18:0611(74)CA - Bureau of Alcohol, Tobacco and Firearms, National Office, Washington, DC and NTEU -- 1985 FLRAdec CA



[ v18 p611 ]
18:0611(74)CA
The decision of the Authority follows:


 18 FLRA No. 74
 
 BUREAU OF ALCOHOL, TOBACCO 
 AND FIREARMS, NATIONAL OFFICE 
 WASHINGTON, D.C. 
 Respondent 
 
 and 
 
 NATIONAL TREASURY EMPLOYEES UNION 
 Charging Party
 
                                            Case No. 9-CA-549
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had engaged in the
 unfair labor practices alleged in the complaint and recommending that it
 be ordered to cease and desist therefrom and take certain affirmative
 action.  Thereafter, the Respondent filed exceptions to the Judge's
 Decision.  /1/
 
    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 that the Respondent's failure to provide the National
 Treasury Employees Union (the Union) with an unsanitized copy of a
 promotion package in connection with a filed grievance constituted a
 refusal to bargain in violation of section 7116(a)(1) and (5) of the
 Statute, /2/ as well as a failure to comply with the requirements of
 section 7114(b)(4) /3/ in violation of section 7116(a)(1) and (8) of the
 Statute.  /4/ Additionally, the Judge found that, by billing the Union
 for the promotion package, the Respondent unilaterally changed a
 condition of employment, without prior notice to the Union, and that
 this constituted a refusal to bargain in violation of section 7116(a)(1)
 and (5) of the Statute.
 
    The duty to supply data under section 7114(b)(4) turns upon the
 nature of the request and the circumstances in each particular case.
 /5/ In this case, the Union requested the promotion package utilized by
 the Respondent in filling a posted promotion position in connection with
 unit employee John Harrison's grievance over his non-selection for a
 position described in Announcement #AFT (WR) 80-27.  The Union also
 requested all relevant data pertaining to the manner in which the
 Promotion Panel Raters arrived at the scores assigned to each applicant,
 including the points assigned to each factor which the Raters evaluated
 and how each of those factors was weighted in the ranking process.  The
 record shows that the Union was provided with a sanitized promotion
 package containing SF 171s, Qualifications Record forms and supervisors'
 evaluations and rating forms for applicants on the qualified, highly
 qualified and best qualified lists.  The Respondent deleted the
 applicants' personal identifiers such as name, address, birthdate,
 birthplace, phone number and social security number, and also deleted
 information regarding the applicants' education and employment history
 including, among other things, salary history, names of supervisors and
 foreign language skills.  The Respondent also deleted applicants'
 references and the names of the Raters and selecting officials.
 
    In order to process the grievance, the Union clearly needs
 unsanitized copies of the successful applicant's forms to compare the
 successful applicant's qualifications with John Harrison's
 qualifications.  /6/ The Respondent correctly provided the Union with
 this data.  The Union also needs certain data about the other qualified
 applicants for the purpose of determining how John Harrison compares to
 them and in order to determine whether, consistent with the collective
 bargaining agreement, the selection was based on merit.  In this regard,
 the Union argued during the proceedings before the Administrative Law
 Judge, and the Authority agrees that the Union needs to know and compare
 the reputation of the educational and training institutions which the
 other applicants attended and also the character, size and reputation of
 the other applicants' previous places of employment and each applicant's
 length of service in prior positions.
 
    Therefore, the Authority finds that the General Counsel has
 demonstrated that certain data deleted from the unsuccessful applicants'
 forms in the promotion package was clearly necessary under section
 7114(b)(4) of the Statute in order for the Union to determine the
 fairness of the selection process.  Further, the Authority finds that
 such information contained in the promotion package should be furnished
 to the Union in a form which includes data sufficient to show the
 following:  the unsuccessful applicants' previous employment records
 (employers, length of service and places), the names of the educational
 and training institutions attended by the applicants and dates of
 attendance, and the weight assigned to each factor evaluated by the
 Raters.  /7/
 
