[ v08 p547 ]
08:0547(108)CA
The decision of the Authority follows:
8 FLRA No. 108
BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS, NATIONAL OFFICE AND
WESTERN REGION, SAN FRANCISCO,
CALIFORNIA
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 9-CA-390
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION AND ORDER IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN
CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT IT BE ORDERED TO
CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION.
THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S DECISION AND
ORDER AND A SUPPORTING BRIEF, AND THE GENERAL COUNSEL FILED AN
OPPOSITION TO SUCH EXCEPTIONS. /1/
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULING ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE, THE
AUTHORITY HEREBY ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND
RECOMMENDATIONS. VETERANS ADMINISTRATION REGIONAL OFFICE, DENVER,
COLORADO, 7 FLRA NO. 100(1982).
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 BUREAU OF ALCOHOL, TOBACCO AND FIREARMS,
NATIONAL OFFICE AND WESTERN REGION, SAN FRANCISCO, CALIFORNIA, SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING OR FAILING TO FURNISH, UPON REQUEST BY THE NATIONAL
TREASURY EMPLOYEES UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF ITS
EMPLOYEES, ALL INFORMATION RELEVANT TO THE PROCESSING OF A GRIEVANCE,
WHICH INFORMATION IS NECESSARY TO ENABLE THE NATIONAL TREASURY EMPLOYEES
UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, TO DISCHARGE ITS
OBLIGATION AS THE EXCLUSIVE REPRESENTATIVE TO REPRESENT THE INTERESTS OF
ALL EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS 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 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) UPON REQUEST, MAKE AVAILABLE TO THE NATIONAL TREASURY EMPLOYEES
UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, ALL
INFORMATION RELEVANT TO THE PROCESSING A GRIEVANCE, WHICH INFORMATION IS
NUCESSARY TO ENABLE THE NATIONAL TREASURY EMPLOYEES UNION, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, TO DISCHARGE EMPLOYEES UNION, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE, TO DISCHARGE ITS OBLIGATION AS THE EXCLUSIVE
REPRESENTATIVE TO REPRESENT THE INTERESTS OF ALL EMPLOYEES IN THE
EXCLUSIVELY RECOGNIZED UNIT. /2/
(B) POST AT ITS FACILITIES AT THE BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS, NATIONAL OFFICE AND WESTERN REGION, SAN FRANCISCO, CALIFORNIA,
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 THE DIRECTOR, AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE
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 IX, 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 13, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, 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 OR FAIL TO FURNISH, UPON REQUEST BY THE NATIONAL
TREASURY EMPLOYEES UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF OUR
EMPLOYEES, ALL INFORMATION RELEVANT TO THE PROCESSING OF A GRIEVANCE,
WHICH INFORMATION IS NECESSARY TO ENABLE THE NATIONAL TREASURY EMPLOYEES
UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, TO DISCHARGE ITS
OBLIGATION AS THE EXCLUSIVE REPRESENTATIVE TO REPRESENT THE INTERESTS OF
ALL EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL, UPON REQUEST, MAKE AVAILABLE TO THE NATIONAL TREASURY
EMPLOYEES UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF OUR EMPLOYEES,
ALL INFORMATION RELEVANT TO THE PROCESSING OF A GRIEVANCE, WHICH
INFORMATION IS NECESSARY TO ENABLE THE NATIONAL TREASURY EMPLOYEES
UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, TO DISCHARGE ITS
OBLIGATION AS THE EXCLUSIVE REPRESENTATIVE TO REPRESENT THE INTERESTS OF
ALL EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT.
(AGENCY OR ACTIVITY)
DATED:
BY: (SIGNATURE)
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 ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION IX, WHOSE
ADDRESS IS: 540 BUSH STREET, SUITE 500, SAN FRANCISCO, CALIFORNIA 94102
AND WHOSE TELEPHONE NUMBER IS: (415) 374-2199.
-------------------- ALJ$ DECISION FOLLOWS --------------------
MICHAEL SITCOV, ESQ.
FOR THE RESPONDENT
NANCY E. PRITIKIN, ESQ.
FOR THE GENERAL COUNSEL
JUDY BERKOWITZ, ESQ.
FOR THE CHARGING PARTY
BEFORE: WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DECISION
STATEMENT OF THE CASE
PURSUANT TO A COMPLAINT AND NOTICE OF HEARING ISSUED ON JUNE 30, 1980
BY THE REGIONAL DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY, SAN
FRANCISCO, CALIFORNIA REGION, A HEARING WAS HELD BEFORE THE UNDERSIGNED
ON OCTOBER 21, 1980 AT SAN FRANCISCO, CALIFORNIA.
THE PROCEEDING AROSE UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE. 92 STAT. 1191, 5 U.S.C. 7101 ET. SEQ. (HEREIN CALLED
THE ACT). IT IS BASED UPON A FIRST AMENDED CHARGE FILED ON MAY 29, 1980
BY NATIONAL TREASURY EMPLOYEES UNION (HEREIN CALLED THE CHARGING PARTY
OR THE UNION) AGAINST BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, NATIONAL
OFFICE AND WESTERN REGION, SAN FRANCISCO, CALIFORNIA (HEREIN
COLLECTIVELY CALLED RESPONDENT).
