[ v51 p650 ]
51:0650(58)CA
The decision of the Authority follows:
51 FLRA No. 58
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
FEDERAL BUREAU OF PRISONS
ALLENWOOD FEDERAL PRISON CAMP
MONTGOMERY, PENNSYLVANIA
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 148, AFL-CIO
(Charging Party/Union)
BP-CA-20160
BP-CA-20161
_____
DECISION AND ORDER
December 22, 1995
_____
Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge (Judge) filed by the Respondent and the Union. The General Counsel filed an opposition to the Respondent's exceptions, and the Union filed a motion to modify the Judge's Order, to which the Respondent filed an opposition.(1)
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 refusing to provide the Union with a crediting plan(2) and other documents(3) used in making a selection for a supervisory position. The complaint further alleges that the Respondent violated section 7116(a)(2) and (4) of the Statute by failing to select an employee, Wayne Cuddeback, for promotion because of his protected activities.(4)
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision. For the reasons stated below, we conclude that the Respondent was not obligated to provide the Union with the requested crediting plan under section 7114(b)(4) of the Statute. Therefore, we dismiss this portion of the complaint.
II. Judge's Decision
The facts are fully set forth in the attached Judge's decision, and only briefly summarized here.
The Union requested that the Respondent provide it with, as relevant here, the crediting plan used by the rating and ranking panel to evaluate candidates for a supervisory position. The Union stated that the request was made on behalf of two unit employees, James Vogel (Power Plant Foreman) and Cuddeback (HVAC Foreman and Union Vice-President), who applied but were not selected for the position. The Union also stated that a timely response was required due to the "extremely tight [time] frame for filing grievances and/or unfair labor practices." Joint Exhibit 1 at 1. The Respondent advised the Union that the crediting plan would not be released.
The Judge concluded that the Respondent's refusal to provide the Union with the crediting plan violated the Statute. In so doing, the Judge addressed, sua sponte, whether the fact that the disputed position was outside the bargaining unit affected the Union's right to the requested information. The Judge stated that, as procedures for filling supervisory positions are matters outside the duty to bargain under the Statute, "it may plausibly be argued that there is no right to information about such [a] process." Judge's Decision at 9. Noting that the Authority has not had an opportunity to articulate a rationale for determining whether a failure to promote a unit employee to a supervisory position violated the Statute, the Judge examined private sector precedent,(5) which, he found, clearly established that it is an unfair labor practice (ULP) to deny a unit employee a promotion to a supervisory position based on consideration of protected activity. Id. Consistent with this precedent, the Judge concluded that the fact that the disputed position was supervisory did not defeat the Union's right to the requested information:
[I]t would follow that information shedding light on a claimed discriminatory selection would concern a condition of employment even though the position filled would be occupied by a non-employee, and notwithstanding that, absent claimed discrimination, a union could not challenge a selection or trigger a duty to disclose information.
Id.
The Judge also concluded that the Union had demonstrated that the information was necessary, within the meaning of section 7114(b)(4) of the Statute.(6) The Judge found that, by referring to the possibility of an unfair labor practice charge, the Union's request "made clear that discrimination was suspected." Id. at 10.
III. Positions of the Parties
A. Exceptions to Judge's Decision Regarding Failure to Provide Crediting Plan
1. Respondent
The Respondent claims that the release of information under section 7114(b)(4) must be related to the duty to bargain under the Statute. The Respondent asserts that, because there is no duty to bargain over supervisory selection procedures, a union has no right to information concerning them. The Respondent further asserts that, even if a union is entitled to information concerning the filling of supervisory positions where discrimination based on protected Union activity is claimed, the Union did not allege discrimination in its request. In addition, according to the Respondent, the information is not necessary, under section 7114(b)(4) of the Statute, and the Judge failed to consider its countervailing anti-disclosure interests, including its interest in the confidentiality of crediting plans.
2. General Counsel
The General Counsel argues that the Union's statement that the crediting plan was needed in connection with a possible grievance and/or unfair labor practice charge was sufficient to establish that the information was necessary within the meaning of section 7114(b)(4).
B. Exception to Judge's Decision Regarding Failure to Promote
1. Union
The Union requests that the Judge's Order be amended to provide Cuddeback the option of declining the retroactive promotion and, if the promotion is declined by Cuddeback, then the Union seeks back pay for Cuddeback from the date of the Respondent's disputed selection action to the date of the Judge's decision. The Union states that, after receipt of the Judge's decision, Cuddeback was advised by the Respondent that he was being promoted to the disputed position and that his former position was being abolished. The Union requests that its motion be granted so that Cuddeback can continue his Union activities.
2. General Counsel
The General Counsel states that it does not oppose the Union's request.
3. Respondent
The Respondent opposes the Union's request on the ground that it is beyond the scope of the Authority's remedial power under the Statute and the Back Pay Act. The Respondent also contends that the Union's motion does not constitute an exception to the Judge's decision and should, accordingly, be denied.
