21:0431(60)CA - HHS, Region IV, Health Care Financing Admin. and NTEU -- 1986 FLRAdec CA



[ v21 p431 ]
21:0431(60)CA
The decision of the Authority follows:


 21 FLRA No. 60
 
 DEPARTMENT OF HEALTH AND HUMAN 
 SERVICES, REGION IV, HEALTH 
 CARE FINANCING ADMINISTRATION
 Respondent
 
 and
 
 NATIONAL TREASURY EMPLOYEES UNION
 Charging Party
 
                                            Case no. 4-CA-50212
 
                            DECISION AND ORDER
 
    The Adminstrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 the unfair labor practices alleged in the complaint, and recommending
 that it be ordered to cease and desist therefrom and take certain
 affirmative action.  Thereafter, the Respondent filed exceptions to the
 Judge's Decision, and the Charging Party filed an opposition to the
 Respondent's exceptions.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority adopts the Judge's
 findings, /1/ conclusions and recommended Order.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, it is
 hereby ordered that the Department of Health and Human Services, Region
 IV, Health Care Financing Administration shall:
 
    1.  Cease and desist from:
 
    (a) Refusing to provide the National Treasury Employees Union, the
 employees' exclusive representative, with sanitized copies of each
 bargaining unit employee's performance evaluation for the evaluation
 period ending December 31, 1983, which are necessary for the National
 Treasury Employees Union to determine whether to process a grievance
 over alleged violations of the parties' collective bargaining agreement.
 
    (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) Upon request, provide the National Treasury Employees Union, the
 employees' exclusive representative, with sanitized copies of each
 bargaining unit employee's performance evaluation for the evaluation
 period ending December 31, 1983, which are necessary for the National
 Treasury Employees Union to determine whether to process a grievance
 over alleged violations of the parties' collective bargaining agreement.
 
    (b) Post at all facilities within Region IV, Health Care Financing
 Administration, 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 Regional Administrator for Region IV, or a
 designee, and shall be posted and maintained for 60 consecutive days
 thereafter, in conspicuous places, including bulletin boards and other
 places where notices to employees are customarily posted.  Reasonable
 steps shall be taken to insure that such notices are not altered,
 defaced, or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director for Region IV, 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. April 22, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT refuse to provide the National Treasury Employees Union,
 our employees' exclusive representative, with sanitized copies of each
 bargaining unit employee's performance evaluation for the evaluation
 period ending December 31, 1983, which are necessary for the National
 Treasury Employees Union to determine whether to process a grievance
 over alleged violations of the parties' collective bargaining agreement.
 
    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, upon request, provide the National Treasury Employees Union,
 our employees' exclusive representative, with sanitized copies of each
 bargaining unit employee's performance evaluation for the evaluation
 period ending December 31, 1983, which are necessary for the National
 Treasury Employees Union to determine whether to process a grievance
 over alleged violations of the parties' collective bargaining agreement.
                                       (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 IV, whose
 address is:  1776 Peachtree Street, N.W., Suite 501 -- North Wing,
 Atlanta, Georgia 30309, and whose telephone number is:  (404) 347-2324.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 4-CA-50212
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES, REGION IV, HEALTH
 CARE
 FINANCING ADMINISTRATION
    Respondent
                                    and
 
    NATIONAL TREASURY EMPLOYEES UNION
    Charging Party
 
    Regina N. Kane, Esquire
    For the General Counsel
 
    Peter A. O'Donnell, Esquire
    Mr. William Spates
    For the Respondent
 
    Keith Poole, Esquire
    For the Charging Party
 
    Before:  BURTON S. STERNBURG
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 Section 7101 et seq. and the Rules and Regulations issued thereunder.
 
    Pursuant to an amended charge first filed on January 7, 1985, by the
 National Treasury Employees Union (hereinafter called the NTEU or
 Union), a Complaint and Notice of Hearing was issued on March 25, 1985,
 by the Regional Director for Region IV, Federal Labor Relations
 Authority, Atlanta, Georgia.  The Complaint alleges that Department of
 Health and Human Services, Region IV, Health Care Financing
 Administration (hereinafter called the Respondent), violated Sections
 7116(a)(1), (5) and (8) of the Federal Service Labor-Management
 Relations Statute, (hereinafter called the Statute), by virtue of its
 actions in refusing to furnish the Union with copies of the employees
 performance evaluations for the period ending December 31, 1983.
 
