions regarding this matter, please make an appointment to see me.

(R. Ex. 6)

Tasse testified that he followed the new requirement of five days notice whenever possible. Apparently Tasse was never denied any of his requests for official time beyond the two afternoons normally allocated, however, sometimes the actual time had to be rearranged to meet mission needs. [n5]

On January 29, 2002, Major Jaco met with Tasse for feedback discussions for the September through December 2001 quarter. Since Tasse's personnel folder had been lost, she did not have a copy of his old performance plan, but reviewed his performance based on her memory of the fourteen elements. These marks were all on the high end of the scale. The intent of the meeting [ v60 p629 ] was to tell the employee whether he had met the performance standards. There is no indication that Major Jaco raised any performance issues with Tasse during this meeting. (G.C. Ex. 53; Tr. 143, 207-208, 235, 254)

Major Jaco was tasked with writing Tasse's performance appraisal for the period in question. There were serious time constraints since she was scheduled to be deployed to Turkey on Monday, March 26, 2002. She used the core document given to her by Col. Noll in October 2001 to evaluate Tasse's performance. (Tr. 209-210) She wrote a draft of the performance appraisal, which she submitted to Col. Noll on Thursday. The draft appraisal did not have an overall performance rating entered, but it did evaluate all six elements as exceeds. Thus the overall rating would have been Superior. Col. Noll discussed the performance appraisal with her, indicating that he thought she should rethink portions of the appraisal and should take the counseling into consideration. Major Jaco rewrote the performance appraisal and left it with Col. Noll on Friday before she was deployed. Major Jaco and Col. Noll both deny that he ordered her to lower Tasse's performance appraisal ratings. After reviewing the second draft, Col. Noll raised element one from "met" to "exceeds". He also eliminated all of the language for the elements that were "met", since explanatory language is not required. (Tr. 207, 210-212) Major Jaco explained that she considered Tasse an excellent nurse and that she would have liked to have given him the higher ratings in the first document, but had to take other factors into consideration. (Tr. 213) In particular she noted his demeanor and how he interacted with other staff (Tr. 214) and that there were difficulties working with him that she could not ignore as a supervisor. (Tr. 216) She denied that she took Tasse's union activities into consideration in drafting his performance appraisal. (Tr. 216)

In May 2002, Tasse's supervisor showed him a copy of the core document that contained his performance elements. The document had been signed by Major Jaco in March 2001 and by the classifier in October 2001. Tasse refused to sign the document in May 2002. (Tr. 95)

On June 17, 2002, Tasse received an email from Wanda L. Riley informing him that his annual appraisal was available for him to pick up at any time that day at the office of Col. Kirkpartick's secretary. The email further indicated that Col. Noll was on leave, but would be available to provide an appraisal discussion any time after June 24, 2002. Tasse received his performance appraisal on June 20, 2002, in his mailbox in a sealed envelope. (G.C. Ex. 33; Tr. 92)

Tasse's appraisal contained the same nine appraisal factors as his previous performance appraisals: work effort, adaptability to work, problem solving, working relationships, communication, work productivity, self-sufficiency, skill in work, and work management (G.C. Exs. 48-52) From 1997 through 2001, Tasse consistently received scores exclusively in the high range, that is, seven, eight or nine on a scale of one to nine. (G.C. Exs. 48-52). Furthermore, Tasse was also rated on the elements derived from his performance standards. (G.C. Ex. 48-52) In 1997 there were seven elements, six critical. (G.C. Ex. 48) From 1998 to 2001, he was rated on fourteen elements, thirteen critical. (G.C. Ex. 49-52) From 1997 to 2001, Tasse exceeded all of the elements and glowing narratives accompanied those scores. (G.C. Ex. 48-52; Tr. 30-35) For these appraisal years, Tasse received an overall rating of superior, and was eligible for a performance award.