THE COMPLAINT ALLEGED, IN SUBSTANCE, THAT SINCE ON OR ABOUT FEBRUARY
22, 1980 RESPONDENT HAS FAILED OR REFUSE TO FURNISH NECESSARY AND
RELEVANT INFORMATION RELATING TO A PROMOTION GRIEVANCE, WHICH IS
AVAILABLE AND NUCESSARY FOR PROPER NEGOTIATION OF SUBJECTS WITHIN THE
SCOPE OF COLLECTIVE BARGAINING, AS REQUIRED UNDER SECTION 7114(B)(4)(B)
OF THE ACT - ALL IN VIOLATION OF SECTION 7116(A)(1)(5) AND (8) THEREOF.
A RESPONSE WAS FILED BY RESPONDENT WHICH DENIED THE ESSENTIAL
ALLEGATIONS OF THE COMPLAINT. /3/
ALL PARTIES WERE REPRESENTED AT THE HEARING. EACH WAS AFFORDED FULL
OPPORTUNITY TO BE HEARD, TO ADDUCE EVIDENCE, AND TO EXAMINE AS WELL AS
CROSS-EXAMINE WITNESSES. THEREAFTER BRIEFS WERE FILED WITH THE
UNDERSIGNED WHICH HAVE BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS CASE, FROM MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM ALL OF THE TESTIMONY AND EVIDENCE
ADDUCED AT THE HEARING, I MAKE THE FOLLOWING FINDINGS AND CONCLUSIONS:
FINDINGS OF FACT
1. AT ALL TIMES MATERIAL HEREIN THE UNION HAS BEEN THE COLLECTIVE
BARGAINING REPRESENTATIVE OF RESPONDENT'S NON-PROFESSIONAL GENERAL
SCHEDULE AND WAGE GRADE EMPLOYEES EMPLOYED AT THE REGIONAL OFFICE.
2. BOTH THE UNION AND THE RESPONDENT ARE PARTIES TO A WRITTEN
COLLECTIVE BARGAINING AGREEMENT WHICH, BY ITS TERMS, IS EFFECTIVE FOR A
PERIOD OF TWO YEARS FROM SEPTEMBER 19, 1977 AND AUTOMATICALLY REMOVABLE
AFTER ITS EXPIRATION PERIOD.
3. THE AFORESAID AGREEMENT CONTAINS THE FOLLOWING PERTINENT CLAUSES
AND PROVISIONS:
ARTICLE 9
"SECTION 15
A. ANY EMPLOYEE WHO HAS BEEN INVOLVED IN A COMPETITIVE ACTION
GOVERNED BY THE TERMS OF
THIS ARTICLE (OR THE EMPLOYEE'S UNION REPRESENTATIVE DESIGNATED BY
THE EMPLOYEE IN WRITING)
MAY UPON REQUEST OBTAIN THE SCORE ASSIGNED HIM/HER AS WELL AS THE
SCORES ON THE HIGHLY
QUALIFIED LIST.
B. IN PROCESSING GRIEVANCES RELATING TO ACTIONS TAKEN UNDER THE
TERMS OF THIS ARTICLE, THE
CONTENTS OF A PROMOTION FILE MAY BE REVIEWED BY THE EMPLOYEE OR
HIS/HER UNION REPRESENTATIVE
DESIGNATED IN WRITING TO ASSIST THEM IN THEIR EFFORTS TO RESOLVE THE
GRIEVANCE. THE REVIEW OF
THE FILE WILL BE IN ACCORDANCE WITH THE TERMS OF THE PRIVACY ACT AND
ARTICLE 34 OF THIS
AGREEMENT."
4. RESPONDENT POSTED A VACANCY ANNOUNCEMENT DATED DECEMBER 14, 1979
FOR THE POSITION (2) OF ALCOHOL AND TOBACCO TAX SPECIALIST, GS-1854-3,
IN SAN FRANCISCO, CALIFORNIA.
