39:0241(16)CA - - Treasury, IRS, Washington, DC and Helena District, Helena, MT and NTEU and NTEU Chapter 42 - - 1991 FLRAdec CA - - v39 p241



[ v39 p241 ]
39:0241(16)CA
The decision of the Authority follows:


39 FLRA No. 16

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF TREASURY

INTERNAL REVENUE SERVICE, WASHINGTON, D.C.

AND

INTERNAL REVENUE SERVICE

HELENA DISTRICT, HELENA, MONTANA

(Respondents)

and

NATIONAL TREASURY EMPLOYEES UNION

AND

NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 42

(Charging Party/Unions)

7-CA-90206

DECISION

January 31, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority based on the parties' stipulation of facts under section 2429.1(a) of the Authority's Rules and Regulations. The complaint alleges that the Respondents violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to furnish the National Treasury Employees Union, Chapter 42 with information requested under section 7114(b)(4) of the Statute and by failing to bargain in good faith. The General Counsel, Respondents and Unions filed briefs.

For the reasons stated below, we find that the Respondents committed the unfair labor practices alleged.

II. Facts

The National Treasury Employees Union (NTEU or Union) is the exclusive representative of certain professional and nonprofessional employees, including employees assigned to the Respondents' facility in Helena, Montana. NTEU, Chapter 42 is an affiliate and agent of the Union. Therese Enderle, an Asian-American, is employed by the Respondents as a Taxpayer Service Representative at the District Office in Helena under the immediate supervision of Sharon Kedish, Chief of Taxpayer Service. Enderle's second-level supervisor is Jerry McGuire, Chief of the Collection and Taxpayer Service Division. In August of 1988, Enderle applied for the vacant position of Tax Technician (Taxpayer Service Specialist) (TSS), GS-526. Enderle's application was submitted to the ranking panel along with a "Job Element Appraisal" that Kedish prepared evaluating Enderle's past performance. The ranking panel placed Enderle first among three employees on the best qualified list.

Kedish, Enderle's immediate supervisor, was a member of the interviewing panel that interviewed the best qualified candidates, including Enderle. Kedish and the panel recommended to McGuire, the selecting official, that one of the employees other than Enderle be selected for the TSS vacancy. On October 7, 1988, McGuire selected a white female applicant for the TSS vacancy, basing his decision, in part, on the recommendation provided by Kedish and the interviewing panel.

On November 14, 1988, NTEU, Chapter 42 filed a grievance on behalf of Enderle alleging that her non-selection for the TSS position was due to "racial discrimination by management representatives." Stipulation, paragraph 13. On or about November 22, 1988, NTEU, Chapter 42 made a written request that the Respondents provide the standards, objectives, and performance appraisals contained in the respective performance plans for Kedish, McGuire, and Arnold Wiley (the Helena District Director) in the areas of Equal Employment Opportunity (EEO), development of subordinates, and management of human resources. NTEU, Chapter 42 requested the information to assist it in the pursuit of Enderle's grievance.

The parties stipulated that the requested information describes the individual standards or requirements established by the Respondents for Kedish, McGuire and Wiley and the individual objectives that each of these managers must achieve to meet EEO requirements. In addition, the requested information describes the degree of success or failure of Kedish, McGuire and Wiley achieved when their performance was measured against their respective standards and objectives in the area of EEO and development of subordinates and management of human resources.

The parties stipulated that the information requested is: (1) normally maintained by the Respondents in the regular course of business; (2) reasonably available; and (3) does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining.

NTEU, Chapter 42 maintains that the information requested concerning Wiley would reflect the general affirmative action requirements, standards, and objectives for the Helena District and the degree that Wiley achieved these objectives. NTEU, Chapter 42 asserts that the overall effectiveness, strengths, and weaknesses of the Helena District's EEO program, as indicated through the requested information concerning Wiley, is relevant and necessary to the pursuit of Enderle's grievance because the information describes the background and context of the act of racial discrimination alleged in the grievance. Furthermore, NTEU, Chapter 42 contends that the information requested concerning McGuire and Kedish reflects whether they successfully met their respective standards and were effective in implementing the Helena District's EEO program, and that such information is relevant and necessary to the pursuit of the grievance alleging that McGuire and Kedish were motivated by racial discrimination in the selection action involving Enderle.

