24:0630(64)CA - Commerce, Bureau of the Census and AFGE Local 2782 -- 1986 FLRAdec CA



[ v24 p630 ]
24:0630(64)CA
The decision of the Authority follows:


 24 FLRA No. 64
 
 U.S. DEPARTMENT OF COMMERCE, 
 BUREAU OF THE CENSUS
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 2782, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-40404
 
                            DECISION AND ORDER
 
                         I.  STATEMENT OF THE CASE
 
    This case is before the Authority on exceptions filed by the General
 Counsel and the Respondent to the attached decision of the
 Administrative Law Judge.  The case concerns whether the Respondent
 violated section 7116(a)(1), (5), and (8) of the Federal Service
 Labor-Management Relations Statute by failing to comply with requests
 for information by the Charging Party (the Union) under section
 7114(b)(4) of the Statute.
 
                              II.  BACKGROUND
 
    The following information was requested by the Union:  (1) seven
 black notebooks maintained by the administrative office of the
 Respondent's population division containing requests for personnel
 actions, (2) other records in the population division bearing on
 preselection for competitive position vacancies, and (3) copies of all
 qualifications worksheets (minus all individually identifiable material)
 used to rank candidates for competitive promotions during a specified
 period.  The Union claimed that the information was necessary for
 grievances alleging violations of merit promotion procedures in certain
 selection actions and for negotiations on the Respondent's merit
 assignment program.  The Respondent failed to furnish the information
 and a complaint was issued alleging violations of the Statute.
 
                        III.  THE JUDGE'S DECISION
 
    The Judge concluded that the Respondent had not violated the Statute
 by failing to furnish the notebooks or other population division records
 bearing on preselection.  He determined that the Union's request for all
 the contents of all seven notebooks far exceeded what was necessary and
 relevant to assist in processing grievances or in collective bargaining
 negotiations and that other records bearing on preselection did not
 exist.  Accordingly, to this extent, he recommended that the complaint
 be dismissed.  However, the Judge concluded that the Respondent had
 violated the Statute as alleged by failing to furnish the Union with a
 sanitized copy of all qualification worksheets used to rank candidates
 for competitive promotions for the period requested.  Consequently, he
 recommended that the Respondent be ordered to cease and desist from
 refusing to furnish this information and that the Respondent be ordered
 to furnish this information to the Union.
 
                       IV.  POSITION OF THE PARTIES
 
    The General Counsel argues that the Union's request for the seven
 notebooks reasonably conveyed the intent that its request was limited to
 selection actions and that consequently by determining that the request
 exceeded what was necessary and relevant, the Judge erred in concluding
 that there was no violation.  The General Counsel also argues that the
 Judge should have concluded that the Respondent violated the Statute by
 failing to respond in a timely manner to the Union's request for the
 notebooks and other population division records.
 
    The Respondent argues that the Judge erred by concluding that the
 complaint was broad enough to encompass the request for qualification
 worksheets.  The Respondent also argues that the Judge erred by
 concluding that it was obligated to furnish the worksheets.
 Specifically, the Respondent maintains that its obligation ceased when
 it withdrew its proposed changes to the merit assignment plan.  The
 Respondent further maintains that in any event, there was no obligation
 because the worksheets were requested to negotiate on the content of
 crediting plans which is a matter outside the duty to bargain.  Thus,
 the Respondent claims that the complaint should have been dismissed in
 its entirety.
 
                               V.  ANALYSIS
 
          A.  The notebooks and other population division records
 
    We concur in the Judge's recommended dismissal of the complaint with
 respect to this information.  The hearing testimony and an examination
 of the seven notebooks, made a part of the record for inspection by the
 Judge and the Authority, show that the notebooks contain a large amount
 of information on various types of personnel actions, including
 personnel actions for supervisory and management officials, which has no
 bearing on the Union's functions as an exclusive representative under
 the Statute and which is unrelated to the Union's claims that the
 Respondent had engaged in preselection activity.  We find, in agreement
 with the Judge, that the Union did not limit its request to only those
 particular, identifiable, relevant documents which were necessary to the
 Union concerning the alleged preselections.  Moreover, at the hearing,
 the counsel for the General Counsel answered the Judge's question of
 whether the Respondent "must provide everything that is requested in
 order to satisfy the complaint" in the affirmative.
 