    Notwithstanding its obligations under section 7114(b)(4), the
 Respondent contends that its sanitization of the data in the promotion
 package was proper under the provisions of the Freedom of Information
 Act (the FOIA) /8/ in order to prevent an unwarranted invasion of the
 unsuccessful applicants' privacy.  In Army and Air Force Exchange
 Service (AAFES), Fort Carson, Colorado, 17 FLRA No. 92 (1985)
 (hereinafter AAFES), the Authority concluded that the disclosure of
 necessary data pursuant to a union request under section 7114(b)(4) of
 the Statute 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. 522(b)(6) exemption.  /9/
 
    Applying the standard set forth in AAFES, supra, to this case, the
 Authority finds that since the names of the individual applicants will
 not be linked to their promotion evaluation forms, it is unlikely that
 their identifies will become known even if the data which the Authority
 has determined to be necessary is disclosed.  /10/ Further, the
 Authority notes that the necessary data requested would only be used by
 the Union to process a grievance and there is no indication in the
 record that any of the information would become generally known.  Thus,
 in striking the balance between the individual applicants' privacy
 interest and the Union's need for the necessary data in the promotion
 package in the circumstances of this case, the Authority has considered
 the limited circulation the documents are likely to receive and the fact
 that the names and personal identifiers of the applicants will not be
 disclosed.  Therefore, in view of the Union's need for the necessary
 data 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 the privacy of other unsuccessful
 applicants, the Authority finds that disclosure of the necessary data
 would not result in a clearly unwarranted invasion of the applicants'
 privacy.  The Authority also finds in the circumstances of this case,
 that disclosure of the data would insure that the Government fairly
 follows its own merit promotion procedures and encourages the use of
 nondisruptive grievance procedures.  /11/ Therefore, the Authority
 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 the promotion package.
 
    Respondent filed exceptions with regard to the Judge's conclusion
 that it violated its duty to negotiate in good faith, and failed to
 comply with the requirements of section 7114(b)(4) in violation of
 section 7116(a)(1), (5) and (8) of the Statute, by requiring the Union
 to pay for a copy of the promotion package.  Subsequent to the Judge's
 Decision herein, the Authority issued Veterans Administration Regional
 Office, Denver, Colorado, 10 FLRA 453 (1982), wherein it found that in
 the context of section 7114(b)(4) of the Statute, an agency's obligation
 to furnish the exclusive representative with a copy of necessary data
 upon request requires the furnishing of a copy of such data without cost
 to the exclusive representative.  Based on the rationale contained
 therein, the Authority concludes in the present case that the Respondent
 violated its duty to negotiate in good faith, and failed to comply with
 the requirements of section 7114(b)(4), in violation of section
 7116(a)(1), (5) and (8) of the Statute, by requiring the Union to pay
 for a copy of the promotion package.  /12/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority hereby orders that the
 Bureau of Alcohol, Tobacco and Firearms, National Office, Washington,
 D.C., shall
 
    1.  Cease and desist from:
 
    (a) Failing or refusing to furnish, upon request by the National
 Treasury Employees Union, the exclusive representative of its employees,
 the data contained in the promotion package for a position described in
 Announcement #ATF (WR) 80-27 which the Authority has deemed necessary to
 enable the exclusive representative to perform its representational
 duties in connection with John Harrison's grievance.
 
    (b) Failing or refusing to furnish, without charge, to the National
 Treasury Employees Union, the exclusive representative of its employees,
 a copy of the requested data which is necessary to enable such exclusive
 representative to perform its representational duties in connection with
 John Harrison's grievance.
 
    (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 Statute:
 
    (a) Upon request, furnish the National Treasury Employees Union, the
 exclusive representative of its employees, the data contained in the
 promotion package for a position described in Announcement #ATF (WR)
 80-27 which the Authority has deemed necessary to enable the exclusive
 representative to perform its representational duties in connection with
 John Harrison's grievance.
 
    (b) Post at its facility at the Bureau of Alcohol, Tobacco and
 Firearms, National Office, Washington, D.C., and its facility in San
 Francisco, California, copies of the attached Notice on forms to be
 furnished by the Federal Labor Relations Authority.  Upon receipt of
 such forms, they shall be signed by the Director, or a designee, 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.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region IX, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.  
 
 Issued, Washington, D.C., June 21, 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 fail or refuse to furnish, upon request by the National
 Treasury Employees Union, the exclusive representative of our employees,
 the data contained in the promotion package for a position described in
 Announcement #ATF (WR) 80-27 which the Authority has deemed necessary to
 enable the exclusive representative to perform its representational
 duties in connection with John Harrison's grievance.
 
