26:0943(109)CA - Labor, Office of the Assistant Secretary for Administration and Management and National Council of Field Labor Locals, AFGE -- 1987 FLRAdec CA



[ v26 p943 ]
26:0943(109)CA
The decision of the Authority follows:


 26 FLRA No. 109
 
 U.S. DEPARTMENT OF LABOR 
 OFFICE OF THE ASSISTANT SECRETARY 
 FOR ADMINISTRATION AND MANAGEMENT
 Respondent
 
 and
 
 NATIONAL COUNCIL OF FIELD LABOR LOCALS 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 4-CA-50152
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This matter is before the Authority, in accordance with section
 2429.1(a) of the Authority's Rules and Regulations, based on a
 stipulation of facts by the parties who have agreed that no material
 issue of fact exists.  The General Counsel and the Respondent have filed
 briefs with the Authority.
 
    The complaint alleges that the Respondent violated section
 7116(a)(1), (5) and (8) of the Federal Service Labor-Management
 Relations Statute (the Statute) by failing and refusing to furnish, as
 required by section 7114(b)(4) of the Statute, information requested by
 the Charging Party (the Union), the exclusive representative of certain
 of the Respondent's employees.  The information was alleged to be
 necessary to the Union's representation of a unit employee in a
 grievance arbitration proceeding under the parties' negotiated
 agreement.
 
                              II.  Background
 
    In early 1984, the Respondent's Chief of Internal Investigation
 conducted an investigation of alleged misconduct by a unit employee,
 Daryl Blake Hanna, a coal mine safety and health inspector.  In
 connection with this investigation, the investigator tape recorded the
 interviews.  The taped interviews were summarized in affidavit form and
 signed by the respective witnesses.  On May 21, 1984, the Respondent
 proposed to suspend the employee for 14 days based on charges developed
 from the statements of seven of the 13 witnesses.  Those seven were
 officials and employees of the Beaver Creek Coal Company.
 
    The charges against the employee included allegations that he made
 derogatory and false statements to Beaver Creek Coal Company personnel
 about company officials, his supervisors, other agency officials and
 another employee;  that he gave information to Beaver Creek officials
 concerning internal agency matters;  and that he falsified facts in
 connection with the investigation.  The notice of proposed suspension
 identified the persons to whom the statements allegedly had been made
 and the names of the persons whose affidavits had been used.  The
 employee was provided with copies of those affidavits.  The notification
 also charged that the employee's alleged statements constituted
 misconduct prohibited by Department of Labor regulations.  The notice
 further alleged that the misconduct had caused the Beaver Creek Coal
 Company to complain to the employee's supervisor in writing, which
 necessitated the reassignment of the employee to duties at other mines
 in order to improve relations between the company and the agency.  The
 employee's Union representative attempted to interview a Beaver Creek
 Coal Company manager named in the notice.  He refused to meet with the
 representative or answer any questions and denied the representative
 permission to talk to any company employee.
 
    On September 21, 1984, the Respondent notified the Union of the
 decision to suspend the employee for ten days.  On or about September
 28, the Union invoked the grievance arbitration procedure of the
 parties' collective bargaining agreement on behalf of the employee.  On
 October 11, the Union requested copies of the tapes or transcripts of
 the interviews conducted by the Respondent's investigator.  The Union
 stated that it needed the information to adequately represent the
 employee and to determine whether a settlement could be negotiated with
 the Respondent.  The Union also stated that it realized that some
 information might have to be furnished in a sanitized form.
 
    The Union stipulated that it had been provided affidavits summarizing
 seven of the thirteen interviews.  However, the Union argued that the
 affidavits were very general, did not give dates, times or places of
 conversations, and used phrases like "words to that effect" which
 indicated that the investigator was using his own words instead of those
 of the witness.  The Union sought the tapes or transcripts of those
 seven interviews to fill in the details of the general affidavits;  to
 determine whether there were any statements favorable to the employee
 which were not in the affidavits;  to determine whether the statements
 in the affidavits were taken out of context by the management officials
 who prepared the affidavits;  and to use for possible witness
 impeachment purposes at the arbitration hearing.
 