On or about December 18, 1988, the Respondents denied NTEU, Chapter 42's request for the information. The Respondents take the position that the requested information is not relevant or necessary pursuant to section 7114(b)(4)(B) of the Statute to pursue Enderle's grievance, and that the release of the data is prohibited by the Privacy Act.

The parties stipulated that the objectives, standards, and appraisals requested by NTEU, Chapter 42 are maintained by the Respondents in a system of records under the Privacy Act, 5 U.S.C. º 552(a). The parties also stipulated that the specific system of records notice is contained in the Federal Register, Vol. 50, No. 140 (July 22, 1985). Stipulation at 6.

Finally, the parties agreed to attach the objectives, standards, and appraisals requested by NTEU, Chapter 42 to the stipulation and that they would not be made available to the Charging Party. Id.

III. Resolution of The Grievance

During the pendency of the instant unfair labor practice proceeding, an arbitrator issued an award finding that the U.S. Department of Treasury, Internal Revenue Service, Helena District (the Agency in that case) had improperly discriminated against Enderle when it failed to promote her to a Taxpayer Service Specialist position. The Arbitrator ordered that she be retroactively promoted with backpay. Subsequently, the Agency filed exceptions to the award. On October 31, 1990, the Authority issued a decision in U.S. Department of Treasury, Internal Revenue Service, Helena District and National Treasury Employees Union, Chapter 42, 37 FLRA 1410 (1990) (Helena District), denying the Agency's exceptions to the arbitration award.

In view of the above proceedings, the Authority requested the parties to submit their views as to what course of action is appropriate for processing the instant unfair labor practice case. The Respondents take the position that the complaint should be dismissed as the underlying request for information has been rendered moot by the processing of the grievance through arbitration. The Charging Party maintains that the unfair labor practice case should be adjudicated by the Authority because: (1) the grievance and arbitration procedure did not resolve the issue raised by the unfair labor practice complaint, and (2) the issue of whether individual managers' EEO standards and EEO evaluations must be disclosed under the Statute, when requested by NTEU, Chapter 42 in order to carry out its representational responsibilities, is one of first impression in the Federal sector. The Charging Party also predicts that this problem will occur again, and because the issue is capable of repetition, the complaint is not moot. However, the Charging Party suggests that because the requested material is of no present use, only a cease and desist order should be issued if a violation is found. The General Counsel asserts that the instant case should be decided with respect to the legality of the Respondents' refusal to provide the data and that a cease and desist order be issued. Further, because of NTEU, Chapter 42's successful pursuit of the grievance, the General Counsel recommends that the Respondents should not be required to provide the requested data.

In our view, the case before us has not been rendered moot by the issuance of the Arbitrator's award and our decision in Helena District. Noting the arguments of the parties in response to our request for submissions, we find that the issues raised in this case are different from those that were resolved by the Arbitrator's award. In particular, we find that the issue of the legality of the Respondents' refusal to provide the requested data was not answered either in the Arbitrator's award or our decision in Helena District. Accordingly, we will proceed to consider the issues in this case.

IV. Positions of the Parties

A. Respondents

1. Necessity and Relevance of Requested Information

The Respondents contend that the information requested by NTEU, Chapter 42 "is not relevant and necessary for a full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining." Respondents' Brief at 5.

The Respondents contend that a "mere assertion" that the information requested is necessary to process a grievance does not automatically oblige the Respondents to supply the data. Id. at 5-6. Citing Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 17 FLRA 624 (1985), the Respondents argue that the burden is on NTEU, Chapter 42 to demonstrate that the requested information is necessary and relevant for its purposes. In this regard, the Respondents argue that the requested standards, objectives and appraisals of District Director Wiley, regardless of their content, are not relevant to the instant grievance. The Respondents contend that Wiley had: (1) no role in the selection action; (2) no involvement in the appraisal of Enderle; and (3) no involvement in her interview or in the decision not to select her for the vacant position. Therefore, the Respondents claim that the requested information on Wiley had no bearing on, or relevance to, the issue of employment discrimination in Enderle's non-selection.

The Respondents further argue that there is no information in the "objective standards and appraisals for . . . Ms. Kedish and Mr. McGuire" which would be relevant to Enderle's grievance. Id. at 7-8. The Respondents contend that these requested materials are general and do not concern selections for previous or future TSS positions, performance appraisals, the interview process in promotion actions, or any problems in the EEO area.

