37:0987(82)CA - - Air Force, Air Force Logistics Command, Sacramento Air Logistics Center, McClellan AFB, CA and AFGE Local 1857 - - 1990 FLRAdec CA - - v37 p987

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[ v37 p987 ]
37:0987(82)CA
The decision of the Authority follows:


37 FLRA No. 82

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE AIR FORCE

AIR FORCE LOGISTICS COMMAND

SACRAMENTO AIR LOGISTICS CENTER

MCCLELLAN AIR FORCE BASE, CALIFORNIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1857

(Charging Party)

9-CA-80233

DECISION AND ORDER

October 15, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge. The General Counsel did not file an opposition to the exceptions.

The complaint alleged 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 Union with information requested under section 7114(b)(4) of the Statute. The Judge found that, with certain exceptions, the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to provide the requested information.

Pursuant to section 2423.29 of our Rules and 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 those rulings. Upon consideration of the Judge's Decision, and the entire record, we adopt the Judge's findings, conclusions and recommended Order only to the extent consistent with this decision.

II. Background

In October and November 1987, the Union received complaints from bargaining unit employees in the Respondent's Directorate of Maintenance (MA) that they were being denied the opportunity to go on temporary duty assignments (TDY) to perform maintenance on aircraft. The employees claimed that the TDY assignments, which previously had been offered to civilian personnel, were being given to military personnel.

On December 10, 1987, the Union met with the Respondent to discuss the employees' complaints. During the meeting, the Respondent acknowledged that military personnel of the 2951st Combat Logistics Support Squadron (CLSS) were being given priority for TDY assignments. The Respondent told the Union that the use of military personnel for the TDY assignments was "in accordance with Air Force regulations 'and other pertinent factors.'" Judge's Decision at 3-4. The Respondent also told the Union that "the assignment of military personnel to TDY was for training purposes." Id. at 4.

Following the meeting, the Union obtained a copy of AFLC Regulation 400-45 and Technical Order (TO) 00-25107, dealing with the use of CLSS military personnel for TDY and other maintenance assignments. After studying these materials, the Union concluded that, under the AFLC Regulation, the "training opportunities" for CLSS military personnel "should have been limited to TDY assignments for emergency, wartime, or 'contingency' operations." Id. The Union was not satisfied that "the degree to which TDY assignments had been reallocated to military personnel was required to fulfill the training purposes asserted as its justification." Id. Rather, in the Union's view, the Respondent was sending military personnel on the TDY assignments, instead of unit employees, "to save money by eliminating the overtime pay that unit employees, but not military personnel, would earn during TDY." Id.

By letter of January 5, 1988, the Union notified the Respondent that it believed that the Respondent was violating the Master Labor Agreement by giving priority to CLSS military personnel for TDY assignments. The Union requested information, including the following, to support an activity grievance regarding the issue:

1) List of all TDY trips out of MA, that either civilian employees or the 2951 CLSS responded to for the past 24 months.

2) List of all personnel, by name, job series, and SCD [Service Computation Date] for civilians, and name, AFSC [Air Force Skill Code] and rank for Military, who have gone TDY out of MA, during the past 24 months.

4) List of requisite skills . . . required on all actual TDY trips out of MA during the past 24 months.

6) Training requirements necessary to fully train the 2951 CLSS personnel for emergency, wartime or contingency operations.

7) Training records of all 2951 CLSS personnel that are involved in emergency, wartime or contingency operations.

10) Length of all TDY trips not relating to emergency, wartime or contingency operations, and what the per diem rate was for each trip during the past 24 months, that the 2951 CLSS responded to.

11) [The number of] overtime hours worked by the 2951 CLSS during TDY trips, that . . . were not in support of emergency, wartime or contingency operations, during the past 24 months.

Id. at 4-5.

On January 8, the Union filed its "'activity grievance.'" Id. at 5. The grievance alleged that the Respondent's practice of giving military personnel priority for TDY assignment violated the provision in the parties' collective bargaining agreement providing that "'TDY will be rotated among qualified and available employees with requisite skills on a fair and equitable basis.'" Id. As a remedy, the Union requested appropriate allocation of TDY assignments in the future and a make-whole remedy, including lost overtime and per diem, for unit employees who were denied TDY assignments because the 2951 CLSS was given first consideration.

