[ v26 p943 ]
26:0943(109)CA
The decision of the Authority follows:
26 FLRA No. 109
U.S. DEPARTMENT OF LABOR
OFFICE OF THE ASSISTANT SECRETARY
FOR ADMINISTRATION AND MANAGEMENT
Respondent
and
NATIONAL COUNCIL OF FIELD LABOR LOCALS
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 4-CA-50152
DECISION AND ORDER
I. Statement of the Case
This matter is before the Authority, in accordance with section
2429.1(a) of the Authority's Rules and Regulations, based on a
stipulation of facts by the parties who have agreed that no material
issue of fact exists. The General Counsel and the Respondent have filed
briefs with the Authority.
The complaint alleges that the Respondent violated section
7116(a)(1), (5) and (8) of the Federal Service Labor-Management
Relations Statute (the Statute) by failing and refusing to furnish, as
required by section 7114(b)(4) of the Statute, information requested by
the Charging Party (the Union), the exclusive representative of certain
of the Respondent's employees. The information was alleged to be
necessary to the Union's representation of a unit employee in a
grievance arbitration proceeding under the parties' negotiated
agreement.
II. Background
In early 1984, the Respondent's Chief of Internal Investigation
conducted an investigation of alleged misconduct by a unit employee,
Daryl Blake Hanna, a coal mine safety and health inspector. In
connection with this investigation, the investigator tape recorded the
interviews. The taped interviews were summarized in affidavit form and
signed by the respective witnesses. On May 21, 1984, the Respondent
proposed to suspend the employee for 14 days based on charges developed
from the statements of seven of the 13 witnesses. Those seven were
officials and employees of the Beaver Creek Coal Company.
The charges against the employee included allegations that he made
derogatory and false statements to Beaver Creek Coal Company personnel
about company officials, his supervisors, other agency officials and
another employee; that he gave information to Beaver Creek officials
concerning internal agency matters; and that he falsified facts in
connection with the investigation. The notice of proposed suspension
identified the persons to whom the statements allegedly had been made
and the names of the persons whose affidavits had been used. The
employee was provided with copies of those affidavits. The notification
also charged that the employee's alleged statements constituted
misconduct prohibited by Department of Labor regulations. The notice
further alleged that the misconduct had caused the Beaver Creek Coal
Company to complain to the employee's supervisor in writing, which
necessitated the reassignment of the employee to duties at other mines
in order to improve relations between the company and the agency. The
employee's Union representative attempted to interview a Beaver Creek
Coal Company manager named in the notice. He refused to meet with the
representative or answer any questions and denied the representative
permission to talk to any company employee.
On September 21, 1984, the Respondent notified the Union of the
decision to suspend the employee for ten days. On or about September
28, the Union invoked the grievance arbitration procedure of the
parties' collective bargaining agreement on behalf of the employee. On
October 11, the Union requested copies of the tapes or transcripts of
the interviews conducted by the Respondent's investigator. The Union
stated that it needed the information to adequately represent the
employee and to determine whether a settlement could be negotiated with
the Respondent. The Union also stated that it realized that some
information might have to be furnished in a sanitized form.
The Union stipulated that it had been provided affidavits summarizing
seven of the thirteen interviews. However, the Union argued that the
affidavits were very general, did not give dates, times or places of
conversations, and used phrases like "words to that effect" which
indicated that the investigator was using his own words instead of those
of the witness. The Union sought the tapes or transcripts of those
seven interviews to fill in the details of the general affidavits; to
determine whether there were any statements favorable to the employee
which were not in the affidavits; to determine whether the statements
in the affidavits were taken out of context by the management officials
who prepared the affidavits; and to use for possible witness
impeachment purposes at the arbitration hearing.
The individuals whose statements were not cited by management in the
notice of proposed suspension included three employees of the Beaver
Creek Coal Company, two employees of another coal company and Mr.
Hanna's immediate supervisor. The Union sought the tapes or transcripts
of the interview of those individuals to determine whether their
statements would support its theory that Beaver Creek Coal Company
officials were seeking to (1) have the employee transferred because he
was a strict mine inspector who had issued numerous citations against
the company; and (2) discredit him because he was a witness in a
multimillion dollar lawsuit involving the company. The Union maintained
that Beaver Creek officials had fabricated the accusations against the
employee.
