National Treasury Employees Union, Chapter 91 and Department of the Treasury, Internal Revenue Service, Southwest Region (Authority decision, April 15, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in a negotiability case. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

NTEU Chapter 91 proposed that IRS employees grieving an evaluation receive copies of supervisors' recent evaluations and be told how much time supervisors spent reviewing work and drafting negative evaluations. The Authority held that a proposal concerning supervisory appraisals did not concern bargaining unit employees' conditions of employment. It found that requiring supervisors to track and report their evaluation time would interfere with management's right to assign work. The Authority dismissed both proposals while leaving open whether a particular information request might qualify under 5 U.S.C. § 7114(b)(4).

Decision snapshot

• Authority: Assignment of work under 5 U.S.C. § 7106(a)(2)(B); information requests under § 7114(b)(4).
• Outcome: Negotiability petition dismissed as to both proposals.
• Key point: A general bargaining proposal for supervisory appraisal records fails here, though a specific statutory information request may be evaluated separately.

Full text (FLRA public release)

[ v17 p534 ]

17:0534(77)NG

The decision of the Authority follows:

17 FLRA No. 77

NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 91
Union

and

DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE,
SOUTHWEST REGION
Agency

Case No. 0-NG-650

DECISION AND ORDER ON NEGOTIABILITY ISSUES

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 Chairman 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 follows:

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 . . . (.)