Social Security Administration, Baltimore, Maryland and Region VII, Clayton District, Missouri and American Federation of Government Employees, Local 2916 (Authority decision, May 8, 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 grieved differences in performance appraisal ratings among Social Security Administration employees in the Clayton District. It requested audit records for about 20 employees with the highest ratings to compare their work with that of employees elsewhere in the district. The Authority found that the records were needed to assess the grievance and could be identified, supplied without undue burden, and sanitized for privacy. It held that the agency's refusal to furnish them was an unfair labor practice and ordered disclosure on request.

Decision snapshot

• Authority: Duty to furnish necessary, reasonably available data under 5 U.S.C. § 7114(b)(4).
• Outcome: Unfair labor practice found; agency ordered to provide the requested data on request.
• Key point: Records that could confirm or refute a performance rating grievance were necessary for the union's representational work.

Full text (FLRA public release)

[ v17 p837 ]

17:0837(113)CA

The decision of the Authority follows:

17 FLRA No. 113

SOCIAL SECURITY ADMINISTRATION
BALTIMORE, MARYLAND

and

SOCIAL SECURITY ADMINISTRATION
REGION VII, CLAYTON DISTRICT,
CLAYTON, MISSOURI
Respondents

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2916
Charging Party

Case No. 7-CA-30271

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, /1/ the Authority finds:

The complaint alleges that the Social Security Administration, Baltimore, Maryland and Social Security Administration, Region VII, Clayton District, Clayton, Missouri (the Respondents) violated section 7116(a)(1), (5) and (8) of the Statute /2/ by refusing to furnish information requested under section 7114(b)(4) of the Statute /3/ to the American Federation of Government Employees, AFL-CIO, Local 2916 (the Union) pertaining to the performance ratings of certain employees in the Clayton District which is necessary to process a grievance filed by the Union.

The stipulated facts show that the Union filed a grievance alleging, among other things, that October, 1982 performance appraisal ratings for employees in one of the offices in the Clayton District were uniformly higher than those for bargaining unit employees in other offices in that District, and that the disparities were not justified by the actual performance of the employees. In order to support this grievance, the Union requested copies of the audits of the approximately 20 employees who received the highest ratings on the performance appraisals, all of whom were located in the same office within the Clayton District as mentioned above. The audits quantify tasks that employees perform relating to the job elements used in appraising their performance. The parties stipulated further that the audits would show whether the performance of employees receiving the highest ratings on their appraisals were significantly different from the performance of other employees within the Clayton District, and that this information would support or refute the claims alleged by the Union in its grievance. Upon receiving the Union's request for the audits, the Respondents refused to furnish the information.

The issue before the Authority is whether the audits were reasonably available and necessary for the Union to perform its representational function within the meaning of section 7114(b)(4) of the Statute. The General Counsel contends that the information was necessary because it would have supported an allegation made by the Union in its grievance that various employees in the Clayton District performing the same caliber of work received different performance ratings and, therefore, the Union could have determined whether to pursue the grievance. The Respondents assert that the information was not necessary, and that the Union's request was too broad and unduly burdensome.

It is concluded that the information sought here is necessary within the meaning of section 7114(b)(4) of the Statute. Thus, as stipulated by the parties, the audits would have allowed the Union to determine whether the performance of employees in one particular office within the Clayton District was superior to the performance of employees in other offices within that District who performed comparable work but received different performance ratings, and therefore whether to pursue the grievance. See 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). Further, contrary to the Respondent's contention, the Authority concludes that the record demonstrates the information sought was reasonably available within the meaning of section 7114(b)(4) of the Statute, was sufficiently specific to be identified, could have been furnished to the Union without creating an undue burden on the Respondents, and would be sanitized to protect employee rights under the Privacy Act. /4/

Having concluded that the Respondents refused to furnish information which is reasonably available and necessary within the meaning of section 7114(b)(4) of the Statute, the Authority finds that the Respondents violated section 7116(a)(1), (5) and (8) of the Statute.

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Social Security Administration, Baltimore, Maryland and the Social Security Administration, Region VII, Clayton District, Clayton, Missouri shall:

1. Cease and desist from:

(a) Refusing to provide the American Federation of Government Employees, AFL-CIO, Local 2916, the employees' exclusive representative, with all requested data reasonably available and necessary for it to properly perform its representational function regarding its grievance concerning the disparity in performance appraisal ratings of employees in the Social Security Administration, Region VII, Clayton District, Clayton, Missouri.

(b) In any like or related manner interfering with, restraining or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the
   purposes and policies of the Statute:

(a) Upon request, provide the American Federation of Government Employees, AFL-CIO, Local 2916, the employees' exclusive representative, all requested data reasonably available and necessary for it to properly perform its representational function regarding its grievance concerning the disparity in performance appraisal ratings of employees in the Social Security Administration, Region VII, Clayton District, Clayton, Missouri.

(b) Post at its facilities at the Social Security Administration, Region VII, Clayton District, Clayton, Missouri copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by a responsible official of the Social Security Administration, Region VII, Clayton District, Clayton, Missouri, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VII, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, D.C., May 8, 1985

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

NOTICE TO ALL EMPLOYEES

PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to provide the American Federation of Government Employees, AFL-CIO, Local 2916, our employees' exclusive representative, all requested data reasonably available and necessary for it to properly perform its representational function regarding the grievance concerning the disparity in performance appraisal ratings of employees in the Social Security Administration, Region VII, Clayton, District, Clayton, Missouri. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL, upon request, provide the American Federation of Government Employees, AFL-CIO, Local 2916, our employees' exclusive representative, all requested data reasonably available and necessary for it to properly perform its representational function regarding the grievance concerning the disparity in performance appraisal ratings of employees in the Social Security Administration, Region VII, Clayton District, Clayton, Missouri. (Activity)

Dated: . . . By: (Signature) (Title) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region VII, Federal Labor Relations Authority, whose address is: 1531 Stout Street, Suite 301, Denver, Colorado 80202 and whose telephone number is: (303) 837-5224.

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

/1/ The General Counsel moved to strike several documents, and arguments in the Respondents' brief predicated thereon, because factual material relied upon by the Respondents was not included in the stipulation. In reaching its decision in the instant case, the Authority has, of course, considered only facts contained in the stipulation, and therefore the motion is denied.

/2/ Section 7116(a)(1), (5) and (8) of the Statute 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.

/3/ Section 7114(b)(4) of the Statute 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(.)

/4/ Privacy Act of 1974, Pub. L. No. 83-579, 88 Stat. 1896 (codified as amended at 5 USC 552a (1982)).