[ v16 p52 ]
16:0052(16)CA
The decision of the Authority follows:
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(.)