    A hearing was held in the captioned matter on May 8, 1985, in
 Atlanta, Georgia.  All parties were afforded the full opportunity to be
 heard, to examine and cross-examine witness, and to introduce evidence
 bearing on the issues involved herein.  The General Counsel and the
 Respondent submitted post-hearing briefs which have been duly
 considered.
 
    Upon the basis of the entire record, including my observation of the
 witness and his demeanor, I make the following findings of fact, /2/
 conclusions, and recommendations.
 
                             Findings of Fact
 
    The Union is the exclusive representative of a unit of Respondent's
 employees working in Atlanta, Georgia.  As of September 1984, Respondent
 employed approximately 125 bargaining unit employees in its three
 divisions, namely, Division of Program Operations, Division of Financial
 Operations and Division of Health Standards and Quality Control.  The
 Regional Administrator for Region IV was Mr. George Holland.  Mr.
 Richard Morris was the Associate Regional Administrator for the Division
 of Program Operations, Mr. James Pirkle was the Associate Regional
 Administrator for the Division of Financial Operations and Mr. Clarence
 Boone was Associate Regional Administrator for the Division of Health
 Standards and Quality Control.
 
    On February 10, 1984, Chief Steward Richard Edwards directed a letter
 to Mr. George Holland, with copies to the Associate Regional
 Administrators, wherein he requested, pursuant to Section 7114(b) of the
 Statute, that the appropriate official fill out an attached form with
 data to be obtained from the employees' current performance appraisals.
 The letter went on to state that the data would be used to determine
 whether the appraisals "were done as provided by Article 12 of the
 negotiated contract, and the laws, rules and regulations that govern
 performance appraisals of government employees."
 
    By memorandum dated February 24, 1984, Mr. Holland replied to the
 Union's February 10, 1984 request for information as follows:
 
          Your request amounts to a complete statistical listing of all
       appraisals given HCFA employees in January 1984.  They fail to
       provide any information by which the Agency could make a
       determination whether the requests are relevant or material to a
       specific grievance or the administration of the agreement.
       Therefore, your requests are denied.
 
          We are, however, attaching a copy of our EPMS Data Form,
       showing results of appraisals for employees, by grade band.
 
    According to Mr. Edwards, the EPMS Summary Data Form was not
 responsive to the Union's February 10, 1984 request.
 
    On September 11, 1984, Mr. Edwards directed another letter to Mr.
 Boone which reads in pertinent part as follows:
 
          On February 10, 1984, we requested HCFA furnish data on a form
       designed by NTEU, Chapter 210.  HCFA, in a letter dated February
       24, 1984, denied our request.  We subsequently filed an Unfair
       Labor Practice charge (ULP) with the Federal Labor Relations
       Authority (FLRA).
 
          The FLRA recently ruled that HCFA was not obligated per the
       CSRA of 1978 to furnish the information in the request since HCFA
       does not keep that information in the type form requested.  The
       FLRA also said that that type of information should be provided to
       the union.
 
          Based on the FLRA ruling, we are requesting HCFA supply us with
       the copy of every employee's performance evaluation for the period
       ending December 31, 1983.
 
          I also request this information in order to carry out my duties
       and responsibilities identified in 5 U.S.C. Chapter 71 and in
       order to investigate a grievance.
 
          P.S.  If HCFA desires, I hereby agree that employee names may
       be sanitized.
 
    The Union did not receive a written response to its request.
 
    According to Chief Steward Edwards the Union requested the appraisals
 due to complaints from approximately eight employees that their
 respective appraisals appeared to be contrary to Articles 12 and 42 /3/
 of the collective bargaining agreement which guaranteed that appraisals
 would not be subjective, predetermined on the basis of a bell curve, or
 based upon discriminatory considerations.  Mr. Edwards further testified
 that his appraisal had been based on predetermined considerations.  He
 further testified that appraisals were generally about 12 pages in
 length.
 
    According to Mr. Edwards, because the complaining employees worked in
 all three divisions of the Respondent and since there were approximately
 15 different employee classifications in such divisions with differing
 performance standards, it was necessary to view all the appraisals in
 order to determine if there had been any contract violations.
 
    Following the first request for information in February 1984, Mr.
 Edwards met with Mr. Peter O'Donnell, Regional Labor Relations Officer,
 on several occasions and informed him that the Union wanted the data in
 order to determine whether there had been any pre-determination of
 grades or any EEO violations.
 
