17:0624(92)CA - Army and Air Force Exchange Service (AAFES), Fort Carson, CO and AFGE Local 1345 -- 1985 FLRAdec CA



[ 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), enforc