By letter dated January 22, the Respondent denied the Union's request for information, stating that the "subject assignment of work is a management retained right and therefore is non[]negotiable." G.C. Exh. 7. Thereafter, on February 3, the Respondent issued its decision denying the Union's grievance. In its denial letter, the Respondent stated that there was "no violation" of the Master Labor Agreement because the TDY assignments were made "in accordance with AFLC Regulation 400-45[.]" G.C. Exh. 6.

III.Administrative Law Judge's Decision

The Judge rejected the Respondent's arguments that it was not required to supply the requested information, under section 7114(b)(4) of the Statute, because the requested information was not (1) normally maintained in the regular course of business and (2) reasonably available. The Judge also rejected the Respondent's contentions that the requested information concerning military personnel (1) was not necessary for the Union to process its grievance and (2) was protected from disclosure by the Privacy Act.

First, the Judge concluded that, with the exception of the training records in item 7, which were nonexistent, and the training requirements in item 6, which had not been reduced to writing, the requested information was normally maintained within the meaning of section 7114(b)(4) of the Statute. The Judge noted that the Respondent acknowledged that the information requested in items 1, 2, 4, 10, and 11 could be provided by extracting the material from individual time and attendance (T&A) sheets, budgetary estimates, and bi-weekly briefing sheets maintained by the Respondent. The Judge further noted that the Respondent admitted that it possessed three written documents which pertained to the training requirements, requested in item 6. The Judge rejected the Respondent's argument that the requested information was not normally maintained because it was not maintained in the form in which the Union requested that it be provided. Relying on Defense Mapping Agency Aerospace Center, St. Louis Missouri, 19 FLRA 675 (1985), Decision on Remand, 24 FLRA 43 (1986), the Judge concluded that the "'creation' of new documents is within the statutory duty to furnish [information] which an agency 'normally maintain[s]' as long as the information is so maintained in some form and need not be sought from outside sources." Judge's Decision at 11-12.

Next, the Judge addressed the Respondent's contention that the production of the information would be unduly burdensome. The Judge concluded that even though the Respondent did not assert "undue burden" in its initial response to the request, it was not precluded from contesting the allegation that the information was "reasonably available." Id. at 13. However, the Judge further concluded that the Respondent had failed to show that the production of the information would be an excessive burden. Based on the record evidence, the Judge concluded that it would take approximately 150 employee hours to retrieve and compile the requested information. The Judge further determined that the total maximum cost of furnishing the requested information would be "somewhere in the neighborhood of $1,500, or somewhat higher if a significant amount of overtime pay were to be involved." Id. at 14-15. In the Judge's view, this was a "modest burden" compared to "other aspects of the collective bargaining process[.]" Id. at 15. Accordingly, the Judge found that the requested information was reasonably available.

The Judge further found that, except for "per diem rates for each routine TDY trip by military personnel (part of item 10)" and "service computation dates of civilian employees who went on TDY trips (part of item 2)[,]" the requested information was necessary for the Union to pursue the grievance. Id. at 16-17. With respect to the per diem rates for military personnel and the service computation dates of civilian employees, the Judge concluded that the General Counsel did not establish that the requested information was necessary for the Union to pursue the grievance.

The Judge rejected the Respondent's contention that all information relating to military personnel "[was] irrelevant to any legitimate Union concern because [military] personnel are not statutory employees." Id. at 16. The Judge found that "[t]he comparison between unit employee and military personnel assignments to TDY's was the very essence of the grievance." Id. In the Judge's view, "[t]o the extent that the requested [information] illuminate[d] that comparison, it [was] both relevant and necessary irrespective of its including records concerning non-employees or non-bargaining unit employees." Id.