    WE WILL NOT fail or refuse to furnish, without charge, to the
 National Treasury Employees Union, the exclusive representative of our
 employees, a copy of the requested data which is necessary to enable
 such exclusive representative to perform its representational duties in
 connection with John Harrison's grievance.
 
    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 National Treasury Employees Union,
 the exclusive representative of our employees, the data contained in the
 promotion package which is needed to enable such exclusive
 representative to perform its representational duties in connection with
 John Harrison's grievance.
                                       (Agency or 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.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Michael Sitcov, Esq.
    For the Respondent
 
    David S. Handsher, Esq.
    For the Charging Party
 
    Nancy E. Pritikin, Esq.
    For the General Counsel, FLRA
 
    Before:  SAMUEL A. CHAITOVITZ, Administrative Law Judge
 
                                 DECISION
 
                           Statement Of The Case
 
    This is a proceeding under the Federal Service Labor-Management
 Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter
 referred to as the Statute) and the Rules and Regulations of the Federal
 Labor Relations Authority (FLRA), 5 C.F.R.Chapter XIV, Sec. 2410 et seq.
 
    Pursuant to a charge filed on June 19, 1980 by the National Treasury
 Employees Union (hereinafter called NTEU and/or Charging Party) against
 Bureau of Alcohol, Tobacco and Firearms, National Office (hereinafter
 called Respondent and/or ATF) the General Counsel of the FLRA by the
 Regional Director of Region 9 issued a Complaint and Notice of Hearing
 on September 26, 1980.  The Complaint alleges that Respondent violated
 Sections 7116(a)(1), (5) and (8) of the Statute by providing NTEU with
 overly sanitized documents requested in connection with a grievance and
 by charging NTEU for the copying of the information NTEU requested.
 Respondent filed an answer denying that it violated the Statute.
 
    A hearing in this matter was conducted before the undersigned in San
 Francisco, California.  The General Counsel of the FLRA, Respondent and
 Charging Party were represented and afforded full opportunity to be
 heard, to examine and cross-examine witnesses, to introduce evidence and
 to argue orally.  Briefs were filed and have been fully considered.
 
    Upon the entire record in this matter, my observation of the
 witnesses and their demeanor, and from my evaluation of the evidence, I
 make the following:
 
                             Findings of Fact
 
    At all times material herein NTEU has been the collective bargaining
 representative of ATF's non-professional General Schedule and Wage Grade
 employees.  At all times material herein NTEU and ATF have been parties
 to a collective bargaining agreement which provides in Article 9,
 Section 15 that in processing grievances with respect to an employee
 involved in a competitive action, the contents of a promotion file may
 be reviewed by the employee or his union and the review will be in
 accordance with the Privacy Act and Article 34 of the agreement.
 
    On February 8, 1980 a grievance was filed on behalf of John Harrison
 concerning his nonselection for a posted position.  On behalf of
 Harrison NTEU requested the promotion package.  Pursuant to ATF's
 direction, on February 29, 1980 NTEU requested of ATF Assistant to the
 Director (Disclosure) a copy of the complete package of all qualified
 candidates for the position that was the subject of Harrison's
 grievance.  ATF Assistant to the Director (Disclosure) handles requests
 made pursuant to the Freedom of Information Act (FOIA).  By letter dated
 May 28, 1980, ATF Assistant to the Director (Disclosure) sent NTEU a
 "sanitized" copy of the promotion package and a bill for $21.40 for the
 promotion package.  In the past, NTEU had on a number of occasions
 requested ATF to supply it with information and NTEU had never, in the
 past, been billed for material supplied it by ATF.
 
    The "sanitized" package consisted primarily of the application forms
 (Form 171's) submitted by the applicants together with the roster of
 eligibles and the scores awarded the applicants.  The material was
 sanitized by deleting the names of all applicants, except the selected
 employee, and of the rating panel, and of all other information that
 might enable one to identify an applicant (e.g. language taken in high
 school, dates and places of prior employments, etc.) or reviewer.
 
