U.S. Federal Labor Relations Authority

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17:0534(77)NG - NTEU Chapter 91 and Treasury, IRS, Southwest Region -- 1985 FLRAdec NG

[ v17 p534 ]
The decision of the Authority follows:

 17 FLRA No. 77
                                            Case No. 0-NG-650
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues
 relating to the negotiability of two Union proposals.  /1/
                             Union Proposal 1
          Inasmuch as a fair and objective evaluation depends upon the
       proper execution of the duties and responsibilities of the
       supervisor, at such time an employee is entitled to grieve or
       appeal evaluations (such as Form 211 evaluations or reports of
       conference visitations) the employee and his or/her representative
       may receive, to the extent permitted by 5 USC 7114(b)(4), upon
       request copies of the periodic evaluations of the supervisor
       completed within the immediate past eighteen (18) months referred
       to in Section A6 of R.C. Memorandum 8(24)-5, June 3, 1977, said
       memorandum's Section A6 reading in pertinent part:  "This
       Memorandum establishes procedures for the monitoring and review of
       the case management of Appellate work units submitted by appeals
       officers in the Southwest Region.  These procedures provide for:
       * * * 6. Periodic evaluation by Assistant Regional Commissioner
       (Appellate) (now titled Regional Director of Appeals) of the
       review activities and practices in each Appellate Office to assure
       adequate managerial involvement.
    Union Proposal 1 would essentially require the Agency to provide an
 employee and the Union with copies of a supervisor's periodic
 evaluations.  The Union asserts that information concerning whether a
 supervisor adequately performed his/her supervisory duties would assist
 an employee in a grievance or appeal proceeding.  However, the Authority
 has consistently held that matters pertaining to the appraisal of
 supervisors, as are at issue herein, are outside the duty to bargain
 because such matters do not concern the conditions of employment of
 bargaining unit employees.  See Supplemental Decision on Remand,
 National Treasury Employees Union and Department of Health and Human
 Services, Region 10, 13 FLRA 732, 734 (1983), appeal docketed sub nom.
 National Treasury Employees Union v. FLRA, No. 84-7034 (9th Cir. Jan.
 16, 1984);  American Federation of Government Employees, National
 Council of EEOC Locals No. 216, AFL-CIO and Equal Employment Opportunity
 Commission, Washington, D.C., 3 FLRA 504 (1980);  National Association
 of Government Employees, Local R7-23 and Headquarters, 375th Air Base
 Group, Scott Air Force Base (MAC), Illinois, 7 FLRA 736 (1982).  Thus,
 Union Proposal 1 does not concern conditions of employment and, hence,
 is outside the duty to bargain.
    While the Authority finds no obligation to negotiate over the instant
 proposal, this decision does not prohibit a union from obtaining
 information concerning supervisory appraisals when appropriate.  To the
 extent a union may be entitled to information as is sought under the
 proposal, such entitlement arises out of and is subject to the
 limitations of section 7114(b)(4) of the Statute.  /2/ Entitlements
 under section 7114(b)(4) for information which would enable a union to
 effectively carry out its representational obligation in connection with
 the processing of a grievance are determined on a case-by-case basis.
 See, e.g., United States Environmental Protection Agency, Health Effects
 Research Laboratory, Cincinnati, Ohio and National Federation of Federal
 Employees, Local 801, 16 FLRA No. 16 (1984), and cases cited therein.
 The Authority does not reach the question of a union's right to obtain
 data under the circumstances presented pursuant to section 7114(b)(4).
                             Union Proposal 2
          Appeals Officers will be informed of the amount of time used by
       the supervisor(s) in reviewing all (or parts of) work units and
       drafting the resulting negative evaluation.
    Union Proposal 2 is outside the duty to bargain because it interferes
 with management's right under section 7106(a)(2)(B) of the Statute to
 assign work.  /3/ Union Proposal 2, by requiring an accounting of the
 amount of time spent by the supervisor in drafting a negative
 evaluation, effectively would require a supervisor to create and
 maintain a record of the time spent on all evaluations prepared by the
 supervisor.  Consequently, the proposal prescribes the assignment of
 certain duties to particular employees, thereby conflicting with section
 7106(a)(2)(B) of the Statute.  See American Federation of Government
 Employees, Local 1822, AFL-CIO and Veterans Administration Medical
 Center, Waco, Texas, 9 FLRA 709 (1982);  American Federation of State,
 County and Municipal Employees, AFL-CIO, Local 2910 and Library of
 Congress, 11 FLRA 632 (1983) (Union Proposal 4).
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS HEREBY ORDERED that the petition for review as to
 Union Proposals 1 and 2 be, and it hereby is, dismissed.  Issued,
 Washington, D.C., April 15, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ The Agency's request that the petition for review should be
 dismissed as untimely filed is denied.  The Agency claims that the
 proposals in the instant case are substantially identical to proposals
 which were the subject of an earlier allegation by the Agency in
 response to the Union's request.  However, contrary to the Agency's
 claim, the Authority finds the petition for review herein was timely
 filed under section 2424.3 of the Authority's Rules based upon the
 Agency's response to the Union's request for an allegation as to
 substantively revised proposals.
    /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(.)
    /3/ Section 7106 of the Statute provides, in relevant part, as
          Sec. 7106.  Management rights
          (a) Subject to subsection (b) of this section, nothing in this
       chapter shall affect the authority of any management official of
       any agency--
                                .  .  .  .
          (2) in accordance with applicable laws--
          (B) to assign work . . . (.)