34:0461(79)CA - - Army, HQ, XVIII Airborne Corps and Fort Bragg, Fort Bragg, NC and AFGE Local 1770 - - 1990 FLRAdec CA - - v34 p461



[ v34 p461 ]
34:0461(79)CA
The decision of the Authority follows:


34 FLRA NO. 79

DEPARTMENT OF THE ARMY
HEADQUARTERS, XVIII AIRBORNE CORPS AND FORT BRAGG
FORT BRAGG, NORTH CAROLINA
(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1770
(Charging Party)
4-CA-70874

DECISION

January 22, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding 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 the Charging Party (the Union) with the promotion file for a nonbargaining unit position described in a vacancy announcement. The Union sought the information to determine whether to file a grievance concerning the failure of the Respondent to properly rank a unit employee who had applied for that position.

The Judge found that the Union had demonstrated that the information sought was necessary, within the meaning of section 7114(b)(4) of the Statute, for it to determine whether to file a grievance. The Judge also found that the release of the information requested by the Union was appropriate for the limited purpose of pursuing a grievance and that disclosure of the requested information would not result in an unwarranted invasion of privacy. 

II. Positions of the Parties

The Respondent filed exceptions to the Judge's decision. The Respondent contends that the information sought by the Union was not necessary to collective bargaining within the meaning of section 7114(b)(4) because the potential grievance pertained to the filling of a nonunit position, and, therefore, was nongrievable.

The General Counsel and the Union filed oppositions to the Respondent's exceptions. No exceptions were filed to the Judge's findings that release of the requested information would not result in an unwarranted invasion of privacy.


III. Analysis and Conclusion

Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm these rulings. We have considered the Judge's decision, the exceptions, the oppositions, and the entire record, and we adopt the Judge's findings, conclusions, and recommended Order.

We agree with the Judge that the requested information was necessary for the Union to determine whether to file a grievance concerning the selection for the position announced in Vacancy Announcement No. 136-87. The Union needed the information to determine whether there were legitimate grounds to challenge the Respondent's failure to rank the employee in the highest qualified group for that position. The Respondent's assertion that the grievance was nongrievable did not relieve the Respondent of its obligation to furnish otherwise necessary information pursuant to section 7114(b)(4) of the Statute. See, for example, Internal Revenue Service, Washington, D.C., and Internal Revenue Service, Omaha District, Omaha, Nebraska, 25 FLRA 181, 185 (1987) (agency's assertion that a grievance is nongrievable did not negate the agency's obligation under section 7114(b)(4) to provide information relating to that grievance); Internal Revenue Service, National Office 21 FLRA 646 (1986) (despite assertion of nongrievability, agency was required to provide union with promotion material for a nonbargaining unit position).

The Respondent argues only that the information was not necessary to collective bargaining and concedes that the other elements of section 7114(b)(4) have been met. Because we find that the information was necessary to enable the Union to fulfill its representational functions within the meaning of section 7114(b)(4), we conclude that the Respondent's refusal to release the information violated section 7116(a)(1), (5), and (8) of the Statute.

Having found that the Respondent's refusal to release the information violated section 7116(a)(1), (5), and (8) of the Statute, we order the Respondent to furnish the Union with the requested data for the limited purpose of enabling it to fulfill its representational function of determining whether to file a grievance on behalf of a unit employee. See Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 26 FLRA 407, 414 (1987).

IV. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute, the Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, shall:

1. Cease and desist from:

(a) Failing and refusing to furnish, upon request by the American Federation of Government Employees, Local 1770, the exclusive representative of its employees, data requested by such representative contained in the promotion file for a position described in Vacancy Announcement No. 136-87, in connection with the processing of a grievance on behalf of employee Berta Carter, for its failure to rank her in the highest qualified group 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 Federal Service Labor
- Management Relations Statute:

(a) Upon request, furnish the American Federation of Government Employees, Local 1770, the exclusive representative of its employees, data requested by such representative contained in the promotion file for a position described in Vacancy Announcement No. 136-87, in connection with the processing of a grievance on behalf of employee Berta Carter, for its failure to rank her in the highest qualified group for that position.