On December 4, 1984, the Respondent denied the Union's request. In
its denial letter, the Respondent asserted that the grievant had already
been provided with copies of all materials relied upon by management in
reaching its decision. The Respondent noted that it did not intend to
introduce any parts of the interview tapes or certified transcripts
which were not already provided and, therefore, the provision of
additional materials was unnecessary.
III. Positions of the Parties /1/
The Respondent contends that it was not required to furnish the Union
with the tapes or transcripts of the 13 interviews under section
7114(b)(4) of the Statute.
In support of this contention, the Respondent argues that the
information requested by the Union was not relevant or necessary for the
Union to represent the employee. With regard to the transcripts of the
interviews with the seven witnesses whose affidavits were relied upon by
management, the Respondent argues that it relied only on the affidavits
and not the transcripts and that the Union was given copies of the
affidavits. The Respondent maintains that there would be no useful
purpose in identifying the precise language used by the witnesses during
their discussions with the investigator since such language was not
relied upon by management. Furthermore, the Respondent argues that its
comparison of the affidavits and the certified transcripts indicated
that the affidavits were accurate summaries of the transcripts.
With regard to the transcripts of interviews with the six individuals
whose statements were not cited by management in the notice of proposed
suspension, the Respondent again argues that since such information was
not relied upon in formulating the charges against the grievant, the
information is not relevant and necessary.
The Respondent also contends that the public interest in prohibiting
disclosure of the tapes and transcripts, which the Respondent alleges
were obtained during the course of a law enforcement investigation
within the meaning of section 552a(k)(2) of the Privacy Act, outweighs
any interest in disclosing the information under section 7114(b)(4) of
the Statute. The Respondent asserts that contrary to the public
interest, disclosure of the information sought would result in
impairment of future law enforcement investigations. The Respondent
maintains that section 552(b)(7) of the Freedom of Information Act
(FOIA) also supports its refusals to disclose the information. The
Respondent further asserts that disclosure of the tapes or transcripts
would interfere with management's right under section 7106(a)(1) of the
Statute to determine its internal security practices.
Additionally, the Respondent argues that the interview of Mr.
Gabossi, one of the six interviews not relied on, contains information
of a stigmatizing nature concerning another employee of the Respondent
and that disclosure of the tape or transcript of that interview would
result in an unwarranted invasion of the employee's privacy within the
meaning of section 552(b)(6) of the FOIA.
The General Counsel contends that the Respondent violated section
7116(a)(1), (5) and (8) of the Statute by its failure and refusal to
provide the Union with the information it requested under section
7114(b)(4) in order to fulfill its obligations to represent the
employee.
In support of its contention, the General Counsel argues that the
information was relevant and necessary to effectively represent the
employee in the grievance arbitration proceeding. The General Counsel
maintains that effecitve representation requires knowledge and
familiarity with all of the facts surrounding the dispute. The General
Counsel argues that the information undeniably pertained to the employee
and the Resondent's investigation of the employee's conduct and that the
Union needed to review the complete results of the investigation and not
just those portions which support the Respondent's position. The
General Counsel contends that the Union is entitled to all the
information pertaining to the employee because without it the Union
cannot make the necessary assessment of the accuracy and completeness of
the affidavits. The General Counsel also claims that exculpatory,
contradictory or mitigating evidence might be contained in portions of
the interviews. In that regard, the General Counsel points out that a
cursory comparison of the affidavits with the transcripts that were
withheld provides several specific examples of why the full transcripts
are relevant and necessary for the Union to provide effective
representation of the employee. The General Counsel contends that the
affidavits contain statements attributed to witnesses that are not
contained in the transcripts; that the affidavits inaccurately describe
actual statements; and that the transcripts contain contradictory
statements which are not reflected in the affidavits. The General
Counsel maintains that the affidavits contain many statements that have
been rephrased, rearranged, or altered by deletions and additions, and
that the Respondent, by withholding the transcripts, effectively
precluded the Union from raising questions concerning those changes.
The General Counsel also contends that the transcripts of those
persons who were interviewed but whose statements were not used by
management were relevant and necessary for the Union's representation of
the employee. The General Counsel argues that those six transcripts
clearly were relevant to the Union's theory that officials of the Beaver
Creek Coal Company were biased against the employee because he was a
strict inspector and that they had a motive to fabricate accusations
against him to have him transferred from their mines. The Counsel
maintains that information which was withheld supports the Union's
theory and also raises questions as to the truthfulness of the
statements of the company officials against the employee.
