38:0410(42)CA - - Air Force, Scott AFB, IL and NAGE Local R7-23, SEIU - - 1990 FLRAdec CA - - v38 p410

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[ v38 p410 ]
38:0410(42)CA
The decision of the Authority follows:


38 FLRA No. 42

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE AIR FORCE

SCOTT AIR FORCE BASE, ILLINOIS

(Respondent)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R7-23, SEIU

AFL-CIO

(Charging Party)

5-CA-80069

DECISION AND ORDER

November 27, 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 filed 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 refusing to provide the Union with documentation concerning disciplinary action taken against a supervisor who allegedly used physical force against a bargaining-unit employee. The Judge found that the Union was entitled under section 7114(b)(4) of the Statute to the information requested and that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to provide the 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 the rulings. For the reasons stated below, we agree with the Judge that the Union was entitled to the information requested. Accordingly, we find that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the requested information.

II. Background

A bargaining-unit employee submitted a grievance concerning the alleged use of physical force against him by his supervisor. The grievant alleged that the use of force was unfair and improper treatment and contributed to an unsafe work environment. The grievant requested as a remedy that the supervisor be examined for medical fitness and that the supervisor "receive appropriate discipline for his alleged misconduct." Judge's Decision at 3.

The parties' collective bargaining agreement defines a grievance covered by the negotiated grievance procedure as "'a request by any employee . . . the Union or the Employer for appropriate relief in a matter of concern or dissatisfaction which is subject to the control of the Union or the Employer.'" Id. at 2. The agreement provides that questions as to the grievability or arbitrability of a particular matter are to be referred to an arbitrator selected under the procedures specified by the agreement.

The Union processed the grievance through each step of the negotiated grievance procedure up to and including the selection of an arbitrator. In its response to the third and final step of the grievance procedure prior to arbitration, the Respondent denied the grievance and stated that "'[a]ppropriate action has been taken regarding the supervisor involved in this grievance.'" Id. at 3.

After the Respondent denied the grievance at the third step, the Union requested from the Respondent "'all documentation concerning any disciplinary action taken against'" the grievant's supervisor "'as referenced in'" the Respondent's denial of the grievance, which stated that appropriate action had been taken. Id. The Union prefaced the request by stating that the information was needed "in order to prepare the case for arbitration, specifically in regards (sic) to the remedial actions requested." Id. In response to the Respondent's inquiry concerning why the Union needed the information, the Union stated that it needed this information "to assess the need to pursue arbitration." Id.

The Respondent informed the Union that it refused to provide the information requested because it was not "'sanitized' -- it identified the disciplined supervisor by name." Id. Therefore, the Union filed the unfair labor practice charge in this matter. By agreement of the parties, the arbitration proceeding is being held in abeyance pending the outcome of this case.

III. The Judge's Decision

The Judge found that the Union was entitled to the requested information under section 7114(b)(4) of the Statute.

The Judge first considered the extent of the information requested by the Union. He concluded that the most reasonable interpretation of the request was that it sought only management's final decision letter on any proposed discipline of the grievant's supervisor, or its equivalent.

The Judge found that the requested information was necessary within the meaning of section 7114(b)(4) of the Statute. The Judge determined that the information was needed by the Union for evaluating the grievance, deciding whether to pursue it, and preparing to represent the grievant in any further proceedings. He rejected the Respondent's contention that the Union had not informed the Respondent that the information was sought for these purposes. Moreover, he noted that it "cannot seriously be disputed" that the information was sought "for purposes that are potentially within these categories of necessity." Id. at 7.

The Judge rejected the Respondent's contention that the requested information was not necessary to evaluate and prepare for the grievance because an arbitrator could not properly grant the request in the grievance that the supervisor be disciplined. The Judge noted that in Veterans Administration Hospital, Fort Howard, Maryland and Maryland Nurses Association, Fort Howard Chapter, 11 FLRA 10 (1983) (Fort Howard), the Authority held that an arbitrator may have authority to order that discipline be taken against a supervisor. The Judge determined that even if an arbitrator could not order a supervisor disciplined, the Respondent failed to establish that an arbitrator was precluded from fashioning an appropriate award that did not include discipline.