Once he received his appraisal for 2001-2002, Tasse's overall evaluation contained scores drastically lower than previous evaluations. For the nine appraisal factors, he received ratings in the central range, with a four, two fives, and six sixes. (G.C. Ex. 54; Tr. 42-43) Further he was rated on six elements only, and was only marked as exceeds in one element. Overall, he received a "fully successful" rating. (G.C. Ex. 54; Tr. 42-44) The evaluation was signed by Major Jaco and Col. Noll, but was dated by a third person. (G.C. Ex. 54)

When Major Jaco returned from her deployment, Tasse asked her if the evaluation he received was the one that she submitted. She told him that the numeric ratings were the same, but that she had included narratives next to the elements which were no longer there. (G.C. Ex. 54; R. Ex. 4; Tr. 92-93, 218-219) She explained that she had changed the earlier draft because Col. Noll had directed her to consider the October 21 Letter of Counseling and "on-going inappropriate behavior". (R. Ex. 4 and 5; Tr. 93, Tr. 213-214.)

According to Tasse, Major Jaco showed him a draft version of his evaluation in late February 2002, which rated him again mostly nines in the appraisal factors and exceeded in all fourteen elements. (Tr. 89-90) The narrative was written for all fourteen elements. (Tr. 89) A final overall rating was not entered; Major Jaco told him that it had to go through Col. Noll and that she expected changes. (Tr. 91). Major Jaco denied that she showed Tasse his preliminary evaluation or that she even drafted a 2002 appraisal using the 14-element plan. (Tr. 209, 246) Both Major Jaco and Col. Noll admit that, in the preliminary evaluation, Major Jaco rated Tasse at eight in all factors except working relationship, where she gave him a seven. (R. Ex. 3 and 4; Tr. 209- [ v60 p630 ] 210, 317-318). In addition, Major Jaco wrote that Tasse had exceeded all of his elements, which would have resulted in a superior rating and made him eligible for a performance award. (R. Ex. 3; Tr. 213.)

Positions of the Parties

General Counsel

Counsel for the General Counsel asserts that the Respondent discriminated against Rocky Tasse by lowering his performance evaluations due to his protected union activity. Citing the analytical framework set forth by the Authority in Letterkenny Army Depot, 35 FLRA 113 (1990) (Letterkenny), the General Counsel asserts that Tasse was engaged in protected union activity of which the Respondent was fully aware; that Tasse's protected activity was the motivating factor in receiving an unprecedented low evaluation for the 2001-2002 performance year; and that Respondent's reasons for lowering Tasse's evaluation were not supported by the record and were merely pretext.

The General Counsel also asserts that the Respondent changed Tasse's working conditions by changing his performance standards without giving the Union proper notice and the opportunity to bargain to the extent required by law. The new core document, used in Tasse's 2001-2002 evaluation, was a change that was more than de minimis in nature. It decreased the number of performance standards from fourteen to six as well as removing objective measurements, making the evaluation process more subjective. While implementing new performance standards or critical elements is an exercise of management rights under section 7106(a) of the Statute, there is still an obligation to bargain the procedures used in exercising that right and appropriate arrangements for employees adversely affected by changes that have more than a de minimis effect on conditions of employment. U.S. Department of Housing and Urban Development, 56 FLRA 592 (2000) (HUD) and 56th Combat Support Group (TAC), MacDill AFB, Florida, 43 FLRA 434 (1991) (MacDill). Since the Respondent implemented the new core document without giving the Union notice and the opportunity to bargain, the General Counsel asserts that a violation of the Statute must be found.

As a remedy the General Counsel seeks an appropriate Notice To All Employees, signed by the Commander of Eglin Air Force Base, and an order to rescind the performance standards found in General Counsel Exhibit 55 and return to those found in General Counsel Exhibit 52. Further the General Counsel seeks that the Respondent should rescind the evaluation given to Tasse for the performance year April 1, 2001 through March 31, 2002, and should reevaluate him, using the old performance standards, without taking his protected union activity into consideration. Finally, the General Counsel requests that, pursuant to the Back Pay Act, that Respondent be ordered to pay Tasse the performance award he would have received for the 2001-2002 performance year had he received an overall superior rating consistent with his previous evaluations, plus interest. See Federal Aviation Administration, 55 FLRA 1271, 1277 (2000) and Department of Health and Human Services, Social Security Administration, Area II, New York, 48 FLRA 370, 378 (1993).

