HHS Region II and AFGE Local 1760 (Authority decision, July 16, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair labor practice 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

A union asked HHS for records related to a promotion grievance. HHS supplied the vacancy announcement and best qualified list, which showed the information needed for the grievance issue. The Authority found that the additional requested material had not been shown necessary for representation and dismissed the disclosure complaint.

Decision snapshot

• Authority: Information duty under 5 U.S.C. § 7114(b)(4).
• Outcome: Disclosure complaint dismissed.
• Key point: The records already supplied addressed the grievance issue.

Full text (FLRA public release)

[ v19 p132 ]

19:0132(12)CA

The decision of the Authority follows:

19 FLRA No. 12

DEPARTMENT OF HEALTH AND HUMAN
SERVICES, REGION II
Respondent

and

LOCAL 1760, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party

Case No. 2-CA-20364

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, including the stipulation of facts, accompanying exhibits, and the parties' contentions, the Authority finds:

The complaint alleges, in essence, that the Department of Health and Human Services, Region II (the Respondent) violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute
/1/ (the Statute) by refusing to furnish necessary information requested under section 7114(b)(4) of the Statute /2/ by Local 1760, American Federation of Government Employees, AFL-CIO (the Union) in connection with the processing of an employee's grievance.

The stipulated facts, including the parties' exhibits, show that an employee in a bargaining unit exclusively represented by the Union filed a grievance under the negotiated grievance procedure which alleged that she had been improperly denied a merit promotion by the Respondent's Office of Hearings and Appeals (OHA). The grievance stated, "(T)he Merit Promotion Plan was not followed by this office when they selected two candidates for the position of Hearing Assistant, GS-6 on March 4, 1982. Specifically, no vacancy announcement was posted and neither was a promotion committee or best qualified list established. This was a violation of the procedures in the Merit Promotion Plan." After filing the grievance, the employee designated the Union as her representative, and in order to support the grievance, the Union requested "the entire promotion package culminating in the Best Qualified List 20001G-82S . .
. " The Respondent forwarded some of the promotion package, including, among other items, a copy of the vacancy announcement and a copy of the best qualified list of the individual candidates who were in the group from which the selection was made. The Respondent did not forward the entire promotion package as requested by the Union. Some of these documents were sanitized by deleting employee names, to make it impossible for the Union to determine what documents or ratings applied to the various candidates. Items not supplied were documents such as the candidates' appraisals, copies of employee awards, copies of the SF-171 application forms, and copies of the material used by the promotion committee in establishing the point scores given each of the applicants for the promotion positions.

The issue herein is whether the information requested by the Union but not supplied by the Respondent was necessary within the meaning of section 7114(b)(4)(B) of the Statute. Specifically, where a grievance has been filed, an agency must furnish requested information which is, among other things, necessary for the Union to represent the employee(s) in the grievance proceeding. See Social Security Administration, 15 FLRA No. 180 (1984). See also Veterans Administration Regional Office, Denver, Colorado, 10 FLRA 453 (1982) and Veterans Administration, Iron Mountain, Michigan, 10 FLRA 468 (1982). The Authority concludes that the entire promotion package, including documents such as the candidates' appraisals, copies of employee awards, copies of the SF-171 application forms, and copies of the material used by the promotion committee in establishing the point scores given each of the applicants for the promotion positions, requested by but not furnished to the Union, was not necessary within the meaning of section 7114(b)(4)(B) of the Statute.

As noted above, the Union's request for information was made pursuant to the filing of a grievance which asserted as its basis that no vacancy announcement was posted, nor was a promotion committee or best qualified list established. The record indicates, and the Authority finds, that the Respondent complied with the Union's request by providing, among other things, a copy of the vacancy announcement and a copy of the best qualified list. Such information alone would have enabled the Union to determine that both a promotion committee and a best qualified list were established. The additional information requested by the Union would not have established whether the vacancy announcement had been posted, nor does it appear from the record that the information not furnished by the Respondent was necessary within the meaning of the Statute as it did not relate to the basis of the grievance. Thus, the Authority concludes that the General Counsel has failed to establish that the information requested by the Union but not furnished by the Respondent was necessary for the Union to discharge its responsibilities under the Statute, particularly in view of the fact that the documents provided by the Respondent fulfilled its obligation to furnish information necessary for the Union to represent the grievant. See, e.g., United States Environmental Protection Agency, Health Effects Research Laboratory, Cincinnati, Ohio, 16 FLRA No. 16 (1984); Internal Revenue Service, Buffalo District, Buffalo, New York, 7 FLRA 654 (1982). Accordingly, the Authority shall order that the complaint be dismissed.

ORDER

IT IS ORDERED that the complaint in Case No. 2-CA-20364 be, and it hereby is, dismissed.

Issued, Washington, D.C. July 16, 1985

Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ Section 7116(a)(1), (5) and (8) provides:

Sec. 7116. Unfair labor practices

(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency--

(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;

. . . .

(5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter;

. . . .

(8) to otherwise fail or refuse to comply with any provision of this chapter.

/2/ Section 7114(b)(4) provides:

Sec. 7114. Representation rights and duties

. . . .

(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(.)