United States Environmental Protection Agency, Health Effects Research Laboratory and NFFE Local 801 (Authority decision, September 26, 1984)

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

NFFE Local 801 asked an EPA research laboratory for sanitized appraisal worksheets to decide whether to grieve the denial of outstanding ratings to bargaining unit employees. The laboratory provided records for the unit employees but withheld worksheets for three employees outside the unit. On a stipulated record transferred directly to it, the Authority held that the nonunit records were not necessary to assess the union's stated concern about whether the correct official had signed the unit employees' ratings. It also found the one nonunit employee who received an outstanding rating held substantially different supervisory duties. The Authority dismissed the refusal to provide information complaint. The outcome is vacated because there was no Judge's decision and the Authority rejected the alleged violation on the merits.

Decision snapshot

• Authority: Information disclosure duty under 5 U.S.C. § 7114(b)(4); unfair labor practice claim under § 7116(a).
• Outcome: Complaint dismissed; nonunit employees' appraisal worksheets not required on this record.
• Key point: The requested nonunit appraisals were not shown necessary or relevant to the possible grievance the union identified.

Full text (FLRA public release)

[ 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(.)