    The General Counsel's argument that the Judge should have concluded
 that the Respondent violated the Statute by failing to respond in a
 timely manner to the Union's requests for information also cannot be
 sustained.  This allegation was not included in the complaint and was
 not developed in the record before the Judge.  See Department of the
 Navy, Pearl Harbor Naval Shipyard, Pearl Harbor, Hawaii, 14 FLRA 564,
 566 (1984).
 
                     B.  The qualification worksheets
 
    We find that the Respondent's failure to furnish the Union with the
 qualifications worksheets in dispute constituted a violation of the
 Statute as alleged in the complaint.  In so finding, we adopt the
 Judge's ruling, as explained at note 1 of his decision, that the
 complaint was broad enough to encompass the request for the
 qualification worksheets.  We also disagree with the Respondent's
 contentions that it was not obligated to furnish the worksheets.
 Contrary to the contention of the Respondent, we adopt the Judge's
 ruling that the Respondent's obligation to furnish the qualification
 worksheets did not cease when it withdrew its proposed changes to the
 merit assignment plan.  As explained by the Judge at page 12, note 14 of
 his decision, the reopener provision in the parties' collective
 bargaining agreement permitted both parties to initiate bargaining on
 the assignment plan during the term of the agreement.  See Internal
 Revenue Service, 17 FLRA 731, 737 (1985), appeal filed as to other
 matters sub nom. National Treasury Employees Union v. FLRA, No. 85-1361
 (D.C. Cir. June 14, 1985).  In addition, we reject the contention that
 because the content of crediting plans is not negotiable, there is no
 obligation under section 7114(b)(4) to furnish the qualification
 worksheets.  The issue of the release and disclosure of this information
 is a separate issue which is not resolved by virtue of the content of
 crediting plans being nonnegotiable.  National Treasury Employees Union
 and Department of the Treasury, U.S. Customs Service, 23 FLRA No. 91
 (1986).
 
                             VI.  CONCLUSIONS
 
    We conclude in agreement with the Judge that the complaint should be
 dismissed with respect to the Union's request for the notebooks and
 other population division records.  We also conclude in agreement with
 the Judge that the Respondent violated section 7116(a)(1), (5), and (8)
 of the Statute by failing to comply with the Union's request for the
 qualification worksheets.  However, for the reasons which follow we will
 modify his recommended remedy.
 
    In U.S. Customs Service, 23 FLRA No. 91, which issued after the
 Judge's decision, we addressed in detail the release and disclosure of
 crediting plan and related rating information.  In finding the proposal
 (providing that existing crediting plan information will be disclosed to
 the union on request) nonnegotiable, we ruled that the proposal was
 inconsistent with government-wide regulation because the proposal would
 authorize a blanket disclosure of crediting plan information without
 regard to whether the release of that information would undermine the
 fairness and validity of selection procedures.  Slip op. at 3.  In terms
 of this case, the Respondent has not argued, and has not shown, before
 the Judge or before the Authority, and it is not otherwise apparent,
 that the qualification worksheets requested by the Union pertaining to
 past selection actions contain crediting plan or other related rating
 information the release of which would undermine the fairness and
 validity of the Respondent's current selection procedures.  We are
 concerned, however, that a remedy for the violation which orders
 unqualified disclosure of the worksheets might require the Respondent to
 release crediting plan or other related rating information which would
 undermine the fairness and validity of the Respondent's current
 selection procedures.  Accordingly, we will modify the affirmative
 remedy recommended by the Judge to require the Respondent to furnish the
 worksheets to the Union which, consistent with FPM Supplement 335-1,
 will not undermine the fairness and validity of the Respondent's current
 selection procedures.  See U.S. Customs Service.
 
                                VII.  ORDER
 
    A.  Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Federal
 Service Labor-Management Relations Statute, it is ordered that the U.S.
 Department of Commerce, Bureau of the Census, shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to furnish to the American Federation of
 Government Employees, Local 2782, AFL-CIO, the employees' exclusive
 representative, copies of the qualifications worksheets, minus
 individually identifiable material, requested by the exclusive
 representative on June 30, 1984, which will not undermine the fairness
 and validity of current selection procedures.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
    (a) Furnish to the American Federation of Government Employees, Local
 2782, AFL-CIO, the employees' exclusive representative, copies of the
 qualifications worksheets, minus individually identifiable material,
 requested by the exclusive representative on June 30, 1984, which will
 not undermine the fairness and validity of current selection procedures.
 
