[ v17 p624 ]
17:0624(92)CA
The decision of the Authority follows:
17 FLRA No. 92
ARMY AND AIR FORCE EXCHANGE SERVICE
(AAFES), FORT CARSON, COLORADO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1345
Charging Party
Case Nos. 7-CA-782
7-CA-788
7-CA-795
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain of the unfair labor practices alleged in the consolidated
complaint, and recommending that it be ordered to cease and desist
therefrom and take certain affirmative action. The Judge also found
that the Respondent had not engaged in certain other unfair labor
practices alleged in the consolidated complaint and ordered that such
allegations be dismissed. The General Counsel filed exceptions with
respect to the latter portion of the Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
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 rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order, as modified herein.
The Judge found in Case Nos. 7-CA-782 and 7-CA-788 that the
Respondent did not comply with section 7114(b)(4) of the Statute /1/ in
violation of section 7116(a), (5) and (8) of the Statute by failing to
furnish the American Federation of Government Employees, AFL-CIO, Local
1345 (the Union) with necessary data contained in employee James Allen's
Official Personnel File (OPF) /2/ and by refusing to furnish desk audits
for Respondent's branch stores in January 1981. /3/ No exceptions were
filed in this regard.
Under section 7114(b)(4) of the Statute, an agency has a duty to
furnish, upon request by an exclusive representative and to the extent
not prohibited by law, data which, among other things, is reasonably
available and necessary for full and proper discussion, understanding,
and negotiation of subjects within the scope of collective bargaining.
Such data must be necessary to enable the union to fulfill its
representational responsibilities, including the effective evaluation
and processing of grievances. /4/ However, a union's bare assertion
that it needs data to process a grievance does not automatically oblige
the agency to supply such data. /5/ The duty to supply data under
section 7114(b)(4) thus turns upon the nature of the request and the
circumstances in each particular case. The threshold issue in Case No.
7-CA-782 is whether or not the data requested by the Union is necessary
for full and proper discussion, understanding and negotiation of
subjects within the scope of collective bargaining, including
specifically the Union's evaluation and processing of a grievance
concerning the selection of employee James Allen for a job vacancy.
In Case No. 7-CA-782, the Union requested the data relied upon by the
Respondent in selecting employee James Allen for a job vacancy in order
to determine whether to file a grievance. The record reveals that
selecting officials generally use a "supervisor rating form" in
evaluating applicants for a vacancy such as the one involved herein.
The selecting official completes this form by evaluating and assigning
points to information regarding education, performance reviews and test
scores contained in the application. However, in the present case, as
there were only two employees qualified for the vacancy, the standard
numerical point rating system was not utilized by selecting officials in
making their decision. Rather, it appears that the selecting officials'
decision was based solely on information in the documents contained in
each applicant's OPF. Therefore, the Authority finds that documents
contained in Allen's OPF were necessary to enable the Union to determine
if the selection process was fair and to determine whether to file a
grievance. /6/
The Respondent contended that pursuant to the provisions of the
Privacy Act, /7/ it could not lawfully provide any part of the OPF to
the Union unless Allen authorized release of the documents. In so
contending, the Respondent asserted, and the Authority agrees, that the
restrictive language in section 7114(b)(4) of the Statute, limiting an
agency's duty to furnish data "to the extent not prohibited by law,"
incorporates the Privacy Act. The Judge, relying on earlier decisions
under Executive Order 11491, as amended, did not squarely address this
argument. Therefore, the Authority must decide whether disclosure of
the requested data from Allen's OPF, which was previously found to be
"necessary" within the meaning of section 7114(b)(4) of the Statute, is
nevertheless "prohibited by law" from disclosure within the meaning of
section 7114(b)(4) by the Privacy Act.
The Privacy Act regulates the disclosure of any information contained
in an agency "record" within a "system of records" that is retrieved by
reference to an individual's name or some other personal identifier.
/8/ The employee's personnel file which the Union requested in Case No.
7-CA-782 is considered a record contained within the Respondent's system
of records under the Privacy Act /9/ and is generally prohibited from
disclosure unless one of the specific Privacy Act exceptions is
applicable. /10/ The exception set forth in 5 U.S.C. 552a(b)(2) permits
disclosure of Privacy Act-protected information to the extent that such
information is "required" to be released under the Freedom of
Information Act (FOIA). /11/ The theory of the FOIA, in contrast to the
Privacy Act, is that all records in the possession of the agencies of
the Federal Government must be disclosed upon request unless subject to
a specific FOIA exemption. /12/ Under exemption (b)(6) of the FOIA, an
agency is allowed to withhold personnel and medical files and similar
files the disclosure of which would constitute a clearly unwarranted
invasion of privacy. In cases where requests for individually
identifiable records such as promotion and personnel files are made
under the FOIA, the Federal courts apply a balancing test to determine
whether disclosure would result in a clearly unwarranted invasion of
privacy. /13/ For example, in American Federation of Government
Employees, AFL-CIO, Local 1923 v. United States Dep't of Health and
Human Services, 712 F.2d 931 (4th Cir. 1983), the union sought the home
addresses of all unit employees pursuant to the FOIA. The Court of
Appeals for the Fourth Circuit, in evaluating whether the information
sought by the union should be disclosed, balanced the individual
employee's interest in his or her right to privacy and the possible
adverse or harmful effects on the individual which could result from
disclosure against the public's interest in having the information made
available. The District Court for the District of Columbia applied the
same balancing test in Celmins v. United States Dep't of Treasury, 457
F.Supp. 13 (D.D.C. 1977), in determining whether the agency was required
to disclose the promotion file and the other promotion documents
requested under the FOIA by unsuccessful promotion applicants.