Respondent

While Respondent concedes that the General Counsel has met the first prong of the Letterkenny analysis, i.e., that Tasse was engaged in protected activity that was known to the Respondent, Respondent denies that the General Counsel has met its burden of proof that Tasse's protected activity was a motivating factor in the agency's treatment of him. Respondent argues that Tasse's rating was Major Jaco's decision and uninfluenced by Col. Noll. There is no evidence that Major Jaco was motivated even in part by union animus. Respondent argues that even if the General Counsel could argue that Jaco had been partly motivated by union animus, Respondent's affirmative defenses defeat the resulting prima facie case because Major Jaco established that the appraisal was a legitimate decision and would have been the same regardless of Tasse's union activities.

With regard to the section 7116(a)(1) and (5) allegation, the Respondent asserts that establishing new critical elements and performance standards without notice to the union and an opportunity to bargain violates the Statute "if the changes have more than a de minimis effect on conditions of employment." HUD, 56 FLRA at 595. Respondent asserts, however, that regardless of the changes to the new core document, the duties of Tasse's position and the expectations on him were the same under both the old and the new standards, and therefore the change was no more than de minimis in nature.

With regard to remedy, the Respondent argues that, assuming a violation is found, a status quo ante remedy is not appropriate in this matter, citing U.S. Department of Health and Human Services, Social Security Administration, 50 FLRA 296, 297 (1995) (quoting Federal Correctional Institution, 8 FLRA 604, 606 (1982). A more appropriate remedy would be an order to cease and desist from unilaterally changing performance [ v60 p631 ] standards in the future and a retroactive bargaining order for Respondent to comply with its bargaining obligations with respect to changing the old performance plan and then to implement the results of that bargaining. With regard to the section 7116(a)(2) alleged violation, Respondent asserts that, at most, the remedy would be an order to award Tasse the rating originally proposed by Major Jaco (R. Ex. 3).

ISSUES

A. Did the Respondent violate section 7116(a)(1) and (2) of the Statute by lowering the Union President's performance appraisal for the performance year April 1, 2001 through March 31, 2002, in reprisal for his protected union activity?

B. Did the Respondent violate section 7116(a)(1) and (5) of the Statute by implementing new performance standards for the Union President during the 2001-2002 performance year without giving the Union proper notice and the opportunity to negotiate to the extent required by law?

ANALYSIS

The Analytical Framework

Section 7102 of the Statute guarantees employees the right to form, join, or assist any labor organization or refrain from such activity without fear of penalty or reprisal. Section 7116(a)(2) of the Statute makes it an unfair labor practice for an agency "to encourage or discourage membership in any labor organization by discrimination in connection with hiring, tenure, promotion, or other conditions of employment."

In Letterkenny, 35 FLRA 113, the Authority articulated an analytical framework for addressing allegations of discrimination claimed to violate section 7116(a)(2). Under that framework, the General Counsel has at all times the overall burden to establish by a preponderance of the evidence that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in connection with hiring, tenure, promotion, or other conditions of employment. Indian Health Service, Crow Hospital, Crow Agency, Montana, 57 FLRA 109, 113 (2001) (Crow Hospital); Letterkenny, 35 FLRA at 118. As a threshold matter, the General Counsel must offer sufficient evidence on these two elements to withstand a motion to dismiss. See, e.g., Crow Hospital, 57 FLRA at 113. Whether the General Counsel has established a prima facie case is determined by considering the evidence in the record as a whole, not just the evidence presented by the General Counsel. Department of the Air Force, Air Force Materiel Command, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 55 FLRA 1201, 1205 (2000).

Satisfying this threshold burden establishes a violation of the Statute only if the respondent offers no evidence that it took the disputed action for legitimate reasons. Where the respondent offers evidence that it took the disputed action for legitimate reasons, it has the burden to establish, by a preponderance of the evidence, as an affirmative defense that: (1) there was a legitimate justification for its action; and (2) it would have taken the same action even in the absence of protected activity. See, United States Air Force Academy, Colorado Springs, Colorado, 52 FLRA 874, 878-879 (1997); Federal Emergency Management Agency, 52 FLRA 486, 490 n.2 (1996); Letterkenny, 25 FLRA at 118. The General Counsel may seek to establish that the agency's reasons for taking the action were pretextual.