(b) Post at its facilities at Fort Bragg, North Carolina, 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 Chief of Management - Employee Relations Division 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 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.


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 fail and refuse to furnish, upon request by the American Federation of Government Employees, Local 1770, the exclusive representative of our employees, data requested by such representative contained in the promotion file for a position described in Vacancy Announcement No. 136-87, in connection with the processing of a grievance on behalf of employee Berta Carter, for our failure to rank her in the highest qualified group for that position.

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, upon request, furnish the American Federation of Government Employees, Local 1770, the exclusive representative of our employees, data requested by such representative contained in the promotion file for a position described in Vacancy Announcement No. 136-87, in connection with the processing of a grievance on behalf of employee Berta Carter, for our failure to rank her in the highest qualified group 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 IV, Federal Labor Relations
Authority, whose address is: 1371 Peachtree Street, N.E., Suite
736, Atlanta, Georgia 30367 and whose telephone number is: (404)
347-2324.

DEPARTMENT OF THE ARMY
HEADQUARTERS, XVIII AIRBORNE
CORPS AND FORT BRAGG
FORT BRAGG, NORTH CAROLINA
Respondent

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
LOCAL 1770
Charging Party

Case No. 4-CA-70874

Captain Evelyn H. Britt, Esq.
For the Respondent

Kenneth Dale Battle, Esq.
For the General Counsel

Reinhard U. Witiak
For the Charging Party

Before: WILLIAM NAIMARK
Administrative Law Judge

DECISION

Statement of the Case

Pursuant to a Complaint and Notice of Hearing issued on January 28, 1988 by the Regional Director, Federal Labor Relations Authority, Region IV, a hearing was held before the undersigned on February 25, 1988 at Fayetteville, North Carolina.

This case arose under the Federal Service Labor - Management Relations Statute, 5 U.S.C. 7101 et seq. (herein called the Statute). It is based on a charge filed on September 17, 1987 by American Federation of Government Employees, Local 1770 (herein called the Union) against Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, (herein called the Respondent).
The Complaint alleged, in substance, that on or about April 22, May 7 and July 8, 1987 the Union requested Respondent to furnish it with the promotion file in connection with Vacancy Announcement No. 136-87; that the information was requested in connection with the possible filing of an employee grievance via the negotiated grievance procedure. Further, that the Respondent denied the request on or about April 24, May 8 and July 15, 1987. Accordingly, Respondent allegedly failed to comply with the provisions of section 7114(b)(4) of the Statute, refused to bargain in good faith with the Union, and thereby violated sections 7116(a)(1), (5) and (8) of the Statute.


Respondent's Answer dated February 17, 1988, admitted all of the factual allegations except it denied that the information requested was necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining. It also denied the commission of any unfair labor practices.

All parties were represented at the hearing. Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed with the undersigned which have been duly considered.

Upon the entire record herein, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following findings and conclusions:

Findings of Fact

1. At all times material herein the Union has been, and
still is, the exclusive representative of an appropriate unit of Respondent's employees who are employed at Fort Bragg, North Carolina. 2. At all times material herein the Union and Respondent have been parties to a collective bargaining agreement covering said unit employees of Respondent, which became effective by its terms on May 22, 1978 and has continued to remain in effect thereafter. 

3. A bargaining unit employee, Berta Carter, spoke to Union representative Truman E. Bullard prior to April 22, 1987 regarding the fact that she had applied for Vacancy Announcement No. 136-87 and had been notified she was not rated as highest qualified for the position. Since Carter felt she should have been ranked in the highest qualifying class, she wished to pursue the matter through a grievance.