The data requested by the Union in Case No. 7-CA-782 is similar to,
and in some respects the same as, the information requested under the
provisions of the FOIA in the cases previously cited (supra note 13).
As these cases make clear, disclosure of individually identifiable
records is not prohibited by law in all circumstances. The information
is often disclosed to the public under the provisions of the FOIA, in a
sanitized or non-sanitized form, after the agency or the court makes a
determination that such disclosure would not result in a clearly
unwarranted invasion of the individual's privacy. Therefore, the
Authority concludes that disclosure of documents contained in Allen's
OPF pursuant to the Union's request under section 7114(b)(4) of the
Statute is not per se prohibited by law but is subject to the same
scrutiny and the same balancing test which is applied by the courts in
evaluating FOIA requests under the 5 U.S.C. 552(b)(6) exemption.
The balance to be drawn under the FOIA's (b)(6) exemption is one
between the promotion of the individual's right to privacy and the
promotion of important public interests. /14/ In determining whether
"necessary" data under section 7114(b)(4) of the Statute should be
disclosed to the Union, the Authority will balance the necessity of the
data for the Union's purposes against the degree of intrusion on the
individual's privacy interests caused by disclosure of the data. In
striking the balance between Allen's privacy interest and the Union's
need for the documents in the circumstances of this case, the Authority
notes that there has been no allegation, nor does the record reflect,
that the documents in Allen's OPF sought by the Union contain any
stigmatizing information. /15/ Moreover, the fact that the Union
requested the documents only with respect to a possible grievance
proceeding concerning a particular personnel action indicates that the
documents would be likely to receive only limited circulation. /16/
Therefore, in view particularly of the Union's need for these documents
in order to pursue its representational duties and to aid in ensuring
that the government's merit promotion system operates fairly, compared
to the limited intrusion on Allen's privacy, the Authority finds that
the disclosure of the requested documents would not result in a clearly
unwarranted invasion of Allen's privacy. Further, the Authority finds
in the circumstances of this case, that disclosure of the data serves
two important public interests: ensures that the Government fairly
follows its own merit promotion procedures, and encourages the use of
nondisruptive grievance procedures. /17/ Accordingly, the Authority
finds that the Privacy Act did not justify the Respondent's refusal to
provide the necessary data requested by the Union under section
7114(b)(4) of the Statute and concludes that the Respondent violated
section 7116(a)(1), (5) and (8) of the Statute by failing to furnish the
Union with the necessary data contained in James Allen's OPF.
Additionally, the Judge found in Case No. 7-CA-795 that the
Respondent did not violate the Statute by refusing to provide written
data to the Union relating to the disciplinary separation of two unit
employees. The General Counsel's exceptions were limited to this
finding. Under the particular circumstances of the instant case, where
the Union did not know the identities of, and was not asked to
represent, the two employees concerning their disciplinary separations,
the Authority concludes that the General Counsel has failed to meet the
burden of showing that the Union's request was for data necessary for
full and proper performance of its representational function within the
meaning of section 7114(b)(4)(B) of the Statute. /18/ Thus, in
agreement with the Judge, the Authority finds that the Respondent was
under no statutory obligation to provide the requested data and,
therefore, that the Respondent's failure to do so was not violative of
the Statute. Accordingly, in agreement with the Judge, the Authority
concludes that those allegations in the consolidated complaint
pertaining to Case No. 7-CA-795 be dismissed in their entirety.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, it is hereby ordered that
the Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado,
shall:
1. Cease and desist from:
(a) Refusing to permit the American Federation of Government
Employees, AFL-CIO, Local 1345, the exclusive representative of a unit
of its employees, access to the data contained in the Official Personnel
File of employee James Allen which is necessary for full and proper
performance by the American Federation of Government Employees, AFL-CIO,
Local 1345, of its representational functions regarding the selection
process for the Maintenance Worker HPP-7 position, for which Job Vacancy
Number 094 was posted.
(b) Refusing to permit the American Federation of Government
Employees, AFL-CIO, Local 1345, access to the desk audits for the
positions in the branch stores at the Exchange, Fort Carson, Colorado,
and all other data and materials pertaining to the desk audit reviews as
are necessary for full and proper performance by the American Federation
of Government Employees, AFL-CIO, Local 1345, of its representational
functions regarding the wage grades of the various positions in the
branch stores at the Exchange in relation to the work performed by its
employees.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, permit the American Federation of Government
Employees, AFL-CIO, Local 1345, access to the desk audits for the
positions in the branch stores at the Exchange, Fort Carson, Colorado,
and all other data and materials pertaining to the desk audit reviews as
are necessary for full and proper performance by the American Federation
of Government Employees, AFL-CIO, Local 1345, of its representational
functions regarding the wage grades of the various positions in the
branch stores at the Exchange in relation to the work performed by its
employees.
(b) Post at its facility at the Army and Air Force Exchange Service
(AAFES), Fort Carson, Colorado, 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 General Manager of the
Exchange, or his designee, and shall be posted and maintained for 60
consecutive days thereafter in conspicuous places, including bulletin
boards and other places where notices to employees are customarily
posted. Reasonable steps shall be taken 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 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.