    The individuals whose statements were not cited by management in the
 notice of proposed suspension included three employees of the Beaver
 Creek Coal Company, two employees of another coal company and Mr.
 Hanna's immediate supervisor.  The Union sought the tapes or transcripts
 of the interview of those individuals to determine whether their
 statements would support its theory that Beaver Creek Coal Company
 officials were seeking to (1) have the employee transferred because he
 was a strict mine inspector who had issued numerous citations against
 the company;  and (2) discredit him because he was a witness in a
 multimillion dollar lawsuit involving the company.  The Union maintained
 that Beaver Creek officials had fabricated the accusations against the
 employee.
 
    On December 4, 1984, the Respondent denied the Union's request.  In
 its denial letter, the Respondent asserted that the grievant had already
 been provided with copies of all materials relied upon by management in
 reaching its decision.  The Respondent noted that it did not intend to
 introduce any parts of the interview tapes or certified transcripts
 which were not already provided and, therefore, the provision of
 additional materials was unnecessary.
 
                    III.  Positions of the Parties /1/
 
    The Respondent contends that it was not required to furnish the Union
 with the tapes or transcripts of the 13 interviews under section
 7114(b)(4) of the Statute.
 
    In support of this contention, the Respondent argues that the
 information requested by the Union was not relevant or necessary for the
 Union to represent the employee.  With regard to the transcripts of the
 interviews with the seven witnesses whose affidavits were relied upon by
 management, the Respondent argues that it relied only on the affidavits
 and not the transcripts and that the Union was given copies of the
 affidavits.  The Respondent maintains that there would be no useful
 purpose in identifying the precise language used by the witnesses during
 their discussions with the investigator since such language was not
 relied upon by management.  Furthermore, the Respondent argues that its
 comparison of the affidavits and the certified transcripts indicated
 that the affidavits were accurate summaries of the transcripts.
 
    With regard to the transcripts of interviews with the six individuals
 whose statements were not cited by management in the notice of proposed
 suspension, the Respondent again argues that since such information was
 not relied upon in formulating the charges against the grievant, the
 information is not relevant and necessary.
 
    The Respondent also contends that the public interest in prohibiting
 disclosure of the tapes and transcripts, which the Respondent alleges
 were obtained during the course of a law enforcement investigation
 within the meaning of section 552a(k)(2) of the Privacy Act, outweighs
 any interest in disclosing the information under section 7114(b)(4) of
 the Statute.  The Respondent asserts that contrary to the public
 interest, disclosure of the information sought would result in
 impairment of future law enforcement investigations.  The Respondent
 maintains that section 552(b)(7) of the Freedom of Information Act
 (FOIA) also supports its refusals to disclose the information.  The
 Respondent further asserts that disclosure of the tapes or transcripts
 would interfere with management's right under section 7106(a)(1) of the
 Statute to determine its internal security practices.
 
    Additionally, the Respondent argues that the interview of Mr.
 Gabossi, one of the six interviews not relied on, contains information
 of a stigmatizing nature concerning another employee of the Respondent
 and that disclosure of the tape or transcript of that interview would
 result in an unwarranted invasion of the employee's privacy within the
 meaning of section 552(b)(6) of the FOIA.
 
    The General Counsel contends that the Respondent violated section
 7116(a)(1), (5) and (8) of the Statute by its failure and refusal to
 provide the Union with the information it requested under section
 7114(b)(4) in order to fulfill its obligations to represent the
 employee.
 