5. A GRIEVANCE LETTER, DATED FEBRUARY 8, 1980, WAS SENT TO TRUDY
JOHNSTON, SUPERVISOR, SERVICES SECTION AT THE WESTERN REGION, SAN
FRANCISCO, CALIFORNIA FROM EMPLOYEE JOHN W. HARRISON AND JOE SHEEAN,
PRESIDENT OF CHAPTER 81, NTEU. /4/ THE GRIEVANCE WAS FILED BY HARRISON
REGARDING RESPONDENT'S FAILURE TO SELECT HIM FOR PROMOTION TO THE
POSITION ANNOUNCED AS VACANT ON DECEMBER 14, 1979 AS HEREINABOVE SET
FORTH. INCLUDED IN THE LETTER WAS A REQUEST FOR THE "ENTIRE PROMOTION
PACKAGE USED IN FILLING THE POSITIONS . . . ." IT WAS ALSO STATED
THEREIN THAT THE "PROMOTION PACKAGE SHOULD INCLUDE THE QUALIFIED
APPLICANT'S FORM 171'S, SUPERVISOR'S EVALUATIONS, RANKING PANEL
EVALUATION AND OTHER RELEVANT INFORMATION." FURTHER, THE LETTER DECLARED
THAT THE GRIEVANCE SHOULD BE HELD IN ABEYANCE UNTIL THE AGENCY PROVIDED
THE AFORESAID INFORMATION. IT WAS ALSO REQUESTED THAT A CERTIFICATE
WITH THE GRIEVANT'S NAME ALONE BE SUBMITTED TO THE SELECTING OFFICIAL
FOR THE NEXT VACANCY IN THE SAME JOB SERIES AND LEVEL IN SAN FRANCISCO.
6. IN A MEMO DATED FEBRUARY 14, 1980 /5/ TRUDY JOHNSTON ACKNOWLEDGED
RECEIPT OF THE GRIEVANCE AND DECLARED SHE WAS UNABLE TO GRANT THE REMEDY
SOUGHT THEREIN.
7. IN A LETTER DATED FEBRUARY 20 FROM HARRISON AND SHEEAN TO PETER
D. OROZCO, CHIEF TECHNICAL SERVICES BRANCH, IT WAS STATED THAT THE
GRIEVANT WAS DISSATISFIED WITH RESPONDENT'S REPLY OF FEBRUARY 14; THAT
A STEP 2 MEETING WAS DESIRED; AND THAT THE PROMOTION PACKAGE REQUESTED
SHOULD BE FURNISHED BEFORE SAID MEETING.
8. THEREAFTER IN AN UNDATED MEMO FROM OROZCO TO THE GRIEVANT AND HIS
UNION REPRESENTATIVE, THE MANAGEMENT OFFICIAL AGREED TO A STEP 2 MEETING
TO BE HELD ON FEBRUARY 26. HE ALSO STATED THAT, AS REQUESTED, THE
PROMOTION FILE WOULD BE PROVIDED IN ACCORDANCE WITH ARTICLE 9, SECTION
15 OF THE WRITTEN AGREEMENT.
9. IN A MEMO DATED FEBRUARY 22 ADDRESSED TO HARRISON THE REGIONAL
PERSONNEL OFFICER, THOMAS V. GREGORY, SET FORTH THE SCORES OF THOSE ON
THE HIGHLY QUALIFIED LIST FOR THE VACANCY HEREINBEFORE DESCRIBED. IN
RESPECT TO THE PROMOTION PACKAGE WHICH WAS REQUESTED, GREGORY STATED
THAT ARTICLE 9, SECTION 15 B PROVIDES FOR A REVIEW OF THE PROMOTION FILE
IN ACCORDANCE WITH THE PRIVACY ACT AND ARTICLE 34 OF THE AGREEMENT. /6/
FURTHER, THAT REQUESTS FOR SUCH INFORMATION SHOULD BE DIRECTED TO PAUL
MOSNY THE ASSISTANT TO THE DIRECTOR (DISCLOSURE), IN WASHINGTON, D.C.
10. BOTH HARRISON ADN SHEEAN REPLIED IN WRITING ON FEBRUARY 25 AND
ADVISED OROZCO THAT THE ENTIRE PROMOTION PACKAGE SHOULD BE MADE
AVAILABLE PRIOR TO THE STEP 2 MEETING, AND THEY STATED THAT THE MEETING
SHOULD BE HELD IN ABEYANCE UNTIL THE DATA IS FURNISHED.
11. BY LETTER DATED FEBRUARY 29 UNION REPRESENTATIVE SHEEAN WROTE
MOSNY AND REQUESTED THAT, IN REGARD TO THE GRIEVANCES FILED ON FEBRUARY
8, COPIES BE FURNISHED BY MANAGEMENT OF THE COMPLETE PROMOTION PACKAGE
OF ALL QUALIFIED CANDIDATES. SHEEAN STATED THAT THE SAID PACKAGE SHOULD
CONTAIN FORM 171'S SUPERVISOR'S EVALUATION, RANKING PANEL'S EVALUATIONS,
AND OTHER RELEVANT INFORMATION. /7/
12. BY LETTER DATED MARCH 7 SHEEAN REQUESTED OF GREGORY COPIES OF
THE PROMOTION PACKAGE FOR USE IN CONNECTION WITH THE AFORESAID
GRIEVANCE.
13. UNDER DATE OF MAY 28 RESPONDENT, THROUGH ITS DISCLOSURE OFFICE,
FURNISHED THE UNION WITH THE REQUESTED INFORMATION, /8/ STATING IT WAS
IN RESPONSE TO THE REQUEST MADE UNDER THE FREEDOM OF INFORMATION ACT.