IT IS FURTHER ORDERED that the allegation concerning the refusal to
furnish desk audits for the Main Store in Case No. 7-CA-788, and the
allegations in Case No. 7-CA-795 of the consolidated complaint be, and
they hereby are, dismissed.
Issued, Washington, D.C., April 22, 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 permit the American Federation of Government
Employees, AFL-CIO, Local 1345, the exclusive representative of a unit
of our employees, access to the data contained in the Official Personnel
File of employee James Allen which is necessary for full and proper
performance by the American Federation of Government Employees, AFL-CIO,
Local 1345, of its representational functions regarding the selection
process for the Maintenance Worker HPP-7 position, for which Job Vacancy
Number 094 was posted. WE WILL NOT refuse to permit the American
Federation of Government Employees, AFL-CIO, Local 1345, access to the
desk audits for the positions in the branch stores at the Exchange, Fort
Carson, Colorado, and all other data and materials pertaining to the
desk audit reviews as are necessary for full and proper performance by
the American Federation of Government Employees, AFL-CIO, Local 1345, of
its representational functions regarding the wage grades of the various
positions in the branch stores at the Exchange in relation to the work
performed by its employees. 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, permit the American Federation of
Government Employees, AFL-CIO, Local 1345, access to the desk audits for
the positions in the branch stores at the Exchange, Fort Carson,
Colorado, and all other data and materials pertaining to the desk audit
reviews as are necessary for full and proper performance by the American
Federation of Government Employees, AFL-CIO, Local 1345, of its
representational functions regarding the wage grades of the various
positions in the branch stores at the Exchange in relation to the work
performed by its employees.
(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.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos. 7-CA-782, 7-CA-788,
7-CA-795
Luther G. Jones, III, Esq.
G. T. Fearson
For the Respondent
Gavin R. Lodge, Esq.
For the General Counsel
Kenneth Bull
For the Charging Party
Before: WILLIAM NAIMARK, Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Consolidated Complaint and Notice of Hearing issued on
January 16, 1981 by the Acting Regional Director for the Federal Labor
Relations Authority, Kansas City, Missouri Region, a hearing was held
before the undersigned on March 3, 1981 at Peterson Air Force Base,
Colorado.
These cases arise under the Federal Service Labor-Management
Relations Statute (herein called the Act). Case No. 7-CA-782 is based
on a charge filed on September 22, 1 980 by American Federation of
Government Employees, AFL-CIO, Local 1345 (herein called the Union or
Charging Party) against Army and Air Force Exchange Service (AAFES),
Fort Carson, Colorado (herein called the Respondent. Case No. 7-CA-788
is based on a charge filed on September 24, 1980 by the Union against
Respondent herein. Case No. 7-CA-795 is based on a charge filed on
September 25, 1980 by the Union against Respondent herein.
The consolidated complaint, with respect to the aforesaid cases,
alleged in substance as follows:
Case No. 7-CA-782-- Since on or about September 11, 1980, the Union
requested Respondent to furnish certain data utilized by management in
filling Job Vacancy Announcement Number 094, Maintenance Worker, HPP-7,
which data is necessary for the Union to perform its representational
duties, and Respondent has refused to provide some.
Case No. 7-CA-788-- Since on or about September 11, 1980, the Union
requested Respondent to furnish copies of desk audits and/or the results
of such audits performed on unit employees in April 1980, at the Fort
Carson facility, /19/ which audit was necessary for the Union to perform
its representational duties, and Respondent has refused to provide some.
Case No. 7-CA-795-- Since on or about September 11, 1980 the Union
requested Respondent to furnish all data relating to the disciplinary
separation of two unit employees in or about August 1980, which data was
necessary for the Union to perform its representational duties, and
Respondent has refused to provide such data.
The aforesaid consolidated complaint alleged that, in respect to each
case, Respondent has violated Sections 7116(a)(1), (5), and (8) of the
Act. Respondent's answer to the consolidated complaint, dated January
27, 1981, denied the commission of any unfair labor practices.
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 which have been
duly considered. /20/
Upon the entire record herein, from my observation of the witnesses
and their demeanor, and from all of the testimony 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 and still is, the
collective bargaining representative of regular full-time and regular
part-time employees /21/ who are employed by the Fort Carson Exchange at
Fort Carson, Colorado and the Pueblo Army Depot, Pueblo, California.
2. A collective bargaining agreement between the Union and
Respondent, covering the aforesaid employees, is effective by its terms
from March 16, 1979 for a period of three years. Article 12 of the
agreement provides for grievance and arbitration of disputes over the
interpretation and application of the contract and other
dissatisfactions.
3. (Case No. 7-CA-782) On September 11, 1980 /22/ union officials
Marlene Moosman and Carolyn Rains met with Dola Clark, personnel
assistant of Respondent. Moosman declared that they represented David
Langford, employee who complained that he had not been selected for the
Job Vacancy Number 094, Maintenance Worker HPP-7. Langford objected to
the selection process which resulted in the fact that James Allen was
chosen for the job.
4. During this aforesaid meeting Moosman requested that management
provide the union with all data, including Allen's official personnel
file, utilized by Respondent in its selection of the candidate /23/ for
the job.
5. Clark stated, in reply to the aforesaid request, that she could
not give the personnel file of Allen based on the Privacy Act unless the
employee signed a release for same. No such release was executed by
Allen, and Respondent refused to turn over the file to the Union as
requested.
6. The official personnel file /24/ pertaining to Allen is composed
of various documents or papers which are as follows:
(a) Employment applications dated July 3, 1979 (past education
and experience).