    In support of its contention, the General Counsel argues that the
 information was relevant and necessary to effectively represent the
 employee in the grievance arbitration proceeding.  The General Counsel
 maintains that effecitve representation requires knowledge and
 familiarity with all of the facts surrounding the dispute.  The General
 Counsel argues that the information undeniably pertained to the employee
 and the Resondent's investigation of the employee's conduct and that the
 Union needed to review the complete results of the investigation and not
 just those portions which support the Respondent's position.  The
 General Counsel contends that the Union is entitled to all the
 information pertaining to the employee because without it the Union
 cannot make the necessary assessment of the accuracy and completeness of
 the affidavits.  The General Counsel also claims that exculpatory,
 contradictory or mitigating evidence might be contained in portions of
 the interviews.  In that regard, the General Counsel points out that a
 cursory comparison of the affidavits with the transcripts that were
 withheld provides several specific examples of why the full transcripts
 are relevant and necessary for the Union to provide effective
 representation of the employee.  The General Counsel contends that the
 affidavits contain statements attributed to witnesses that are not
 contained in the transcripts;  that the affidavits inaccurately describe
 actual statements;  and that the transcripts contain contradictory
 statements which are not reflected in the affidavits.  The General
 Counsel maintains that the affidavits contain many statements that have
 been rephrased, rearranged, or altered by deletions and additions, and
 that the Respondent, by withholding the transcripts, effectively
 precluded the Union from raising questions concerning those changes.
 
    The General Counsel also contends that the transcripts of those
 persons who were interviewed but whose statements were not used by
 management were relevant and necessary for the Union's representation of
 the employee.  The General Counsel argues that those six transcripts
 clearly were relevant to the Union's theory that officials of the Beaver
 Creek Coal Company were biased against the employee because he was a
 strict inspector and that they had a motive to fabricate accusations
 against him to have him transferred from their mines.  The Counsel
 maintains that information which was withheld supports the Union's
 theory and also raises questions as to the truthfulness of the
 statements of the company officials against the employee.
 
    With regard to the issue of whether the information requested by the
 Union is prohibited by law, that is, the Privacy Act, the General
 Counsel essentially argues that the records were not compiled for "law
 enforcement purposes" under section 552a(k)(2).
 
                               IV.  Analysis
 
    Section 7114(b)(4) of the Statute requires an agency to furnish an
 exclusive representative upon request and to the extent not prohibited
 by law, information:
 
          (a) which is normally maintained by the agency in the regular
       course of business;
 
          (b) which is reasonably available and necessary for full and
       proper discussion, understanding, and negotiation of subjects
       within the scope of collective bargaining;  and
 
          (c) which does not constitute guidance, advice, counsel, or
       training provided for management officials or supervisors,
       relating to collective bargaining.
 
    The parties in this case have stipulated that the information
 requested by the Union is normally maintained by the Respondent;  is
 reasonably available;  and does not constitute guidance, advice, counsel
 or training provided to officials or supervisors relating to collective
 bargaining.  The issues therefore are whether the information was
 "necessary" within the meaning of section 7114(b)(4)(B) and if so,
 whether disclosure is prohibited by law.
 
            A.  Whether the requested information is necessary
 
    It is well established that an agency is required to furnish an
 exclusive representative with information which would enable the union
 to effectively carry out its representational obligations in connection
 with the processing of an employee grievance.  Internal Revenue Service,
 National Office, 21 FLRA No. 82 (1986);  Social Security Administration,
 Baltimore, Maryland, 17 FLRA 837 (1985).  However, a union's bare
 assertion that it needs information to process a grievance does not
 automatically oblige an agency to supply the information.  The duty to
 supply information under section 7114(b)(4) turns upon the nature of the
 request in the circumstances of each particular case.  Department of
 Health and Human Services, Social Security Administration, Field
 Operations, New York Region, 21 FLRA No. 35 (1986), remanded on other
 grounds, sub nom. American Federation of Government Employees, AFL-CIO
 v. FLRA, No. 86-4077 (2d Cir. Feb. 10, 1987).
 
