18:0105(22)CA - Labor, Employment Standards Administration, Wage and Hour Division and Local 644, National Council of Field Labor Locals, AFGE -- 1985 FLRAdec CA



[ v18 p105 ]
18:0105(22)CA
The decision of the Authority follows:


 18 FLRA No. 22
 
 U.S. DEPARTMENT OF LABOR 
 EMPLOYMENT STANDARDS ADMINISTRATION 
 WAGE AND HOUR DIVISION 
 Respondent
 
 and 
 
 LOCAL 644, NATIONAL COUNCIL OF FIELD
 LABOR LOCALS, AFGE, AFL-CIO 
 Charging Party
 
                                            Case No. 2-CA-40050
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had engaged in
 certain unfair labor practices as 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 a supporting brief and the General Counsel
 filed an opposition.
 
    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 recommended Order.
 
                                   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 U.S. Department of Labor, Employment Standards
 Administration, Wage and Hour Division shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to furnish information to the agent of the
 exclusive representative, Local 644, National Council of Field Labor
 Locals, American Federation of Government Employees, AFL-CIO, which is
 reasonably available and necessary to enable it to perform its
 representational duties in connection with an employee grievance.
 
    (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) Post at its Pittsburgh Area Office 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 Area Director, or a
 designee, and shall be posted and maintained for sixty consecutive days
 thereafter, in conspicuous places, including all places where notices to
 employees are customarily posted.  Reasonable steps shall be taken to
 insure that said Notices are not altered, defaced, or covered by any
 other material.
 
    (b) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region II, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.  
 
 Issued, Washington, D.C., May 24, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       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 fail or refuse to furnish information to the agent of the
 exclusive representative, Local 644, National Council of Field Labor
 Locals, American Federation of Government Employees, AFL-CIO, which is
 necessary and reasonably available to enable it to perform its
 representational duties in connection with the processing of an employee
 grievance.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
                                       (Activity)
 
    Dated:  By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director for the Federal Labor Relations Authority, Region II whose
 address is:  26 Federal Plaza, Room 2237, New York, New York 10278, and
 whose telephone number is:  (212) 264-4934.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Arlean Leland, Esq.
    For the Respondent
 
    Barbara Liggett, Esq.
    For the General Counsel
 
    Before:  ELI NASH, JR., Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    Pursuant to a Complaint and Notice of Hearing issued on December 30,
 1983, by the Regional Director for the Federal Labor Relations
 Authority, New York, New York Region, a hearing was held before the
 undersigned on April 18, 1984.
 
    This proceeding arose under the Federal Service Labor-Management
 Relations Statute (herein called the Statute).  It resulted from a
 charge filed on November 7, 1983, by Local 644, National Council of
 Field Labor Locals, American Federation of Government Employees,
 AFL-CIO, (herein called the Union) against the U.S. Department of Labor,
 Employment Standards Administration, Wage and Hour Division, (herein
 called Respondent).
 
    The Complaint alleges that Respondent failed and refused to comply
 with the provisions of section 7114(b)(4) of the Statute, by failing to
 furnish the union with certain information requested in connection with
 the processing of a pending employee grievance, which is normally
 maintained by Respondent in the regular course of business;  which is
 reasonably available and necessary for full and proper discussion,
 understanding and negotiation of a subject within the scope of
 collective bargaining;  and which does not constitute guidance, advice,
 counsel or training concerning collective bargaining.  Such action was
 alleged to constitute a violation of section 7116(a)(1), (5) and (8) of
 the Statute.  Respondent's Answer denied the commission of any unfair
 labor practices.
 
    All parties were represented at the hearing.  Each was afforded full
 opportunity to be heard, to adduce evidence, and to examine as well as
 cross-examine witnesses.  Thereafter, briefs were filed with the
 undersigned which have been duly considered.
 
    Upon the entire record herein, from my observations of the witnesses
 and their demeanor, and from all of the testimony and evidence adduced
 at the hearing, I make the following findings and conclusions:
 
                             Findings of Fact
 
    At all times material, the Union has been an agent of the National
 Council of Field Labor Locals for the purpose of representing employees
 at Respondent's Pittsburgh Area Office.
 