IV. Analysis and Conclusions
A. The Respondent was Not Obligated to Provide the Crediting Plan
Recently, the Authority issued Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661 (1995) (IRS), which set forth the analysis for determining whether information is "necessary" under section 7114(b)(4) of the Statute. We held that a union requesting information under section 7114(b)(4) must establish a particularized need for the requested information by articulating, with specificity, why it needs that information, including the uses to which the information will be put, and the connection between those uses and the union's representational responsibilities under the Statute. We also stated that a union's burden will not be satisfied merely by showing that requested information is or would be relevant or useful, but that the union must demonstrate that the information is "'required in order for the union adequately to represent its members.'" Id. at 670 (quoting Department of Justice v. FLRA, 991 F.2d 285, 290 (5th Cir. 1993)). The union's responsibility for articulating and explaining its interests extends to more than a conclusory or bare assertion; among other things, the request for information must be sufficient to permit an agency to make a reasoned judgment as to whether the information must be disclosed under the Statute.
The Union stated in its request that it needed the crediting plan to investigate the nonselection of two unit employees--Vogel and Cuddeback--for promotion to a supervisory position, and that a timely response was required due to the "extremely tight [time] frame for filing grievances and/or unfair labor practices." Joint Exhibit 1 at 1. However, the request did not describe in any way the grievance or ULP under consideration. In addition, the Union's request stated that "[f]ailure to provide this information . . . in a timely manner will be deemed cause for the Union to have to file an [u]nfair [l]abor [p]ractice . . . ." Joint Exhibit 1 at 2. This reference to a ULP reasonably could be interpreted as a threat to file a ULP charge if the requested information was not released by a particular date.
We conclude that the Union's request for the crediting plan was not sufficient for the Respondent to make a "reasoned judgment" as to whether disclosure was required. IRS, 50 FLRA at 670. In so doing, we reject as unsupported the Judge's statement that, by referring to the possibility of an unfair labor practice, the Union's request for information "made clear" to the Respondent that the crediting plan was needed because "discrimination was suspected."(7) Judge's Decision at 10. As such, the Union failed to establish that the crediting plan is necessary, within the meaning of section 7114(b)(4)(B). In these circumstances, the Respondent was not obligated to provide the Union with the requested information under section 7114(b)(4) of the Statute, and the Respondent's failure to do so did not violate the Statute.(8) Therefore, without addressing the parties' additional arguments, we dismiss this portion of the complaint.(9)
B. Union's Exception
We reject the Respondent's argument that because the Union's request was captioned "Motion to Modify Order," it does not constitute an exception to the Judge's decision and should, accordingly, be denied. The motion was timely, under the Authority's Regulations, and comports with the Authority's requirements regarding exceptions in all other respects. Moreover, the Respondent treated the motion as an exception.(10) Accordingly, we address the motion filed by the Union as an exception to the Judge's decision under section 2423.26(c) of the Authority's Regulations.
We reject the Union's exception, however, because it neither alleges nor establishes that the Judge erred in any way in arriving at his decision. Moreover, the parties' submissions indicate that, subsequent to the Judge's decision, the Respondent promoted Cuddeback to the disputed position and abolished his previous position.(11) It is not clear from the record, whether, or to what extent, it is possible at this time to provide Cuddeback the option of declining the retroactive promotion. In these circumstances, we will not modify the Judge's Order, and we conclude that the matter raised in the Union's exception is more appropriately resolved during the compliance stage of this proceeding. See American Federation of Government Employees, Local 1857, AFL-CIO, 44 FLRA 959, 969 (1992).
V. Order
Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Statute, the Federal Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery, Pennsylvania, shall:
1. Cease and desist from:
(a) Failing to select Wayne Cuddeback for the position of Maintenance Mechanic General Foreman, because Cuddeback engaged in activities protected under section 7102 of the Statute.
(b) Failing to furnish, upon request by the American Federation of Government Employees, Local 148, AFL-CIO, the exclusive representative of its employees, the promotion packages (in a less severely redacted form), submitted for the position of Maintenance Mechanic General Foreman, WS-13.
(c) 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) Retroactively promote Wayne Cuddeback to the position of Maintenance Mechanic General Foreman, and make him whole, with interest, for losses he incurred as a result of the Respondent's unlawful action.
(b) Furnish, upon request by the American Federation of Government Employees, Local 148, AFL-CIO, the exclusive representative of its employees, the promotion packages (in a less severely redacted form), submitted for the position of Maintenance Mechanic General Foreman, WS-13.
(c) Post at its facilities at the Allenwood Federal Prison Camp, Montgomery, Pennsylvania, 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 Warden of the Allenwood Federal Prison Camp, Montgomery, Pennsylvania, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional Director, Boston Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.
The portion of the complaint alleging that the Respondent violated section 7116(a)(1), (5) and (8) by refusing to furnish the requested crediting plan is dismissed.
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail to select Wayne Cuddeback for the position of Maintenance Mechanic General Foreman, because Cuddeback engaged in activities protected under section 7102 of the Statute.