THE DATA SUPPLIED, WHICH WAS SANITIZED, CONSTITUTED THE PROMOTION
PACKAGE USED TO FILL THE VACANCY REFERRED TO IN PARAGRAPH 4 ABOVE.
CONCLUSIONS
THE ESSENTIAL ISSUE FOR DETERMINATION IS AS FOLLOWS: WHETHER AN
EMPLOYER, WHO HAS RECEIVED A REQUEST BY A COLLECTIVE BARGAINING AGENT
FOR INFORMATION TO PROCESS AN EMPLOYEE'S GRIEVANCE, MAY TREAT THE UNION
AS A MEMBER OF THE PUBLIC AND SUPPLY THE DATA REQUESTED UNDER THE
FREEDOM OF INFORMATION ACT WITHOUT VIOLATING SECTION 7114(B)(4) OF THE
ACT HEREIN.
GENERAL COUNSEL CONTENDS THAT THE UNION'S RIGHT TO OBTAIN INFORMATION
NECESSARY TO PERFORM ITS DUTIES AS BARGAINING REPRESENTATIVE DERIVES
FROM SECTION 7114(B)(4) OF THE ACT. IT INSISTS RESPONDENT MAY NOT,
WITHOUT VIOLATING ITS OBLIGATION TO BARGAIN WITH THE UNION, DISREGARD
THIS STATUTE AND REQUIRE THE REPRESENTATIVE TO OBTAIN THE DATA BY
REQUESTING IT UNDER THE FREEDOM OF INFORMATION ACT (FOIA). GOOD FAITH
BARGAINING, IT IS MAINTAINED, IS NOT EVIDENCED BY TREATING THE UNION AS
A MEMBER OF THE GENERAL PUBLIC, AND THE INFORMATION REQUESTED MUST BE
EVALUATED BY RESPONDENT UNDER THE ACT - NOT BY REFERENCE TO OTHER LAWS
OR REGULATIONS. /9/
RESPONDENT MAINTAINS IT HAS COMPLIED WITH THE REQUIREMENTS OF THE ACT
IN FURNISHING THE REQUESTED MATERIALS TO THE UNION. THE EMPLOYER ARGUES
THAT UNDER SECTION 7114(B)(4), ITS DUTY IS TO PROVIDE INFORMATION NOT
PROHIBITED BY LAW; THAT, UNDER THE REGULATIONS GOVERNING RESPONDENT (27
CFR PART 71), THE ONLY PERSON AUTHORIZED BY THE BUREAU TO DISCLOSE THIS
INFORMATION IS THE ASSISTANT TO THE DIRECTOR (DISCLOSURE). IT IS
AVERRED THAT THE AGENCY MUST DETERMINE WHETHER THE DATA WOULD BE
PROHIBITED FROM DISCLOSURE BY ANY FEDERAL LAW, AND THE PERSON AUTHORIZED
UNDER THIS REGULATION TO MAKE SUCH DETERMINATION IS THIS DISCLOSURE
OFFICER. HENCE, THE REQUEST MUST BE FURNISHED THROUGH THE FREEDOM OF
INFORMATION ACT, AND IN PROCESSING THE UNION'S REQUEST THROUGH THAT ACT
THE EMPLOYER HAS ACTED IN ACCORDANCE WITH SECTION 7114(B)(4) OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE. FURTHER, RESPONDENT
CONTENDS THE CONTRACT SPECIFICALLY PROVIDES THAT IN PROCESSING
GRIEVANCES THE REVIEW OF THE FILE MUST BE MADE IN ACCORDANCE WITH THE
PRIVACY ACT; THAT SINCE THIS STATUTE IS IMPLEMENTED BY THE ASSISTANT TO
THE DIRECTOR (DISCLOSURE), THE UNION CANNOT COMPLAIN IT RECEIVED THE
INFORMATION FROM THE WRONG SOURCE.
IT IS WELL ESTABLISHED, AND RESPONDENT DOES NOT DISAGREE, THAT A
COLLECTIVE BARGAINING REPRESENTATIVE IS ENTITLED, UPON REQUEST, TO
INFORMATION FROM AN EMPLOYER WHICH IS NECESSARY AND RELEVANT TO
INTELLIGENTLY REPRESENT EMPLOYEES. DEPARTMENT OF THE NAVY, DALLAS NAVAL
AIR STATION, DALLAS, TEXAS, A/SLMR NO. 510. MOREOVER, WHERE THE DATA
SOUGHT IS RELEVANT AND NECESSARY TO THE PROCESSING OF A GRIEVANCE, IT
MUST BE FURNISHED BY MANAGEMENT. INTERNAL REVENUE SERVICE AND IRS,
ATLANTA DISTRICT OFFICE, A/SLMR NO. 975.