4. By letter dated April 22, 1987 1 Bullard wrote Respondent that the Union had been contacted by an employee re a possible grievance over a rating under the Merit Promotion Plan. He requested, on the Union's behalf, a copy of the entire promotion file to include the crediting plans and any written instructions to the rating panel in promotion actions. Reference was made to the Vacancy Announcement No. 136-87 Personnel Management Specialist GS-0201-07 Trainee 11.

5. Management representative Ronald E. Woodard replied thereto in a letter dated April 24 wherein he refused to grant the request for the information sought by the Union. Woodard stated that the position in question is a nonbargaining unit position which is excluded from the grievance/arbitration processes.

6. By letter to Woodard dated May 7, Bullard renewed the request, and he declared therein that the Recruitment and Placement Plan (R&P Plan) pertains to all positions - nonbargaining as well as bargaining unit positions.


7. Woodard replied to the aforementioned letter on May 8 and again denied the request for the information. He asserted that the R&P Plan reflects different provisions for bargaining unit and non-bargaining unit positions; that Respondent never negotiated with the Union re filling non-bargaining unit positions.

8. A third request was made by the Union on July 8. Bullard wrote management that the right to grieve all promotion action is guaranteed by Section 335 Subchapter 1-6 of the Federal Personnel Manual; that the right may be grieved through Article II, Section 1 of the negotiated agreement. 

9. By letter to Bullard dated July 15 Woodard repeated Respondent's refusal to furnish the data requested. The data requested was not given or made available to the Union.

Conclusions

An agency is obliged, under section 7114(b)(4) of the Statute, to furnish information which the exclusive representative requests and is necessary to enable the union to fulfill its representational functions. Provided that disclosing the data is not prohibited by law, the obligation extends to such 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.

Respondent concedes that the information sought herein may be disclosed without violating law, that it is normally maintained by the agency in the regular course of business, and that it does not constitute guidance, advice, counsel or training as set forth in 7114(b)(4)(C) of the Statute. Nevertheless, it insists that the information is not necessary for full and proper discussion, understanding and negotiation of collective bargaining subjects. Respondent bases this assertion on the admitted fact that the information concerns a position which is not in the bargaining unit. Further, that the duty to bargain applies only to conditions of employment within the bargaining unit. It argues that the negotiated grievance procedure covers only bargaining unit positions, and therefore grievances of this nature must come under the Agency grievance procedure or via an informal employee inquiry. Accordingly, Respondent insists the Union has no need for the requested data and thus no obligation exists to grant representative's request.

The Authority has had occasion to consider an agency's duty to furnish information to a bargaining representative  concerning positions outside the bargaining unit. Thus, in Internal Revenue Service, National Office, 21 FLRA 646, an employee complained that management discriminatorily lowered his evaluation for purposes of consideration for his merit promotion to a Tax Law Specialist position. In order to pursue a grievance concerning such action by the agency, the union requested information re the promotion process, including a "promotion package." It desired to make a comparative assessment of the promotion material to show discrimination. Respondent therein denied the request and contended that the bargaining representative was not entitled to such data under 7114(b)(4) as the position in question was not a bargaining unit position. Further, that since it was a non-bargaining unit position, the issue was not grievable under the negotiated agreement. The Authority determined that the material in the promotion package was necessary for the union to make a comparative assessment of the various evaluations in the merit promotion process; that it needed such data to determine if there was discrimination against the grievant. 2

Respondent herein maintains that the cited case is distinguishable from the one at hand wherein the Union made a bare assertion that the material was necessary for a possible filing of a grievance over the rating. It stresses the fact that in the Internal Revenue Case, supra, the relevance is demonstrated by a possible discriminatory evaluation, which clearly concerns conditions of employment of bargaining unit
employees.

The foregoing argument has been laid to rest by the Authority's decision in Department of Defense Dependents Schools, Washington, D.C. and Department of Defense Dependents Schools, Germany Division, 28 FLRA 202. The union therein represented a bargaining unit employee in a disciplinary action where the employee allegedly made false statements. It requested information concerning the agency's discipline of supervisors or management officials. Reversing its earlier determination that since these officials were not similarly situated as unit employees the data was not necessary, the Authority concluded the information was needed by the union to effectively develop and present its arguments in the disciplinary proceedings. 3 The refusal by the agency to furnish the data concerning management officials and supervisors was in contravention of 7114(b)(4) and violative of 7116(a)(1) and (5) of the Statute.