In this matter, it is undisputed that Tasse engaged in activity protected by the Statute. During the time period in question, Tasse was president of the Union and represented unit employees in the parties' grievance procedure. He was also the Union's primary spokesperson for the negotiations for a new collective bargaining agreement and was often involved in matters with the Base management. An agreement had been worked out in which he was granted six hours of official time each week, on two afternoons. Tasse's need for official time increased during the 2001-2002 performance year, and he often requested additional official time, which was generally granted, although not always for the specific time requested.

The question then becomes whether Tasse's protected activity was a motivating factor with regard to his lowered performance appraisal. The record evidence does not establish that Major Jaco, the rating official, had any union animus and apparently had a good working relationship with Tasse. Although the Respondent argues that Major Jaco was solely responsible for the Tasse performance appraisal, the evidence clearly shows that Major Jaco changed her draft appraisal following her conversation with Col. Noll, in which he asked her to consider the counseling that Tasse received. Further the evidence is clear that Tasse and Col. Noll had engaged in escalating conflict over the issues of official time and Tasse's perceived inappropriate behavior. Col. Noll attempted to distinguish his concerns regarding Tasse's behavior as an employee and Tasse's behavior as the Union President. However, the record evidence shows that Tasse's protected activities as Union President were an integral part of the ongoing [ v60 p632 ] conflict. As Tasse's need for official time increased, the overall conflict between Tasse and Col. Noll intensified. Eventually Tasse was placed on 100% official time; ensuring that he was no longer working in the OR and was replaced by non-bargaining unit contract workers. While management clearly has a right to monitor and control official time in relation to its mission requirements, it cannot take action against an employee for his protected activity in using official time. Respondent offers little specific evidence relating to Tasse's behavior; other than the incidents with the secretary and the airman, there are only vague references to complaints. There is, however, substantial evidence of the frustration with the increased need, even though granted, of Tasse's official time, relating to motivation on the part of Col. Noll and thus to the actions of Major Jaco. The issue of official time outweighs all other considerations and is the primary factor in the ongoing conflict between the parties.

There is no evidence that Tasse in any way abused official time and his requests for increasing amounts of official time were uniformly granted. Rather the evidence as a whole shows an increasing frustration on the part of Respondent with having to deal with Tasse's requests for official time in the context of Respondent's mission of running the OR. Therefore I find that Tasse's protected activity was a motivating factor in his lowered performance appraisal.

The question then becomes whether the Respondent has established that it took the disputed action in this matter for legitimate reasons, i.e., that there was a legitimate justification for its action and it would have taken the same action even in the absence of protected activity.

Respondent argues that Tasse's performance was not on par with previous years and that his behavior and attitude towards staff had worsened and could no longer be tolerated. Respondent therefore argues that Tasse's performance appraisal would have been lowered for the 2001-2002 period, due to his actual performance, even in the absence of protected activity. After September 11, 2001, the military staff was diminished and Tasse's absence on official time caused a strain in the OR. In her explanation of her rating of Tasse's performance, Major Jaco emphasized the one counseling in his record as well as unspecified complaints about him during the year. She indicated that she felt his performance was not as good as previous years. However, there is no evidence that Tasse was ever counseled or even criticized regarding his work performance during the rating period. Tasse's immediate supervisors had even worked to increase his grade during this period. [n6]

It is clear that Tasse's behavior towards other personnel was an issue the Respondent attempted to deal with. While the General Counsel attempts to place a positive spin on Tasse's behavior to subordinate personnel by using such terms as "blunt" and "forceful", it appears that his behavior had sometimes bordered on abusive. However, it is also clear that he was only counseled once about this behavior.

The testimony of Major Jaco does not support Respondent's argument that Tasse's work performance had diminished during the appraisal year and there is no evidence that Tasse was ever confronted or counseled regarding his work performance. [n7] Nevertheless, his performance appraisal was dramatically lower than previous years, and I do not find the testimony of Respondent's witnesses to contain sufficient explanation for the lowered appraisal. Specifically, of the nine appraisal factors that remained the same, the rankings were lowered in all elements, not only in "working relationships" but also in such areas as "work productivity", "self-sufficiency" and "skill in work". (G.C. Ex. 54) As for the six new elements, Respondent's explanation for the lowered appraisal in such areas as "Duty 2: Assess and evaluate nursing care provided in the Surgical Suite" and "Duty 5: Participates in the continuing education program for the Operating Room Suite" (G.C. Ex. 55) is not sufficient to carry the burden that it lowered the appraisal for legitimate reasons. Nor does the evidence support that Respondent would have taken the same action even in the absence of protected activity. Based on a review of the evidence as a whole, I find that the General Counsel has sustained its burden of proof and that Tasse's performance appraisal was lowered in retaliation for his protected activity.