    (b) Post at its facilities copies of the attached Notice on forms
 furnished by the Federal Labor Relations Authority.  Upon receipt of
 such forms, they shall be signed by the Chief, Population Division,
 Bureau of the Census, and shall be posted and maintained for 60
 consecutive days thereafter in conspicuous places, including all
 bulletin boards and other places where notices to employees are
 customarily posted.  Reasonable steps shall be taken to ensure that the
 Notices are not altered, defaced, or covered by any other material.
 
    3.  Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region III, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply.
 
    B.  It is further ordered that the complaint is dismissed as to the
 Union's other requests for information.
 
    Issued, Washington, D.C., December 18, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, 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 and refuse to furnish to the American Federation of
 Government Employees, Local 2782, AFL-CIO, the employees' exclusive
 representative, copies of all qualifications worksheets, minus
 individually identifiable material, requested by the exclusive
 representative on June 30, 1984, which will not undermine the fairness
 and validity of current selection procedures.
 
    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 Labor-Management Relations Statute.
 
    WE WILL furnish the American Federation of Government Employees,
 Local 2782, AFL-CIO, the employees' exclusive representative, copies of
 the qualifications worksheets, minus individually identifiable material
 requested by the exclusive representative on June 30, 1984, which will
 not undermine the fairness and validity of current selection procedures.
                                       . . . (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 III, Federal Labor Relations Authority, whose address
 is:  P.O. Box 33758, 1118 18th Street, NW., Room 700, Washington, D.C.
 20033-0758, and whose telephone number is:  (202) 653-8500.
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 3-CA-40404
 
 U.S. DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS
    Respondent
 
                                    AND
 
 AMERICA FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2782,
 AFL-CIO
    Charging Party
 
 
    C. J. Schmidt, Esq. and
    George E. Maden, Esq.
 
    For the Respondent
    Ms. Ruth Sanders and
 
    Mr. Edward V. Hanlon
    For the Charging Party
 
    Ana de la Torre, Esq. and
    Bruce D. Rosentein, Esq.
    For the General Counsel
 
    Before:  SALVATORE J. ARRIGO
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose under the Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101,
 et seq.
 
    Upon an unfair labor practice charge filed by the American Federation
 of Government Employees, Local 2782, AFL-CIO (hereinafter referred to as
 the Union) against the U.S. Department of Commerce, Bureau of the Census
 (hereinafter referred to as the Respondent), the General Counsel of the
 Authority, by the Regional Director for Region III, issued a Complaint
 and Notice of Hearing alleging Respondent violated section 7116(a)(1),
 (5) and (8) of the Statute by failing and refusing to provide the Union
 with certain personnel records requested by the Union on "December 19,
 l983, and at all times since . . . in connection with a pending
 grievance, a potential grievance and an upcoming contract reopener." /1/
 
    The hearing on the Complaint was conducted in Washington, D.C. at
 which all parties were represented and afforded full opportunity to
 adduce evidence, call, examine and cross-examine witnesses and argue
 orally.  Briefs were filed by all parties and have been carefully
 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 the Union has been the exclusive collective
 bargaining representative of various GS, GG and WG employees of
 Respondent bargaining unit is comprised of approximately 3,000 employees
 of which about 220 employees are employed in Respondent's Population
 Division.
 
    In early December 1983, Edward Hanlon, an employee in Respondent's
 Population Division and the Union's Chief Steward, grieved what he
 perceived to be Respondent's intention to select employee David Galdi to
 fill a vacancy for which Hanlon was also a candidate.  Subsequently,
 around December 15, Hanlon went to the Population Division
 Administrative Office to inquire about the status of a within-grade wage
 increase he was scheduled to receive.  In response to his inquiry, an
 employee in the Administrative Office retrieved one of seven notebooks
 which were labeled "Personnel" or "Personnel" or "Personnel Actions"
 from a shelf and for about 30 seconds "flipped" through it before coming
 to an index which contained the information concerning within-grade
 increases.  Hanlon testified that while the pages in the notebooks were
 being "flipped", he noticed the book contained various document entitled
 "Request for Personnel Action" (also called "SF52") and various memo's,
 some titled "Recommendation for Promotion." According to Hanlon, on some
 of the SF52's an employee' name appeared in handwriting with the comment
 "designee" or "selectee" next to the name.
 