(b) Reference letter from vocational school together with
rating of job skills.
(c) High school diploma.
(d) W4 IRS form dated August 6, 1979.
(e) Employee insurance form naming beneficiary.
(f) Certificate agreeing to standards of grooming.
(g) Affidavit declaring loyalty to the United States.
(h) Application for identification and privilege care.
(i) Supervisor's evaluation forms-- September 15, 1979-February
12, 1980, February 13, 1980-September 26, 1980.
(j) Certificate of completion of Human Relations Training.
(k) Personnel request, which involve transfers, change in wage
rates, classifications, et al.
(l) Personnel action on aforesaid requests.
(m) Projected step advancement forms.
7. (Case No. 7-CA-788) In the course of various meetings between
management and the Union in February and April, the bargaining agent
advised Respondent that some employees in customer service thought their
work deserved a higher grade. Philip Schunk, supervisor, told the union
representatives thereat that an official desk audit /25/ review was
forthcoming for the entire area, and that it would run from April
through May of 1980. The desk audits were completed for the main store
at Fort Carson as well as for two branch stores on the post.
8. A meeting was held on September 11 attended by Moosman and Rains
on behalf of the Union, as well as Norman Tischer, food manager of the
Fort Carson Exchange, Dan Wage, manager of the main store at Fort
Carson, and Robert Paul, the Fort Carson Exchange Manager. Since there
is a sharp dispute as to whether the Union did, in fact, request the
desk audits for the entire exchange (including the branches), the
testimonies and facts with respect thereto are set forth as follows:
(a) Moosman testified she told Paul at the meeting that the
Union had not heard as to the result of the desk audits, and she
"would like to know how it came out." She further testified the
Union was seeking the audits for the main store and the branches.
According to Moosman, the manager agreed to get back to her, and
the minutes of the meeting were furnished the Union representative
shortly thereafter.
(b) Rains' testimony reflects that, at the aforesaid meeting,
The Union representatives stated that the audits were promised to
them and they would like the information. She testified the main
store was not specified, and the request was not limited to that
facility.
(c) Paul testified that when he met with Moosman and Rains the
Union officials asked for the desk audits for the main store only.
(d) The minutes of the September 11 meeting recite /26/ that
"objection was raised that union (sic) has not been informed of
the results of the desk audits conducted at the Main Store by
OVER-P representative."
9. On the basis of the record I am persuaded that on September 11
the union officials' request for the desk audits was limited to the main
store. While Moosman and Rains may have intended to seek the audits for
the entire facility, including the branches, I am constrained to find no
such explicit request was made by them. Apart from the fact that the
testimonies of both union representatives reflect that the request was
not precise, there is evidence to support the conclusion that the demand
for desk audits was confined to the Main Store. Thus, the minutes of
the September 11 meeting stated the union was disturbed at not receiving
the data for the Main Store, and no mention was made of the branches.
Moreover, the Union was furnished with a copy of the minutes and
registered no objection to the accuracy thereof. Further, the charge in
7-CA-788, filed by the Union herein, averred that the request was for
the desk audits of the "unit employees at the Main Store." Accordingly,
I find that on September 11 the Union did not request the desk audits
for the entire Exchange, but asked for the audits of the employees at
the Main Store only.
10. Subsequent to the request for the desk audits by the Union, Paul
conferred with the personnel manager as to furnishing that data. It was
concluded that management was not obligated to supply the information.
Subsequently Respondent's officials changed their minds. On November 5,
when Paul was given the desk audit, he provided the Union with the
audits for the Main Store.
11. In January 1981, during a discussion re the unfair labor
practice charge filed in this case, Moosman told Paul the Union wanted
the desk audits for the branches; that it was her understanding all the
audits would be furnished. Paul agreed to let Moosman know if the
audits for the branches could be supplied as requested at that time.
This was never done because, as the manager testified, "We had proceeded
too far down the line". Thus Respondent refused to provide the Union
with the desk audits for the branches of the Exchange.
12. (Case No. 7-CA-795) Under date of August 8, Paul sent letters to
Ida Canty and Donna Duncan, bargaining unit employees who worked in the
Respondent's warehouse at the Exchange. In said letter Paul informed
both employees he intended to discharge them for alleged theft on that
date of AAFES property from Building 6034, Mobile Units Food Warehouse.
The individuals were advised therein that they could file a reply and
explain the circumstances. Thereafter, and during August, Respondent
discharged Canty and Duncan.
13. By letter dated September 8, addressed to S. W. Fogleman,
General Manager of AAFES, Fort Carson, Colorado, the Union president,
Mike Minnick, requested all written data re the circumstances
surrounding the discharge of "two unit employees at the Ft. Carson
Exchange Food Warehouse in August 1980".
14. On September 11 Moosman and Rains met with Clark. While they
did not know the identity of the two dischargees, the union
representatives asked for the data re their termination. Whereupon
Clark left the room to confer with Schunk. When she returned, Clark
advised them that the information could not be released due to the
Privacy Act. It was not furnished by Respondent.
15. At the hearing herein Respondent submitted various documents
(Identified as R 4a-4i), to be examined in camera, which concerned the
apprehension of Canty and Duncan for theft of merchandise. These
documents, which the employer herein refused to turn over to the Union,
are identified as follows: (a) Incident Report of Exchange Detective
William White, (b) Form 3975 and Report of Incident, (c) Rights warning
procedure and waiver certificate executed by both employees, (d) Sworn
statement signed by Canty re the incident, (e) Administrative data form
re Duncan showing such items as physical characteristics, date and place
of birth, and marital status, and (f) Violation citation on both
employees and a disposition form of charges on Canty.