Implementation of new performance standards

Under section 7116(a)(1) and (5) of the Statute, prior to implementing a change in conditions of employment of bargaining unit employees, an agency is required to provide the exclusive representative with notice of the change and the opportunity to bargain over those aspects of the change that are within the duty to bargain. U.S. Army Corps of Engineers, Memphis District, Memphis, Tennessee, 53 FLRA 79, 81 (1997). [ v60 p633 ]

In this case, the establishment of new critical elements and performance standards involves the exercise of management rights under section 7106(a) of the Statute and is not substantively negotiable. National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), aff'd sub nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982); American Federation of Government Employees, AFL-CIO, Local 1968 and Department of Transportation, Saint Lawrence Seaway Development Corporation, Massena, New York, 5 FLRA 70 (1981) (Proposals 1-2), aff'd sub nom. AFGE, Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied, 461 U.S. 926 (1983).

It is equally well established, on the other hand, that there is a duty to bargain consistent with section 7106(b)(2) and (3) of the Statute with respect to the procedures management will employ in exercising such right and respecting appropriate arrangements for employees who may be adversely affected by the changes where the changes have a more than de minimis effect on conditions of employment. 56th Combat Support Group (TAC), MacDill Air Force Base, Florida, 43 FLRA 434, 447-448 (1991) (MacDill AFB); Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 407-08 (1986) (SSA).

In assessing whether the effect of a management decision on conditions of employment is more than de minimis, the Authority looks to the nature and extent of either the effect, or the reasonably foreseeable effect, of the change on bargaining unit employees' conditions of employment. SSA, 24 FLRA 408.

The question of course is whether the change from the old performance plan (G.C. Ex. 52 at 4-5) to the core document (G.C. Ex. 55) was more than de minimis. Respondent asserts that the use of the core document did not change Tasse's duties as a registered nurse and therefore any changes were de minimis in nature. Major Jaco explained that the "duties of a registered nurse are pretty much defined by professional standards and job descriptions are fairly similar, duties are similar." (Tr. 224) She went on to explain that the core document "was an attempt to take what [Tasse] was doing and enhance it so that it would be qualified as a GS11, so essentially his duties hadn't changed, but they had been . . . written in such a way that hopefully it would upgrade his chances of being upgraded to a GS11." (Tr. 224-225) In comparing various provisions of the performance plan with the core document, Major Jaco observed that nursing standards and the nursing process are what define the duties of any registered nurse, whether they are express, as in the core document, or implied, as in the old performance plan. Although the old plan had 14 elements while the new core document has only 6, Respondent argues that the 14 elements were generally one sentence, while each of the 6 new elements, or duties as they are called, has from 3 to 8 standards.

A review of the earlier performance plan and the new core document does not reveal that any new duties were added to the core document, nor does the General Counsel so argue. For the most part it appears that any differences are primarily cosmetic in nature, with the core document condensing the prior number of duties into fewer number of elements, but more expansive in tone. For instance, Duty 2 in the core document is titled "Assess and evaluates nursing care provided in the Surgical Suite" and includes five standards:

A. Performs and documents accurately preoperative assessments of patients.

B. Regularly provides accurate information to patients and their significant others scheduled for surgery.

C. Ensures that patients are adequately prepared for surgery, both physically and emotionally, accurately documents such preparation on AF Form 1864.

D. Performs and documents accurately post-operative assessments of patients.

E. Effectively participates in monitoring and evaluation activities to improve patient care.

(G.C. Ex. 55)

Similar duties are found in Elements 1 and 9 of the prior performance plan.