    By letter to Respondent dated December 19, 1983 the Union, by Chief
 Steward Hanlon, requested all seven notebooks located in the
 Administrative Office.  The request, citing 5 U.S.C. Chapter 71, stated:
 
          "It is known these notebooks contain SF52's cut for the
       division, that they have indexes with them that contain employee's
       name, type of action requested, and a division number for the
       SF52.  It is strongly believed that some of these SF52's have
       employees (sic) names (preselectees) written on the forms for what
       are supposed to be competitive vacancies.  It is also strongly
       believed that promotion recommendation memos recommending
       promotion of certain employees for competitive vacancies, are also
       contained in these volumes containing the SF52's."
 
    The Union's letter provided the following "justification" for the
 request:
 
          "1.  Grievance of Edward Hanlon involving illegal preselection
       for every Population Division grade 13 position he has ever
       applied for and been denied.
 
          "2.  Potential Union grievance on behalf of all employees
       harmed by the merit principles violations of Population Division
       which now appear to have been persistent, patent managerial
       policy.
 
          "3.  Pursuant to the 30 day contract reopener on CAM Chapter
       E-4.
 
          To bargain on the Merit Promotion System, the Union needs
       evidence and information on how the Agency implements the present
       plan so that Union bargaining proposals may be formulated to stop
       poor managerial practices, plan violations, favoritism, and
       pre-selections." (Emphasis in the original).
 
    On December 28, 1983, the Union notified Respondent that it was
 instituting a grievance "concerning the administration of the Merit
 Promotion Plan . . . and the negotiated agreement dealing with the
 filling of competitive vacancies . . . " which would apply to the entire
 Census Bureau.  /2/
 
    By two separate letters on December 29, 1983 the Union notified
 Respondent that based upon its investigation of the "pre-selection of
 David Galdi," supara, /3/ it appeared that preselection also occurred
 involving employees Barbara vander Vate, Michael Levin and others for
 GS-13 positions in the Population Division which Hanlon had applied for
 in the past.  The letters stated that the Hanlon grievance might be
 extended to include every job he ever applied for in the Population
 Division;  that "it now appears likely that every job or almost every
 job filled since at least October 1980 in the Population Division
 involved pre-selection and favoritism;" and that it appeared the
 Administrative Office kept "careful records" of this preselection for
 the 1981-1984 fiscal years.
 
    By letter dated January 13, 1984, Respondent notified the Union that,
 absent factual support for the Union allegations of pre-selection in the
 administration of the Merit Promotion Plan, it was not taking further
 action on the Union's December 28, 1983, grievance, supra.  On the
 following day Respondent notified the Union that Hanlon's December 29,
 1983 grievance, supra, alleging preselection of vander Vate and Levin
 was denied since Respondent concluded that the qualification and rating
 process were in accordance with the Bureau's Merit Promotion Program.
 
    On January 19, 1984 Hanlon filed a formal grievance with Respondent
 alleging the preselection of vander Vate, Levin and the selections made
 for every other grade 13 position he applied for in the Population
 Division.  On that same day the Union filed a formal grievance with
 Respondent alleging preselection and favoritism in the Population
 Division "for almost every single competitive position it has filled
 since at least October 1981." The Union alleged Respondent "violated the
 Merit Promotion Plan, Civil Service Reform Act, Government in Ethics
 Act, the contract, (and any) other pertinent rule, law, and regulation
 dealing with the filling of competitive vacancies."
 
    Apparently pursant to a contract reopener provision Respondent, at
 some undisclosed time during this period, proposed changes in the
 agency's Merit Promotion Plan.  According to unchallenged testimony
 received at the hearing, the parties contract also contained a provision
 permitting "full scope bargaining," i.e. both parties were permitted to
 make whatever proposals they wished "bearing on the subjects of
 bargaining." /4/ By letter dated March 20, 1984 Hanlon, who had by now
 become the Union's President, reminded Respondent that it had not
 responded to prior "Chapter 71" requests for information, namely the
 binders located in the Administration Office.  Hanlon stated, inter
 alia:
 
          "These documents are requested by the Union pursuant to your
       proposed bargaining changes to the Merit Assignment Plan, to
       possible bargaining on CAM Chapter E-4, pursuant to Mr. Hanlon's
       formal grievance on preselection involving Population Division,
       and pursuant to the Union's formal grievance on preselection in
       the Agency." /5/
 
    Respondent denied the Union's request for information by letter dated
 April 3, 1983, stating:
 
          "Regarding your requests of . . . December 19, 1983, since
       division administrative practices are neither a part of the Merit
       Assignment Plan nor have any bearing on the process, it is not
       clear that the documents requested are necessary for the full and
       proper discussion and understanding of the formal grievance on
       preselection or bargaining the Agency's proposed changes to the
       Merit Assignment Plan.  Consequently, we must deny your request at
       this time."
 