Additionally, the Respondents argue that because Enderle's grievance asserted discrimination on the basis of her race, NTEU, Chapter 42's broad request for information concerning the Respondents' "affirmative action goals, development, advancement and underrepresentation of other minorities would not be relevant" to the grievance. Id. at 8. The Respondents contend that "there are no affirmative action requirements, goals or quotas in any of these materials regarding Asian Americans, or any other minorities." Id. at 8-9. It further contends that the materials requested do not contain anything on the development or advancement of Asian Americans or any severe underrepresentation of Asian Americans.

The Respondents argue that it is clear that the requested information for the "stated purpose of showing [the] Respondent's adherence or failure to adhere to its Affirmative Action Plan is not relevant to the underlying grievance." Id. at 10. The Respondents argue that the above-cited case demonstrates that the adherence or nonadherence to affirmative action plans cannot be used to support allegations of discrimination.

Finally, the Respondents contend that the General Counsel failed to meet its burden of proving by a preponderance of the evidence, as required by section 2423.18 of the Authority's rules and regulations, that the information sought in this case was relevant. Therefore, the Respondents contend that there is no violation of section 7116(a)(1), (5), and (8) of the Statute.

2. Privacy Act

The Respondents argue that even if the requested information were found to be necessary and relevant, the information nevertheless is prohibited from release by the Privacy Act.

The Respondents take the position that the only Privacy Act exceptions relevant to nondisclosure are 5 U.S.C. º 552a(b)(2) and (3), and that they do not apply in this case. The exception in 5 U.S.C. º 552a(b)(2) permits disclosure of information protected by the Privacy Act to the extent that the information is required to be released under the Freedom of Information Act (FOIA). The Respondents state that the FOIA provides that records must be disclosed on request unless the records are subject to a specific exemption. The Respondents assert that one such exemption, 5 U.S.C. º 552(b)(6), provides that information contained in personnel files may be withheld if disclosure of the information would constitute a clearly unwarranted invasion of personal privacy. To determine whether the requested information falls within the (b)(6) exemption, the Respondents note that a balance must be struck between an individual's right to privacy and the public interest in having the information disclosed. The Respondents argue that "the balance here clearly falls against disclosure." Id. at 13. The Respondents contend that the records requested contain "sensitive information regarding the performance of the three managers, and the violation of their privacy interests is substantial." Id. Moreover, the Respondents take the position that because the requested information concerns only three managers, "sanitization of their names will not adequately protect their privacy interests." Id. Therefore, the Respondents argue that the release of the requested documents "would constitute a clearly unwarranted invasion of [the managers'] privacy rights, and therefore, they fall within the exemption from disclosure found [in] 5 U.S.C. º 552(b)(6)." Id. at 14.

The Respondents also argue that the materials requested by NTEU, Chapter 42 are covered by the Privacy Act because they consist of records contained within the Respondents' "system of records" and are retrievable by reference to an individual's name or some other personal indentifier. Id. at 11. Because the Privacy Act regulates the disclosure of information contained in a system of records, the Respondents argue that in order for them to release the requested information, Kedish, McGuire, and Wiley "must give their written consent to disclosure, or one of the specific Privacy Act exceptions to nondisclosure" must apply. Id.

In this regard, the Respondents note that there is no evidence that the three managers gave their written consent to the disclosure of this information. The Respondents further argue that the information is not releaseable under the routine use provision in 5 U.S.C. º 552(a)(b)(3). According to the Respondents, disclosure under the routine use provision requires the "same balancing test set forth above under 5 U.S.C. º 552(b)(6)." Id. at 14. Based on its previous arguments, the Respondents contend that the privacy interests of the three managers substantially outweigh the interests of NTEU, Chapter 42 and, therefore, under this balancing test, the information cannot be released pursuant to º 552a(b)(3).

B. General Counsel

The General Counsel contends that the Respondents' refusal to furnish the requested data violated section 7116(a)(1), (5), and (8) of the Statute. The General Counsel asserts that the Respondents' defenses that the requested information is not relevant or necessary to NTEU Chapter 42's pursuit of Enderle's grievance and that the release of the information is prohibited by the Privacy Act are without foundation.