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 retroactively promote Wayne Cuddeback to the position of Maintenance Mechanic General Foreman, WS-13, and make him whole, with interest, for losses he incurred as a result of the Respondent's unlawful action.
WE WILL furnish, upon request by the American Federation of Government Employees, Local 148, AFL-CIO, the exclusive representative of our employees, the promotion packages (in a less severely redacted form), submitted for the position of Maintenance Mechanic General Foreman, WS-13.
______________________
(Activity)
Date: ________ 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 of the Federal Labor Relations Authority, Boston Region, 99 Summer Street, Suite 1500, Boston, MA 02110-1200, and whose telephone number is: (617) 424-5730.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
| FEDERAL BUREAU OF PRISONS, ALLENWOOD FEDERAL PRISON CAMP,
MONTGOMERY, PENNSYLVANIA
Respondent |
|
| and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 148, AFL-CIO Charging Party |
BP-CA-20161 |
Maxine G. Sharpe, Esq.
For the Respondent
Verne R. Smith, Esq.
For the General Counsel
Mr. Robert Adams
For the Charging Party
Before: JOHN H. FENTON
Chief Administrative Law Judge
DECISION
Statement of the Case
At issue in this case are the questions whether Respondent violated 5 U.S.C. 7116(a)(1), (5) and (8) by refusing to furnish the Union with a crediting plan and unsanitized promotion packages sought by the Union to aid in its determination whether to grieve the non-selection of certain employees for the position of Maintenance Mechanic General Foreman, and whether the non-selection of Wayne Cuddeback was based upon his protected activity, in violation of 7116(a)(1), (2) and (4).
Findings of Fact
Wayne Cuddeback is a Heating, Ventilation and Air Conditioning Foreman at Allenwood Federal Prison Camp, where he had worked for approximately 15 years prior to the promotion at issue. He works under the immediate supervision of the Maintenance Mechanic General Foreman.
From about 1986 to 1989 Cuddeback was Chief Steward, and then rose to Vice President. He was a very active and successful Union officer, filing about a dozen grievances which were settled just short of arbitration, and about eight unfair labor practice charges. One grievance required the prison to add a position in the power plant (and lose a guard position) and may well have displeased the then Facilities Manager, Terry Reynolds. It is clear that Reynolds and Cuddeback increasingly engaged in heated exchanges over labor-management issues, including the use of official time, but it is far from clear that this was any more than a developing personality conflict. The clearest item on this record is the absence of any statement indicating hostility to the Union, whatever the attitudes managers may have harbored.
One unfair labor practice charge involved, as here, refusal to furnish a crediting plan, and led to an Authority decision ordering its disclosure (40 FLRA 449).(1) Another charge filed by Cuddeback led to an ALJ decision (OALJ 89-83) finding that Cuddeback was discriminatorily denied promotion to his present position. Respondent complied and retroactively promoted him. While the Administrative Law Judge noted that the evidence tended to show Cuddeback was better qualified than the successful candidate, and that Respondent relied upon shifting and contradictory reasons in its attempt to explain the non-selection of Cuddeback, it is evident that, consistent with Authority precedent, he strongly relied on an adverse inference drawn from Respondent's refusal to comply with a subpena seeking the crediting plan, i.e. from its unwillingness to capitulate on the question whether it is legally required to produce a crediting plan. Other "background" evidence of effective action and advocacy by Cuddeback, is the filing of a charge which led to a settlement he negotiated providing for backpay covering losses of overtime, holiday and night differential pay to three employees, as well as Respondent's acknowledgement of its statutory obligation not to retaliate against employees because of their protected activities.(2)
Against this backdrop of aggressive and successful representational activities by Cuddeback, Respondent in January of 1991, posted a vacancy announcement for the position of Maintenance Mechanic General Foreman. In addition to Cuddeback, one James Vogel of Allenwood as well as 20 other employees from other correctional facilities applied. Promotion packages from each candidate, consisting of performance appraisals, SF-171s and supplemental statements of experience, education and other materials relevant to one's qualifications for the position, were sent to the Northeast Regional Office in Philadelphia. There a promotion panel evaluated, or scored the applicants' papers against the standards set forth in the crediting plan so as to rank them and identify those found best qualified. Cuddeback was ranked fifth on the best qualified list.
A process called vouchering then took place, in which supervisors of the best qualified candidates are contacted by a manager to discuss qualifications beyond those measured in the packages. Associate Warden Sue Gertinsky at Allenwood instructed Rick Buck, because he had been selected as the Allenwood Facilities Manager (direct supervisor of the General Foreman), but who was still Facilities Manager in a correc-tional facility in New York, to voucher the best qualified. Buck, who struck me as a candid witness, telephoned Terry Reynolds (the outgoing Facilities Manager), and Pat Ahearn (the outgoing General Foreman), to discuss Cuddeback, i.e. to ask about his strong points and his weak points. He was informed that Cuddeback's writing skills were lacking, that his productivity was not as high as it could have been, and that there was friction between him and the other foremen. He was unaware of Cuddeback's Union office. Buck said he was inclined to recommend a candidate from an institution other than the one with the vacancy, because of the difficulties which often flow from picking someone who has worked directly with unselected candidates. In any event, he passed on to Gertinsky his recommendation of a person other than Cuddeback or Fowler, the candidate ultimately selected. His views were then passed on to Warden Patrick Casey, who made his recommen-dation to George Wilkinson, the Northeast Regional Director in Philadelphia.
