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 ]
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.