The Judge concluded that the Statute does not permit a "preemptive refusal" by the Respondent to follow the procedures applicable to arbitration cases. Id. at 9. The Judge determined that the authority of the arbitrator to grant relief is a matter to be raised by the Respondent after the arbitrator issues the award. Therefore, the Judge ruled that the Union needed the information to decide whether to proceed with the arbitration case and to prepare its case.

The Judge rejected the Respondent's contention that disclosure of the information was prohibited by the Privacy Act. The Judge stated that the Union was not seeking the identity of the individual to whom the records pertained because it already knew his identity. The Judge noted that the Union also knew from the Respondent's denial of the grievance that some action was taken against the supervisor. In the Judge's view, the only information the Union sought that would impinge on the supervisor's privacy interest was the nature of any disciplinary action taken against him. The Judge determined that given the limited nature of this information and the substantial public interest in furnishing the Union with the information, disclosure of the information would not constitute a clearly unwarranted invasion of the supervisor's privacy. The Judge noted that dissemination of the information was unlikely to, and should not, go beyond those persons directly concerned with the grievance arbitration proceeding and that this limited dissemination favored disclosure of the information.

Accordingly, the Judge concluded that the Union was entitled to the information requested and that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the information.

IV. Positions of the Parties

A. The Respondent

The Respondent contends that the Judge erred in concluding that the requested information was necessary. The Respondent maintains that the Judge determined that there was an obligation to furnish the requested information based on its potential necessity. The Respondent argues that this determination constitutes clear error because the statutory obligation to furnish information must be based on actual necessity. The Respondent asserts that it is clear that the information concerning the discipline of a supervisor was not necessary within the meaning of section 7114(b)(4) of the Statute.

The Respondent disagrees with the Judge's findings that (1) the Union requested only the final decision letter, and (2) the Union's expressed purpose for the information included preparation of the grievance for arbitration.

The Respondent claims that the Union clearly requested "'all documentation concerning any disciplinary action taken against'" the grievant's supervisor. Respondent's Brief at 5, 14. The Respondent asserts that the Judge's narrowing of the request to encompass only the final decision letter is untenable and unsupportable. The Respondent argues, however, that there was no need for a final decision letter. The Respondent maintains that the final decision letter would not aid the Union in the presentation of the grievance and "would not be of value in the pursuit of a legitimate representational function associated with the grievance in this case." Id. at 15 n.4.

The Respondent asserts that the necessity for the requested information must be judged on the sole purpose expressed by the Union for the information. The Respondent maintains that the only purpose expressed by the Union was to review the discipline taken against the supervisor. The Respondent argues that the Judge erred by finding that the information was necessary for the Union to prepare the case for arbitration. The Respondent contends that this purpose was never communicated by the Union and was not a purpose about which the Respondent should have known.

The Respondent contends that when the necessity for the information is judged on the stated purpose of reviewing the discipline, it is apparent that the "information is not necessary to the legitimate aims of the [Union] in connection with the arbitration of the [grievance]." Id. at 21 (emphasis in original). The Respondent argues that the purpose for the information was to assess the remedy sought in the grievance: If the Union was not satisfied with the severity of the discipline, the Union would seek an arbitration award requiring harsher discipline of the supervisor. The Respondent claims that an arbitrator cannot order that discipline be taken against an individual who is not in the bargaining unit and that the decision in Fort Howard must be narrowly construed to encompass the particular facts of that case only. The Respondent contends that because an arbitrator cannot order discipline to be taken against a supervisor, the purpose of the information was to foster a grievance to seek a remedy that cannot lawfully be granted. Consequently, the Respondent asserts that the requested information was not necessary to pursue a legitimate purpose of the Union and that the refusal to provide the information was not a violation of the Statute.

