31:0800(55)CA - DOD, Defense Logistics Agency, Defense Contract Administration, Services Region (Boston, MA) and NAGE, SEIU -- 1988 FLRAdec CA



[ v31 p800 ]
31:0800(55)CA
The decision of the Authority follows:


31 FLRA No. 55

U.S. DEPARTMENT OF DEFENSE
DEFENSE LOGISTICS AGENCY
DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION (BOSTON
MASSACHUSETTS)

                     Respondent

      and

NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES
AFL-CIO, SEIU

                     Charging Party

Case No. 1-CA-60389

DECISION AND ORDER

The Administrative Law Judge issued the attached decision in this proceeding. The Judge found that the Respondent had violated section 7116(a)(1), (5), and (8) of the Federal Service Labor - Management Relations Statute (the Statute) as alleged in the complaint by refusing to furnish the Charging Party (the Union) with copies of documents contained in the promotion file related to job opportunity announcement 301-86 and the personal qualifications statement (SF-171) of the individual selected for the position.

The Judge concluded that the data was necessary within the meaning of section 7114(b)(4) and that the Union had adequately conveyed its need for the information. In addition, he concluded that the Privacy Act did not justify the Respondent's refusal to furnish the data requested by the Union. In reaching this conclusion, the Judge noted that the Union was willing to accept a copy of a "sanitized" version of the SF-171 with the individual's address, date of birth, and social security number deleted.

The Respondent filed exceptions to the Judge's decision and the General Counsel filed an opposition. [PAGE]

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing. We find that no prejudicial error was committed and we affirm the Judge's rulings. On consideration of the Judge's decision, the Respondent's exceptions, the General Counsel's opposition, and the entire record, we adopt the Judge's findings, conclusions, and recommended Order, except as noted below.

In agreement with the Judge, we conclude that the requested data was necessary for the Union's investigation of the promotion action. A unit employee who was not selected for the position being filled had requested that the Union investigate the matter and subsequently filed a grievance over the section. The data was necessary for the Union to evaluate whether the selection was open to legitimate challenge. Consequently, we find it unnecessary to address, and we specifically do not adopt, the Judge's comments on grievances concerning selections from among properly ranked candidates or the comments concerning the necessity of the data for a 'collateral challenge' to the Office of Personnel Management. We also clarify the Judge's Order to expressly provide for furnishing only a sanitized copy of the SF-171.

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the U.S. Department of Defense, Defense Logistics Agency, Defense Contract Administration Services Region (Boston, Massachusetts) shall:

1. Cease and desist from:

(a) Refusing to furnish the National Association of Government Employees, AFL - CIO, SEIU, the exclusive representative of a unit of its employees, with copies of the documents contained in the promotion file related to job opportunity announcement 301-86 and a sanitized copy of the SF-171 of the selectee for that position.

(b) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: [ v31 p2 ]

(a) Furnish the National Association of Government Employees, AFL - CIO, SEIU with copies of the documents contained in the promotion file related to job opportunity announcement 301-86 and a sanitized copy of the SF-171 of the selectee for that position.

(b) Post at its facilities in regional headquarters, Boston, Massachusetts, where bargaining unit employees represented by the National Association of Government Employees, AFL - CIO, SEIU are located, 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 Regional Director and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region I, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

Issued, Washington, D.C., March 15, 1988.

Jerry L. Calhoun,        Chairman

Jean McKee,                Member

FEDERAL LABOR RELATIONS AUTHORITY

[ v31 p3 ]

                   NOTICE TO ALL EMPLOYEES
     AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
            AND TO EFFECTUATE THE POLICIES OF THE
      FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
                WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to furnish the National Association of Government Employees, AFL - CIO, SEIU, the exclusive representative of a unit of our employees, with copies of the documents contained in the promotion file related to job opportunity announcement 301-86 and a sanitized copy of SF-171 of the selectee for that position.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute.

WE WILL furnish the National Association of Government Employees, AFL - CIO, SEIU, with copies of the documents contained in the promotion file related to job opportunity announcement 301-86 and a sanitized copy of the SF-171 of the selectee for that position.

                               ____________________________
                                      (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 I, whose address is: 10 Causeway Street, Room 1017, Boston, Massachusetts 02222-1046, and whose telephone number is: (617) 565-7280. [PAGE]

U.S. DEPARTMENT OF DEFENSE,
DEFENSE LOGISTICS AGENCY,
DEFENSE CONTRACT ADMINISTRATION
SERVICES REGION
(BOSTON, MASSACHUSETTS)

            Respondent

      and

NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, SEIU

            Charging Party

Case No. 1-CA-60389

Paula A. Loviner, Esq.
    For the Respondent

Carol Calliotte, Esq.
    For the Charging Party

Peter F. Dow, Esq. and
Carol Waller Pope, 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. 7101, et seq. (herein the Statute).