    On April 18, 1984 Respondent provided the Union with a copy of a
 proposed Priority Placement Program suggested to the Union that
 bargaining commence on May 1.  The Union on May 1 replied by suggesting
 that negotiations be delayed until June 1 for various reasons and
 Respondent subsequently suggested that negotiations commence on July 2.
 The Union responded on June 29, 1984 /6/ informing Respondent that, "if
 the Union decides to bargain, prior to bargaining and in order to have
 all relevant information on which to formulate bargaining proposals," it
 required the notebooks from the Administrative Office, supra, for the
 period March 1982 to March 1984 "in order to ascertain priority
 placement activities."
 
    On June 30, 1984 the Union sent another letter to Respondent, this
 one entitled "Merit Assignment Program (MAP) Bargaining and Requests
 Under 5 U.S.C. Chapter 71." That correspondence stated, inter alia:
 
          " . . . since rating and ranking are alleged to be key factors
       in facilitating Agency-wide pre-selection, the Union needs the
       following information to determine how the present rating and
       ranking procedures are used to facilitate pre-selection, the input
       of the immediate supervisor (often accused of pre-selection), and
       the relationship of illegal pre-selection activities under the
       existing system to Merit Assignment.  This information will be
       used to formulate the Union's bargaining proposals, if the Union
       decides to bargain.  The information requested is as follows:
 
          "1) The Black Notebooks maintained by Nancy Hope of POP
       division, allegedly showing how pre-selection is done and how
       rating and ranking procedures are developed to facilitate
       pre-selection.
 
          "2) Using POP Division as an example, all other records in POP
       Division bearing on pre-selection, including the development of
       ranking factors.
 
                        . . . . .
 
 
          "6) A copy of all qualifications worksheets (minus all
       individually identifiable material) used to rank candidates for
       competitive promotions in the last year so that the relationship
       of awards, performance ratings, education, background, and
       experience can be studied in relation to your new proposals and
       the present system." /7/
 
    Respondent did not reply to the Union's June 29 and 30 requests for
 information.  However, on the day of hearing herein, Respondent for the
 first time notified the Union it was withdrawing its proposals regarding
 changes in the Merit Assignment Programs.  Hanlon testified that
 regardless of Respondent's position, pursuant to the reopener provision
 providing for future negotiations on the Merit Promotion Plan and the
 "full scope bargaining" provision in the parties collective bargaining
 agreement, the Union nevertheless might still wish to negotiate on
 changes in the Merit Promotion Plan.  /8/
 
                        Discussion and Conclusions
 
    Counsel for the General Counsel contends Respondent violated section
 7116(a)(1), (5) and (8) of the Statute when it failed and refused to
 furnish the Union with the documents requested on December 19, 1983,
 June 29, 1984 and June 30, 1984, supra.
 
    Respondent contends:  (1) the Union's request for the entire contents
 of the seven black notebooks was too broad in scope to require
 compliance since many of the documents in the notebooks contained
 material unrelated to the matters for which their production was
 ostensibly sought;  (2) it was under no duty to supply" . . . all other
 records in (the Population) Division bearing on preselection . . . "
 since such documents are non-sexistent;  and (3) the request for copies
 of "all qualifications worksheets . . . used to rank candidates for
 competitive promotions . . . " seeks information for bargaining on a
 nonnegotiable matter and accordingly Respondent was under no obligation
 to make the data available to the Union.
 