The Respondent further contends that the Judge erred in concluding that the release of the information was not prohibited by law. The Respondent argues that when the necessity for the requested information is properly evaluated, any remote necessity for the information is so outweighed by the invasion of the supervisor's privacy that disclosure of the information is prohibited by the Privacy Act, 5 U.S.C. § 552a (1988), when read in conjunction with the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1988). The Respondent maintains that in view of the absence of any legitimate need for the requested information by the Union, the stigmatizing effect of the requested information on the supervisor, and the lack of any safeguard against unauthorized dissemination of the information by the Union, disclosure of the requested information is prohibited by the Privacy Act.

B. The General Counsel

The General Counsel argues that the Judge did not characterize the information requested as potentially necessary. The General Counsel maintains that the Judge's actual finding was that the information requested was necessary under section 7114(b)(4) of the Statute.

The General Counsel asserts that the Respondent should not be permitted to dispute what information was requested by the Union. The General Counsel argues that the Respondent never asked the Union to clarify what information it requested; it only asked for a clarification of the purposes for the information.

The General Counsel also contends that the Judge properly decided that the information was necessary. The General Counsel maintains that the Judge properly rejected the Respondent's position that the Authority must determine whether relief sought at arbitration can legally be obtained in order to decide whether information requested in connection with that relief is necessary.

The General Counsel further contends that the Judge properly concluded that disclosure of the information requested was not prohibited by the Privacy Act.

V. Analysis and Conclusions

We agree with the Judge that the Union was entitled under section 7114(b)(4) of the Statute to be furnished with management's final decision letter, or its equivalent, on any proposed discipline of the grievant's supervisor.

For the reasons stated by the Judge, we agree that the Union's request encompassed only management's final decision letter on any proposed discipline of the grievant's supervisor, or its equivalent. Judge's Decision at 4-6.

We agree also with the Judge that one of the stated purposes for the Union's request for the information was to prepare the grievance for arbitration. The Union's request for the information stated that the information was "needed in order to prepare the case for arbitration . . . ." Judge's Decision at 3. And, in a later statement clarifying the need for the information, the Union expressly reiterated its position that "we need this to assess the need to pursue arbitration." Id. Because the Union expressly requested the information to prepare for arbitration, we find that the Judge properly considered that to be the Union's purpose when determining the Union's need for the requested information.

We conclude also that the requested information was necessary for the Union to effectively carry out its representational functions. In this regard, we reject the Respondent's contention that the Judge determined that there was an obligation to furnish the requested information based on its potential necessity rather than its actual necessity. To the contrary, the Judge found that "the information requested . . . is 'necessary,' within the meaning of section 7114(b)(4)." Id. at 8.

We agree with the Judge's findings that the requested information was necessary for the Union to evaluate the grievance, decide whether to pursue it, and to prepare to represent the grievant in the arbitration of the grievance. Based on these findings, we conclude that the requested information was "necessary" within the meaning of section 7114(b)(4)(B) of the Statute. See, for example, U.S. Army Reserve Components, Personnel and Administration Center, St. Louis, Missouri, 26 FLRA 19, 27 (1987) (under section 7114(b)(4), it is clear that a union has a right to information necessary for it to effectively evaluate and process a grievance). See also American Federation of Government Employees, AFL-CIO, Local 1345 v. FLRA, 793 F.2d 1360, 1364 (D.C. Cir. 1986) ("It is well-settled that section 7114 creates a duty to provide information that would enable the Union to process a grievance or to determine whether or not to file a grievance.").

We reject the Respondent's contention that the information was not necessary because the grievance seeks a remedy that cannot lawfully be granted by an arbitrator. As discussed above, the Union needs the requested information to evaluate the grievance, decide whether to pursue it, and to prepare for the arbitration proceedings. These bases on which we conclude that the requested information is necessary are independent of the issue of whether an arbitrator may properly order that the supervisor involved in this case be disciplined.

The arbitration hearing for which the information was requested is in abeyance. There has been no determination by an arbitrator as to whether the Union's grievance is meritorious and no decision as to the remedy, if any, to be granted if the grievance is sustained. The Respondent may raise any claims concerning the legality of an arbitrator's award in this matter, including its contention regarding the proper scope of Fort Howard, by timely filing exceptions to the award under section 7122 of the Statute. See Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616 (1987) (the determination of the impact or application of section 7106 of the Statute is to be made in connection with the arbitrator's consideration of the substantive issue presented by the grievance and any possible remedy).