Upon an unfair labor practice charge having been filed by the captioned Charging Party against the captioned Respondent, the General Counsel of the Federal Labor Relations Authority (herein the Authority), by the Regional Director for Region I, issued a Complaint and Notice of [PAGE] Hearing alleging Respondent violated the statute by refusing to furnish the Union, upon request, with data relating to the selection of a candidate to fill a GS-13 Computer Systems Analyst position.

A hearing on the Complaint was held in Boston, Massachusetts at which all parties were represented by counsel and afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by counsel for Respondent and counsel for the General Counsel. 1

Upon the entire record in this case, 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 a appropriate unit of all non-professional employees of Respondent at its Regional headquarters in Boston, Massachusetts. At all times material Respondent and Local R1-210 of the Charging Party (herein the Union) were parties to a collective bargaining agreement which provided, among other things, a grievance procedure and merit promotion procedures.

In early September 1986 Union President John Horgan was contacted by unit employee Paul Leslie regarding his nonselection for a GS-13 Computer Systems Analyst position which Leslie had applied for pursuant to a Job Opportunity Announcement (JOA) which Respondent had posted under merit promotion procedures set forth in the parties collective bargaining agreement. Leslie was concerned since he assumed he was the only applicant for the position rated best qualified. Accordingly, Leslie asked Horgan to investigate the matter.

On September 11, 1986 Union President Horgan met with Personnel Specialist Alberta Query and her supervisor [ v31 p2 ] Lorraine Lamb regarding the promotion action. 2 Horgan was informed that although Leslie was the only employee on the merit promotion certificate for the position, the individual who received the job was selected from a certificate or register obtained from the Office of Personnel Management (OPM). Horgan asked to see the promotion file for the position which Horgan believed contained the SF-171's (application forms) of all candidates for the position, including the selectee. Horgan was asked why he wished to see the file and Horgan said he was investigating this promotion action based on a request of a Union member and that was all the grounds he needed. Query and Lamb refused to allow Horgan to view the file unless Horgan gave them some more specific reasons. Horgan insisted he had a right to see the file contending the refusal was grounds for an unfair labor practice charge and the meeting concluded.

On September 12, 1986 Leslie filed a grievance concerning the "promotion selection made under JOA 301-86". The grievance stated that he believed there "may have been circumstances warranting union review of the promotion action" and requested Union President Horgan to review the official promotion file. Leslie further stated that since the Union's request was denied by management, the Union would be filing an unfair labor practice charge in the matter and requested that the selection process be held in abeyance pending resolution of the unfair labor practice charge and release and review of the promotion file. Indeed, the Union filed the unfair labor practice charge in this matter on September 15, which was served on Respondent on September 17.

On September 22, 1986 Horgan was contacted by Deputy Personnel Director and Labor Relations Officer Margaret Ciocca to see if the charge and the grievance could be [ v31 p3 ] resolved. 3 Ciocca indicated Query and Lamb were wrong-not to allow Horgan to see the promotion file and gave Horgan the file. Horgan found no information in the file on the selectee, only the application and information on Leslie and another unsuccessful candidate for the position. Horgan questioned the lack of data on the selectee and was informed that since the individual came through the OPM certificate, information concerning him would not be in the promotion file. Ciocca explained the selection process and Horgan asked to see the selectee's application (SF 171, Personal Qualifications Statement) but Ciocca refused, showing him the OPM certificate instead. 4 Horgan insisted he wished to see the "back-up data" (the selectee's application) but Ciocca refused contending it would be an invasion of the selectee's privacy to do so and contended that in any event, the non-selection of an individual was not a grievable matter. Horgan disputed Ciocca's position on grievability and cited Federal Labor Relations Authority cases on the Union's right to such information. Ciocca offered to let Horgan see a copy of a "sanitized" version of the selectee's SF-171 with such things as the address, date of birth and social security number of the individual removed. Horgan insisted he had a right to a copy of the entire document but would be willing to accept a copy of the "sanitized" version. 5 Ciocca declined fearing Horgan would share the information with Leslie and infringe on the selectee's privacy since even if "sanitized", only one selectee was involved reducing the effectiveness of sanitization. Horgan indicated he would not share it with Leslie since he felt to do so would be unethical. Nevertheless Ciocca refused to provide Horgan with a copy of the data.

Horgan testified that although he had no particular suspicion of impropriety in the selection process, he [ v31 p4 ] desired the information so as to obtain relevant facto &bout the selectee and the SF-171 would be germane to any potential grievance on the matter. 6

Discussion and Conclusions

Section 7114(b)(4)(B) of the Statute stated that the duty to negotiate in good faith requires:

"(4) . . . an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data--

"(B) which is reasonably available and necessary for full and proper discussion, under-standing, and negotiation of subjects within the scope of collective bargaining . . ."