                        Discussion and Conclusions
 
    Judge Naimark found in Bureau of Alcohol, Tobacco and Firearms,
 National Office and Western Region, San Francisco, California, Case No.
 9-CA-390, OALJ 81-064 (1981) (hereinafter called the ATF Case), a case
 involving the same parties and request for the same promotion package,
 that "by requiring the Union to request data under the FOIA, and
 treating it as a member of the general public, Respondent was evading
 its obligation under 7114(b) of the Act . . . its action constituted a
 refusal to bargain in violation of Section 7116(a)(5)." As part of his
 recommended Order Judge Naimark ordered ATF "to cease refusing to
 furnish NTEU all information relevant to the processing of a grievance .
 . . ." The case before me raises the issue of whether the information
 that had been supplied by the ATF FOIA Officer to NTEU was sufficient to
 satisfy ATF's obligations under the Statute.
 
    ATF argues that Section 7114(b)(4) of the Statute /13/ does not
 require it to provide the requested promotion package to NTEU for the
 processing of a grievance.  Rather ATF contends that Section 7114(b),
 (4), (B) only requires it to give NTEU necessary information to be used
 in negotiations and collective bargaining.  ATF contends that grievances
 are not part of the collective bargaining process.  ATF's argument is
 rejected.  Such a narrow definition of collective bargaining and
 negotiations would frustrate the very purposes of the Statute.  Rather,
 the policing of collective bargaining agreements and the processing of
 grievances are very fundamental aspects of the collective bargaining
 process.  Therefore, in agreement with Judge Naimark and with his
 analysis /14/ I conclude that NTEU was entitled, pursuant to Section
 7114(b)(4) of the Statute, to the promotion package in the instant case.
  /15/
 
    The promotion package in the subject case is, on its face, relevant
 and necessary to the reviewing of and processing a grievance involving a
 failure to promote one of the applicants.  Thus absent any special
 privilege, NTEU would be entitled to the promotion package.  See ATF
 Case, supra, and Department of the Treasury, Internal Revenue Service,
 Milwaukee, District, 8 A/SLMR 1125 (1978).
 
    ATF further contends that requiring NTEU to seek this information as
 a member of the general public through the FOIA procedures did not
 violate the Statute.  That issue is not before me and was disposed of by
 Judge Naimark, ATF Case, supra.  Rather, in light of all of the
 foregoing there are two basic issues before me;  first, whether in
 providing the promotion package ATF "over sanitized" it, thereby failing
 to provide NTEU with information it was entitled to receive and
 secondly, whether ATF violated the Statute by charging NTEU for the
 information supplied.
 
    ATF contends that the Freedom of Information Act, 5 USC 552(b)(6)
 /16/ justified it in making the deletions in the promotion package.  In
 dealing with the interests created by the two separate laws in question,
 the FOIA and the Statute, the interests so created must be weighed and
 balanced.  In the subject case all of the deletions seem to have gone
 solely to preventing the identification of the applicants and the
 reviewers.  Thus the subject case involves balancing the right of NTEU
 under the Statute to obtain the information it needs to protect the
 interests of employees it represents and the interests of the applicants
 for a promotion and the reviewer under the FOIA to keep their identify
 secret.  Such privacy rights raised under the FOIA have been rejected in
 the past when balanced against a union's representative rights under
 Executive Order 1149 /17/ and the Statute.  /18/ In the instant case I
 find NTEU's right and need to the unsanitized promotion package
 outweighs the loss of privacy of any employee or reviewing official
 whose identify would thereby become known.  /19/ ATF justified the
 deletions solely on the basis of FOIA privilege, 5 U.S.C. 552(b)(6) and
 not under the Terms of the Privacy Act, 5 USC 552(a)( 5).  But in either
 case ATF has failed to establish that it would have been unlawful to
 supply the requested information.
 
    Accordingly I conclude that Respondent was not privileged to delete
 the items it did from the promotion file and by so doing, ATF failed to
 supply NTEU with information to which NTEU was entitled.  ATF's failure
 to supply NTEU with the requested information therefore constituted a
 violation of Sections 7116(a)(1), (5) and (8) of the Statute.
 