Conclusions
Case No. 7-CA-782
It is contended by the General Counsel that the Union, as bargaining
representative of the employees, was entitled to receive all data /27/
utilized by Respondent in selecting Allen for the position of
Maintenance Worker, Vacancy Number 094. In seeking to obtain Allen's
official personnel file, the Union insists it is pursuing
representational functions; that it has the right to obtain data to
determine if a grievance should be filed. Thus, since it represented
unit employee Langford, the file was needed to determine whether to
grieve over his non-selection. Further, the General Counsel insists the
Privacy Act is no defense to Respondent's refusal to furnish Allen's
personnel file under the Act herein.
Respondent adverts to the restrictive language contained in Section
7114(b)(4) of the Act. This section provides, in substance, that an
agency must furnish to the exclusive representative certain data, upon
request, and to the extent not prohibited by law. It is urged by the
employer that this section incorporates the Privacy Act since the latter
was enacted prior to the Federal Service Labor-Management Relations Act.
While recognizing that the interests of the affected employee-- whose
file is sought by the Union herein-- must be balanced against the
interests of the bargaining agent, Respondent insists that giving
Allen's personnel file would violate the Privacy Act. It contends that
sanitizing was not applicable since the Union wanted to see the file,
and that concealment of identity was not possible under the
circumstances.
A lead case in the public sector established the rule that evaluation
materials on a selected candidate for a job opening are clearly
necessary and relevant to the processing of a grievance which disputes
the selection. Department of the Treasury, Internal Revenue Service,
Milwaukee District, Milwaukee, Wisconsin, A/SLMR No. 974. See also
Internal Revenue Service, Chicago District Office, A/SLMR No. 1004. A
Union has the right, as enunciated in the cited cases, to such
information in order to perform its duties as bargaining representative.
Further, this right is not limited to instances where the union is in
the midst of processing the grievance itself. The representative is
entitled to the data in order to determine whether to file a grievance
over the non-selection of a particular employee for a position.
Department of the Treasury, Internal Revenue Service and IRS Milwaukee
District, A/SLMR No. 1133. In line with established precedent, I
conclude that the information utilized by Respondent to evaluate Allen,
in respect to the maintenance position (Vacancy No. 094), was material
and relevant to the Union's performance of its functions as bargaining
agent.
Apart from the issue of relevancy, in respect to the materials
requested by the union in order to fulfill its representational
function, employers have resisted providing the data on the ground that
to do so would violate the Privacy Act. In the Department of the
Treasury, Internal Revenue Service, Milwaukee District, Milwaukee,
Wisconsin, supra, the Assistant Secretary stated that the employee's
right to privacy of his records must be balanced against the conflicting
rights of the exclusive representative to such information. Where, as
in the cited case, evaluation materials are relevant to effective
processing of an existent or potential grievance, broad rights are
present in favor of disclosure. Thus, he concluded that a public
interest exists in having the Federal government operate within its
merit promotion system so that qualified candidates are given equitable
treatment. Accordingly, the employer therein was ordered to make
available the evaluation data re the employee selected for the position
after removing therefrom any personnel information of "a sensitive or
damaging personal nature". Further, the refusal to provide the
materials initially was held to be a refusal to bargain and violative of
Executive Order 11491, as amended. See to the same effect, Internal
Revenue Service, Chicago District Office, A/SLMR No. 1004.
Applying the past decisional law to the case at bar, it is clear that
the information considered by Respondent in selecting James Allen for
the maintenance position-- his personnel file-- should have been
provided the Union herein. It is obviously relevant and necessary to a
determination as to whether the bargaining agent chooses to grieve on
behalf of Langford. Moreover, I am satisfied, based on the aforesaid
cases, that the Union's right to such information is paramount to the
individual's right to privacy of his records. It is noted that in both
cases involving the Internal Revenue Service, supra, mention is made
that the employer shall first remove any personal information of a
sensitive or damaging nature. However, in the instant case, Allen's
personnel file was introduced in evidence by Respondent and a copy
furnished the other party. Thus, to order Respondent to sanitize the
materials before providing them to the Union would be a futile gesture.
Accordingly, I make no such directive. /28/
Although the information sought by the Union, the personal file of
Allen, was submitted in evidence and a reply given to the bargaining
agent, this belated disclosure at the hearing does not cure the
violation. Department of Health, Education and Welfare, Region VIII,
A/SLMR No. 1109. As stated therein, "compliance with an exclusive
representative's request for necessary and relevant information must
occur in such a manner that the exclusive representative's
representational rights under the Executive Order are not prejudiced."
The belated submission herein foreclosed the Union's right to
effectively represent Langford at the proper time, and the receipt of
the data at the hearing was scarcely in conformity with Respondent's
obligation.
On the basis of the foregoing, I conclude that Respondent violated
Section 7116(a)(1), (5), and (8) of the Act by failing or refusing to
furnish the Union with the information contained in James Allen's
personnel file.
Case No. 7-CA-788
In respect to the desk audit for the branches of the facility,
Respondent does not challenge their relevance or necessity to a
consideration of the comparable grades of employees in customer service.
It insists that no request was made for these desk audits. However, I
have found that in January 1981, the Union did ask for the audits for
the entire facility. Further, that while Respondent's officials agreed
to communicate with Moosman re this request, they failed to do so.