    We find that with one exception described below the information
 requested by the Union in this case was necessary for the Union to
 effectively represent the employee in the grievance arbitration
 proceeding.  The information was necessary for a full understanding of
 the charges against the employee and for the Union to assess and present
 arguments concerning the completeness and accuracy of the affidavits
 which formed the basis for the charges.  Access to the information
 sought was particularly necessary in this case because the affidavits
 reflected the Respondent's selection and paraphrasing of language in the
 verbatim transcripts to support the charges.  Additionally, we note that
 a Beaver Creek Coal Company official refused to answer the questions of
 the employee's Union representative and denied the representative
 permission to talk to any company employee.  The General Counsel has
 established that the transcripts or tapes of the interviews of those
 persons whose affidavits were cited by the Respondent in the notice of
 proposed suspension were necessary to the Union's effective
 representation of the employee in the grievance proceeding.
 
    With regard to the tapes or transcripts of interviews with those
 persons whose statements were not cited by the Respondent in the notice
 of proposed suspension, we likewise find, with one exception, that the
 information was necessary for a full understanding of the case and
 effective representation of the employee.  The Union sought the
 statements to show that the employee had not said or done the things at
 other coal companies he was alleged to have said and done at Beaver
 Creek.  The Union also sought the information in part as support for its
 theory that officials of the Beaver Creek Coal Company had fabricated
 the allegations against the employee because he was a strict inspector
 and they wanted him transferred and also because they wanted to
 discredit him as a witness in a lawsuit.  The Union also sought the
 statements that were not cited by the Respondent in its notice of
 proposed suspension to assess the complete case so as to pursue
 settlement efforts.
 
    Based on the Union's reasons, which we find to be reasonable in the
 circumstances of this case, we conclude that with one exception the
 information sought was necessary within the meaning of section
 7114(b)(4) of the Statute for the Union to effectively carry out its
 representational responsibilities.  Compare U.S. Army Reserve Components
 Personnel and Administration Center, St. Louis, Missouri, 26 FLRA No. 4
 (1987), slip. op. at 10.  In that case, we determined that statements
 obtained by an agency after a particular disciplinary action had been
 completed, when the agency was preparing for an arbitration hearing on
 the action, were not "necessary" within the meaning of section
 7114(b)(4).  We concluded that the statements were not necessary for the
 processing of the grievance involved, or for the union to effectively
 represent the employee in the matter.  In this case, the statements were
 taken and considered by the agency prior to issuing the notice of
 proposed suspension.  Although not cited in the notice, the statements
 would enable the Union to realistically assess the strength or weakness
 of the employee's position.  Additionally, the essence of the Union's
 defense theory was that Beaver Creek Coal Company officials lied.  The
 Union needed the statements of the other witnesses if it was to be able
 to cast doubt on the credibility of the Beaver Creek officials'
 accusations.  Thus, unlike the circumstnaces in the U.S. Army Reserve
 Components Personnel and Administration Center case, the information the
 Union sought in this case, with one exception, was necessary for a full
 understanding of the circumstances surrounding the disciplinary action,
 for the processing or settlement of the grievance, and for the Union to
 effectively represent the employee in the matter.
 
    The one exception to that conclusion is the alleged stigmatizing
 information contained in a portion of the interview of Mr. Gabossi
 concerning another employee of the Respondent.  That information has no
 relevance whatsoever to the charges against the grievant and was not
 necessary to enable the Union to fulfill its representational
 responsibilities.  In this regard, we note the Union's tacit agreement
 in its request that some information would have to be provided in
 sanitized form.
 
                  B.  Whether disclosure is barred by law
 
    We conclude that disclosure of the requested necessary information
 was not prohibited by law.  In reaching that conclusion, we reject the
 Respondent's assertion that the interest of the public in prohibiting
 disclosure of the taped interviews or transcripts outweighs the Union's
 interest in obtaining the information.  The Respondent claims that the
 information was compiled for law enforcement purposes within the meaning
 of section 552a(k)(2) of the Privacy Act, /2/ and that the provision
 supports the Respondent's refusal to disclose the information collected.
  That claim is without merit.
 