Warden Casey received the vouchering information about the best-qualified candidates as well as their promotion packages. Casey said he personally vouchered two applicants from Allenwood (because it was his own institution) as well as Fowler. As to the latter, he contacted Warden John Sullivan at the Danbury Federal Correctional Institution in Connecticut. Sullivan provided a very positive vouchering of Fowler, describing him as an honors graduate of the BOP training center who, while on board for only about three years had proven himself to be a very enthusiastic, energetic and positive role model. He had advanced from correctional officer to project foeman to landscape foreman and had already received four "special act" cash awards for accomplishments beyond his normal duties. Sullivan's strong views of Fowler's leadership and communications skills, and the respect he had earned from the staff, together with the fact that he was from another institution - and a higher security level facility-convinced Casey, he said, to select Fowler. He added, though admittedly not out of his own experience, that a candidate's experience at another facility is a significant plus, as it avoids the "envy, jealousies and other kinds of problems that might occur if a selection were made from within."
In contrast, according to Casey, the vouchering information received from Reynolds and the Associate Warden concerning Cuddeback was a combination of good and bad -- "not a positive strong enough to justify (his) selection. . . ." He mentioned two problems: written communication skills not up to the requirements of writing project specifications, and a lack of good relations with his peers(3), indicating he could not effectively supervise the same people he had difficulty with as colleagues. Cuddeback was not counselled about any such alleged shortcomings, although his own somewhat confusing testimony indicates both that he was "involved in the preparation or the writing of specifications" and provides as an example of such activity as asbestos removal project as to which he concedes he did not actually prepare the specifications.
Whatever, the selecting official, Wilkinson, selected Fowler. He had been unavailable at the hearing, and further hearing was scheduled in part to accommodate him. He did not appear at the rescheduled hearing, and no reason was offered to explain his absence.
By notice dated August 1, 1991, Cuddeback was informed that, although rated among the "best qualified" candidates, he had not been selected. On July 31 (?), Cuddeback, on behalf of himself and James Vogel, requested copies of the promotion packages for each applicant and the crediting plan used to evaluate them. His letter noted that such information was needed "(i)n order for the Union to fulfill its representa-tional obligations," and indicated the need for a prompt response because of the "extremely tight time frame for filing grievances and/or unfair labor practices."
The request was apparently inadvertently forwarded to the Office of the Northeast Regional Counsel, where Freedom of Information Act matters are handled. That office responded to Cuddeback on December 12, furnishing broadly sanitized promo-tion packages and refusing (on the advice of the Personnel Officer) the request for the crediting plan. In addition to deleting obvious personal identifiers, Respondent removed applicants' job titles, names and locations of employing institutions and schools attended, and special projects on which they had worked as well as the names of the applicants' performance appraisal rating and reviewing officials. The scoring and rating sheets developed in the selection process had not only the applicants' names, but those of the rating officials removed. The promotion packages were numbered as were the rating sheets to permit comparison.
In letters dated January 16 and 23, Cuddeback noted that the "censoring" was so thorough as to render the 574 pages of generated documents virtually useless, and requested that the promotion packages and rating and scoring sheets be furnished in completely unsanitized form. On February 4 Regional Director Wilkinson replied that he could provide only information "to the extent not prohibited by law" (i.e. the Privacy Act), and pointed out that the materials furnished were coded in a manner which would enable the Union to make anonymous comparisons of the qualifications of each applicant. He added that, if Cuddeback still was of the view that the Union could not fulfill its representational obligations, he should "state a particularized reason why you need the unsanitized data that would outweigh the privacy needs of each of the individuals". In that event a decision would be made whether the reason provided warranted release of information covered by the Privacy Act. That ended the correspondence.
Somewhat of a comparison of the records of Fowler and Cuddeback is possible, it being evident to anyone reading this record that Fowler's application papers and promotion package are, as Cuddeback noted, in evidence. Cuddeback's performance appraisal was an "Exceeds," Fowler received an "Outstanding," with a specific reference to his readiness for General Foreman. Each got 26 total points of a possible 28 on the Job Element Rating Sheet, with Cuddeback receiving only a 2 (barely acceptable) on "Ability to Work With Others," and Fowler receiving 3s (satisfactory) on "Ingenuity and Ability to Meet Deadlines." On the Merit Promotion Ranking Form (consisting of the total of the three panelists' ratings), Fowler tied for first at 175 compared to Cuddeback at a distant fifth with 142, and interviewing scores of 169 nd 151. With 15 years of experience, Cuddeback had far broader experience, especially in the trades, and had taken considerably more training. To the undersigned, Fowler clearly presented his own qualifications more persuasively, as they related to the job sought, than did Cuddeback. Contrary to General Counsel's contention that Fowler had only 15 months experience he had three years and had advanced in 18 months from a WS-8 foreman to a GS-11 step three, Construction Representative. Both had served as Acting General Foreman. Both have received awards, with Fowler receiving four special act awards in his three years. Fowler is an honors graduate of the BOP training academy. That is about what we know, as neither Fowler nor the selecting official testified.