    Finally General Counsel contends that ATF violated the Statute by
 billing NTEU for the requested information.  The record establishes that
 a past practice existed of supplying the Union with requested
 information free of charge.  The charging of the Union therefore
 constituted a unilateral change of a condition of employment, without
 prior notice to NTEU, and violated Sections 7116(a)(1) and (5) of the
 Statute.  ATF's contention that it was permitted, in dealing with FOIA
 requests, to charge a fee is rejected.  The instant case and the ATF
 Case, supra, holds that NTEU was entitled to this information under the
 Statute, not the FOIA, and in fact requiring it to utilize the FOIA
 violated the Statute, ATF Case, supra.  Accordingly the FOIA billing
 requirements, as such, do not operate to change an existing employment
 practice.  However, this does not mean as General Counsel contends, that
 Section 7114(b)(4) entitles NTEU to the requested information free of
 charge.  Rather all Section 7114(b)(4) of the Statute means is that NTEU
 is entitled to have the information made available.  Reasonable costs,
 if any, and similar procedures dealing with the supplying of such
 information is to be worked out by the parties to a collective
 bargaining relationship.
 
    ATF contends that the General Counsel and Charging Party are barred
 by res judicata from challenging the propriety of the deletions made by
 ATF in the documents it supplied to NTEU because of the litigation of
 ATF Case, supra.  ATF's contention is rejected because the ATF Case,
 supra, dealt with whether ATF violated the Statute by requiring NTEU to
 utilize the FOIA procedures in order to secure information, whereas the
 instant case deals with whether the information ATF subsequently
 furnished NTEU was adequate under the Statute's requirements and whether
 ATF violated the Statute by billing NTEU for the information supplied.
 Thus, although the matters raised in both cases are related, and it
 might have made good sense to consolidate and litigate the two cases
 together, the matters raised in each case are legally and factually
 separate issues involving allegations of separate and distinct
 violations of the Statute.  Accordingly, I reject ATF's contention that
 the subject case is barred because of the prior litigation of the ATF
 Case, supra.
 
    In light of all of the foregoing I conclude that NTEU was entitled,
 pursuant to Section 7116(b)(4), to the promotion package and that ATF
 over sanitized the promotion package furnished to NTEU.  The failure to
 provide NTEU with the unsanitized copy of the promotion package
 constituted a refusal to bargain in violation of Sections 7116(a)(5) and
 (1) of the Statute.  Further this constituted a failure to comply with
 the requirements of Section 7114(b) of the Statute and thus a violation
 of Sections 7116(a)(8) and (1) of the Statute.  Additionally by billing
 NTEU for the promotion package, ATF unilaterally changed a condition of
 employment, without prior notice to NTEU, and this constituted a refusal
 to bargain in violation of Sections 7116(a)(5) and (1) of the Statute.
 
    In view of the foregoing I recommend the Authority adopt the
 following order:
 
                                   ORDER
 
    Pursuant to Section 7118(a)(7) of the Federal Service
 Labor-Management Relations Statute and Section 2423.29 of the Rules and
 Regulations, it is hereby ordered that Bureau of Alcohol, Tobacco and
 Firearms, National Office, Washington, D.C., shall:
 
    1.  Cease and desist from:
 
          (a) Refusing or failing to furnish, upon request by the
       National Treasury Employees Union, or any other exclusive
       representative of its employees, complete promotion packages and
       all information relevant to the processing of a grievance, which
       information is necessary to enable the National Treasury Employees
       Union, or any other exclusive representative, to discharge its
       obligation as the exclusive representative to represent the
       interests of all employees in the exclusively recognized unit.
 
          (b) Billing and charging National Treasury Employees Union for
       information and documents furnished it.
 
          (c) Changing the practice of not billing for information and
       documents furnished to National Treasury Employees Union without
       first notifying National Treasury Employees Union and affording it
       the opportunity to consult and negotiate, to the extent consonant
       with law and regulations, concerning any such change.
 
          (d) In any like or related manner interfering with,
       restraining, or coercing its employees in the exercise of their
       rights assured by the Federal Service Labor-Management Relations
       Statute.
 
    2.  Take the following affirmative actions:
 
          (a) Upon request, make available to the National Treasury
       Employees Union, or any other exclusive representative of its
       employees, promotion packages and all information relevant to the
       processing of a grievance, which information is necessary to
       enable the National Treasury Employees Union, or any other
       exclusive representative, to discharge its obligation as the
       exclusive representative to represent the interests of all
       employees in the exclusively recognized unit.
 