    It is well settled that under section 7114(b)(4) of the Statute /9/
 management is required to furnish an exclusive representative with
 necessary and relevant information which would enable it to effectively
 carry out its representational obligations including processing a
 grievance, determining whether to file a grievance and negotiating on
 matters affecting working conditions.  See United States Environmental
 Protection Agency, Health Effects Research Laboratory, Cincinnati, Ohio,
 16 FLRA No. 16 (1984) and cases cited therein and cf. American
 Federation of Government Employees, AFL-CIO, Local 3483, 13 FLRA No. 80
 (1984).  However, the Authority has held that no requirement to provide
 information will be found where the information sought does not exist
 (Division of Military and Naval Affairs, State of New York, Albany, New
 York, 8 FLRA 307 (1982) at 320-321, and cases cited therein) or was not
 contained in the requested documents (Marine Corps Logistics Base,
 Barstow, California, 14 FLRA No. 105 (1984)).  Further, an agency will
 not be found to have violated the Statute for failing to produce
 information where the data requested is broader than reasonably
 necessary to the performance of representational responsibilities in
 question (Director of Administration Headquarters, U.S. Air Force, 6
 FLRA 110 (1981) and cf. United States Customs Service, Region IV, Miami,
 Florida, 3 FLRA 876 (1980)) or an insufficient nexus exists between the
 nature of the requested information sought and the purpose which such
 data is to be used (Internal Revenue Service, Buffalo District, Buffalo,
 New York, 7 FLRA 654 (1982)).
 
    In the case herein the Union sought production of seven notebooks to
 support its grievance on preselection in the Population Division and in
 order to assist it in formulating bargaining proposals on a Merit
 Promotion Plan and priority placement procedures.  As to these matters
 it is obvious that necessary and relevant information would include form
 SF-52's concerning vacancies, position descriptions, promotions,
 appointments, conversions and the like and memoranda, recommendations,
 transmittal slips, letters, worksheets and related documents as well as
 the ranking procedures and factors in effect.  However, as revealed in
 an index of these notebooks /10/ and the notebooks themselves, the
 notebooks contain substantial additional data not relevant to matters at
 issue herein or necessary for full and proper discussion, understanding
 and negotiations of these subjects.  Thus, the notebooks contain
 documents requesting such actions as leave without pay, resignations,
 return to duty, terminations, quality step increase awards, name
 changes, terminations of details, separations and transfers,
 reassignments, change of duty hours and merit pay cash awards.  The
 notebooks also include the following documents not necessary or relevant
 to the Union's avowed concerns:  employee accountability and clearance
 forms;  draft position descriptions never used;  draft ranking factors
 never used;  letters dealing with return to duty or offering a position;
  transmittal slips regarding leave without pay, notary papers, unsigned
 forms and change of duty hours;  a doctor's statement;  a memorandum
 requesting a payroll schedule change and an employee professional
 background statement.
 
    The Union required information for two specific purposes:  evaluating
 and processing preselection grievances and negotiating on Merit
 Promotion Plan matters including Priority Placement Procedures.  The
 Union could quite easily have worded its request so as to convey that
 only data relating to those matters was being sought.  The request, so
 long as it specifically identified the revelant information sought,
 could have been stated in explicit and detailed language or in broad,
 general terms at the Union's election.  Both such descriptions have been
 found by the Authority in litigated cases to give rise to a obligation
 to furnish necessary and relevant data under the Statute.  See e.g.
 Social Security Administration, 15 FLRA No. 180 (1984);  Army and Air
 Force Exchange Service (AAFES), Lowry Air Force Base Exchange, Ft.
 Carson, Colorado, 13 FLRA No. 65 (1983);  Veterans Administration
 Regional Office, Denver, Colorado, 7 FLRA 629 (1982);  Department of
 Health and Human Services, Social Security Administration, Field
 Assessment Office, 12 FLRA No. 84 (1983);  and Internal Revenue Service,
 Western Region, San Francisco, California, 9 FLRA 480 (1982).  However,
 the Union herein decided to merely request the entire contents of the
 notebooks without limiting the request to only those particular,
 identifiable, relevant documents necessary to pursue the matters at
 issue.
 
    Accordingly, as the Union's request for all the contents of all seven
 notebooks far exceeded what was necessary and relevant to assist it in
 processing grievances or negotiating on a condition of employment, and
 no good cause having been shown as to why such a broad request should
 require production of the information, I am constrained to conclude
 insufficient evidence exists to support the contention that Respondent's
 refusal to furnish the notebooks violated the Statute.  Cf. Director of
 Administration Headquarters, U.S. Air Force, supra;  United States
 Customs Service, Region IV, Miami, Florida, supra;  and Internal Revenue
 Service, Buffalo District, Buffalo, New York, supra.
 
    The Union also requested " . . . all other records in the POP
 Division bearing on pre-selection, including the development of ranking
 factors." No evidence adduced at the hearing indicates that such "other
 records" exist and indeed Colleen Woodard, Labor Relations Officer for
 the Bureau of the Census, testified that such documents do not exist.
 Accordingly, I conclude no violation of section 7116 of the Statute has
 not been established by Respondent's failure to furnish the requested
 information.  Division of Military and Naval Affairs, State of New York,
 Albany, New York, supra.
 