It thus seems apparent, based on recent decisions in the public sector, that an agency may not refuse to furnish data on the sole ground that it involves a non-bargaining unit position. A union must, however, demonstrate that such information is necessary to fulfill its representational functions. This is demonstrated when, as in the case at bar, the representative seeks the material in connection with a grievance or to determine whether a grievance should be filed. The potential discrimination exists whether the grievant complains of a lower evaluation as in the Internal Revenue Service case, supra, or the individual protests the fact that she has not been ranked in the highest qualified group for a Vacancy Announcement. In either situation the information sought by the bargaining representative will serve to enable the latter to fulfill its representational functions. See Department of the Army Headquarters, XVIII Airborne Corps and Fort Bragg, North Carolina, 26 FLRA 407. While not raised directly by Respondent herein, I also conclude that the disclosure of the data requested would not result in an unwarranted invasion of privacy. There is no  indication the material would become generally known, or that it would be used for any purpose other than pursuing a grievance on behalf of bargaining unit employee Berta Carter. As stated in Bureau of Alcohol, Tobacco and Firearms, National Office, Washington, D.C., 18 FLRA 611 the disclosure would aid in ensuring that the Government's merit promotion system operates fairly, and this outweighs any limited invasion of the privacy of other applicants. Thus, the promotion package sought by the union therein was deemed necessary in connection with an employee's grievance over his non-selection for a position in a particular Announcement. 4

It is further concluded that, under the circumstances herein, the release of the crediting plans for the intended purpose would be appropriate. While an agency may not be required to negotiate re the issue of crediting plans, 5 their release may be required where disclosure would neither create any unfair advantage to some candidates nor compromise the utility of the selection process. Neither of these results has been shown to exist in the instant case, and thus the crediting plans utilized in selecting or ranking the unit employees for the Vacancy Announcement No. 136-87 (Personnel Management Specialist) herein are properly disclosable to the Union. See Fort Bragg case, supra.

In sum, I am persuaded that the data requested by the Union to pursue the grievance of Berta Carter for not having been ranked in the highest qualified group for Vacancy Announcement No. 136-87 (Personnel Management Specialist) was necessary for the Union to properly represent her in respect thereto. Further, that the Union was entitled to the promotion package, including the crediting plan and written instructions to the rating panel in promotion actions, albeit that the position sought by Carter was a non-bargaining position. Respondent was, in my opinion, obliged to furnish the data requested under section 7114(b)(4) of the Statute. Its failure and refusal to do so was violative of section 7116(a)(1), (5) and (8) of the Statute.

Having concluded that Respondent violated the Statute as aforesaid, it is recommended that 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 Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort
Bragg, North Carolina, shall:

1. Cease and desist from:

(a) Failing and refusing to furnish, upon request by American Federation of Government Employees, Local 1770, the exclusive representative of its employees, the data requested by such representative contained in the promotion file for a position described in Vacancy Announcement No. 136-87, in connection with the processing of a grievance on behalf of employee Berta Carter for its failure to rank her in the highest qualified group for said position.
(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of 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) Upon request, furnish American Federation of Government Employees, Local 1770, the exclusive representative of its employees, the data requested by such representative contained in the promotion file for a position described in Vacancy Announcement No. 136-87, in connection with the processing of a grievance on behalf of employee Berta Carter for its failure to rank her in the highest qualified group for said position.

(b) Post at its facilities at Fort Bragg, North Carolina, 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 Chief of Management Employees Relations Division 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 IV, Federal Labor Relations Authority, 1371 Peachtree Street, N.E., Suite 736, Atlanta, GA 30367, 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., November 16, 1988