    Subsequent to the September 1984 request Mr. Edwards met with Mr.
 O'Donnell three or four times in September and October.  Mr. Edwards
 again explained the reasons for the requested data and Mr. O'Donnell
 expressed concern about his having to pull 1600 to 1700 files in order
 to retrieve the requested information.  Mr. Edwards informed Mr.
 O'Donnell that this would not be a problem since each of the three
 divisions retained separate copies of its employees' performance
 appraisals.
 
    According to Mr. Edwards uncontroverted testimony the Respondent
 maintains the performance appraisals of the unit employees in the
 regular course of business at four separate locations within 101
 Marietta Tower, Atlanta, Georgia.  Mr. Edwards further testified that
 each Associate Regional Administrator had from two to four clericals and
 the Regional Personnel Officer, Mr. Robertson, had approximately 25
 clericals.  Additionally, copying machines were located in the Regional
 Personnel Office and the three divisional offices.
 
    Finally, Mr. Edwards testified that asking individual employees to
 present copies of their respective appraisals would not be an effective
 means of acquiring the requested data since Respondent prohibits
 employees from discussing, showing or comparing their evaluations.
 
                        Discussion and Conclusions
 
    The General Counsel takes the position that Respondent violated
 Sections 7116(a)(1), (5) and (8) of the Act by refusing to make the
 performance appraisals available to the Union.  In support of this
 position he points out that the requested material meets all the
 criteria set forth in Section 7114(b), namely, normally maintained by
 Respondent in the regular course of business, necessary for the Union to
 perform its representational responsibilities and does not constitute
 guidance, advice, etc.
 
    Respondent, in substance, takes the position that it was not required
 to supply the requested information under Section 7114(b) since the
 request failed to spell out how it was necessary for the performance of
 the Union's representational responsibilities, violated the privacy
 rights of the employees and was burdensome.
 
    With respect to Respondent's defenses predicated on privacy
 considerations and the burdensome nature of the request, I find such
 defenses to be without merit.  While it is true that the Authority in a
 number of recent cases /4/ has asserted that the Union's need for the
 information must be balanced against the "intrusion on the individual's
 privacy interests," in the instant case the Union made it clear that it
 would take the requested information in a sanitized state.  In such
 circumstances there would be no need to balance the Union's need for
 information against the individual employees right to privacy.
 
    With respect to Respondent's defense based on the "burdensome nature"
 of the request, the only evidence in the record bearing thereon is Mr.
 Edwards' testimony that his appraisal numbers approximately 12 pages and
 is typical of the size of the appraisals of the approximately 125 unit
 employees.  Given the amount of clerical employees and their access to
 sophisticated copying machines I cannot find that the record supports
 the conclusion that the duplication of some 1500 pages is necessarily
 burdensome.  Moreover, to the extent that a contrary conclusion be
 reached, it is incumbent on the Respondent to offer some alternative to
 the request.  While the Respondent alleges in its statement of position
 that it did offer an alternative, namely union access to the appraisals,
 no sworn testimony to that effect appears in the record.
 
    Turning now to the Respondent's third defense, i.e. that the Union's
 request did not demonstrate that the information was necessary in order
 to carry out its representational responsibility.  While it is true that
 the Union's written request of September 11, 1984, did not set forth the
 exact reasons for the request and why the information was necessary, the
 ensuing conversation between Mr. O'Donnell and Mr. Edwards certainly
 cured any deficiency in the written request and put the Respondent on
 notice as to the concerns of the Union and the reasons for the request.
 
    Thus as the Union pointed out it had received a number of complaints
 from its unit members that their appraisals had been predetermined or
 based upon discriminatory considerations in violation of the collective
 bargaining agreement.  It was further pointed out that the only way for
 the Union to determine whether such allegations were true was to analyze
 the appraisals.  Given the number of employee classifications it would
 be impossible to determine same on the basis of a random sampling.
 Accordingly, I find that the appraisals of all unit employees were
 necessary for the Union to perform its representational responsibilities
 and determine whether or not the Respondent was abiding by the
 collective bargaining agreement.  Having failed and refused to provide
 the Union with sanitized copies of the appraisals, I further find that
 the Respondent by refusing to abide by Section 7114(b) of the Statute
 has violated Sections 7116(a)(1), (5) and (8) of the Statute.
 