Citing Veterans Administration, Washington, D.C. and Veterans Administration Regional Office, Buffalo, New York, 28 FLRA 260 (1987), the General Counsel argues that "[i]t is a well-established principle of law that a [u]nion is entitled to data which would assist in the investigation or pursuit of a grievance." General Counsel's Brief at 7. In this regard, the General Counsel notes that the data requested by the Union was very specific and "relevant and necessary to [the] grievance because the grievant . . . alleged that she was discriminated against due to her race, color or national origin." Id. On this basis, the General Counsel contends that the Union's request for the standards, objectives, and appraisals for the three managers "was to determine whether their 'track record' would corroborate the Union's position that racial discrimination had tainted Enderle's chances for advancement to a new position." Id. at 8. The General Counsel asserts that this information would be necessary to illuminate the issue of whether Enderle was subjected to racial discrimination in employment matters by the managers directly responsible for the job selection action. Therefore, the General Counsel argues that the Union has adequately demonstrated the "relevance and necessity of non-unit data in connection with a representational function at the time a data request [was] made." Id.

The General Counsel further argues that regardless of whether the actual data casts the three managers in a positive, neutral, or negative light, the requested information "would assist the Union in determining the likelihood of successfully pursuing a grievance through arbitration" and that "such data would also be relevant and necessary to permit the Union to evaluate the merits and further processing of the grievance." Id. at 10, 14.

The General Counsel contends that under the Privacy Act and FOIA it is necessary to balance competing interests to determine whether the requested data is subject to 5 U.S.C. º 552(b)(6), which authorizes the withholding of personnel files that would constitute a "clearly unwarranted invasion of personal privacy" if released. Id. at 16. The General Counsel argues that balancing the necessity of the data for the Union's purposes against the degree of intrusion on the individual's privacy favors release of the data to the Union. The General Counsel contends that the privacy interests of the managers were limited because the Respondents do not claim that the requested information is stigmatizing to the managers or discredits them. Furthermore, the General Counsel argues that there is no indication that the information will become generally known once released to the Union. Based on the these assertions, the General Counsel contends that the release of the requested information does not violate the Privacy Act because the relevancy of and necessity for the requested information to pursue Enderle's grievance outweigh the managers' privacy interests.

Finally, the General Counsel argues that because NTEU, Chapter 42 is described as a "routine user" of the requested data in the relevant systems of records notice contained in the Federal Register, Vol. 50, No. 140 (July 22, 1985), NTEU, Chapter 42 is entitled to the requested information.

C. Charging Party

The Charging Party contends that the requested information is necessary and relevant for determining whether the Respondents' managers discriminated against the grievant on the basis of her race. The Charging Party argues that the requested information is necessary to prove intentional discrimination against Enderle. In this regard, the Charging Party asserts that the requested standards relating to Kedish are relevant because she was involved in appraising Enderle's performance and sat on the interview panel. The Charging Party also asserts that the information requested concerning McGuire is relevant because, as the selecting official, he based his selection, in part, on Kedish's recommendation to promote a white candidate. Therefore, the Charging Party argues that if Kedish and McGuire did not follow standards that provided for the encouragement, promotion, and development of minorities, it would be evidence of an intent to discriminate on their part. The Charging Party also argues that the information regarding Wiley is necessary to determine whether his managers are carrying out their EEO responsibilities and if Wiley has been inconsistent or has failed to encourage his managers to meet their EEO goals. Therefore, the Charging Party asserts that the requested information is relevant to the particular issues raised in Enderle's grievance.

The Charging Party contends that pursuant to the exceptions under the Privacy Act and FOIA, disclosure of the requested information is permitted. Two of the exceptions under the Privacy Act include disclosure compelled by FOIA under 5 U.S.C. º 552a(b)(2) and disclosures to "routine users" under 5 U.S.C. º 552a(b)(3). The Charging Party argues that a request for information under section 7114(b) of the Statute gives a union a greater entitlement to information than does a request under the FOIA.

The Charging Party argues that under the balancing test used in 5 U.S.C. º 552a(b)(6), the requested information is necessary because it bears directly on the issue of intentional discrimination by the Respondents' managers. The Charging Party contends that the public interest would be served by the disclosure of the information because disclosure will ensure that the Respondents follow their own negotiated merit promotion procedures, and encourage the use of the grievance procedure for purposes of ensuring that the promotion action at issue is untainted by illegal discrimination.

The Charging Party also asserts that the intrusion into the personal privacy of the Respondent's managers is limited because the information is to be used by the Union in the performance of its representational functions and will not be distributed. The Charging Party argues that this limited use of the information by the Union protects the privacy interests of the managers. Further, the Charging Party contends that: (1) the requested information contains no stigmatizing or sensitive personal information; (2) the release of the information creates no greater invasion of privacy than the release of other information permitted by the Authority; and (3) there has been no showing that any negative effects would result from disclosure. Therefore, the Charging Party maintains that the public interest in releasing the information outweighs the privacy rights attached to the information.