          (b) Notify the National Treasury Employees Union of any
       intention to change the practice of not billing for information
       and documents furnished to National Treasury Employees Union and
       upon request, consult and negotiate with such representatives, to
       the extent consonant with law and regulations, concerning such
       changes.
 
          (c) Post at its facility at the Bureau of Alcohol, Tobacco and
       Firearms, National Office, Washington, D.C. and San Francisco,
       California, copies of the attached notice marked "Appendix" on
       forms to be furnished by the Federal Labor Relations Authority.
       Upon receipt of such forms, they shall be signed by the Director
       and shall be posted and maintained by him for 60 consecutive days
       thereafter, in conspicuous places, including all bulletin boards
       and other places where notices to employees are customarily
       posted.  The Director shall take reasonable steps to insure that
       notices are not altered, defaced, or covered by any other
       material.
 
          (d) Notify the Regional Director of Region IX, 530 Bush Street,
       Suite 542, San Francisco, California 94108, in writing within 30
       days from the date of this Order as to what steps have been taken
       to comply herewith.
                                       SAMUEL A. CHAITOVITZ
                                       Administrative Law Judge
 
    Dated:  August 21, 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 or fail to furnish, upon request by the National
 Treasury Employees Union, or any other exclusive representative of its
 employees, complete promotion packages and all information relevant to
 the processing of a grievance, which information is necessary to enable
 the National Treasury Employees Union, or any other exclusive
 representative, to discharge its obligation as the exclusive
 representative to represent the interests of all employees in the
 exclusively recognized unit.
 
    WE WILL NOT bill and charge National Treasury Employees Union for
 information and documents.
 
    WE WILL NOT change the practice of not billing for information and
 documents furnished to National Treasury Employees Union without first
 notifying National Treasury Employees Union and affording it an
 opportunity to consult and negotiate, to the extent consonant with law
 and regulations, concerning any such change.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce any employee in the exercise of rights assured by the Federal
 Service Labor-Management Relations Statute.
 
    WE WILL, upon request, make available to the National Treasury
 Employees Union, or any other exclusive representative of its employees,
 complete promotion packages and all information relevant to the
 processing of a grievance, which information is necessary to enable the
 National Treasury Employees Union, or any other exclusive
 representative, to discharge its obligation as the exclusive
 representative to represent the interests of all employees in the
 exclusively recognized unit.
 
    WE WILL, notify the National Treasury Employee Union of any intention
 to change the practice of not billing for information and documents
 furnished to National Treasury Employees Union and, upon request,
 consult and negotiate with such representatives, to the extent consonant
 with law and regulations, concerning such changes.
                                       (Agency or Activity)
 
    Dated:  By:  (Signature)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting and must not be altered, defaced or covered by any other
 material.
 
    If any employees have any questions concerning this Notice or
 compliance with any of its provisions, they may communicate directly
 with the Regional Director, Region IX, Federal Labor Relations
 Authority, whose address is:  530 Bush Street, Suite 542, San Francisco,
 California 94108, and whose telephone number is:  (415) 556-8105.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The General Counsel filed an untimely opposition to the
 Respondent's exceptions which has not been considered.
 
 
    /2/ Section 7116(a)(1) and (5) of the Statute provides:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                  * * * *
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter(.)
 
 
    /3/ Section 7114(b)(4) of the Statute provides:
 
          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;
 
          (B) which is reasonably available and necessary for full and
       proper discussion, understanding, and negotiation of subjects
       within the scope of collective bargaining;  and
 
          (C) which does not constitute guidance, advice, counsel, or
       training provided for management officials or supervisors,
       relating to collective bargaining(.)
 
 
    /4/ Section 7116(a)(8) of the Statute provides:
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
                                  * * * *
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter.
 
 
    /5/ See, e.g., United States Environmental Protection Agency, Health
 Effects Research Laboratory, Cincinnati, Ohio, 16 FLRA No. 16 (1984);
 Internal Revenue Service, Buffalo District, Buffalo, New York, 7 FLRA
 654 (1982);  Director of Administration, Headquarters, U.S. Air Force, 6
 FLRA 110 (1981).
 
 
    /6/ See, e.g., Celmins v. United States Dep't of Treasury, 457
 F.Supp. 13 (D.D.C. 1977).
 
