16:0052(16)CA - EPA, Health Effects Research Laboratory, Cincinnati, OH and NFFE Local 801 -- 1984 FLRAdec CA

 16 FLRA No. 16
 
 UNITED STATES ENVIRONMENTAL
 PROTECTION AGENCY, HEALTH
 EFFECTS RESEARCH LABORATORY,
 CINCINNATI, OHIO
 Respondent
 
 and
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 801
 Charging Party
 
                                            Case No. 5-CA-1164
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record in this case, including the
 stipulation of facts, accompanying exhibits, and the parties'
 contentions, the Authority finds:  /1/
 
    The National Federation of Federal Employees, Local 801 (the Union)
 has been the certified exclusive representative of a unit which includes
 certain of the Respondent's nonprofessional employees, and the parties
 have had a written collective bargaining agreement at all times material
 herein.
 
    The complaint alleges, in substance, that the Respondent has refused
 to bargain in good faith with the Union and to comply with section
 7114(b)(4) of the Statute /2/ by failing and refusing to furnish the
 Union with certain information relating to performance appraisal ratings
 of non-bargaining unit employees which is alleged to be relevant and
 necessary to enable the Union to make a determination as to whether a
 grievance was warranted over the failure of certain bargaining unit
 employees to be rated outstanding, thereby violating section 7116(a)(1),
 (5) and (8) of the Statute.
 
    All of the Respondent's employees, whether or not they are members of
 the bargaining unit, are evaluated for outstanding performance ratings
 in accordance with EPA Order 3110.11(A), the Respondent's Performance
 Evaluation and Rating Plan.  EPA Form 3160.4 (2-77) is used in this
 connection;  pages 2, 3 and 6 of this Form are used to reflect
 management's appraisal of individual supervisory and non-supervisory
 employees, i.e., to set forth the basis of the evaluations and
 outstanding ratings.
 
    In 1981, outstanding performance ratings were recommended for five
 bargaining unit and three non-bargaining unit employees by their
 respective supervisors:  unit employees Arnold L. Cohen, Mary Diane
 Routledge, Sandra C. Underwood, Lonnie Winchester, and Dixie A. White;
 and non-unit employees Frederick P. Williams, William Frietsch III and
 Michael A. Perera.
 
    On April 23, 1981, the Respondent's Acting Director, James B. Lucas,
 or his agent, disapproved outstanding performance ratings for six of the
 eight employees.  Only Dr. Michael A. Perera (a non-bargaining unit
 supervisory professional) received an outstanding performance rating as
 a result of these recommendations.
 
    By letter dated May 8, 1981, the Union requested that the Respondent
 provide to the Union, inter alia, sanitized copies of pages 2, 3, and 6
 of the appraisal worksheets for the eight employees involved and a copy
 of the cover letter that accompanied the appraisals.  The Union further
 stated in the letter that the information was requested so that it could
 make a determination as to whether a grievance was warranted over the
 failure of bargaining unit employees to be granted outstanding ratings.
 Specifically, the Union's letter contended that, in some instances, the
 reviewing official who signed the ratings was not the employee's
 second-level supervisor who normally performed that function.  On May
 26, 1981, the Respondent provided the requested information for all the
 bargaining unit employees, but refused to provide the information for
 the non-bargaining unit employees.
 
    The parties have stipulated that the sole issue presented to the
 Authority for resolution is whether the Respondent's failure to afford
 the Union copies of pages 2, 3, and 6 of the appraisal worksheets for
 non-unit employees, one of whom received an outstanding performance
 rating, was a violation of the Statute.  The General Counsel contends
 that only by examining the information requested would the Union be able
 to make an informed judgment as to the fairness of the Respondent's
 application of criteria and the basis upon which some employees were
 denied, but one employee granted, an outstanding performance rating, and
 therefore be able to determine whether a grievance was warranted.  The
 Respondent contends, among other things, that the Union has not
 sustained its burden of showing that the information sought was relevant
 and necessary within the meaning of section 7114(b)(4) of the Statute.
 
    The Authority has previously held that section 7114(b)(4) of the
 Statute requires management to furnish an exclusive representative with
 information which would enable the union to effectively carry out its
 representational obligation in connection with the processing of an
 employee grievance or the determination whether to file a grievance, and
 that management violates the Statute if it refuses to do so.  See, e.g.,
 U.S. Customs Service, Region VII, Los Angeles, California, 10 FLRA 251
 (1982);  Veterans Administration Regional Office, Denver, Colorado, 7
 FLRA 629 (1982);  Department of the Navy, Portsmouth Naval Shipyard, 4
 FLRA 619 (1980).  However, the information sought must be necessary and
 relevant to assist the exclusive representative in discharging its
 responsibilities under the Statute, and therefore the Authority has
 dismissed complaints where this requirement has not been established.
 See, e.g., Internal Revenue Service, Buffalo District, Buffalo, New York
 7 FLRA 654 (1982);  Director of Administration, Headquarters, U.S. Air
 Force, 6 FLRA 110 (1981).
 
    In the instant case, the Authority concludes that the performance
 appraisal work sheets of the three non-bargaining unit employees,
 requested by but not furnished to the Union, were not necessary and
 relevant to assist the Union in fulfilling its responsibilities under
 the Statute.  Thus, as noted above, the Respondent furnished the Union
 with all of the requested appraisal worksheets and related documents for
 bargaining unit employees who had been recommended for but were denied
 outstanding ratings.  Such information alone would have enabled the
 Union to determine whether any of the unit employees' ratings had been
 signed by the wrong reviewing official as asserted by the Union in its
 letter to the Respondent requesting the appraisal worksheets as the only
 basis for a possible grievance.  The appraisal worksheets for the
 non-bargaining unit employees would not have been necessary or relevant
 information with respect to that issue.  While the General Counsel
 contends that the date concerning non-bargaining unit employees was
 necessary to enable the Union to make an informed judgment as to whether
 the Respondent fairly applied its criteria in denying all but one
 individual an outstanding rating, the Respondent, as previously noted,
 denied an outstanding rating to all but one of the non-unit employees in
 any event, and the one individual who received such a rating was a
 supervisory professional whose duties and responsibilities were
 substantially different from those of the five nonprofessional
 bargaining unit employees in question.  Accordingly, the Authority
 concludes that the information requested herein has not been shown to
 have been necessary and relevant to assist the Union in this case in
 discharging its responsibilities under the Statute and therefore shall
 order that the complaint be dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 5-CA-1164 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., September 26, 1984
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       Ronald W. Haughton, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The General Counsel filed a motion to strike certain portions of
 the Respondent's brief on the grounds that those portions present
 matters which go beyond the facts stipulated by the parties, and the
 Respondent filed an opposition thereto.  In any matter submitted
 directly to the Authority for decision based upon a stipulation of
 facts, the Authority will consider only the facts contained in the
 stipulation.  Accordingly, the General Counsel's motion to strike is
 denied.
 
 
    /2/ Section 7114(b)(4) provides:
 
          (b) The duty of an agency and an exclusive representative to
       negotiate in good faith under subsection (a) of this section shall
       include the obligation--
 
                                  * * * *
 
          (4) in the case of an agency, to furnish to the exclusive
       representative involved, or its authorized representative, upon
       request and, to the extent not prohibited by law, data--
 
          (A) which is normally maintained by the agency in the regular
       course of business;
 
          (B) which is reasonably available and necessary for full and
       proper discussion, understanding, and negotiation of subjects
       within the scope of collective bargaining;  and
 
          (C) which does not constitute guidance, advice, counsel, or
       training provided for management officials or supervisors,
       relating to collective bargaining(.)