    Under section 522a(d)(1) of the Privacy Act, an agency that maintains
 a record concerning an individual must, upon request, permit access to
 the record by the individual and any designated representative to review
 and copy all or any portion of the information pertaining to the
 individual in the record.  Section 552a(k)(2) provides an exemption to
 the individual's right of access to and a copy of the material.  That
 provision permits an agency to exempt from disclosure investigatory
 material compiled for law enforcement purposes.  In agreement with the
 General Counsel, we find that section 552a(k)(2) does not apply in the
 facts of this case.  The Respondent has not established that the
 material was compiled for law enforcement purposes within the meaning of
 the provision.  Rather, as the Respondent acknowledges (Brief at 9), the
 information was collected in an employee conduct investigation.  The
 Respondent's investigation of the employee's performance of his duties
 in this case was to determine whether he had violated the Respondent's
 regulations governing employee conduct so as to warrant administrative
 discipline under the regulations.  The investigation was not directly
 focused on alleged illegal acts which could, if proved, result in civil
 or criminal sanctions.  Rural Housing Alliance v. United States
 Department of Agriculture, 498 F.2d 73, 81 (D.C. Cir. 1974).
 
    Similarly, we find no merit to the Respondent's argument that the
 information is exempt from dsclosure under section 552(b)(7) of the
 Freedom of Information Act (FOIA).  Section 552(b)(7) of the FOIA
 exempts from disclosure "investigatory records compiled for law
 enforcement purposes." The Respondent argues that Exemption 7 supports
 its refusal to furnish the information requested because disclosure
 would impair future investigations, including any further investigation
 of the employee.  The Respondent again asserts that the public interest
 in prohibiting disclosure outweighs the Union's interests in obtaining
 the material.  As we found above, the Respondent fails to establish that
 the information was compiled for law enforcement purposes.  Moreover,
 even assuming that it was, section 552(b)(7) does not prohibit
 disclosure of the information as the Respondent infers.  As we have
 previously held, the Freedom of Information Act does not prohibit
 release of data within the meaning of section 7114(b)(4) of the Statute.
  Department of the Army, Headquarters, XVIII Airborne Corps and Fort
 Bragg, Fort Bragg, North Carolina, 26 FLRA No. 52 (1987), slip. op. at
 6-7.  Further, the Respondent fails to establish how release of the
 information to the Union in the circumstances of this case would impair
 any future law enforcement investigation and its arguments in support of
 that assertion are essentially speculative.
 
    Likewise, we find that the Respondent has failed to establish that
 disclosure of the information to the Union would interfere with the
 Respondent's right under section 7106(a)(1) of the Statute to determine
 its internal security practices.  Here again, the Respondent contends
 that release of the information would have a "chilling effect" on future
 investigations.  As we found above, the Respondent's arguments in
 support of this contention constitutes nothing more than speculation.
 The Respondent also argues that in negotiability cases the Authority has
 found union proposals relating to investigations and access to
 investigative information were nonnegotiable as contrary to section
 7106(a)(1).  However, the cases relied on by the Respondent are not
 pertinent to the circumstances involved in this case.  Those cases
 involved concerns with preserving the confidentiality of information in
 on-going investigations and preventing the premature disclosure of
 information that might impede the investigations.  In this case, the
 interviews were not given under any pledge of confidentiality and there
 is no question of impeding any on-going investigation of the employee's
 alleged misconduct since the investigation was completed and the
 employee suspended for the alleged wrongdoing.  Moreover, information
 compiled in connection with the exercise of management actions under
 section 7106 of the Statute is not necessarily prohibited by law from
 disclosure under section 7114(b)(4) and a union's right to negotiate for
 disclosure of information under section 7117 is not coextensive with an
 agency's obligation to furnish information under section 7114(b)(4).
 National Park Service, National Capitol Region, United States Park
 Police, 26 FLRA No. 53 (1987), slip op. at 4.  The determination as to
 whether information must be disclosed under section 7114(b)(4) is made
 on a case-by-case basis.  In this case, we have determined that the
 information requested by the Union must be disclosed to enable the Union
 to fulfill its representational responsibilities.
 