PREVIOUS CASES HAVE ARISEN UNDER EXECUTIVE ORDER 11491, AS AMENDED,
(HEREIN CALLED THE ORDER) WHERE INFORMATION WAS SUPPLIED ONLY AFTER A
FURTHER REQUEST OF THE EMPLOYER WAS MADE BY THE UNION PURSUANT TO THE
FREEDOM OF INFORMATION ACT. SEE DEPARTMENT OF THE TREASURY, INTERNAL
REVENUE SERVICE, GREENSBORO DISTRICT OFFICE, A/SLMR NO. 1007; INTERNAL
REVENUE SERVICE, ET AL, SUPRA. IN EACH INSTANCE THE ASSISTANT SECRETARY
CONCLUDED THAT THE BARGAINING AGENT WAS ENTITLED TO THE MATERIAL
REQUESTED UNDER THE ORDER; THAT ITS SUBMISSION UNDER THE FOIA WAS
INCOMPATIBLE WITH GOOD FAITH BARGAINING; AND THE ISSUE WAS NOT RENDERED
MOOT BY VIRTUE OF THE FACT THAT THE DATA WAS FURNISHED. THUS IT WAS
CONCLUDED THAT THE RESPECTIVE RESPONDENTS VIOLATED SECTIONS 19(A)(1) AND
(6) OF THE ORDER BY REQUIRING THE UNION TO SEEK THE INFORMATION UNDER
THE FOIA AND FAILING TO SUBMIT IT AS ORIGINALLY REQUESTED.
IN THE CASE AT BAR RESPONDENT ATTEMPTS TO DISTINGUISH THE CITED CASES
FROM THE ONE AT HAND. IT ASSERTS TWO MAIN CONTENTIONS: (1) SECTIONS
7114(B)(4) CONTAINS LANGUAGE NOT FOUND IN THE ORDER, AND UNDER THIS
SECTION AN AGENCY IS REQUIRED TO FURNISH DATA NOT PROHIBITED BY LAW;
(2) A LIMITATION IS FOUND IN THE COLLECTIVE BARGAINING AGREEMENT BETWEEN
THE PARTIES UNDER ARTICLE 9, SECTION 15(B) WHICH PROVIDES FOR A REVIEW
OF A FILE, IN THE PROCESSING OF GRIEVANCES, ONLY IN ACCORDANCE WITH THE
PRIVACY ACT. /10/
IT IS ARGUED BY RESPONDENT HEREIN THAT SINCE THE STATUTE REQUIRES AN
EMPLOYEE TO SUPPLY DATA NOT PROHIBITED FORM DISCLOSURE UNDER FEDERAL
LAW, AN AGENCY MUST DETERMINE WHETHER THE MATERIAL WOULD BE SO
PROHIBITED. FURTHER, THAT SINCE THE ONLY INDIVIDUAL WHO COULD MAKE SUCH
DETERMINATION WAS THE DISCLOSURE OFFICE, PROCESSING THE REQUEST UNDER
THE FOIA WAS, IN FACT, COMPLIANCE WITH THE REQUIREMENTS UNDER SECTION
7114(B) OF THIS STATUTE. THIS ARGUMENT IS REJECTED. THE LANGUAGE OF
THIS SECTION IS AN APPARENT ATTEMPT TO PROTECT DISCLOSURE OF INFORMATION
WHICH IS PROTECTED THEREFROM UNDER A PARTICULAR LAW. I DO NOT INTERPRET
THE LANGUAGE IN SECTION 7114(B) AS PERMITTING AN EMPLOYER TO REQUIRE
THAT THE BARGAINING AGENT SEEK DATA, WHICH IT NEEDS TO REPRESENT
EMPLOYEES, UNDER THE FOIA. THE FACT THAT RESPONDENT'S DISCLOSURE
OFFICER HANDLES REQUESTS FOR RECORDS UNDER THE ACT, AND THAT HE IS THE
PERSON WHO DETERMINES WHETHER REQUESTED MATERIAL IS EXEMPT FROM
SUBMISSION, DOES NOT RELIEVE THE EMPLOYER FORM ITS OBLIGATION UNDER
SECTION 7114(B). THE ADMINISTRATIVE LAW JUDGE STATED IN INTERNAL
REVENUE SERVICE, ET. AL. SUPRA, THAT ENTITLEMENT TO INFORMATION UNDER
THE ORDER IS NOT GOVERNED BY THE GUIDELINES UNDER FOIA. IN MY OPINION
THE LAW IN THIS RESPECT HAS NOT CHANGED UNDER THE ACT. THE RIGHT TO
DATA UNDER SECTION 7114(B) THEREOF IS NOT CONTROLLED BY FOIA.