Because the requested information is necessary, independent of whether an arbitrator may order the supervisor to be disciplined, and because there has been no arbitration award in this case, the Respondent's claims concerning the appropriateness of the relief requested in the grievance did not relieve the Respondent of its obligation to furnish the Union with the requested information. See, for example, Internal Revenue Service, National Office, 21 FLRA 646, 649 n.3 (1986) (the existence of a threshold question of arbitrability does not relieve a respondent of its obligation under section 7114(b)(4) to furnish otherwise necessary information).

Finally, disclosure of the requested information is not prohibited by the Privacy Act. The Privacy Act generally prohibits the disclosure of personal information about Federal employees without their consent. National Labor Relations Board, Office of the General Counsel, Washington, D.C. and National Labor Relations Board Union, 37 FLRA No. 84, slip op. at 8 (1990) (National Labor Relations Board). However, exception (b)(2) of the Privacy Act provides that the prohibition against disclosure is not applicable if disclosure of the information is required under the FOIA. 5 U.S.C. 552a(b)(2). The FOIA provides that records must be disclosed on request unless the records are subject to a specific exemption. Exemption (b)(6) of the FOIA provides that information contained in personnel files may be withheld if disclosure of the information would constitute a "clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). In determining whether the disclosure of personal information would constitute a clearly unwarranted invasion of personal privacy, the employee's right to privacy must be balanced against the public's interest in disclosure. National Labor Relations Board, slip op. at 9; National Treasury Employees Union, Chapter 237 and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 32 FLRA 62 (1988); and Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado and American Federation of Government Employees, AFL-CIO, Local 1345, 25 FLRA 1060, 1062 (1987).

In balancing the public's interest in disclosure against the supervisor's privacy interest, we find that the public's interest in the disclosure of the final decision letter or its equivalent to the Union as the exclusive representative of the grievant outweighs the personal privacy interest of the grievant's supervisor. As found above, the disclosure of the final decision letter, or its equivalent, on any proposed discipline of the grievant's supervisor was necessary, within the meaning of section 7114(b)(4)(B) of the Statute, because it would enable the Union to process its grievance or to determine whether to pursue the grievance further. The disclosure of such information to the Union also would permit the Union to determine whether the Agency is complying with its responsibilities in administering its disciplinary system in a fair and evenhanded manner. The Authority has found that the release of information which is necessary for a union to perform its statutory representational functions promotes important public interests. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515, 530-31 (1990) (Portsmouth Naval Shipyard), application for enforcement filed sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st Cir. Oct. 1, 1990) (Department of the Navy filed cross exceptions, No. 90-2014 (Oct. 19, 1990)).(1) In addition, the release of information necessary to ensure that the Agency complies with its responsibilities in administering its disciplinary system in a fair and evenhanded manner involves matters of public concern. Compare U.S. Department of Justice and Immigration and Naturalization Service, 37 FLRA No. 111, slip op. at 19 (1990) (INS) with Council 214, AFL-CIO, and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA No. 34 (1990) (Air Force Logistics Command).(2)

On the other hand, the Authority has previously found that employees have a privacy interest in disciplinary and adverse actions taken against them. INS, 37 FLRA No. 111, slip op at 17-18. However, as applied to the specific facts of this case, that interest is not as compelling as the interest of the Union that has been established here. First, as found by the Judge, the Union, as the result of the Agency's denial of the grievance, was already aware that some action had been taken against the supervisor. Thus, the stigmatizing effect of the action, that is, knowledge that some disciplinary action was taken, had already occurred. Disclosing the nature of the disciplinary or adverse action would not significantly increase that effect. In addition, as noted by the Judge, dissemination of the information was unlikely to go beyond those persons directly concerned with the arbitration proceeding. Lastly, the disclosure does not involve a blanket request for all notices of proposed actions and final decision letters or encompass a large number of individuals, as was involved in the INS case. Here, the request for documentation involved one supervisor and was made in furtherance of a specific grievance.