With regard to the issue of whether the information requested by the
Union is prohibited by law, that is, the Privacy Act, the General
Counsel essentially argues that the records were not compiled for "law
enforcement purposes" under section 552a(k)(2).
IV. Analysis
Section 7114(b)(4) of the Statute requires an agency to furnish an
exclusive representative upon request and to the extent not prohibited
by law, information:
(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.
The parties in this case have stipulated that the information
requested by the Union is normally maintained by the Respondent; is
reasonably available; and does not constitute guidance, advice, counsel
or training provided to officials or supervisors relating to collective
bargaining. The issues therefore are whether the information was
"necessary" within the meaning of section 7114(b)(4)(B) and if so,
whether disclosure is prohibited by law.
A. Whether the requested information is necessary
It is well established that an agency is required to furnish an
exclusive representative with information which would enable the union
to effectively carry out its representational obligations in connection
with the processing of an employee grievance. Internal Revenue Service,
National Office, 21 FLRA No. 82 (1986); Social Security Administration,
Baltimore, Maryland, 17 FLRA 837 (1985). However, a union's bare
assertion that it needs information to process a grievance does not
automatically oblige an agency to supply the information. The duty to
supply information under section 7114(b)(4) turns upon the nature of the
request in the circumstances of each particular case. Department of
Health and Human Services, Social Security Administration, Field
Operations, New York Region, 21 FLRA No. 35 (1986), remanded on other
grounds, sub nom. American Federation of Government Employees, AFL-CIO
v. FLRA, No. 86-4077 (2d Cir. Feb. 10, 1987).
We find that with one exception described below the information
requested by the Union in this case was necessary for the Union to
effectively represent the employee in the grievance arbitration
proceeding. The information was necessary for a full understanding of
the charges against the employee and for the Union to assess and present
arguments concerning the completeness and accuracy of the affidavits
which formed the basis for the charges. Access to the information
sought was particularly necessary in this case because the affidavits
reflected the Respondent's selection and paraphrasing of language in the
verbatim transcripts to support the charges. Additionally, we note that
a Beaver Creek Coal Company official refused to answer the questions of
the employee's Union representative and denied the representative
permission to talk to any company employee. The General Counsel has
established that the transcripts or tapes of the interviews of those
persons whose affidavits were cited by the Respondent in the notice of
proposed suspension were necessary to the Union's effective
representation of the employee in the grievance proceeding.
With regard to the tapes or transcripts of interviews with those
persons whose statements were not cited by the Respondent in the notice
of proposed suspension, we likewise find, with one exception, that the
information was necessary for a full understanding of the case and
effective representation of the employee. The Union sought the
statements to show that the employee had not said or done the things at
other coal companies he was alleged to have said and done at Beaver
Creek. The Union also sought the information in part as support for its
theory that officials of the Beaver Creek Coal Company had fabricated
the allegations against the employee because he was a strict inspector
and they wanted him transferred and also because they wanted to
discredit him as a witness in a lawsuit. The Union also sought the
statements that were not cited by the Respondent in its notice of
proposed suspension to assess the complete case so as to pursue
settlement efforts.
Based on the Union's reasons, which we find to be reasonable in the
circumstances of this case, we conclude that with one exception the
information sought was necessary within the meaning of section
7114(b)(4) of the Statute for the Union to effectively carry out its
representational responsibilities. Compare U.S. Army Reserve Components
Personnel and Administration Center, St. Louis, Missouri, 26 FLRA No. 4
(1987), slip. op. at 10. In that case, we determined that statements
obtained by an agency after a particular disciplinary action had been
completed, when the agency was preparing for an arbitration hearing on
the action, were not "necessary" within the meaning of section
7114(b)(4). We concluded that the statements were not necessary for the
processing of the grievance involved, or for the union to effectively
represent the employee in the matter. In this case, the statements were
taken and considered by the agency prior to issuing the notice of
proposed suspension. Although not cited in the notice, the statements
would enable the Union to realistically assess the strength or weakness
of the employee's position. Additionally, the essence of the Union's
defense theory was that Beaver Creek Coal Company officials lied. The
Union needed the statements of the other witnesses if it was to be able
to cast doubt on the credibility of the Beaver Creek officials'
accusations. Thus, unlike the circumstnaces in the U.S. Army Reserve
Components Personnel and Administration Center case, the information the
Union sought in this case, with one exception, was necessary for a full
understanding of the circumstances surrounding the disciplinary action,
for the processing or settlement of the grievance, and for the Union to
effectively represent the employee in the matter.