IN THE CASE AT BAR RESPONDENT DOES NOT CLAIM THAT THE MATERIAL
REQUESTED BY THE UNION COULD NOT BE FURNISHED ON THE GROUND THAT ANY LAW
PROHIBITED IT. MOREOVER, THE INFORMATION, ALBEIT IN SANITIZED FORM, WAS
GIVEN BY THE EMPLOYER. WHILE THE ADEQUACY OF THE DATA SUPPLIED IS NOT
BEFORE THE UNDERSIGNED, IT IS CLEAR TO ME THAT UNION RETAINS ITS RIGHT
AS BARGAINING AGENT TO OBTAIN RELEVANT INFORMATION NOTWITHSTANDING THE
EXISTENCE OF THE PRIVACY ACT OF 1974. IN LOCAL 2047 AFGE V. DEFENSE
GENERAL SUPPLY CENTER, 423 F. SUPP. 481(1976), THE COURT TOOK OCCASION
TO STATE THAT CONGRESS DID NOT INTEND, UNDER THE PRIVACY ACT, TO
PRECLUDE DISCLOSURE OF DATA TO A RECOGNIZED LABOR UNION UNDER A
NEGOTIATED AGREEMENT; THAT THE BARGAINING AGENT OCCUPIES A UNIQUE
POSITION UNDER THE PRIVACY ACT AND WOULD NEED RELEVANT MATERIAL TO
FULFILL ITS REPRESENTATIONAL DUTIES. /11/
FURTHER, I FIND NO MERIT IN THE ARGUMENT THAT SINCE THE CONTRACT
REQUIRES THAT DATA BE SUPPLIED IN ACCORDANCE WITH THE PRIVACY ACT, IT
WAS THEREFORE PROPERLY FURNISHED BY THE DISCLOSURE OFFICER WHO
ADMINISTERED THAT STATUTE. THIS CONTENTION IS AN EXTENSION OF THE SAME
POSITION ADVANCED BY RESPONDENT IN RESPECT TO THE FOIA. IN MY OPINION
THE UNION WAS ENTITLED TO RECEIVE THE INFORMATION UNDER SECTION
7114(B)(4) OF THE ACT HEREIN, AND THE FACT THAT RESPONDENT'S DISCLOSURE
OFFICER ADMINISTERED EITHER FOIA OR THE PRIVACY ACT DOES NOT MILITATE
AGAINST THAT RIGHT. THUS I CONCLUDE THAT BY REQUIRING THE UNION TO
REQUEST DATA UNDER THE FOIA, AND TREATING IT AS A MEMBER OF THE GENERAL
PUBLIC, RESPONDENT WAS EVADING ITS OBLIGATION UNDER 7114(B) OF THE ACT.
AS SUCH, ITS ACTION CONSTITUTED A REFUSAL TO BARGAIN IN VIOLATION OF
SECTION 7116(A)(5). ACCORDINGLY, I FIND THAT, HAVING FAILED TO COMPLY
WITH THE REASON OF ITS NOT FURNISHING THE INFORMATION REQUESTED HEREIN
UNDER THE REASON OF ITS NOT FURNISHING THE INFORMATION REQUESTED HEREIN
UNDER THE STATUTE, RESPONDENT VIOLATED SECTION 7116(A)(1)(5) AND (8) OF
THE ACT.
IN VIEW OF THE FOREGOING I RECOMMEND THE AUTHORITY ADOPT THE
FOLLOWING ORDER:
ORDER
PURSUANT TO SECTION 7118(A)(7) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE AND SECTION 2423.29 OF THE RULES AND
REGULATIONS, IT IS HEREBY ORDERED THAT BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS, NATIONAL OFFICE AND WESTERN REGION, SAN FRANCISCO, CALIFORNIA,
SHALL:
1. CEASE AND DESIST FROM:
(A) REFUSING OR FAILING TO FURNISH, UPON REQUEST BY THE NATIONAL
TREASURY EMPLOYEES UNION,
OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, ALL
INFORMATION RELEVANT TO THE
PROCESSING OF A GRIEVANCE, WHICH INFORMATION IS NECESSARY TO ENABLE
THE NATIONAL TREASURY
EMPLOYER UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, TO DISCHARGE
ITS OBLIGATION AS THE
EXCLUSIVE REPRESENTATIVE TO REPRESENT THE INTERESTS OF ALL EMPLOYEES
IN THE EXCLUSIVELY
RECOGNIZED UNIT.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES
IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS:
(A) UPON REQUEST, MAKE AVAILABLE TO THE NATIONAL TREASURY EMPLOYEE
UNION, OR ANY OTHER
EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES, ALL INFORMATION RELEVANT
TO THE PROCESSING OF A
GRIEVANCE, WHICH INFORMATION IS NECESSARY TO ENABLE THE NATIONAL
TREASURY EMPLOYEES UNION, OR
ANY OTHER EXCLUSIVE REPRESENTATIVE, TO DISCHARGE ITS OBLIGATION AS
THE EXCLUSIVE
REPRESENTATIVE TO REPRESENT THE INTERESTS OF ALL EMPLOYEES IN THE
EXCLUSIVELY RECOGNIZED
UNIT. /12/
(B) POST AT ITS FACILITY AT THE BUREAU OF ALCOHOL, TOBACCO AND
FIREARMS, NATIONAL OFFICE
AND WESTERN REGION, SAN FRANCISCO, CALIFORNIA, COPIES OF THE ATTACHED
NOTICE MARKED
"APPENDIX" ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS
AUTHORITY, UPON RECEIPT OF
SUCH FORMS, THEY SHALL BE SIGNED BY THE DIRECTOR AND SHALL BE POSTED
AND MAINTAINED BY HIM FOR
60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER
PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE
DIRECTOR SHALL TAKE REASONABLE
STEPS TO INSURE THAT NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY
ANY OTHER MATERIAL.