The main changes, as identified by the General Counsel, concern the reduction of the number of elements themselves, with little reference to the actual content of the elements, from fourteen to six. Further the new core document eliminates all references to objective standards, i.e., relating to a specific number of validated errors per quarter (as set forth in all fourteen elements). [n8]

The Respondent contends that there was no adverse impact because the nature of the work performed by Tasse did not change. However, it is not the impact on the job duties or the nature of the work that is of sole concern here, but the impact on employees' conditions of employment and the measurement of the performance of that work by the additional critical [ v60 p634 ] elements and standards. Here, Tasse went from performing under a performance plan consisting of fourteen elements to the core document with six elements with numerous performance standards for each element. The language of the core document is different from the previous performance elements and changes the manner in which Tasse's performance is evaluated. While his duties may not have changed, his appraisal system was altered without his knowledge. The record readily demonstrates that the impact of this change was more than de minimis. The reduction of the number of elements, without any explanation, and the removal of all objective standards has a significant impact on the way in which the Respondent is able to evaluate Tasse's performance. Therefore, these changes were implemented with the use of the core document, without any notice to or bargaining with the Union as required by the Statute. [n9] MacDill AFB, 43 FLRA at 447-448; Department of Health and Human Services, Social Security Administration, Dallas Region, 32 FLRA 521, 527 (1988). In circumstances where the effect of the change is more than de minimis, and the agency fails to provide the exclusive representative with prior notice and an opportunity to bargain over section 7106(b)(2) and (3) matters, the agency will be found to have violated section 7116(a)(1) and (5) of the Statute. Federal Bureau of Prisons, Federal Correctional Institution, Bastrop, TX, 55 FLRA 848, 852 (1999).

The Remedy

Having found that the Respondent violated section 7116(a)(1) and (5) of the Statute, after taking into consideration the factors set forth in Federal Correctional Institution, 8 FLRA 604, 606 (1982), it is concluded that a status quo ante remedy is appropriate. In that regard the performance standards found in the core document must be rescinded and the prior performance standards reinstated. There is no evidence that a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the Respondent's operations.

Having found that the Respondent violated section 7116(a)(1) and (2) of the Statute, it is further concluded that the Respondent should rescind the performance appraisal given to Tasse for the performance year 2001-2002 and that he should be reevaluated using the previous performance standards, without taking into consideration Tasse's protected union activity. I do not find either the Respondent's argument that Tasse, at most, should be given the performance appraisal originally suggested by Major Jaco, or the General Counsel's argument that Tasse should receive the 2001-2002 performance award (plus interest) he would have received had he been rated consistent with previous years, at the superior level, to be appropriate remedies.

Accordingly, it is recommended that the Authority adopt the following:

ORDER

Pursuant to § 2423.41(c) of the Rules and Regulations of the Federal Labor Relations Authority, 5 C.F.R. § 2423.41(c), and § 18 of the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7118, the U.S. Department of the Air Force, Eglin Air Force Base, Eglin Air Force Base, Florida, shall:

1. Cease and desist from:

(a) Discriminating against Earle "Rocky" Tasse, or any other employee in the bargaining unit represented by the American Federation of Government Employees, AFL-CIO, Local 1942 (Union), by lowering his performance appraisal because he exercised his right to engage in protected activities under section 7102 of the Federal Service Labor-Management Relations Statute.

(b) Making changes to Mr. Tasse's performance standards without giving the Union notice and the opportunity to bargain to the extent required by law.

(c) 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) Rescind the performance standards found in the new core document used for Mr. Tasse's [ v60 p635 ] appraisal during the 2001-2002 performance year and reinstate Mr. Tasse's prior performance standards. Provide proper notice and opportunity to bargain to the Union before implementing new performance standards for Mr. Tasse's position.

(b) Rescind the performance appraisal given to Mr. Tasse for performance year 2001-2002. Reevaluate Mr. Tasse, using the previous performance standards, without taking into consideration Mr. Tasse's protected union activity.

(c) Post at the U.S. Department of the Air Force, Eglin Air Force Base, Eglin Air Force Base, Florida, where bargaining-unit employees are located, 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, Eglin Air Force Base, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.41(e) of the Authority's Rules and Regulations, notify the Regional Director, Boston Regional Office, Federal Labor Relations Authority, 99 Summer Street, Suite 1500, Boston, MA 02110-1200, in writing, within 30 days of this Order, as to what steps have been taken to comply.