    The Union's final request of June 30, 1984 was for "(a) copy of all
 qualifications worksheets (minus all individually identifiable material)
 used to rank candidates for competitive promotions in the last year . .
 . " Respondent argues that the Union has indicated that this information
 is necessary to formulate proposals regarding a crediting plan /11/
 which, Respondent contends, is not negotiable.  Respondent, citing the
 court's decision in U.S. Customs Service v. Federal Labor Relations
 Authority, 739 F. 2d 829 (2d. Cir. 1984), reasons that since crediting
 plans are not negotiable, an agency has no obligation to provide
 information for union bargaining proposals on this subject.
 
    In U.S. Customs Service, supra, the court set aside the decision of
 the Authority in National Treasury Employees Union and NTEU Chapter 153,
 161, and 183 and U.S. Customs Service, Region II, 11 FLRA No. 47 (1983)
 wherein the Authority found, inter alia, that a union's negotiating
 proposal setting forth a specific crediting plan was negotiable.  The
 court refused to enforce the Authority's order concluding that requiring
 the Customs Service to bargain with the union over the contents of
 crediting plans would interfere with rights reserved to management under
 the Statute.  However, I am constrained to follow the Authority's
 holding until such time as the Authority specifically revises its
 position on the matter or it becomes apparent that the Authority will no
 longer adhere to this position.  I conclude therefore, that based upon
 existing Authority precedent Respondent was required to furnish the
 Union that qualifications worksheets it requested.  Cf. National
 Treasury Employees Union and NTEU Chapter 153, 161, 183, supra;
 National Treasury Employees Union and Department of Health and Human
 Services, Region X, Seattle, Washington, 5 FLRA 688 (1981);  and
 International Association of Fire Fighters, Local F-61 and Philadelphia
 Naval Shipyard, 3 FLRA 438 (1980).
 
    Moreover, in the case herein the Union did not propose a crediting
 plan for negotiations wherein it could be ascertained that the proposed
 plan, in fact, impermissibly impinged on management rights.  All that is
 before me is a request for information, i.e. sanitized copies of the
 qualifications worksheets used to rank candidates for competitive
 promotions during the last year.  /12/ Thus, it would be premature to
 conclude that whatever proposal the Union might make, if any, would
 concern a nonnegotiable matter.  Indeed, after reviewing the
 qualifications worksheets the Union might decide to make no proposals
 /13/ or submit a proposal dealing with grieving matters regarding the
 ranking of candidates for promotion and relevant procedures.  /14/ Such
 subjects would clearly be negotiable.  Accordingly, I conclude that by
 its failure to furnish the Union with a sanitized copy of all
 qualifications worksheets used to rank candidates for competitve
 promotions for the period requested, Respondent violated section 7116
 (a)(1), (5) and (8) of the Statute.
 
    In view of the entire foregoing, I recommend the Authority issue the
 following:
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the U.S. Department of Commerce, Bureau of the
 Census shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to furnish to the American Federation
       of Government Employees, Local 2782, AFL-CIO, the employees'
       exclusive representative, a copy of all qualifications worksheets,
       minus all individually identifiable material, used to rank
       candidates for competitive promotions during the period between
       July 1, 1983 and June 30, 1984.
 
          (b) 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 action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
          (a) Furnish the American Federation of Government Employees,
       Local 2782, AFL-CIO a copy of all qualifications worksheets, minus
       all individually identifiable materials, used to rank candidates
       for competitive promotions during the period between July 1, 1983
       and June 30, 1984.
 
          (b) Post at its D.C. metropolitan area facilities 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 an appropriate official 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.  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 III, Federal
       Labor Relations Authority, 1111 18th Street, N.W., Suite 700, P.O.
       Box 33758, Washington, D.C. 20033-0758, 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 remaining allegations be, and hereby
 are, dismissed.
 
                                       /s/ SALVATORE J. ARRIGO
                                       Administrative Law Judge
 
    Dated:  February 5, 1985
    Washington, D.C.
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) In its brief Respondent objected to including under the Complaint
 herein the failure of Respondent to furnish various information the
 Union requested after December 19, 1983.  Respondent made the same
 objection at the hearing at which time I informed Respondent that I
 construed the Complaint to be broad enough to encompass the requests for
 information made after December 19.  Respondent indicated it did not
 wish additional time to prepare its defense and was ready to proceed and
 present its case on the allegations.  Thereafter the matter was fully
 litigated.  Accordingly, I hereby reaffirm my rulings made at the
 hearing on this issue and overrule Respondent's objection.
 