(C) NOTIFY THE REGIONAL DIRECTOR OF REGION IX, 450 GOLDEN GATE
AVENUE, BOX 36016, SAN
FRANCISCO, CALIFORNIA 94102 IN WRITING WITHIN 30 DAYS FROM THE DATE
OF THIS ORDER AS TO WHAT
STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
WILLIAM NAIMARK
ADMINISTRATIVE LAW JUDGE
DATED: MARCH 11, 1981
WASHINGTON, D.C.
APPENDIX PURSUANT TO A DECISION AND ORDER OF THE FEDERAL
LABOR RELATIONS AUTHORITY 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 OR FAIL TO FURNISH, UPON REQUEST BY THE NATIONAL
TREASURY EMPLOYEES UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF ITS
EMPLOYEES, ALL INFORMATION RELEVANT TO THE PROCESSING OF A GRIEVANCE,
WHICH INFORMATION IS NECESSARY TO ENABLE THE NATIONAL TREASURY EMPLOYEES
UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, TO DISCHARGE ITS
OBLIGATION AS THE EXCLUSIVE REPRESENTATIVE TO REPRESENT THE INTERESTS OF
ALL EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE ANY EMPLOYEE IN THE EXERCISE OF RIGHTS ASSURED BY THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL, UPON REQUEST, MAKE AVAILABLE TO THE NATIONAL TREASURY
EMPLOYEE UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE OF ITS EMPLOYEES,
ALL INFORMATION RELEVANT TO THE PROCESSING OF A GRIEVANCE, WHICH
INFORMATION IS NECESSARY TO ENABLE THE NATIONAL TREASURY EMPLOYEES
UNION, OR ANY OTHER EXCLUSIVE REPRESENTATIVE, TO DISCHARGE ITS
OBLIGATION AS THE EXCLUSIVE REPRESENTATIVE TO REPRESENT THE INTERESTS OF
ALL EMPLOYEES IN THE EXCLUSIVELY RECOGNIZED UNIT.
(AGENCY OR ACTIVITY)
DATED:
BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING, AND MUST NOT BE ALTERED, DEFACE, OR COVERED BY ANY OTHER
MATERIALS.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR FOR THE FEDERAL LABOR RELATIONS AUTHORITY WHOSE ADDRESS IS:
REGION 9, 450 GOLDEN GATE AVENUE, ROOM 11408, P.O. BOX 36016, SAN
FRANCISCO, CALIFORNIA 94102; TELEPHONE (415) 556-8105
--------------- FOOTNOTES: ---------------
/1/ THE RESPONDENT EXCEPTED TO, AMONG OTHER THINGS, THE JUDGE'S
FAILURE TO ADDRESS ITS ARGUMENT THAT THE NEGOTIATED AGREEMENT SUPERSEDES
ANY CONTRARY REQUIREMENTS OF SECTION 7114 OF THE STATUTE. THE AUTHORITY
NOTES THAT THE AGREEMENT WAS ENTERED INTO PRIOR TO THE ENACTMENT OF THE
STATUTE, AND NO EVIDENCE WAS SUBMITTED WITH REGARD TO THE PARTIES'
PRACTICE SUBSEQUENT TO ENACTMENT OF THE STATUTE TO SHOW A CLEAR AND
UNMISTAKABLE WAIVER BY THE UNION OF SUCH RIGHT. DEPARTMENT OF THE AIR
FORCE, SCOTT AIR FORCE BASE, ILLINOIS, 5 FLRA NO. 2(1981).
/2/ AS NOTED IN THE JUDGE'S DECISION AND ORDER, THE RECORD REFLECTS
THAT THE INFORMATION REQUESTED WAS FURNISHED PURSUANT TO A REQUEST UNDER
THE FREEDOM ON INFORMATION ACT, AND THE ADEQUACY THEREOF IS NOT AT ISSUE
HEREIN. THEREFORE, THE AUTHORITY DEEMS IT UNNECESSARY TO ORDER THE
RESPONDENT TO PRODUCE THE SPECIFIC MATERIAL.