The Judge also rejected the Respondent's assertion that "all the [information] concerning military personnel [was] protected by the Privacy Act." Id. at 16 n.20. Relying on the Authority's decision in Veterans Administration Medical Center, Jackson, Mississippi and National Federation of Federal Employees, Local 589, 32 FLRA 133, 138-40 (1988) (VAMC, Jackson), the Judge found that the disclosure of the requested information on military personnel was not prohibited by the Privacy Act.

The Judge concluded that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by refusing to provide the information requested by the Union in items 1, 2 (except for service computation dates), 4, 6 (to the extent that it was normally maintained), 10 (except for per diem rates), and 11 of its request. The Judge also concluded, however, that the Respondent's failure to inform the Union that the information requested by the Union in item 7, did not exist, did not constitute a separate violation of section 7116(a)(1), (5), and (8) of the Statute.

IV.Respondent's Exceptions

The Respondent raises four exceptions to the Judge's Decision. First, the Respondent contends that the requested information is not normally maintained in the regular course of business because it "does not exist in a form as requested," but would have to be created from existing raw information. Respondent's Brief at 5 (emphasis in original).

Second, the Respondent contends that the requested information was not reasonably available. The Respondent argues that "[a] balancing of the [Union's] need against the cost should, in this case, result in a finding that the request was overly burdensome[.]" Respondent's Exceptions at 2.

Third, the Respondent contends that the information pertaining to military personnel was not necessary. The Respondent argues that under section 7103(a)(2)(ii) of the Statute, "military members in the uniformed services are not employees and are therefore exempt from the bargaining process." Respondent's Brief at 14 (emphasis in original). According to the Respondent, "information about [military personnel] or their TDY's is not necessary because it does not deal with topics within the ambit of MLA which may be grieved." Id.

Finally, the Respondent contends that the requested information concerning military personnel was prohibited from release under the Privacy Act. The Respondent maintains that the Judge "failed to discuss or rule upon this defense in his decision[.]" Respondent's Exceptions at 3.

V.Analysis and Conclusions (1)

A.The Requested Information Is Normally Maintained

The Respondent argues that the requested information is not normally maintained in the regular course of business because it does not exist in the requested form. We reject the Respondent's contention.

It is clear from the record that the Respondent maintains, in the regular course of business, records which contain the information sought by the Union. The Respondent acknowledges that it could obtain the requested information, except for the training information, by extracting the information from existing records physically maintained by the Respondent. Therefore, we find, in agreement with the Judge and based on his reasoning, that the requested information, except for the nonexistent training records in item 7, and the training requirements in item 6 which have not been reduced to writing, was normally maintained by the Respondent in the regular course of business within the meaning of section 7114(b)(4) of the Statute.

B.The Requested Information Was Reasonably Available

The Respondent contends that the requested information was not reasonably available because the cost of producing the information was overly burdensome. We disagree with the Respondent's contention.

The Judge found that the requested information could be retrieved and compiled in approximately "150 employee hours." Judge's Decision at 14. The Judge calculated that the total maximum cost of producing the requested information would be "in the neighborhood of $1500 or somewhat higher if a significant amount of overtime pay were involved." Id. at 14-15. The Judge concluded that this projected cost was a "modest burden." Id. at 15.

We find, in agreement with the Judge, that the requested information, except for the training information, was reasonably available. In reaching our conclusion, we note that the Statute requires an agency to provide information which is reasonably available. Consistent with this requirement, an agency is not required to provide information which is available only through "extreme" or "excessive" means. Determining whether extreme or excessive means are required to retrieve available information requires case-by-case analyses of relevant facts and circumstances. See Department of Health and Human Services, Social Security Administration, 36 FLRA 943, 950 (1990).

In our view, the estimated employee hours and costs necessary for the Respondent to furnish the requested information are not, in the circumstances of this case, extreme or excessive. We note, in this regard, the Judge's findings that the Respondent's estimates of hours and costs were based on such matters as "repeated pulling of the T&A [time and attendance] sheets." Judge's Decision at 14. According to the Judge, "[b]y coordinating the search for multiple items of requested information . . . , it is likely that a significant time saving could result." Id.

Under these circumstances, we find that the Respondent has failed to establish that the requested information was not reasonably available, within the meaning of section 7114(b)(4) of the Statute.