 
    /7/ The Authority finds that the General Counsel has failed to meet
 its burden of establishing why the following data is necessary under
 section 7114(b)(4) of the Statute:  the unsuccessful applicants' names,
 personal identifiers, foreign language skills, references, salary
 histories, the identities of their former supervisors and the names of
 the Raters and selecting officials.  In so finding, the Authority
 concludes that the Respondent correctly deleted this data, inasmuch as
 this data has not been shown to be necessary under section 7114(b)(4) of
 the Statute for the Union to determine if the selection process was
 fair.  The Authority notes particularly that linking the names and the
 personal identifiers of the unsuccessful candidates with their SF 171s
 and their work evaluation forms would not significantly aid the Union in
 processing this grievance.  See Celmins v. United States Dep't of
 Treasury, supra, 457 F.Supp. at 17.  Cf. Veterans Administration
 Regional Office, Denver, Colorado, 7 FLRA 629 (1982) (wherein, the
 Authority concluded in the circumstances of the case, that disclosure of
 the names of unsuccessful candidates was necessary).
 
 
    /8/ Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 256
 (codified as amended at 5 U.S.C. 552 (1982)).
 
 
    /9/ 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.
 
 
    /10/ Should the information become widely circulated, the Authority
 would necessarily take this experience into account in future similar
 cases.
 
 
    /11/ See Celmins v. United States Dep't of Treasury, supra, 457
 F.Supp. at 16.
 
 
    /12/ Further, in rejecting the Respondent's contention that the Judge
 failed to consider its defense that the parties' collective bargaining
 agreement supersedes any requirements set forth in section 7114(b)(4) of
 the Statute, the Authority notes that the agreement was entered into
 prior to the enactment of the Statute, and evidence submitted with
 regard to the parties' practice subsequent to enactment of the Statute
 does not show a clear and unmistakable waiver by the union of such
 right.  Bureau of Alcohol, Tobacco and Firearms, National Office and
 Western Region, San Francisco, California, 8 FLRA 547, n.1 (1982).  See
 also Office of Program Operations, Field Operations, Social Security
 Administration, San Francisco Region, 10 FLRA 172 (1982);  Department of
 the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981).
 
 
    /13/ 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;
 
          (B) which is reasonably available and necessary for full and
       proper discussion, understanding, and negotiation of subjects
       within the scope of collective bargaining;  and
 
          (C) which does not constitute guidance, advice, counsel, or
       training provided for management officials or supervisors,
       relating to collective bargaining;  and . . .
 
 
    /14/ ATF Case, supra.
 
 
    /15/ Even in the absence of Section 7114(b)(4) of the Statute, NTEU
 would be entitled to the requested information.  As the collective
 bargaining representative of employees, NTEU must be able to adequately
 and properly represent these employees in the processing of grievances,
 a procedure specifically provided for in the Statute.  See Section 7121
 of the Statute.  The Statute clearly was not intended to provide NTEU
 with rights and obligations, without the ability to enforce and carry
 them out.  Rather, it is clear that, as the collective bargaining
 representative, NTEU is entitled under the Statute to receive the
 information it needs to adequately and fairly police and enforce the
 collective bargaining agreement and to prosecute grievances.  See the
 reasoning of Judge Arrigo in Veterans Administration Regional Office,
 Denver, Colorado, 7-CA-406, OALJ 81-044 (1981).
 
    Thus ATF's contention that somehow Article 9 Section 15B of the
 Collective Bargaining Agreement supercedes Section 7114(b)(4)(B) of the
 Statute is rejected.
 
 
    /16/ Section 552(b)(6) exempts from the general disclosure
 requirements of the FOIA "personal and medical files and similar files
 the disclosure of which would constitute a clearly unwarranted invasion
 of personal privacy."
 
 
    /17/ Department of Defense, State of New Jersey, supra;  Department
 of the Treasury, Internal Revenue Service, Milwaukee, Wisconsin, 8
 A/SLMR 113, A/SLMR No. 974, aff'd 6 FLRC 797, FLRC 78A-31 (1978);
 Internal Revenue Service, Chicago District Office, 8 A/SLMR 309, A/SLMR
 No. 1004 (1978);  Department of Health, Education and We