/3/ RESPONDENT FAILED TO FILE A TIMELY ANSWER TO THE COMPLAINT, AND
ON AUGUST 20, 1980 IT MOVED FOR AN EXTENSION OF TIME BASED ON
EXTRAORDINARY CIRCUMSTANCES. GENERAL COUNSEL OPPOSED THE MOTION AND
ALSO MOVED FOR SUMMARY JUDGMENT BASED -N THE AFORESAID FAILURE BY
RESPONDENT. ON SEPTEMBER 18, 1980 THE CHIEF ADMINISTRATIVE LAW JUDGE
ISSUED AN ORDER GRANTING AN EXTENSION OF TIME TO FILE THE ANSWER HEREIN,
ADN DENYING THE MOTION FOR SUMMARY JUDGMENT. HE PREDICATED HIS RULING
ON THE NEWNESS OF THE PROCEDURES AND LACK OF PREJUDICE BY PERMITTING
RESPONDENT TO ANSWER THE COMPLAINT. AT THE HEARING GENERAL COUNSEL
MOVED TO STRIKE THE ANSWER AS UNTIMELY FILED, AND THE UNDERSIGNED DENIED
THE MOTION IN VIEW OF THE AFORESAID RULING. IN ITS BRIEF THE GENERAL
COUNSEL RENEWED ITS MOTION WHICH, IN ACCORD WITH THE ORDER ISSUED BY THE
CHIEF ADMINISTRATIVE LAW JUDGE, IS HEREBY DENIED.
/4/ CHAPTER 81 NTEU REPRESENTED THE UNIT EMPLOYEES AT THE WESTERN
REGION.
/5/ UNLESS OTHERWISE INDICATED, ALL DATES HEREINAFTER MENTIONED OCCUR
IN 1980.
/6/ ARTICLE 34 OF THE NEGOTIATED AGREEMENT SETS FORTH THE PROCEDURES
FOR FILING GRIEVANCES. IT POSES NO ISSUE FOR DETERMINATION HEREIN.
/7/ THE PARTIES STIPULATED, AT THE HEARING, THAT THE DATA SOUGHT BY
THE UNION WAS RELEVANT AND NECESSARY TO THE PROMOTION GRIEVANCE
INVOLVING HARRISON.
/8/ RECORD FACTS SHOW THAT MANAGEMENT WITHHELD POSITIONS OF THE
RECORD CONTAINING EXEMPT INFORMATION WHICH WOULD EITHER INVADE PRIVACY
OR BE HARMFUL TO THE EMPLOYEE. GENERAL COUNSEL STATED AT THE HEARING IT
DID NOT DESIRE TO LITIGATE WHETHER THE INFORMATION FURNISHED WAS
COMPLETE, SINCE THIS ISSUE WOULD BE LITIGATED IN A SEPARATE PROCEEDING.
THE UNDERSIGNED ADVISED THE PARTIES THAT UNLESS THE ISSUE OF ADEQUACY
WAS RAISED IT WOULD BE INFERRED AND CONCLUDED THAT THE DATA REQUESTED
WAS SUPPLIED; THAT A RESOLUTION OF THIS ISSUE COULD NOT BE DEPENDENT
UPON ANOTHER PROCEEDING IN FUTURE; AND THAT THE ISSUE TO BE DETERMINED
HEREIN WOULD BE WHETHER RESPONDENT VIOLATED THE ACT BY FURNISHING THE
MATERIAL UNDER THE FOIA APART FROM THE DIRECT REQUEST MADE UNDER THE
STATUTE. IN VIEW OF THE FOREGOING, AND THE FAILURE OF GENERAL COUNSEL
TO ALLEGE AND LITIGATE THAT ALL THE DATA WAS NOT SUPPLIED, I FIND AND
CONCLUDE THE INFORMATION WAS FURNISHED, ALBEIT UNDER THE FOIA FOR THE
MOST PART, AND THAT IS WAS ADEQUATE FOR THE PURPOSE SOUGHT BY THE UNION.
/9/ THE UNION, WHICH IS REPRESENTED BY ITS OWN COUNSEL, SUBSCRIBES TO
THESE CONTENTIONS.
/10/ 5 U.S.C. 552(A).
/11/ IT MAY WELL BE THAT CERTAIN ITEMS WHICH THE UNION SOUGHT HEREIN
MIGHT HAVE BEEN EXEMPT FROM DISCLOSURE UNDER THE PRIVACY ACT IN THE FORM
REQUESTED. THUS, IN THE DEFENSE GENERAL SUPPLY CASES SUPRA, THE
EMPLOYER WAS NOT REQUIRED TO SUBMIT, WITHOUT CONSENT OF THE INDIVIDUALS
INVOLVED, THE NAMES OF EMPLOYEES ON LISTS IN RESPECT TO PROMOTIONS,
REDUCTION IN FORCE OR ABUSE OF LEAVE. HOWEVER, THIS ISSUE IS NOT BEFORE
ME FOR DETERMINATION.
/12/ SINCE THE RECORD REFLECTS THAT THE INFORMATION REQUESTED WAS
FURNISHED PURSUANT TO A REQUEST UNDER THE FREEDOM OF INFORMATION ACT,
AND THE ADEQUACY THEREOF IS NOT AT ISSUE HEREIN, I SHALL NOT RECOMMEND
THAT RESPONDENT PRODUCE THAT SPECIFIC MATERIAL IN THE REMEDIAL ORDER.
SEE INTERNAL REVENUE SERVICE, IRS, ATLANTA DISTRICT OFFICE, SUPRA.