    At all times material, Mr. John Lechman was a Wage Hour Compliance
 Officer in Respondent's Pittsburgh Area Office.  Mr. Lechman, according
 to the record, has been active in filing and pursuing grievances in that
 office.
 
    The parties are signatories to a collective bargaining agreement
 which became effective on or around August 17, 1978, and which was in
 effect at all times material herein.
 
    Sometime around August 19, 1983, a first step grievance meeting was
 held pursuant to Article 15 of the collective bargaining agreement, /1/
 concerning alleged harassment and discrimination against Mr. Lechman
 based on his filing of prior union grievances and complaints.  The
 participants at the meeting were the Grievant, Mr. Lechman, Union
 steward Gary Daniels, and Respondent's Area Director, John O'Brien.  The
 substance of the grievance concerned Mr. Lechman's belief that certain
 comments on his case review sheets concerning his handling of cases were
 negative and that he was being unduly criticized about his work.
 
    The case review sheet in question is prepared by either the Area
 Director or the Assistant Area Director and is then given to the
 individual employee who handled the case as feed back to that employee.
 A case review sheet is apparently prepared in each case showing not only
 the opening and closing dates, but how much time and the manner in which
 a compliance officer handled a particular case.  Mr. Lechman desired to
 examine and compare the "failures" listed on his review sheets with
 other compliance officers in the Pittsburgh office to determine whether
 his "failures" and the reasons therefor were standard.  It is undisputed
 that the sheets are also used by the Area Director or Assistant Area
 Director in preparing employee performance appraisals.
 
    Mr. Lechman was primarily concerned that negative comments contained
 on his case review sheets could lead to a poor performance rating, which
 could in turn subject him to a performance improvement plan and possible
 eventual discharge.  During the meeting, Mr. Lechman and steward Daniels
 requested certain information for their use in further evaluating and
 processing his grievance.  They requested copies of certain position
 descriptions and copies of case review sheets for the approximately ten
 (10) fellow compliance officers in the Pittsburgh office, for the period
 November 1980 to the date of the request for the information.
 Subsequently, Mr. O'Brien provided the requested position descriptions,
 but did not provide the case review sheets sought by Mr. Lechman.
 
    Later, on August 22 and 31, 1983, respectively the Union renewed its
 request for case review sheets.  Although Respondent agreed to provide
 the requested position descriptions, Area Director O'Brien responded on
 August 31, that:
 
          "You have also requested, "All case file review sheets . . . "
 
          "The request will not be satisfied at this time.  Case review
       sheets are used to advise employees of their performance.  They
       relate solely to the individual's case performance.  Further, your
       request does not state how the information regarding other
       employees' performance as related by their individual case
       feedback sheets could possibly establish harassment of CO Lechman.
        Accordingly, this information you have requested will not be
       provided."
 
    Sometime later, Daniels resigned as steward and was replaced by Union
 President Richard J. Clougherty.  On September 9, 1983, Mr. Clougherty
 informed Respondent that he was replacing Daniels as Lechman's
 representative in the matter.  Thereafter, Clougherty telephoned Mr.
 O'Brien and asked for the information which had been requested earlier
 by the Union.  According to Mr. Clougherty, "I explained that I thought
 it was necessary in order to process the grievance . . . ." Mr. O'Brien
 informed Clougherty that, "he had been instructed that he was not to
 provide the information."
 
    The following week, Mr. Clougherty met with Bill Hoffman, a labor
 relations specialist for Respondent, and discussed the Union's need for
 the case review sheets in the Lechman matter.  Mr. Clougherty again
 attempted to explain that he needed the case review sheets to determine
 whether or not Lechman was being discriminated against-- to see whether
 Lechman was being "picked upon." Hoffman referred Clougherty to his
 supervisor, Labor Relations Officer, Charles Taylor.  The next day, Mr.
 Clougherty telephoned Mr. Taylor and discussed at length the Union's
 request for information.  Mr. Clougherty reiterated the Union's need for
 the case review sheets to determine whether Lechman was being
 discriminated against, and if so, the Union's need for the case review
 sheets to document this discrimination.  Mr. Taylor suggested that
 Clougherty ask O'Brien about the information.  Mr. Clougherty protested
 that he had already spoken to O'Brien who had referred him to Hoffman,
 who had in turn referred him to Taylor.  Mr. Taylor again suggested
 talking to O'Brien.  Mr. Clougherty immediately telephoned Mr. O'Brien
 and related his conversation with Taylor.  Mr. O'Brien said he had been
 instructed not to provide the information, and therefore could not
 release it.
 