Thus, the record establishes a refusal to furnish this information.
Moreover, I am satisfied that the desk audits were clearly relevant and
necessary for the bargaining agent to enforce the contract and fulfill
its duties as the representative of unit employees. See Department of
Health, Education and Welfare, SSA, Kansas City Payment Center, Bureau
of Retirement and Survivors Insurance, A/SLMR No. 41.
Since the charge herein alleges a refusal to provide the desk audits
for the Main Store, it must be determined whether it will support the
variance in the complaint wherein it is alleged that Respondent refused
to furnish the audits for the entire facility. /29/ Decisional law in
the private sector reflects that a charge is sufficient to support
allegations in the complaint where there is some relationship between
the allegations in the latter and the language in the charge. Texas
Industries, Inc. etc., 139 NLRB 363 aff'd. in 336 F.2d 128 (5th Circuit,
1964). As stated in the cited case, it is the function of the
complaint-- not the charge-- to serve notice upon a respondent of the
particular conduct allegedly violative of the Act. The charge merely
initiates the investigation to determine whether a complaint shall
issue.
In the case at bar I am satisfied that a sufficient relationship
exists between the language in the charge and his allegations of the
complaint. A refusal to furnish audits for the entire facility, as
alleged in the complaint, grows out of the statement in the charge that
Respondent refused to furnish the desk audits for the Main Store. /30/
Further, the alleged refusal to provide the audits for the branches was
litigated at the hearing, and Respondent was aware that the Union made
such contention. Therefore, I conclude that the charge herein supports
the complaint allegations with respect to Respondent's refusal to
furnish such data. See also Decision of Administrative Law Judge
Sternburg in Bureau of Land Management, Richfield District, 7-CA-247
(April 10, 1981), OALJ-81-086.
Accordingly, and in view of the foregoing I conclude Respondent ran
afoul of Section 7114(b)(4) of the Act when it refused to furnish the
desk audits for the branch stores in January 1981; that, by reason
thereof, Respondent violated Sections 7116(a)(1), (5) and (8) of , the
Act.
Case No. 7-CA-795
The issue presented for determination in this case is whether the
Union is entitled to obtain the data (Respondent's Exhibits 4(a) thru
4(i)) relating to the theft by employees Canty and Duncan which
occasioned their discharge. General Counsel contends the Union, which
sought to investigate the action taken by management, needed the records
to perform its representational duties. Respondent insists that the
production of such information would violate the Privacy Act, and it
refused to furnish these reports and statements without a release from
these employees.
As heretofore indicated in Case No. 7-CA-782, the interest of the
bargaining representative and the employees, whose privacy rights are
involved, have been weighed when determining whether information
pertaining to such individuals should be turned over to the Union. In
said cases, cited supra, the interests of the exclusive representative
have been deemed paramount. The employer has been ordered to provide
the agent with the data after first deleting any sensitive or damaging
material therefrom.
However, a significant difference exists between those situations and
the case at bar. In the non-selection cases, which concern a failure to
promote a particular employee, it has been clearly established that the
bargaining representative did, in fact, represent such employee. Either
a grievance was filed on his behalf, or the filing thereof was under
consideration. In the instant matter the record does not support the
conclusion that Canty or Duncan sought representation by the Union
herein. Neither does it appear that they requested a grievance be filed
based on their discharges. No evidence was adduced which reflects that
Canty or Duncan wanted to protest the termination. In truth, when
Moosman requested the information re the action taken toward these
individuals, she did not know the identity of the dischargees. It is
conceivable that neither Employee desired the representative to pursue
the matter.
It is recognized, as hereinbefore stated, that the Union has
representational functions involving the entire bargaining unit, i.e.
policing the agreement and enforcing its provisions. When balancing
this right against the privacy rights accorded employees who have not
demonstrated their desire for representation, or not agreed to a release
/31/ of the data sought by the agent, I conclude the right of the latter
must fall. Unless some express indication is shown by Canty or Duncan
that they wish the Union to protest the termination, or consider doing
so, and have no objection to a disclosure of the records re the theft,
it is difficult to fault the employer's refusal to furnish the
information. Accordingly, I conclude that Respondent has not violated
the Act by its refusal to provide the statements and reports, upon which
it based the termination of Canty and Duncan, concerning the theft
committed by these employees. Therefore, I recommend the dismissal of
the complaint in so far as it alleges Respondent violated Sections
7116(a)(1), (5) and (8) by virtue of such refusal in Case No. 7-CA-795.
Having found and concluded that Respondent violated Sections
7116(a)(1), (5), and (8) of the Act in respect to Case. No. 7-CA-782 and
Case No. 7-CA-788, it is recommended that the Authority issue the
following order:
ORDER
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, the
Authority hereby orders that the Army and Air Force Exchange Service
(AAFES), Fort Carson, Colorado, shall:
1. Cease and desist from:
(a) Refusing to permit the American Federation of Government
Employees, AFL-CIO, Local 1345, access to the official personnel
file of employee James Allen, and all other documents and
materials as are necessary and relevant to the performance by
American Federation of Government Employees, AFL-CIO, Local 1345
of its representational functions regarding the selection process
for the Maintenance Worker HPP-7, for which Job Vacancy Number 094
was posted.