C.The Requested Information Relating to Military Personnel Was Necessary for the Union to Pursue the Grievance

We agree with the Judge's conclusion that the requested information, except for the service computation dates and per diem rates, was necessary for the Union to pursue the grievance.(2)

The Respondent contends that it was not obligated to furnish the requested information pertaining to military personnel because (1) military personnel are not covered by the Statute and (2) the assignment of military personnel is not grievable under the parties' collective bargaining agreement. We reject the Respondent's contentions.

It is well established that, under section 7114(b)(4) of the Statute, the exclusive representative is entitled to information which will assist it in the evaluation and processing of a grievance. See, for example, Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 34 FLRA 461, 462 (1990); U.S. Department of Defense, Defense Logistics Agency, Defense Contract Administration Services Region (Boston, Massachusetts), 31 FLRA 800, 801 (1988). An agency's contention that a potential grievance is not grievable does not relieve an agency from its obligation to furnish requested information. See, for example, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Omaha District, Omaha, Nebraska, 25 FLRA 181, 185 (1987); Internal Revenue Service, National Office, 21 FLRA 646, 649 n.3 (1986). Further, an agency is required to furnish information on nonbargaining unit employees when the information is necessary for the union to effectively fulfill its representational responsibilities. See, for example, VAMC, Jackson, 32 FLRA at 138-40 (1988); Department of Defense Dependents Schools, Washington, D.C. and Department of Defense Dependents Schools, Germany Region, 28 FLRA 202, 205 (1987).

In this case, the Union was investigating complaints from unit employees that they were being denied the opportunity to go on TDY assignments. The Union requested the information concerning the TDY assignments of CLSS military personnel in order to determine whether military personnel improperly were being given TDY assignments which previously had been given to unit employees. The Judge determined that "[t]he comparison between unit employee and military personnel assignments to TDY's [was] the very essence of the grievance." Judge's Decision at 16. We agree with the Judge's conclusion. Accordingly, we find, in agreement with the Judge, that the requested information concerning the TDY assignments of military personnel was necessary for the Union to pursue its grievance.

D.Release of the Requested Information concerning Military Personnel Is Not Prohibited by Law

The Respondent contends that the requested information concerning military personnel is prohibited from release under the Privacy Act and exempt from disclosure under the Freedom of Information Act. The Respondent maintains that the Judge "failed to discuss or rule upon this defense in his decision[.]" Respondent's Exceptions at 3. For the following reasons, we reject these contentions.

In this case, the Respondent made two arguments concerning the requested information pertaining to military personnel. First, the Respondent argued that the information was not necessary, within the meaning of section 7114(b)(4) of the Statute. The Respondent asserted that "all aspects of the request dealing with military members [was] not relevant and therefore information about . . . their TDY's [was] not necessary[.]" Respondent's Brief at 14 (emphases in original). The Judge rejected the Respondent's contention. The Judge found that, with certain exceptions, the requested information pertaining to military personnel was necessary for the Union to pursue its grievance.

Second, the Respondent argued that the Privacy Act prohibited the release of the training records of military personnel, requested in item 7. The Respondent asserted that "the release of such information as requested in Item #7 [is] prohibited because the privacy interest of the individuals concerned outweighs the public interest in release." Respondent's Brief at 19. According to the Respondent, "the privacy interests of the military personnel involved would be violated by release of their individual records to the union . . . ." Id.

The Judge concluded that it was not necessary to rule on the Respondent's contention that disclosure of the military training records was prohibited by the Privacy Act. The Judge stated:

As to Respondent's special Privacy Act argument with respect to item 7 (training records), the General Counsel accepts that these records do not exist. I see no need, therefore, to resolve the Privacy Act defense to item 7.

Judge's Decision at 16 n.20.

We agree with the Judge's conclusion that, as the information requested in item 7 does not exist, there is no longer a Privacy Act issue concerning disclosure of that information. The Respondent argues that the Privacy Act prohibits the release of all the requested information pertaining to military personnel, however. Therefore, we must determine whether release of requested information pertaining to military personnel is prohibited by the Privacy Act.