    Having found that the Respondent has violated the Statute I hereby
 recommend that Authority issue the following order designed to
 effectuate the purposes and policies of the Statute.
 
                                   ORDER
 
    Pursuant to Section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and Section 7118 of the Statute, it is
 hereby ordered that the Department of Health and Human Services, Region
 IV, Health Care and Financing Administration shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to furnish to the National Treasury
       Employees Union, the employees' exclusive representative, a
       sanitized copy of every unit employee's performance evaluation for
       the period ending December 31, 1983.
 
          (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) Furnish the National Treasury Employees Union, the
       exclusive representative of its employees, a sanitized copy of
       every unit employee's performance evaluation for the period ending
       December 31, 1983.
 
          (b) Post at all facilities within Region IV 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 Regional Administrator for Region IV and shall be posted
       and maintained by him for 60 consecutive days thereafter, in
       conspicuous places, including bulletin boards and other places
       where notices to employees are customarily posted.  Reasonable
       steps shall be taken to insure that such notices are not altered,
       defaced, or covered by any other material.
 
          (c) Pursuant to Section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Authority for Region IV, Federal
       Labor Relations Authority, in writing within 30 days of the date
       of this Order, as to what steps have been taken to comply
       herewith.
 
                                       /s/ BURTON S. STERNBURG
                                       Administrative Law Judge
 
    Dated:  July 26, 1985
    Washington, D.C.
 
 
                                 FOOTNOTES$
 
    (1) However, in so concluding, the Authority specifically does not
 adopt the Judge's dicta that "it is incumbent on the Respondent to offer
 some alternative (means of providing the data pursuant) to the request."
 
    (2) The facts are not in dispute.  The record consists of seven
 exhibits and the unrefuted testimony of Mr. Richard A. Edwards the Chief
 Steward for the Union and a unit employee.
 
    (3) Article 42
 
          SECTION 6.  (A) The Employer will continue to promote and
       achieve equal opportunity in employment and personnal practices,
       without regard to race, color, religion, sex, age, marital status,
       or political affiliation.  The Employer will promote full
       realization of equal employment opportunity for qualified
       handicapped persons.
 
          (B) An employee who alleges discrimination may seek relief in
       accordance with the provisions of the negotiated grievance
       procedure contained in ARTICLE 60, GRIEVANCE PROCEDURE, or the
       statutory appeals procedure, but not both.  However, the employee
       retains the right to appeal the final decision to the Merit
       Systems Protection Board, EEOC or U.S. Court of Appeals, as
       appropriate.
 
    Article 12, Section (G)
 
          (2) Performance standards will be specified in as objective,
       explicit and measurable terms as possible so that all parties
       officially concerned can reasonably agree that the performance
       expectation has or has not been satisfied.
 
    Article 12, Section 2(G)
 
          (3) Performance standards will be written to ensure accurate
       appraisals of performance.
 
          (a) Objective means something which is observable or
       verifiable.  Undefined concepts of quantity, quality, or
       timeliness would not meet this standard.
 
          (b) They will ensure the accurate evaluation of job performance
       to the maximum extent feasible.  They will be clearly worded so as
       to minimize potential for error or mistake to the maximum extent
       feasible in applying and interpreting them.
 
          (c) To the maximum extent feasible and in accordance with the
       uniqueness of the position, performance expectations will be
       stated distinguishably and non-overlapping.  They will recognize
       significant differences in the working conditions of employees who
       occupy the same position.
 
    Article 12, Section 2(G)
 
          (3)(C) To the maximum extent feasible appraisals of performance
       will be fair and accurate and relate to specific, written
       performance requirements.  Employees will be measured against the
       established performance expectations based on observable
       performance.
 
    Article 12, Section 5(L)
 
          (4) There will be no pre-established bell curves or fixed
       distributions of ratings.
 
    (4) Army and Air Force Exchange Service (AAFES) Fort Carson,
 Colorado, and American Federation of Government Employees, AFL-CIO,
 Local 1345, 17 FLRA No. 92.
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail and refuse to furnish the National Treasury
 Employees Union, the employees' exclusive representative, sanitized
 copies of every unit employee's performance evaluation for the period
 ending December 31, 1983.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce our mployees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL furnish the National Treasury Employees Union a sanitized
 copy of every unit employee's performance evaluation for the period
 ending December 31, 1983.
                                       (Agency or Activity)
 
    Dated:  . . .  By:  (Signature)
 
    This Noti