(b) Refusing to permit the American Federation of Government
Employees, AFL-CIO, Local 1345, access to the desk audits for the
positions in the branch stores at the Exchange post, Fort Carson,
Colorado, and all other data and materials pertaining to the desk
audit reviews, as are necessary and relevant to the performance by
American Federation of Government Employees, AFL-CIO, Local 1345
of its representational functions regarding the wage grades of the
various positions in the branch stores at the Exchange post in
relation to the work performed by its employees.
(c) 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 actions in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Upon request, permit the American Federation of Government
Employees, AFL-CIO, Local 1345, access to the official personnel
file by employee James Allen, and all other documents and
materials as are necessary and relevant to the performance by
American Federation of Government Employees, AFL-CIO, Local 1345
of its representational functions regarding the selection process
for the Maintenance Worker HPP-7, for which Job Vacancy Number 094
was posted.
(b) Upon request, permit the American Federation of Government
Employees, AFL-CIO, Local 1345, access to the desk audits for the
positions in the branch stores at the Exchange post, Fort Carson,
Colorado, and all other documents and materials as are necessary
and relevant to the performance by American Federation of
Government Employees, AFL-CIO, Local 1345 of its representational
functions regarding the wage grades of the various positions in
the branch stores at the Exchange post in relation to the work
performed by its employees.
(c) Post at its facility at the Army and Air Force Exchange
Service (AAFES) Fort Carson, Colorado, 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 General Manager of the Exchange and shall be
posted and maintained by him for 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted. The General Manager shall take
reasonable steps to ensure that such notices are not altered,
defaced, or covered by any other material.
(d) Notify the Federal Labor Relations Authority in writing,
within 30 days from the date of this Order, what steps have been
taken to comply herewith.
IT IS FURTHER ORDERED that those portions of the Complaint alleging
violations of Sections 7116(a)(1), (5), and (8) by Respondent in Case
No. 7-CA-795, for having refused to provide written data relating to the
disciplinary separation of two unit employees, be, and they hereby are,
dismissed.
WILLIAM NAIMARK
Administrative Law Judge
Dated: June 23, 1981
Washington, D.C.
APPENDIX
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 permit the American Federation of Government
Employees, AFL-CIO, Local 1345, access to the official personnel file of
employee James Allen, and all other documents and materials as are
necessary and relevant to the performance by American Federation of
Government Employees, AFL-CIO, Local 1345 of its representational
functions regarding the selection process for the Maintenance Worker
HPP-7, for which Job Vacancy Number 094 was posted. WE WILL NOT refuse
to permit the American Federation of Government Employees, AFL-CIO,
Local 1345, access to the desk audits for the positions in the branch
stores at the Exchange post, Fort Carson, Colorado, and all other data
and materials pertaining to the desk audit reviews, as are necessary and
relevant to the performance by American Federation of Government
Employees, AFL-CIO, Local 1345 of its representational functions
regarding the wage grades of the various positions in the branch stores
at the Exchange post in relation to the work performed by its employees.
WE WILL NOT in any like or related manner, interfere with, restrain, or
coerce employees in the exercise of their rights assured by the Federal
Service Labor-Management Relations Statute. WE WILL, upon request
permit the American Federation of Government Employees, AFL-CIO, Local
1345, access to the official personnel file by employee James Allen, and
all other documents and materials as are necessary and relevant to the
performance by American Federation of Government Employees, AFL-CIO,
Local 1345 of its representational functions regarding the selection
process for the Maintenance Worker HHP-7, for which Job Vacancy Number
094 was posted. WE WILL, upon request permit the American Federation of
Government Employees, AFL-CIO, Local 1345 access to the desk audits for
the positions in the branch stores at the Exchange post, Fort Carson,
Colorado, and all other data and materials pertaining to the desk audit
reviews, as are necessary and relevant to the performance by American
Federation of Government Employees, AFL-CIO, Local 1345 of its
representational functions regarding the wage grades of the various
positions in the branch stores at the Exchange post in relation to the
work performed by its employees.
(Agency or Activity)
Dated: . . . By: . . . 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,
Region VII, Federal Labor Relations Authority, whose address is: Suite
680, City Center Square, 1100 Main Street, Kansas City, Missouri 64105,
and whose telephone number is (816) 374-2199.
--------------- FOOTNOTES$ ---------------
/1/ Section 7114(b)(4) provides in pertinent part:
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; (and)
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining(.)
/2/ In agreement with the Judge's finding in Case No. 7-CA-782, the
Authority concludes that Respondent's belated disclosure of the
necessary data at the hearing does not militate against finding that the
Respondent's initial nondisclosure of the data was violative of the
Statute. See, e.g., Bureau of Prisons, Lewisburg Penitentiary,
Lewisburg, Pennsylvania, 11 FLRA 639 (1983), (necessary data requested
must be furnished in a timely manner under the circumstances in order to
effectuate the purposes and policies of the Statute).
/3/ In agreement with the Judge's finding in Case No. 7-CA-788, the
Authority concludes that, based on the allegations set forth in the
complaint, the Respondent had adequate notice of the particular acts
alleged to constitute unfair labor practices; indeed, at the hearing,
the Respondent in fact defended, inter alia, its refusal to provide the
desk audits for the entire facility, and did not limit its defense to
the refusal to provide desk audits for the Main Store as alleged in the
charge. See United States Army Air Defense Center and Fort Bliss, Fort
Bliss, Texas, 12 FLRA 719 (1983); Internal Revenue Service, Chicago,
Illinois, 9 FLRA 648 n.3 (1982), enforcement denied as to other matters
sub nom. Internal Revenue Service v. Federal Labor Relations Authority,
717 F.2d 1174 (7th Cir. 1983).
/4/ U.S. Customs Service, Region VII, Los Angeles, California, 10
FLRA 251, 253, (1982); Veterans Administration Regional Office, Denver,
Colorado, 7 FLRA 629 (1982).