There is the question whether Warden Casey's vouchering of Cuddeback was affected by a disposition on the part of one source, Reynolds, to provide negative information because of Cuddeback's protected activity.(4) The two had several rancorous exchanges growing out of discussions concerning protected activity. On the other hand, no statement is attributed to Reynolds indicating hostility to unions, and it is understandable that anger can develop from such discussions without any necessary presumption of animus. Union officials are rightly accorded great latitude with respect to remarks made in the heat of such discussions. Aside from the absence of any unlawful statements by Reynolds, Cuddeback admits that Reynolds recommended him for a performance award. It is to be noted also that General Foreman Ahearn was also vouchered, and it is not clear whether he or Reynolds or both relayed the negative information. On balance, I conclude that the evidence will not support a finding that Reynolds' criticisms were motivated by Cuddeback's Union office and activities, although there is reason for suspicion.
Discussion and Conclusions of Law
A. The response to the requested data.
There is a threshold question, one not litigated in this case, perhaps because the response to the Union's information request was inadvertently handled by the FOIA rather than the labor relations office. It is too late to go back for briefs, and the question arises whether it is even appropriate to deal with a matter never raised and litigated. It concerns the fact that the position of Maintenance Mechanic General Foreman is at least an entry-level supervisory position.(5) The Statute has been construed in a manner severely restricting the rights of bargaining representatives to information concerning, or negotiations over, the manner and method of filling super-visory slots. Such action is deemed to be outside the duty to bargain because it is said not to affect the employment conditions of bargaining unit employees. A host of cases cast grave doubt on the right of unions to concern themselves with how management staffs management. In such circumstances it seems to me a mistake to simply ignore critical matters of statutory construction which may be dispositive, and which the parties can address in exceptions to this decision.
Nuclear Regulatory Commission, 17 FLRA 972, is perhaps the lead case of this kind. There the agency unilaterally discontinued an established practice of permitting unit employees who had grieved nonselection to supervisory positions, under the agency's grievance procedure, to be represented by union stewards. The Authority, noting that it "is well settled that procedures for filling supervisory positions are matters outside the duty to bargain, as such procedures concern non-bargaining unit positions and do not concern conditions of employment of bargaining unit employees within the meaning of section 7103(a)(14), and that a change in such procedures therefore does not constitute a violation of section 7116(a)(1) or (5)."
The Authority elaborated as follows:
In the Authority's view, procedures for challenging the selection of supervisors are integrally related to the procedures for filling supervisory positions. Therefore, since the Respondent had no duty to bargain concerning the supervisory selection process itself, the Authority concludes that the Respondent also had no obligation under the Statute to bargain concerning the role of the Union, if any, in agency procedures to challenge supervisory selections, inasmuch as such matters similarly do not concern conditions of employment within the meaning of section 7103(a)(14) of the Statute. In this regard, the Authority notes that section 7102(2) of the Statute provides that employees have the right to engage in collective bargaining, through their exclusive representative(s); with respect to condi-tions of employment. It follows that employees' exclusive representative(s) also have the statutory right to represent employees only with respect to their conditions of employment. Having determined that the matters here involved do not concern conditions of employment of bargaining unit employees, the Authority concludes that the Respondent did not violate section 7116(a)(1) or (5) of the Statute by unilaterally changing a past practice concerning the representation of unit employees in these matters.
The Authority applied this holding in United States Customs Service, Region VI, 18 FLRA 1 in connection with the unilateral abandonment of a consistent three-year practice of permitting the union to represent bargaining unit employees in agency grievance procedures concerning promotions to threshold supervisory positions. It held that there was no change in conditions of employment of bargaining unit employees and hence no duty to bargain. To the same effect are various negotiability determinations (2 FLRA 286, 2 FLRA 604, 628, 3 FLRA 438, 6 FLRA 502, 15 FLRA 798, 16 FLRA 805, 24 FLRA 64, 24 FLRA 505(6)). The Citator does not indicate any abandonment or modification of these precedents. Cf. Ft. Bragg, 34 FLRA 461, IRS, 21 FLRA 646.
There being no duty to bargain concerning a supervisory selection process, because, at least in normal circumstances, it does not concern a condition of employment, it may plausibly be argued that there is no right to information about such process. In the absence of any obligation to bargain there exists no representational responsibility on the Union's part and hence no need, general or particularized, for relevant information. Given the rather rigidly expressed literalism of the extensive precedent cited, it could somewhat less plausibly be argued that a discriminatory refusal to promote a bargaining unit employee to a supervisory (non-employee) position is not unlawful because, by parallel reasoning, it does not concern a condition of employment.