When balancing the public's interest in disclosure of the final decision letter with the supervisor's privacy interest, we find that the public's interest in the facilitation of the collective bargaining process and its strong interest in the manner in which the Government disciplines Federal employees outweigh the limited privacy interests of the supervisor in not disclosing the final decision letter. Accordingly, we conclude that the disclosure required by the Union's request would not constitute a clearly unwarranted invasion of the supervisor's personal privacy within the meaning of exemption (b)(6) of the FOIA, 5 U.S.C. § 552(b)(6). Therefore, it is not prohibited under exception (b)(2) of the Privacy Act.

Even if disclosure is prohibited under exception (b)(2) of the Privacy Act, it is authorized under exception (b)(3), which permits disclosure of information for a "routine use." Routine use disclosures are confined to "'ones that are 'compatible with the purpose for which [the information] was collected,' 5 U.S.C. § 552a(a)(7); ... and within the uses 'described under' 5 U.S.C. § 552a(e)(4)(D).'" Portsmouth Naval Shipyard, 37 FLRA at 537. As the Authority found in Portsmouth Naval Shipyard that the release of information in response to a section 7114(b)(4) request protects employees' statutory interests and assists a union in its obligations to represent unit employees, we find that the release of the final decision letter to the Union is fully consistent with the purposes for which it has been collected. Id. at 538. Moreover, it is consistent with the routine use notice published by the Office of Personnel Management. 55 Fed. Reg. 3802, 3839-40 (Feb. 5, 1990). See Portsmouth Naval Shipyard, 37 FLRA at 540-41.

Accordingly, we conclude that the requested information is authorized as a "routine use" under exception (b)(3) of the Privacy Act.

In sum, noting that the other elements of section 7114(b)(4) of the Statute were either admitted or not disputed by the Respondent, we conclude that under section 7114(b)(4) of the Statute, the Union was entitled to the requested information. Because the Union was entitled to the requested information under section 7114(b) of the Statute, the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the requested information. We will adopt the Judge's recommended Order, as modified, to require that (1) the Notice be signed by the Respondent's Commanding Officer, and (2) the Respondent notify the Regional Director what steps have been taken to comply with the following Order.(3)

VI. Order

Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we order that the Department of the Air Force, Scott Air Force Base, Illinois shall:

1. Cease and desist from:

(a) Failing and refusing to furnish the final decision letter, requested by the National Association of Government Employees, Local R7-23, SEIU, AFL-CIO, the employees' exclusive representative, concerning the supervisor whose conduct on or about March 6, 1987, is the subject of a grievance.

(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) Furnish to the National Association of Government Employees, Local R7-23, SEIU, AFL-CIO, the requested final decision letter.

(b) Post at its facilities at the Scott Air Force Base copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt, the forms shall be signed by the Commanding Officer of Scott Air Force Base, 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 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 V, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order of 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 the final decision letter requested by the National Association of Government Employees, Local R7-23, SEIU, AFL-CIO, the employees' exclusive representative.

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 furnish to the National Association of Government Employees, Local R7-23, SEIU, AFL-CIO, the requested final decision letter.

_________________________
(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 V, the Federal Labor Relations Authority, whose address is: 175 W. Jackson Boulevard, Suite 1359-A, Chicago, IL 60604, and whose telephone number is: (312) 353-6306.




FOOTNOTES:
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1. The public's interest involved in the instant case is as great or greater than the public interest involved in Portsmouth Naval Shipyard, wherein the Authority found that the public's interest in the facilitation of the collective bargaining process in the Federal sector far outweighs the privacy interest of individual employees in their names and home addresses. Id. at 531. The union in that case sought the names and home addresses of all employees in the bargaining unit in furtherance of its general representational obligations. Here, the Union seeks the requested information in order to fulfill its representational role in the processing of a specific grievance.

2. In INS, the Authority found that a "blanket, unsanitized disclosure of all proposed and final disciplinary an