    (2) During the hearing the parties resolved various aspects of this
 controversy which resolution included limiting this case to matters
 concerning only the Population Division within the Census Bureau.
 
    (3) The text of one letter reveals that the vacancy announcement
 involving Galdi was withdrawn.
 
    (4) The parties' collective bargaining agreement was not placed in
 evidence at the hearing.
 
    (5) CAM Chapter E-4 refers to that portion of Respondent's
 administrative manual which treats Respondent's Merit Assignment Plan.
 
    (6) Meanwhile, on May 15, 1984 the Union filed the unfair labor
 practice charge herein alleging:
 
          "The Agency refused to supply information reasonably available
       and necessary for Agency-proposed bargaining on Priority Placement
       & The Merit Promotion Plan.  This information is also necessary
       for on-going Union and personal grievances on violation of merit
       promotion procedures, violation of the Merit Promotion Plan and
       Priority Placement and pre-selection.  This information had been
       requested in writing citying 5USC71."
 
    The Union amended the charge on August 14 to alleged:
 
          "Since on or about December 19, 1983 and continuing to date,
       the above-named Agency, by its officers and agents has failed and
       refused to provide information to the Union in violation of
       Section 7114(b) of the Statute.
 
    (7) Union President Hanlon testified that with regard to this matter,
 the Union " . . . may wish to make proposals changing the way factors
 are given for awards, experience, training . . . performance ratings,
 education." On cross-examination Hanlon testified:  "I requested the
 items in number six in order to put together proposals regarding the
 ranking of candidates . . . "
 
    (8) At no time did Respondent indicate it would be burdensome to
 supply the Union with any of the information requested.
 
    (9) Section 7114(b)(4) provides:
 
    "(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(.)"
 
    (10) The index (Joint Exhibit No. 27) was prepared by Respondent and
 placed in evidence in lieu of providing the Union or Counsel for the
 General Counsel with the notebooks at the hearing.  In response to my
 ruling, Respondent has supplied me with copies of the notebooks for in
 camera inspection.  I have informed the parties that these copies of the
 notebooks will remain in the record under seal for inspection only by
 reviewing authorities until the conclusion of litigation in this matter,
 thereafter to be returned to Respondent.
 
    (11) Respondent relys upon a reply Union President Edward Hanlon gave
 to a question put to him by Respondent's counsel on cross-examination.
 The entire cross-examination on this matter is as follows:
 
          "Q (By Mr. Schmidt) Mr. Hanlon, isn't it true that you
       requested the items in number six in order to develop a crediting
       plan?
 
          "A I requested the items in number six in order to put together
       proposals regarding the ranking of candidates.  If that is a
       crediting plan, yes, but that's what I did it for."
 
    (12) The record does not disclose precisely what information is
 contained on "qualifications worksheets."
 
    (13) As a union is entitled to information to assist it in deciding
 whether to file a grievance, in my view it follows that it is also
 entitled to data in order to determine whether to make contract
 proposals on an otherwise negotiable matter.
 
    (14) I find no merit in Respondent's position that since the agency
 withdrew its proposals concerning the Merit Assignment Program, that
 matter is no longer a subject for collective bargaining and the agency
 therefore is not obligated to furnish the information.  Testimony
 establishes that the contract reopener provision in the parties'
 collective bargaining agreement allows either Union or Respondent to
 make proposals regarding changes in the agency's Merit Promotion Plan.
 
 
 
 
 
                                 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 STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail and refuse to furnish to the American Federation of
 Government Employees, Local 2782, AFL-CIO, the employees' exclusive
 representative, a copy of all qualifications worksheets, minus all
 individually identifiable material, used to rank candidates for
 competitive promotions during the period between July 1, 1983 and June
 30, 1984.
 
    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 furnish the American Federation of Government Employees,
 Local 2782, AFL-CIO a copy of all qualifications worksheets, minus all
 individually identifiable materials, used to rank candidates for
 competitive promotions during the period between July 1, 1983 and June
 30, 1984.
                                       . . . (Agency or Activity)
 
    Dated:  . . . By:  . . . (Signat