The Authority has apparently been provided with no occasion to articulate a rationale for framing a violation of law in such circumstances. In the cases of which I am aware(7), it appears that the issue was never litigated, i.e. such defense was never interposed. It seems to me that Labor Board precedent is clear and convincing: a bargaining unit employee's prospects for promotion to entry-level supervisory positions are among his/her conditions of employment, and it violates the statute to foreclose them because of protected activity.(8) From that it would follow that information shedding light on a claimed discriminatory selection would concern a condition of employment even though the position filled would be occupied by a non-employee, and notwith-standing that, absent claimed discrimination, a union could not challenge a selection or trigger a duty to disclose information.
I dwell at perhaps undue length on this topic because it seems essential to disposition of both the alleged discrimination and the issue of particularized need for the information sought, matters too important to the construction of the Statute to be neglected because not offered in defense.(9)
Here the request for the information made clear, by reference to the possibility of an unfair labor practice charge, that discrimination was suspected. The Union thereby expressed a particularized need for not merely useful but critical information which would satisfy even the increased (or decreased) constraints set forth by the US Circuit Court in Allenwood, 988 F.2d 1267. The question remains whether the promotion packages have been over-sanitized and whether the crediting plan can be lawfully withheld.
As noted, Cuddeback insisted upon full disclosure, including names, contending the severe "censorship" rendered the promotion packages useless for purposes of comparison. All obvious personal identifiers, job titles, names and locations of employing institutions and schools attended, and special projects on which applicants had worked were removed, out of claimed fear that such data would in fact disclose identities.
Employees' right to the confidentiality of performance ratings is recognized as deserving of protection. On the other hand, and in the balance, is the public's right to know whether its government faithfully adheres to its obligation not to discriminate against employees based upon their union activities or their use of, or participation in, the procedures of the Authority. While no convincing need to know the identity of applicants appears (and numbers are assigned for purposes of comparison), I conclude that a useful assessment of relative qualifications, and hence of indicators of discriminatory purpose, does require disclosure of relevant training or education received and of special projects undertaken by applicants.
The Authority has already held that crediting plans are to be furnished where the need for them is evident, and as noted, did so in this very Activity, at 40 FLRA 449. It examined and rejected the very defenses offered here. While the Court found that decision wanting as respects the "necessity" requirement of Section 7114(b)(4)(B), i.e. the Authority's alleged failure to consider whether the Union had articulated a particularized need (including "some initial but not overwhelming demonstration . . . that some violation is or has been taking place"), and as respects the agency's important anti-disclosure interests, i.e. that disclosure would not taint the examination process or render the examination itself operationally absolute, the Authority's decision remains the law binding upon me.
Respondent has, therefore, violated Section 7116(a)(1), (5) and (8) by refusing to provide the Union with the crediting plan and with the less severely redacted promotion packages.
B. The alleged discrimination.
As made plain in the presentation of the facts, this is not, in my judgment, (but for the failure of the selecting official, Regional Director Wilkinson to testify) an easy case to resolve. It is not, of course, enough simply to note that Cuddeback was a very active and successful Union official. Nor is it enough, in my view, that on several occasions, some angry outbursts occurred in connection with discussions arising from his protected activity. My observation of him at the hearing strongly suggests that he, as well as Reynolds, had considerable capacity for truculence. And it is clear that Reynolds recommended him for an award and that neither Reynolds nor any other agent of Respondent expressly indicated anti-union animus.
The only background indicating such a disposition is the litigated case in which he was found to have been discrimina-torily denied a promotion. But that decision was heavily influenced by the inference drawn from Respondent's refusal to produce its crediting plan. Given the reception of the Courts to efforts to secure such plans(10), I have grave difficulty in translating an insistence upon litigating one's entitlement to withhold and protect such a plan into the near equivalent of an admission that the plan, if released, would establish that it had been discriminatorily applied. Thus can the deter-mination to litigate one aspect of a case seal one's doom with respect to another. Nevertheless, I think that is the guidance received, and I am constrained to draw an inference that disclosure of the plan would harm Respondent's defense to the alleged Section 7116(a)(2) and (4) violations.
In camera examination of the crediting plan (and the promotion packages) does not make resolution any easier. While Cuddeback has wider experience in the various trades, Fowler appears to be a very promising candidate, one who has progressed very very rapidly, and one who, in my view, did a better job of presenting the case for why he would make a good supervisor. And Fowler got rave reviews from his Warden.
There is, finally, the unexplained and inexplicable failure of Wilkinson to appear and defend his selection of Fowler. One must conclude in such circumstances that he was unwilling to run that gauntlet and infer that he had something to hide. Absent that factor, I would have found the case for discrimination an unpersuasive one. As the record stands, General Counsel has made out a prima facie case, one which Respondent cannot rebut in the absence of the selecting official's testimony. There is known union activity, a suspicion that Reynolds may have permitted animus to taint his contribution to the vouchering process, and an inference required to be drawn that the selecting official does not wish to be examined. Under the Letterkenny formulation, 35 FLRA at 118, Respondent must establish the affirmative defense that legitimate justification existed for the action taken and that it would have been taken in the absence of protected activity. As noted, such rebuttal cannot be made without the testimony of the selecting official.