The General Counsel contends that the information sought by the Union was "data" within the meaning of section 7114(b)(4) and Respondent violated section 7116(a)(1), (5) and (8) of the Statute when it refused to furnish the Union with the promotion file on September 11, 1986 and the selectee's SF-171 on September 22, 1986.

Respondent denies that the data sought was "necessary" under section 7114(b)(4)(B) of the statute contending that the Union did not convey its need for the data, hence Respondent was without sufficient information to reach a determination whether the requested data was relevant and necessary under the Statute and, in any event, a review of the selectee's SF-171 should have satisfied the Union's concerns. Respondent also argue that the qualifications of a candidate certified by OPM is not a matter within the scope of collective bargaining. Further, Respondent contends that providing the Union with a copy of the data would have constituted a unwarranted invasion of privacy in violation of the Privacy Act, 5 U.S.C. 552a (1982).

1 find that the Union sufficiently conveyed to Respondent its need for the promotion file and the selectee's [ v31 p5 ] SF-171. A union's bare assertion that it needs information to pursue its legitimate functions may not automatically oblige an agency to supply the data. See United States Environmental Protection Agency, Health Effects Research Laboratory, Cincinnati, Ohio, 16 FLRA 52 (984) and Internal Revenue Service, Buffalo District, Buffalo, New York, 7 FLRA 654 (1982). Nevertheless, the duty to supply data turns upon the nature of the request and the circumstances of each particular case, Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 17 FLRA 624 (1986). In the case herein the Union informed management on September 11 that it needed the data since it was investigating the promotion action based upon a request of a member. A member of the unit failed to receive the promotion and it should have been obvious to management that it was necessary for the Union to review the promotion file to see if the selection was both procedurably and factually proper. On September 22, when the Union specifically requested the SF-171, a grievance had already been filed by Leslie on the promotion and it was abundantly clear that the Union could not further pursue the matter without all relevant information concerning the promotion. The SF-171 would have given the Union some indication of the selectee's underlying qualifications and as such was relevant and necessary information needed by the Union to assure itself that the selection was not open to legitimate challenge, infra. In these circumstances I conclude the data was necessary within the meaning of section 7114(b)(4)(B) of the Statute and the Union adequately conveyed its need for the information. See Army and Air Force Exchange Service (AAFES), supra.

I reject Respondent's contention that a visual review of the SF-171 as offered to the Union on September 22 should have satisfied any obligation Respondent had to produce the data. Section 7114(b)(4)(B) of the Statute requires that an agency "furnish" information found to be necessary for collective bargaining. It has been long held that the requirement under section 7114(b)(4)(B) that an agency "furnish" information means to "give" such data. Veterans Administration Regional Office, Denver, Colorado, 10 FLRA 453 (1982). Moreover, it would be unreasonable to preclude a collective bargaining representative from receiving a copy of otherwise necessary and relevant data and affording it the time and assistance of associates to adequately study such information in private before reaching a determination as to its ultimate use.

I also reject Respondent's contention that the SF-171 reflecting the selectee's qualifications is not a matter [ v31 p6 ] within the scope of collective bargaining. Under Section 7106(a)(2)(C) of the Statute provides:

"(a) Subject to subsection (b) of section, nothing in this chapter shall affect the authority of any management official of any agency--

"(C) with respect to filling positions, to make selections for appointments from--

"(i) among properly ranked and certified candidates for promotion; or

"(ii) any other appropriate source . . ."

Further, section 7121(c)(4) of the Statute states with regard to the requirement that any collective bargaining agreement provide procedures for settling grievances and related matters, that such requirements ". . . shall not apply to any grievance concerning . . . (4) any examination, certification, or appointment . . ."

Thus it would appear that under the Statute the Union could not challenge through the grievance procedure Respondent's selection from "properly ranked and certified candidates" nor the certification of the selectee. However, the Union nevertheless may pursue its representational rights and obligations by questioning whether OPM's certification was correct and the selectee was indeed qualified to be certified by OPM. Such a collateral challenge, if warranted, would ultimately be made to OPM and and if successful, Respondent's selection might be nullified. But, since the Union had no privity of relationship with OPM, it would have no Statutory right to request and receive the SF-171 of a candidate certified by OPM. Accordingly, in order to protect rights of bargaining unit employees when they are in competition with an OPM certified candidate and assure the selectee was indeed "properly ranked and certified", I conclude the Union, to carry out its Statutory rights and obligations, was entitled under the Statute to the SF-171 relating to the OPM certified candidate when such was in the possession of the agency.

With regard to Respondent's argument that providing the Union with the SF-171 would constitute a violation of the [ v31 p7 ] Privacy Act, Respondent notes that a document such as an SF-171 is generally prohibited from disclosure unless one of the specific Privacy Act exemptions is applicable. An exemption under the Privacy Act permits disclosure of protected information to the extent the information would be releasable under the Freedom of Information Act (FOIA), 5 U.S.C. 551, but, Respondent argues, a balancing of competing rights and interests should result in nondisclosure.