The one exception to that conclusion is the alleged stigmatizing
information contained in a portion of the interview of Mr. Gabossi
concerning another employee of the Respondent. That information has no
relevance whatsoever to the charges against the grievant and was not
necessary to enable the Union to fulfill its representational
responsibilities. In this regard, we note the Union's tacit agreement
in its request that some information would have to be provided in
sanitized form.
B. Whether disclosure is barred by law
We conclude that disclosure of the requested necessary information
was not prohibited by law. In reaching that conclusion, we reject the
Respondent's assertion that the interest of the public in prohibiting
disclosure of the taped interviews or transcripts outweighs the Union's
interest in obtaining the information. The Respondent claims that the
information was compiled for law enforcement purposes within the meaning
of section 552a(k)(2) of the Privacy Act, /2/ and that the provision
supports the Respondent's refusal to disclose the information collected.
That claim is without merit.
Under section 522a(d)(1) of the Privacy Act, an agency that maintains
a record concerning an individual must, upon request, permit access to
the record by the individual and any designated representative to review
and copy all or any portion of the information pertaining to the
individual in the record. Section 552a(k)(2) provides an exemption to
the individual's right of access to and a copy of the material. That
provision permits an agency to exempt from disclosure investigatory
material compiled for law enforcement purposes. In agreement with the
General Counsel, we find that section 552a(k)(2) does not apply in the
facts of this case. The Respondent has not established that the
material was compiled for law enforcement purposes within the meaning of
the provision. Rather, as the Respondent acknowledges (Brief at 9), the
information was collected in an employee conduct investigation. The
Respondent's investigation of the employee's performance of his duties
in this case was to determine whether he had violated the Respondent's
regulations governing employee conduct so as to warrant administrative
discipline under the regulations. The investigation was not directly
focused on alleged illegal acts which could, if proved, result in civil
or criminal sanctions. Rural Housing Alliance v. United States
Department of Agriculture, 498 F.2d 73, 81 (D.C. Cir. 1974).
Similarly, we find no merit to the Respondent's argument that the
information is exempt from dsclosure under section 552(b)(7) of the
Freedom of Information Act (FOIA). Section 552(b)(7) of the FOIA
exempts from disclosure "investigatory records compiled for law
enforcement purposes." The Respondent argues that Exemption 7 supports
its refusal to furnish the information requested because disclosure
would impair future investigations, including any further investigation
of the employee. The Respondent again asserts that the public interest
in prohibiting disclosure outweighs the Union's interests in obtaining
the material. As we found above, the Respondent fails to establish that
the information was compiled for law enforcement purposes. Moreover,
even assuming that it was, section 552(b)(7) does not prohibit
disclosure of the information as the Respondent infers. As we have
previously held, the Freedom of Information Act does not prohibit
release of data within the meaning of section 7114(b)(4) of the Statute.
Department of the Army, Headquarters, XVIII Airborne Corps and Fort
Bragg, Fort Bragg, North Carolina, 26 FLRA No. 52 (1987), slip. op. at
6-7. Further, the Respondent fails to establish how release of the
information to the Union in the circumstances of this case would impair
any future law enforcement investigation and its arguments in support of
that assertion are essentially speculative.
Likewise, we find that the Respondent has failed to establish that
disclosure of the information to the Union would interfere with the
Respondent's right under section 7106(a)(1) of the Statute to determine
its internal security practices. Here again, the Respondent contends
that release of the information would have a "chilling effect" on future
investigations. As we found above, the Respondent's arguments in
support of this contention constitutes nothing more than speculation.