The conclusion is unavoidable, in the circumstances, that Respondent violated Section 7116(a)(2) and (4) when it did not select Cuddeback. Accordingly, I recommend that the Authority enter the following:
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 U.S. Department of Justice, Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery, Pennsylvania, shall:
1. Cease and desist from:
(a) Failing and refusing to furnish, upon request by the American Federation of Government Employees, Council 33, Local No. 148, AFL-CIO, the exclusive representative of its employees, the crediting plan for the position of Maintenance Mechanic General Foreman, WS-13, and the promotion packages (in a less severely redacted form), requested in connection with such representative's processing of a potential grievance or unfair labor practice charge challenging the promotion action.
(b) Failing to select Wayne Cuddeback for the position of Maintenance Mechanic General Foreman, because Cuddeback engaged in activities protected under Section 7102 of the Statute.
(c) 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, furnish the American Federation of Government Employees, Council 33, Local No. 148, AFL-CIO, the exclusive representative of its employees, the crediting plan, requested in connection with such representative's processing of a potential grievance or unfair labor practice charge challenging the promotion action, as well as the requested promotion packaged in a less redacted form.
(b) Retroactively promote Wayne Cuddeback to the position of Maintenance Mechanic General Foreman, and make him whole, with interest, for losses he incurred as a result of the Respondent's unlawful action.
(c) Post at its facilities at the Allenwood Federal Prison Camp, Montgomery, Pennsylvania, 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 Warden of the Allenwood Federal Prison Camp, Montgomery, Pennsylvania, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Boston Region, 99 Summer Street, Suite 1500, Boston, MA 02110-1200, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
Issued, Washington, DC, September 30, 1994
_________________________
JOHN H. FENTON
Chief Administrative
Law Judge
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to furnish, upon request by the American Federation of Government Employees, Council 33, Local No. 148, AFL-CIO, the exclusive representative of its employees, the crediting plan for the position of Maintenance Mechanic General Foreman, WS-13, and the promotion packages (in a less severely redacted form), requested in connection with such representative's processing of a potential grievance or unfair labor practice charge challenging the promotion action.
WE WILL NOT fail to select Wayne Cuddeback for the position of Maintenance Mechanic General Foreman, because Cuddeback engaged in activities protected under Section 7102 of the Statute.
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, furnish the American Federation of Government Employees, Council 33, Local No. 148, AFL-CIO, the exclusive representative of its employees, the crediting plan, requested in connection with such representative's processing of a potential grievance or unfair labor practice promotion charges challenging the promotion action, as well as the requested promotion packaged in a less redacted form.
WE WILL retroactively promote Wayne Cuddeback to the position of Maintenance Mechanic General Foreman, and make him whole, with interest, for losses he incurred as a result of the Respondent's unlawful action.
_________________________
(Activity)
Date:_____________ 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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Boston Region, 99 Summer Street, Suite 1500, Boston, MA 02110-1200, and whose telephone number is: (617) 424-5730
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
Authority's Footnotes Follow:
1. The Respondent and the General Counsel also filed supplemental submissions concerning whether the requested information is necessary, within the meaning of section 7114(b)(4) of the Statute, in response to an Authority Order dated December 6, 1994.
2. "'Crediting plans' are documents developed by an employer to rate and rank candidates for a specific position. A crediting plan typically consists of a list of criteria reflecting the knowledge, skills, and other characteristics deemed necessary for a particular job, as well as devices used to measure whether a candidate satisfies those criteria." U.S. Department of Justice, Bureau of Prisons v. FLRA, 988 F.2d 1267, 1268 (D.C. Cir. 1993) (Bureau of Prisons).
3. The Union requested other information in addition to the crediting plan and, during the course of the proceedings involved herein, the Respondent provided the other information in what the Judge found to be an "over-sanitized" form. Judge's Decision at 10. The Judge directed the Respondent to provide the requested promotion packages "in a less redacted form." Id. at 13. As there are no exceptions regarding this aspect of the Judge's decision, we do not address it further.
4. The Judge found that the Respondent committed the unfair labor practice, as alleged, and ordered the Respondent to "[r]etroactively promote . . . Cuddeback to the [supervisory] position . . . and make him whole, with interest, for losses he incurred as a result of the Respondent's unlawful action." Id. As there are no exceptions to the Judge's findings and conclusions regarding this issue, we address it only in connection with our consideration of the Union's motion to modify the Judge's Order. See section IV.B., infra.
5. The Judge cited NLRB v. Bell Aircraft Corp., 206 F.2d 235 (2d Cir. 1953) (Bell Aircraft).
6. The Judge made no specific finding regarding the remaining requirements of section 7114(b)(4) of the Statute. However, in its answer to the complaint, the Respondent admitted that the information is normally maintained by the Respondent and is reasonably available. In its supplemental submission, the Respondent conceded that the information does not constitute guidance, advice, counsel or training for management officials within the meaning of section 7114(b)(4)(C) of the Statute.