/5/ 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).
/6/ Since all of the requested documents in Allen's OPF were released
at the hearing, the Authority does not reach the issue of which of the
OPF documents originally withheld were necessary.
/7/ Privacy Act of 1974, Pub. L. No. 83-579, 88 Stat. 1896 (codified
as amended at 5 U.S.C. 552a (1982)).
/8/ 5 U.S.C. 522a(a)(4), (5) (1982).
/9/ DOD System Notices, 48 Fed.Reg. 25502, 25507 (1983).
/10/ 5 U.S.C. 552a(b)(1)-(12) (1982).
/11/ Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 256
(codified as amended at 5 U.S.C. 552 (1982)).
/12/ 5 U.S.C. 552(a)-(b) (1982).
/13/ See, e.g., American Federation of Government Employees, AFL-CIO,
Local 1923 v. United States Dep't of Health and Human Services, 712 F.2d
931 (4th Cir. 1983); Celmins v. United States Dep't of Treasury, 457
F.Supp. 13 (D.D.C. 1977). See also Department of the Air Force v. Rose,
425 U.S. 433 (1976), wherein the Court stated that the (b)(6) exemption
of the FOIA involves a balancing of the interests of the individuals in
their privacy against the interests of the public in being informed.
/14/ See Department of the Air Force v. Rose, supra, 425 U.S.at
372-373.
/15/ See Celmins v. United States Dep't of Treasury, supra, 457
F.Supp.at 15-16.
/16/ Should the documents in fact become widely circulated, the
Authority would necessarily take this experience into account in future
similar cases.
/17/ See Celmins v. United States Dep't of Treasury, supra, 457
F.Supp.at 16.
/18/ In so concluding, the Authority notes that section 7121(e) of
the Statute specifically provides, in part, that "(m)atters covered
under section 4303 and 7512 of this title which also fall within the
coverage of the negotiated grievance procedure may, in the discretion of
the aggrieved employee, be raised either under the appellate procedures
of section 7701 of this title or under the negotiated grievance
procedure . . ."
/19/ The charge alleged a refusal to furnish desk audits, or the
results thereof, as to employees at the main store only.
/20/ During the hearing Respondent requested that, in re Case No.
7-CA-795, the undersigned examine in camera certain documents designated
as AAF incident report and a Military Report involving the two employees
separated by Respondent. Both documents related to theft charges
against said individuals. Subsequent to the hearing General Counsel
filed a Motion with the undersigned to suppress any consideration of
these papers and to bar Respondent from briefing any material therein.
It is contended that the documents were an ex parte communication. The
motion is denied. The presentation of a document during a hearing to
the administrative law judge, to be examined in camera, is not
tantamount to an ex parte communication under Section 2414.8 of the
Rules and Regulations. Since the documents will be described with
particularity herein, and the details form no part of the conclusions
reached in respect to that case, the General Counsel is not prejudiced
by not receiving a copy thereof.
/21/ Exchange Service employees are non-appropriated fund employees.
/22/ Unless otherwise stated, all dates hereinafter mentioned occur
in 1980.
/23/ Of those who applied for the job, only Allen and Langford
qualified thereof.
/24/ Although Respondent refused to furnish this file to the Union on
the grounds of the Privacy Act, it did introduce Allen's personnel file
into evidence at the hearing herein. Respondent took the position that
it desires the Authority to rule on whether the various items in the
file are non-releasable under the Privacy Act. It seeks a ruling as to
whether information in personnel folders should, under the Federal
Service Labor-Management Relations Statute, be furnished to the
bargaining agent when the latter requests same.
/25/ A desk audit involves the acquisition of data, after interviews
are conducted, re the operation of a particular job. The data is
utilized by management to determine proper classifications, increases or
decreases in the grade, assignment, or staffing adjustments based on the
information collected.
/26/ Item 5 on General Counsel's Exhibit 2.
/27/ Since the job file contained no information forming the basis
for selecting Allen, the main concern of the Union was to receive the
personnel file of Allen. The data included in the latter file was
utilized by management in its evaluation of that employee.
/28/ Respondent seeks a ruling, based on the introduction into
evidence of Allen's personnel file, as to which individual items therein
are privileged from nondisclosure under the Privacy Act. In view of my
conclusions that said Act does not operate to prevent disclosure of
evaluation materials, and since disclosure has been made by Respondent,
I shall make no findings or recommendation in that regard. Moreover, it
is not meet or appropriate that a determination be made as to future
disclosures involving case situations not yet before the Authority for
resolution.
/29/ It is not clear from the record as to the exact date in January
1981, when the Union requested the desk audits for the branches. It
does appear the request was made at the monthly meeting in January.
Moreover, these meetings are held in the forepart of the month and the
complaint issued on January 16, 1981. It also appears that Manager
Paul, at this meeting, referred to a possible withdrawal of the charge
by the Union. Thus, I infer the request for the desk audits of the
branches and the refusal occurred before the issuance of the complaint.
/30/ In view of the fact that Respondent supplied the audits of the
main store employees, I shall recommend dismissal of the complaint
alleging a violation in respect thereto.
/31/ No evidence was adduced at the hearing which shows that either
Canty or Duncan agreed to release the information sought by the Union.