    On September 19, 1983, the Union filed a second step grievance on
 behalf of Mr. Lechman.  In the grievance, Mr. Clougherty once again
 requested the case review sheets from November, 1980 to the date of the
 request, and explained the reason why the sheets were needed.  The
 Respondent issued a response to the grievance at the second step on
 September 28, 1983, denying the grievance.  On October 3, 1983, Mr.
 Clougherty submitted the grievance at the third step of the grievance
 procedure.  In the third step grievance submission, Mr. Clougherty again
 raised the issue of Respondent's refusal to furnish the needed case
 review sheets.  Mr. Clougherty's letter to the third step official,
 Secretary of Labor, Raymond Donovan, set forth the reasons why the
 documents were necessary, and how the Union intended to use the
 information.  Mr. Clougherty's letter states, in pertinent part:
 
          We are at a distinct disadvantage in moving this grievance to
       your level.  There are documents in the hands of local management
       that we have requested so that we can provide documentary evidence
       to support our contention that management in the Pittsburgh
       Wage/Hour Area Office is singling out the grievant by
       "overzealously" reviewing his work-products, but local management
       has refused to provide them (see attached letter to A. D. O'Brien
       dated 8/31/83-- only the PD's were provided).
 
          When the requested case review sheets of the grievant are
       compared with the case review sheets of the other CO's in the
       office, the results will show that local management is
       "nit-picking" the grievant's work-products-- to punish him for
       past grievances he has filed.
 
    Thereafter in late January, 1984, Mr. Clougherty received by mail a
 package of case review sheets with a letter from Mr. Taylor contending
 that the material was "the available information in connection with the
 Lechman grievance." Mr. Clougherty reviewed the sheets briefly, and
 noted that the material appeared to be incomplete.  Mr. Clougherty then
 spoke with Mr. O'Brien about the incompleteness of the case review
 sheets.  Mr. O'Brien told Mr. Clougherty that the sheets were all
 O'Brien had, because as performance evaluations were prepared, the case
 review sheets were discarded.  Mr. Clougherty pointed out to Mr. O'Brien
 that sheets were provided for some employees which went back more than a
 year, the usual appraisal period.  Mr. O'Brien acknowledged that he had
 retained case review sheets for Mr. Lechman in case they were needed in
 processing a grievance over Lechman's performance appraisal, and that
 case review sheets for another employee had been retained because the
 employee's appraisal had been delayed.  In most cases, however, there
 were very few case review sheets for employees allegedly because the
 appraisals had been done shortly before the case review sheets were
 provided to the Union.
 
    The record reveals that at the time of the Union's initial request
 for information in August 1983, only one employee's performance
 appraisal had been completed.  After the request and prior to the
 release of the information in January of 1984, Mr. O'Brien completed
 performance appraisals for most employees and discarded the case review
 sheets upon which the appraisals were based, so that, according to Mr.
 O'Brien, "there was little in the pipeline for the current year," and
 there "was a whole bunch of them with little or nothing." Accordingly,
 the information provided was inadequate to compare Lechman's case review
 sheets with the review sheets of other employees.
 
    Around February 24, 1984, Respondent denied Mr. Lechman's grievance
 at the third step.  The Union has not invoked arbitration of the
 grievance.
 
