[ 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 Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region IV,
whose address is: 1776 Peachtree Street, N.W., Suite 501 -- North Wing,
Atlanta, Georgia 30309, and whose telephone number is: (404) 881-2324.