The Authority considered a similar argument in Army and Air Force Exchange Service (AAFES), supra. In that case the Authority decided in favor of disclosure, stating, inter alia:

"The balance to be drawn under the FOIA's (b)(6) exemption is one between the protection of the individual's right to privacy and the promotion of important public interests. In determining whether "necessary" data under section 7114(b)(4) of the Statute should be disclosed to the Union, the Authority will balance the necessity of the data for the Union's purposes against the degree of intrusion on the individual's privacy interests caused by disclosure of the data. In striking the balance (employee) Allen's privacy interest and the Union's need for the documents in the circumstances of this case, the Authority notes that there has been no allegation, nor does the record reflect, that the documents in Allen's OPF (Official Personnel File) sought by the Union contain any stigmatizing information. Moreover, the fact that the Union requested the documents only with respect to a possible grievance proceeding concerning a particular personnel action indicates that the documents would be likely to receive only limited circulation. Therefore, in view particularly of the Union's need for these documents in order to pursue its representational duties and to aid in ensuring that the government's merit promotion system operates fairly, compared to the limited intrusion on Allen's privacy, the Authority finds that [ v31 p8 ] the disclosure of the requested documents would not result in a clearly unwarranted invasion of Allen's privacy. Further, the Authority finds in the circumstances of this case, that disclosure of the data serves two important public interests: ensures that the Government fairly follows its own merit promotion procedures, and encourages the use of non-disruptive grievance procedures. . ." (Footnotes omitted).

In my view the case herein is controlled by the Authority's holding in Army and Air Force Exchange Service (AAFES). Thus, after balancing the competing interests and all the facts and circumstances herein I find that the Privacy Act does not justify Respondent's refusal to supply the necessary data requested by the union under section 7114(b)(4) of the Statute. See also Bureau of Alcohol, Tobacco and Firearms, National Office, Washington, D.C. 18 FLRA 611 (1985) and Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Omaha District, Omaha, Nebraska, 25 FLRA 181 (1987).

In view of the entire foregoing I conclude Respondent, by the conduct described herein, violated section 7116(a)(1), (5) and (8) of the Statute and 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 Defense, Defense Logistics Agency, Defense Contract Administration Services Region (Boston, Massachusetts) shall:

1. Cease and desist from:

(a) Refusing to furnish National Association of Government Employees, AFL - CIO, SEIU, the exclusive representative of a unit of its employees, with copies of the documents contained in the promotion file related to Job Opportunity Announcement 301-86 and the SF-171 of the selectee for that position. [ v31 p9 ]

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Upon request, furnish National Association of Government Employees, AFL - CIO, SEIU with copies of the documents contained in the promotion file related to Job Opportunity Announcement 301-86 and the SF-171 of the selectee for that position.

(b) Post at its facilities in Regional headquarters, Boston, Massachusetts where bargaining unit employees represented by the National Association of Government Employees, AFL - CIO, SEIU are located, 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 Regional Director or a designee and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region I, 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.

SALVATORE J. ARRIGO
Administrative Law Judge

Dated: September 30, 1987
       Washington, D.C.

[PAGE]

                        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 refuse to furnish National Association of Government Employees, AFL - CIO, SEIU, the exclusive representative of a unit of our employees, with copies of the documents contained in the promotion file related to Job Opportunity Announcement 301-86 and the SF-171 of the selectee for that position.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute.

WE WILL, upon request, furnish National Association of Government Employees, AFL - CIO, SEIU, with copies of the documents contained in the promotion file related to Job Opportunity Announcement 301-86 and the SF-171 of the selectee for that position.

                               ____________________________
                                   (Agency or Activity)

Dated: ___________________ By: ____________________________
                                        (Signature)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region I, whose address is: 10 Causeway Street, Room 1017, Boston, Massachusetts 02222-1046, and whose telephone number is: (617) 565-7280. [PAGE]

FOOTNOTES

Footnote 1 Counsel for the General Counsel's unopposed motion to correct the transcript as to minor matters is hereby granted.

Footnote 2 Horgan testified credibly regarding what occurred during this meeting. Although neither Query nor Lamb were called to testify, Deputy Personnel Director Margaret Ciocca gave hearsay testimony regarding her conversation with Query and Lamb as to what occurred at this meeting. I find Horgan's testimony to be more reliable and credit his version over that of Ciocca in those few instances where the versions are not mutually corroborative of what took place at the September 11 meeting.

Footnote 3 This account is a composite of the credited portions of Horgan's and Ciocca's testimony, whose versions of the meeting were quite similar.

Footnote 4 Ciocca testified that she asked Horgan why he needed the information but Ciocca could