Issued, Washington, DC, July 22, 2004.

_____ SUSAN E. JELEN

Administrative Law Judge

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Department of the Air Force, Eglin Air Force Base, Eglin Air Force Base, Florida, violated the Federal Service Labor-Management Relations Statute (the Statute), and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT discriminate against Earle "Rocky" Tasse, or any other employee in the bargaining unit represented by the American Federation of Government Employees, AFL-CIO, Local 1942 (Union), by lowering his performance appraisal because he exercised his right to engage in protected activities under section 7102 of the Federal Service Labor-Management Relations Statute.

WE WILL NOT make changes to Mr. Tasse's performance standards without giving the Union notice and the opportunity to bargain to the extent required by the Statute.

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 the performance standards found in the new core document used for Mr. Tasse's appraisal during the 2001-2002 performance year and reinstate Mr. Tasse's prior performance standards.

WE WILL provide proper notice and opportunity to bargain to the Union before implementing new performance standards for Mr. Tasse's position.

WE WILL rescind the performance appraisal given to Mr. Tasse for performance year 2001-2002 and WE WILL reevaluate Mr. Tasse, using the previous performance standards, without taking into consideration Mr. Tasse's protected union activity.

_____

(Activity)

Date: _ 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 any of its provisions, they may communicate directly with the Regional Director, Boston Region, Federal Labor Relations Authority, whose address is: 99 Summer Street, Suite 1500, Boston, MA 02110-1200, and telephone number is: 617-424-5730.

File 1: Authority's Decision in 60 FLRA No. 125

File 2: ALJ's Decision

Footnote # 1 for
60
FLRA No. 125

• ALJ's Decision

The parties are subject to a new collective bargaining agreement that became effective in August 2002.

Footnote # 2 for
60
FLRA No. 125

• ALJ's Decision

There are a series of e-mails between Tasse and various management officials, including labor relations, regarding scheduling a mediation in January 2002. It is not clear if a mediation was ever scheduled.

Footnote # 3 for
60
FLRA No. 125

• ALJ's Decision

Tasse referred to this as an "UIF", or unfavorable information file, but this language was not adopted by anyone else.

Footnote # 4 for
60
FLRA No. 125

• ALJ's Decision

While first drafting Tasse's performance appraisal, Major Jaco was under the impression from Tasse that the counseling had been removed. However, she was informed by Col. Noll that the counseling had been upheld and should be considered in her appraisal. (Tr. 318)

Footnote # 5 for
60
FLRA No. 125

• ALJ's Decision

There is no evidence that the Union filed a grievance or an unfair labor practice charge regarding this January 28, 2002 letter from Col. Noll. And the complaint in this matter does not allege any change with regard to the manner in which Tasse requested or was granted official time.

Footnote # 6 for
60
FLRA No. 125

• ALJ's Decision

Col. Noll ultimately raised the one critical element dealing specifically with work performance to exceed, rather than the rating of Major Jaco of meets. (G.C. Ex. 55)

Footnote # 7 for
60
FLRA No. 125

• ALJ's Decision

As noted above, Col. Noll raised the first element relating specifically to work duties to exceed in the final appraisal.

Footnote # 8 for
60
FLRA No. 125

• ALJ's Decision

Tasse asserted that the core document did not cover any managerial duties, but this is clearly incorrect. Duty 4 includes acting in the capacity of team coordinator/nurse manager and allows directing operating room technicians, conducting team conferences, distributing workload and regularly reviewing work in progress or upon completion. Duty 5 relates to participating in the continuing education program for the OR and Duty 6 concerns the orientation and training of newly assigned personnel.

Footnote # 9 for
60
FLRA No. 125

• ALJ's Decision

Even though Tasse was the only bargaining unit employee affected by the change in performance standards, the number of employees at issue is not relevant to the finding of a violation in this matter, particularly in view of the significant impact on the one individual. United States Department of the Air Force, 913th Air Wing, Willow Grove Air Reserve Station, Willow Grove, Pennsylvania, 57 FLRA 852, 857 (2002); Veterans Administration Medical Center, Phoenix, Arizona, 47 FLRA 419 (1993).