7. No party argues that we should resolve this issue based on anything other than the request. We note that the Judge based his decision that the crediting plan was necessary solely on the Union's request. In addition, although allegations before the Judge in connection with a separate complaint involved the Respondent's failure to promote Cuddeback based on consideration of Union activity, no basis is argued or apparent on which to link the request with that matter. In this regard, as noted supra, the request expressly was made not only on behalf of Cuddeback, but also on behalf of another unit employee--Vogel--and there is nothing in the record to suggest that Vogel was involved in Union activity in any way.
8. In view of this determination, we find it unnecessary to address here whether, as found by the Judge, a failure to promote a unit employee to a supervisory position based on consideration of protected Union activity violates the Statute. As the Judge noted, Authority precedent does not squarely address the reasoning for finding that such discrimination violates the Statute. That precedent clearly suggests, however, that such discrimination violates the Statute. Cf. Office of Program Operations, Field Operations, Social Security Administration, San Francisco Region, 9 FLRA 73, 74-75 (1982), aff'd, 716 F.2d 47 (D.C. Cir. 1983) (finding that no discrimination had been established, Authority dismissed ULP alleging that agency refused to promote a unit employee to a supervisory position based on consideration of union activity; dismissal was not based on fact that supervisory position was involved, but rather on ground that agency established that, even absent such consideration, it would not have promoted the employee). Precedent under Executive Order 11491, as amended, confirms that such discrimination violated the Order. See Veterans Administration Hospital, Lexington, Kentucky, 2 FLRA 879 (1980); Pennsylvania Army National Guard, 1 FLRA 528 (1979). Similarly, as noted by the Judge, such discrimination is unlawful under the National Labor Relations Act. E.g., Bell Aircraft, 206 F.2d 235.
9. We note that the fact that the Authority reached a contrary conclusion regarding a previous request by this Union for a crediting plan involving a nonunit position, U.S. Department of Justice, Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery, Pennsylvania, 40 FLRA 449 (1991), remanded sub nom. Bureau of Prisons, 988 F.2d at 1272, does not compel a different result here. As the Authority's decision was reversed and remanded by the D.C. Circuit, and preceded the recent decision in IRS, it no longer supports a conclusion that an obligation exists to release the crediting plan to the Union.
10. The Respondent filed its opposition to the Union's request 10 days after the request was served on it, consistent with the requirement in section 2423.28 of the Authority's Regulations. By contrast, under section 2423.22, responses to motions must be filed within 5 days after service.
11. Moreover, there is no assertion that the Respondent acted improperly in abolishing Cuddeback's former position.
ALJ's Footnotes Follow:
1. On appeal the Circuit Court remanded the case (988 F.2d 1267 - D.C. Cir. 1993) for reconsideration in the light of the "particularized need" standard and the agency's counter-vailing interest in preserving the confidentiality, and hence utility, of crediting plans. The Court said the Authority had "impermissibly minimized or disregarded the important anti-disclosure interests of the agencies." That decision, indistinguishable on its facts from this one, was adopted as the law of the case only.
2. To whatever extend this evidence may have been offered to establish past violations, or a disposition to violate the law, it is not accepted. The letter of settlement (GCX 2E) states that it is not an admission of any violation and "may not be construed to suggest that . . . a violation has occurred."
3. The rating panel had given Cuddeback a superior rating in six of seven job elements, but gave him only a "barely acceptable" on ability to work with others, based on his application papers as measured by reference to the crediting plan.
4. The Warden also spoke to the Associate Warden. So far as we can tell, she received her information from Buck, the incoming facilities manager. As noted Buck was told that Cuddeback's writing and productivity left something to be desired, and that there was friction between him and other foremen.
5. As noted, the chain-of-command shows that Cuddeback as a foreman (nonsupervisory) reports to the General Foreman. The latter position is described as one over 6 to 22 supervisors. Cuddeback (Tr. 38) describes the position as management.
6. In 16 FLRA 805 the Authority noted that it did not reach the question whether the disputed part of the proposal would be negotiable if applicable only to threshold first-line supervisory positions, as the proposal in fact covered supervisory and management positions generally.
7. VAMC Lyons, 24 FLRA 64, SSA San Francisco, 9 FLRA 73, Pennsylvania Army National Guard, 1 FLRA 528 and VA Hospital, Lexington, 2 FLRA 879.
8. NLRB v. Bell Aircraft Corp., 32 LRRM 2550.
9. While on the Privacy Act was invoked in defense of the substantially redacted promotion packages, this case was litigated before the requirement of particularized need was accepted by the Authority. The possibility remains that an effort will be made to introduce that requirement, especially in the light of the Allenwood Court decision which, of course, concerns this Respondent.
10. Note not only the Allenwood case cited herein, but the Supreme Court's decision in Detroit Edison, 99 S. Ct. 1123, while arguably that test was an entirely different kettle of fish, the Court's interest in securing its confidentiality is strong indeed.