The Respondent also argues that in negotiability cases the Authority has
found union proposals relating to investigations and access to
investigative information were nonnegotiable as contrary to section
7106(a)(1). However, the cases relied on by the Respondent are not
pertinent to the circumstances involved in this case. Those cases
involved concerns with preserving the confidentiality of information in
on-going investigations and preventing the premature disclosure of
information that might impede the investigations. In this case, the
interviews were not given under any pledge of confidentiality and there
is no question of impeding any on-going investigation of the employee's
alleged misconduct since the investigation was completed and the
employee suspended for the alleged wrongdoing. Moreover, information
compiled in connection with the exercise of management actions under
section 7106 of the Statute is not necessarily prohibited by law from
disclosure under section 7114(b)(4) and a union's right to negotiate for
disclosure of information under section 7117 is not coextensive with an
agency's obligation to furnish information under section 7114(b)(4).
National Park Service, National Capitol Region, United States Park
Police, 26 FLRA No. 53 (1987), slip op. at 4. The determination as to
whether information must be disclosed under section 7114(b)(4) is made
on a case-by-case basis. In this case, we have determined that the
information requested by the Union must be disclosed to enable the Union
to fulfill its representational responsibilities.
Finally, we find that it is not necessary to address the Respondent's
argument that because one of the statements requested contains
information stigmatizing another employee, it should be exempt from
disclosure under section 552(b)(6) of the FOIA. Based on our finding
above that the allegedly stigmatizing information is not necessary for
the Union's representation of the employee, we need not reach the
question of whether the information properly may be withheld under
exemption (b)(6) of the FOIA.
V. Conclusion
We conclude that the Respondent failed to comply with section
7114(b)(4) of the Statute in violation of section 7116(a)(1), (5) and
(8).
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the United States Department of Labor,
Office of the Assistant Secretary of Labor for Administration and
Management, shall:
1. Cease and desist from:
(a) Failing and refusing to furnish, upon request by the National
Council of Field Labor Locals, American Federation of Government
Employees, AFL-CIO, the exclusive representative of its employees,
copies of the certified transcripts or tapes of the interviews of
witnesses in the investigation of the conduct of Daryl Blake Hanna to
the extent the Authority has determined that information to be necessary
for the representation of Mr. Hanna in a grievance arbitration
proceeding.
(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 Statute:
(a) Furnish the National Council of Field Labor Locals, American
Federation of Government Employees, AFL-CIO, the exclusive
representative of its employees, copies of the certified transcripts or
tapes of the interviews of witnesses in the investigation of the conduct
of Daryl Blake Hanna to the extent the Authority has determined that
information to be necessary for the representation of Mr. Hanna in a
grievance arbitration proceeding.
(b) Post at its Washington, D.C. offices, 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
Assistant Secretary of Labor for Administration and Management 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 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 IV, 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., April 30, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Union did not submit a brief to the Authority. Under the
terms of the stipulation, it waived its right to receive a copy of the
transcripts and supporting briefs filed by the parties until the
Authority determined its entitlement to those documents. The General
Counsel was furnished with copies of the data sought by the Union but
agreed not to divulge to the Union the contents of the data it received.
(2) 5 U.S.C. Section 552a(k)(2) provides as follows:
(k) Specific exemptions
* * * *
(2) investigatory material compiled for law enforcement
purposes . . . : Provided, however, that if any individual is
denied any right, privilege, or benefit that he would otherwise be
entitled by Federal law, or for which he would otherwise be
eligible, as a result of the maintenance of such material, such
material shall be provided to such individual, except to the
extent that the disclosure of such material would reveal the
identity of a source who furnished information to the Government
under an express promise that the identity of the source would be
held in confidence . . . .
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
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to furnish, upon request by the National
Council of Field Labor Locals, American Federation of Government
Employees, AFL-CIO, the exclusive representative of our employees,
copies of the certified transcript or tapes of the interviews of
witnesses in the investigation of the conduct of Daryl Blake Hanna to
the extent that the Authority has determined that information to be
necessary for the representation of Mr. Hanna in a grievance arbitration
proceeding.
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 furnish the National Council of Field Labor Locals, American
Federation of Government Employees, AFL-CIO, the exclusive
representative of our employees, copies of the certified transcripts of
tapes of the interviews of witnesses in the investigation of the conduct
of Daryl Blake Hanna to the extent that the Authority has determined
that information to be necessary for the representation of Mr. Hanna in
a grievance arbitration proceeding.
. . . (Agency)
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 IV, Federal Labor Relations Authority, whose address:
1371 Peachtree Street, NE., Suite 736, Atlanta, GA 30367, and whose
telephone number is: (404) 347-2324.