We note that the disclosure of necessary information to exclusive representatives under section 7114(b)(4) of the Statute is not prohibited by the Privacy Act if the disclosure will not result in a clearly unwarranted invasion of privacy. As we stated in U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA No. 39, slip op. at 10-11 (1990), to determine whether the requested information falls within exemption (b)(6) of the FOIA, the Authority balances the necessity of the information for the Union's purposes against the degree of intrusion on the individual's privacy interest caused by the disclosure of the information.

In balancing the employees' privacy interest against the Union's need for the information, we note that the record establishes that the only personal information involved in the Union's request is in item 2, where the Union requested a list, by name, AFSC and rank, of the military personnel who have been assigned TDY during the past 24 months. The Respondent has not asserted how or in what manner the disclosure of the requested information would constitute a clearly unwarranted invasion of the privacy interests of the employees involved. In fact, the Respondent has not articulated how disclosure of the information implicates any privacy interests of the affected military personnel. The Respondent does not contend, for example, that the information sought by the Union contains any information which is personally revealing or could be considered stigmatizing or embarrassing.

Further, even in the absence of specific assertions by the Respondent, it is not apparent to us how disclosure of names, skill codes, and ranks of military personnel who were assigned to TDY would result in an invasion of personal privacy. Instead, the disclosure sought by the Union can be likened, in our view, to requests for names, position titles, and duty stations of employees. Affected employees' privacy interests in this information are, at best, minimal. We conclude, therefore, that in balancing the Union's need for the requested information against the privacy interest of the employees involved, disclosure of the information does not constitute an unwarranted invasion of the employee's privacy. Thus, we find that release of the requested information concerning the TDY assignments of military personnel is not prohibited by the Privacy Act.

VI.Summary

Section 7114(b)(4) of the Statute requires that an agency furnish the exclusive representative of its employees upon request, to the extent not prohibited by law, data which is necessary for the union to carry out effectively its representational functions. In this case, we have concluded, in agreement with the Judge, that the requested information, except for the nonexistent training records, and the service computation dates and per diem rates, was reasonably available and necessary for the Union to pursue its grievance. We also have concluded that release of the information pertaining to military personnel is not prohibited by the Privacy Act.

Therefore, we find that the Respondent was required by section 7114(b)(4) of the Statute to supply the requested information to the Union and its failure to do so violated section 7116(a)(1), (5), and (8) of the Statute. Accordingly, we will direct the Respondent to cease and desist from its violation of the Statute and to supply the requested information, except for the nonexistent training records, and the service computation dates and per diem rates.

VII.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 Air Force, Air Force Logistics Command, Sacramento Air Logistics Center, McClellan Air Force Base, California, shall:

1.Cease and desist from:

(a) Failing and refusing to furnish, upon request by the American Federation of Government Employees, Local 1857, AFL-CIO, the exclusive representative of its employees, copies of all necessary and relevant documents and materials requested by such representative in connection with the processing of a grievance filed by the exclusive representative regarding TDY opportunity and selection.

(b) In any like or related manner, interfering with, restraining, or coercing their employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2.Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Furnish the American Federation of Government Employees, Local 1857, AFL-CIO, the employees' exclusive representative, a copy of all necessary and relevant documents and materials requested in connection with the processing of a grievance filed by the exclusive representative regarding TDY opportunity and selection.

(b) Post at its Sacramento facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding Officer, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to their respective 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 IX, 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 1857, AFL-CIO, the exclusive representative of its employees, copies of all necessary and relevant documents and materials requested by such representative in connection with the processing of a grievance filed by the exclusive representative regarding TDY opportunity and selection.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL furnish to the American Federation of Government Employees, Local 1857, AFL-CIO, the exclusive representative of its employees, a copy of all necessary and relevant documents and materials requested by such representative in connection with the processing of a grievance filed by the exclusive representative regarding TDY opportunity and selection.

____________________________
(Activity)

Dated:__________ By:__________________________

(Signature) (Title)

This Notice must remain posted for 60 consecuti