                        Discussion and Conclusions
 
    Respondent argues that it was under no obligation to provide the
 information requested by the Union because a significant part of the
 information sought did not exist and was no longer in managements' sole
 possession and that the information which did exist was readily
 accessible to the Union through its own bargaining unit members and,
 therefore the Union had independent access to the requested information.
  In addition, Respondent asserts that the requested information was not
 normally maintained by the agency in the regular course of business
 prior to 1982.  Here Respondent alludes to Article 37, Secs. 2 of the
 collective bargaining agreement.  /2/
 
    Section 7114(b)(4) of the Statute requires agency management to
 furnish upon request and to the extent not prohibited by law, data which
 is normally maintained by the agency in the regular course of business,
 which is reasonable available and necessary for full and proper
 discussion, understanding and negotiation of subjects within the scope
 of collective bargaining, which do not constitute guidance, advice,
 counsel or training provided for supervisors relating to collective
 bargaining.
 
    To date the Authority's interpretation of section 7114(b)(4) has made
 it clear that an agency's duty to provide information includes the duty
 to provide information necessary to enable the requesting exclusive
 representative to effectively carry out its statutory obligation to
 represent employees in the processing of grievances and to provide
 information relevant and necessary to allow the exclusive representative
 to determine whether or not to pursue or file a grievance.  Veterans
 Administration, Iron Mountain, Michigan, 10 FLRA 468 (1982);  Bureau of
 Alcohol, Tobacco and Firearms, National Office and Western Region, 8
 FLRA 547 (1982);  Department of the Navy, Portsmouth Naval Shipyard, 4
 FLRA 619 (1980).
 
    In the case at bar it was established that the information requested
 by the exclusive representative is "normally maintained by the agency in
 the regular course of business." The record demonstrates that the case
 review sheets are kept by agency supervisors at least until employee
 appraisals have been completed since they form the basis for such
 appraisals.  Furthermore, case review sheets are kept after an appraisal
 has been made, if the supervisor anticipates difficulty arising from the
 individual appraisal.  While one copy of the case review sheet is given
 to the individual employee, a carbon or photocopy is normally retained
 by the supervisor or Area Director.
 
    Here Respondent maintains that the case review sheets are similar to
 supervisors' personal notes to be used as "memory joggers." It is clear
 from the record that case review sheets form the basis for employee
 evaluations and were demonstrated to be more than mere references to
 employee performances.  The case review sheets reveal that they are
 prepared for the purpose of assessing and evaluating employee
 performance and are to be used for employee appraisals.  Under such
 circumstances, Respondent's argument that the review sheet is merely a
 supervisor's note or "memory jogger" must be rejected.  Accordingly, it
 is found that the case review sheets constitute a basis for employee
 appraisals and as such are relevant documents needed by the Union to
 make a determination of whether or not to proceed with a pending
 grievance concerning performance evaluation such as filed by Lechman.
 
    Respondent suggests that the requested case review sheets were
 discarded or purged and that the information sought by the exclusive
 representative could be readily obtained from bargaining unit members.
 In this regard, there is no evidence that the files had been purged at
 the time the grievance was filed in 1983, at which time the request was
 made.  It is reasonable, based on the instant record, to infer as argued
 by the General Counsel, that the information existed at the time the
 Union made its request.  Consequently, Respondent's argument that the
 case review sheets could not be supplied since they had been discarded
 or purged at the end of an appraisal period must be rejected.
 Furthermore, as the Union asserts, the review sheets supplied in January
 1984, were incomplete since there were review sheets for only three (3)
 compliance officers out of approximately ten (10) in the Pittsburgh
 office.  In all, the review sheets supplied were merely a portion of
 those which existed at the time of the Union's initial request.  Failure
 to supply all of the sheets available at the time of the Union's request
 if they were relevant and necessary would indeed be a refusal to comply
 with 7114(b)(4).  Likewise, Respondent's argument that the exclusive
 representative could readily have obtained the information from
 bargaining unit members lacks merit.  This is certainly not a viable
 option, since even if retained, employees have no obligation to and
 indeed may be unwilling to supply the Union with their case review
 sheets.  Bargaining unit members have no obligation to retain such data
 and even if they were willing to supply the information they might well
 not have preserved sufficient sheets to be of assistance.  The place to
 obtain the complete information is at its source not through alternate
 methods.  Accordingly, Respondent's argument in this regard must be
 rejected.
 