    Finally, we find that it is not necessary to address the Respondent's
 argument that because one of the statements requested contains
 information stigmatizing another employee, it should be exempt from
 disclosure under section 552(b)(6) of the FOIA.  Based on our finding
 above that the allegedly stigmatizing information is not necessary for
 the Union's representation of the employee, we need not reach the
 question of whether the information properly may be withheld under
 exemption (b)(6) of the FOIA.
 
                              V.  Conclusion
 
    We conclude that the Respondent failed to comply with section
 7114(b)(4) of the Statute in violation of section 7116(a)(1), (5) and
 (8).
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the United States Department of Labor,
 Office of the Assistant Secretary of Labor for Administration and
 Management, shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to furnish, upon request by the National
 Council of Field Labor Locals, American Federation of Government
 Employees, AFL-CIO, the exclusive representative of its employees,
 copies of the certified transcripts or tapes of the interviews of
 witnesses in the investigation of the conduct of Daryl Blake Hanna to
 the extent the Authority has determined that information to be necessary
 for the representation of Mr. Hanna in a grievance arbitration
 proceeding.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Furnish the National Council of Field Labor Locals, American
 Federation of Government Employees, AFL-CIO, the exclusive
 representative of its employees, copies of the certified transcripts or
 tapes of the interviews of witnesses in the investigation of the conduct
 of Daryl Blake Hanna to the extent the Authority has determined that
 information to be necessary for the representation of Mr. Hanna in a
 grievance arbitration proceeding.
 
    (b) Post at its Washington, D.C. offices, copies of the attached
 Notice on forms to be furnished by the Federal Labor Relations
 Authority.  Upon receipt of such forms, they shall be signed by the
 Assistant Secretary of Labor for Administration and Management and shall
 be posted and maintained for 60 consecutive days thereafter, in
 conspicuous places, including bulletin boards and other places where
 notices to employees are customarily posted.  Reasonable steps shall be
 taken to ensure that such Notices are not altered, defaced, or covered
 by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region IV, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    Issued, Washington, D.C., April 30, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The Union did not submit a brief to the Authority.  Under the
 terms of the stipulation, it waived its right to receive a copy of the
 transcripts and supporting briefs filed by the parties until the
 Authority determined its entitlement to those documents.  The General
 Counsel was furnished with copies of the data sought by the Union but
 agreed not to divulge to the Union the contents of the data it received.
 
    (2) 5 U.S.C. Section 552a(k)(2) provides as follows:
 
          (k) Specific exemptions
 
                       * * * *
 
 
          (2) investigatory material compiled for law enforcement
       purposes . . . :  Provided, however, that if any individual is
       denied any right, privilege, or benefit that he would otherwise be
       entitled by Federal law, or for which he would otherwise be
       eligible, as a result of the maintenance of such material, such
       material shall be provided to such individual, except to the
       extent that the disclosure of such material would reveal the
       identity of a source who furnished information to the Government
       under an express promise that the identity of the source would be
       held in confidence . . . .
 
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail or refuse to furnish, upon request by the National
 Council of Field Labor Locals, American Federation of Government
 Employees, AFL-CIO, the exclusive representative of our employees,
 copies of the certified transcript or tapes of the interviews of
 witnesses in the investigation of the conduct of Daryl Blake Hanna to
 the extent that the Authority has determined that information to be
 necessary for the representation of Mr. Hanna in a grievance arbitration
 proceeding.
 
    WE WILL NOT in any like or related ma