    That the information was reasonable available and necessary is
 clearly revealed by the instant record.  The grievance herein alleges
 that an employee was being discriminated against based upon his filing
 of grievances, as shown by comments on his case review sheets.  The
 rationale of the grievance was that the review given to Lechman's work
 was overzealous and the comments "nitpicking." The Union sought to
 establish disparity between Lechman's reviews and those of other
 similarly situated compliance officers, in essence a simple
 discrimination matter.  Since the core of most discrimination cases is
 comparative data, it can readily be seen that the case review sheets
 might be necessary and relevant for comparison to allow the Union to
 evaluate possible action on the grievance.  Although, as Respondent
 suggested at the hearing, it may not be possible to determine from a
 case review sheet whether the comments on it are justified, general
 matters such as the degree of scrutiny given different employees' cases
 and the categories of criticisms noted could or could not persuade the
 Union to go forward with the matter.  Therefore, the review sheets were
 necessary for the Union to make any intelligent assessment of Lechman's
 claim.  It is found therefore, that the case review sheets were
 necessary for the exclusive representative to properly process the
 Lechman grievance.
 
    Respondent further asserts that it did not commit an unfair labor
 practice since the information which was requested was not in existence.
  Respondent's reliance on Internal Revenue Service, 1 FLRA 796, 797
 (1980) is entirely misplaced.  There the Authority in agreement with the
 Administrative Law Judge stated:
 
          " . . . the Authority is deeply concerned with Respondent's
       failure to indicate, either at the time of the request for
       information by the Union or during the investigation of the unfair
       labor practice charge, that the information sought did not exist.
       This failure may have caused unnecessary litigation which hinders
       the effective administration of the federal labor-management
       relations program."
 
    In searching the instant record, it is found that Respondent did not
 assert the non-existence of the records when originally requested in
 August 1983, nor did it raise such a defense in its Answer to the
 complaint herein.  It is clear that at the time of the request for the
 case review sheets Respondent was under an obligation to supply all the
 necessary information in its possession.  Although the Union received
 some case review sheets in January 1984, Respondent does not contend
 that these sheets completely satisfied its obligation.  Respondent also
 offers no satisfactory explanation for the missing review sheets.  In
 fact, Respondent's chief concern until late in the game was whether or
 not the information was relevant to the processing of Lechman's
 grievance.  It is, therefore, concluded that the records were reasonably
 available at the time they were originally requested and Respondent's
 defense that the records did not exist is found to lack merit.
 
    In support of its claim that the Union never clearly demonstrated its
 need for the requested information, Respondent depends on Internal
 Revenue Service, Buffalo District, Buffalo, New York, 7 FLRA 654 (1982).
  That case is inapposite.  Unlike here, it was found that the data
 requested had no impact upon the subject of the grievance, and the data
 was not necessary to the pursuit of the grievance.  In this matter, the
 allegations of the grievance were discussed countless times with
 management officials and the necessity for the information was precisely
 explained.  Since management was no doubt aware through these
 discussions of the nature of the grievance i.e. comparison of the level
 of scrutiny of Lechman's work as compared to that of his co-workers in
 the Pittsburgh Area Office, the relevancy or necessity of the
 information should have become absolutely clear.  As seemingly it was,
 since Lechman was supplied with some, but not all of the case review
 sheets requested notwithstanding that they were supplied in an untimely
 fashion.
 
    Based on all of the foregoing, it is concluded that Respondent's
 refusal to supply the requested information herein was a refusal to
 comply with section 7116(b)(4) of the Statute, and constituted a
 violation of section 7116(a)(1), (5) and (8) of the Statute.
 Accordingly, it is recommended that the Authority issue the following:
 /3/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations of section 7118 of the Statute, it is
 hereby ordered that the U.S. Department of Labor, Employment Standards
 Administration, Pittsburgh, Pennsylvania, Local 644, National Council of
 Field Labor Locals, shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to provide, Local 644, National
       Council of Field Labor Locals, American Federation of Government
       Employees, AFL-CIO, the employees exclusive representative,
       requ