Finally, the Charging Party argues that the release of the requested information constitutes a "routine use" under the Privacy Act.

V. Analysis and Conclusions

We find that, after reviewing the entire record, including the requested information attached to the parties' stipulation, the Respondents violated section 7116(a)(1), (5), and (8) of the Statute by refusing to provide NTEU, Chapter 42 with information to which it was entitled under section 7114(b)(4) of the Statute.

A. The Requested Information Is Necessary for the Union to Fulfill Its Representational Functions

Section 7114(b)(4) of the Statute requires an agency to furnish a union, upon request, with data that is: (1) normally maintained by the agency in the regular course of business; (2) reasonably available and necessary for discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (3) does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining.

It is well established that an agency is obligated under section 7114(b)(4)(B) to provide an exclusive representative of its employees with information that is reasonably available and necessary for the union to effectively fulfill its representational functions and responsibilities in the processing of employee grievances. Veterans Administration, Washington, D.C. and Veterans Administration Regional Office, Buffalo, New York, 28 FLRA 260 (1987) (VA Regional Office). It is also clear that under section 7114(b)(4) a union has a right to information that is necessary for it to determine whether or not to file a grievance. See U.S. Army Reserve Components, Personnel and Administration Center, St. Louis, Missouri, 26 FLRA 19, 27 (1987). Furthermore, an agency is required to furnish information about nonbargaining unit employees when the information is necessary for the union to effectively fulfill its representational responsibilities. See, for example, Veterans Administration Medical Center, Jackson, Mississippi and National Federation of Federal Employees, Local 589, 32 FLRA 133, 138-40 (1988).

Here, the parties stipulated that the information requested is normally maintained, reasonably available, and does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining. The remaining question under section 7114(b)(4)(B) is whether the information was necessary.

In this case, NTEU, Chapter 42 requested the standards, objectives, and performance appraisals contained in the performance plans of three of the Respondent's Helena, Montana facility managers in the areas of EEO, development of subordinates, and management of human resources. The information was requested in connection with the Union's representational function in representing Enderle in her grievance filed concerning whether her non-selection was motivated by racial discrimination. We find that the information requested was necessary within the meaning of section 7114(b)(4)(B) to enable the Union to effectively carry out its representational obligations. The requested information would have assisted the Union in evaluating whether Enderle was subjected to racial discrimination in employment matters by those responsible for the job selection action and to determine whether to pursue the grievance through arbitration. We find that the information is necessary for the Union to effectively represent Enderle in this matter. See, for example, VA Regional Office, 28 FLRA at 265.

B. The Information Requested May Be Disclosed Under the Privacy Act

For the following reasons, we find that disclosure of the requested information does not violate the Privacy Act, 5 U.S.C. º 552a (1988).

5 U.S.C. º 552a(b)(2) permits disclosure of information which would be available under the Freedom of Information Act (FOIA), 5 U.S.C. º 552. Under the FOIA, requested information must be disclosed unless it falls within one of the enumerated exemptions. The exemption pertinent to this case is that found at 5 U.S.C. º 552(b)(6). 5 U.S.C. º 552(b)(6) authorizes withholding information in "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]"

In making a determination as to whether requested information falls within the (b)(6) exemption, it is necessary to balance the competing interests of employees' privacy against the public interest in disclosure. Moreover, in determining whether information must be provided under section 7114(b)(4) of the Statute, the public interest to be examined when applying the balancing test required by exemption (b)(6) is that embodied in the Statute. See generally U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (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). We now consider the nature of the employees' privacy interests and the public interest in this case.

The release of information which is necessary for a union to perform its statutory representational functions promotes important public interests. Department of Defense, Office of Dependents Schools and Overseas Education Association, 28 FLRA 871, 882 (1987). In this case, NTEU, Chapter 42 sought the information in connection with its representation of Enderle in the pursuit of her grievance. More specifically, NTEU, Chapter 42 wanted the requested information to determine whether the Respondents were effectively implementing the Helena District's EEO program. Insofar as NTEU, Chapter 42 sought the information to perform its representational function under the Statute, we find that there were important public interests to be served by disclosure of the information. Moreover, disclosure of the information furthers the public interest in promoting the fair and equitable treatment of Federal employees, the absence of illegal discrimination, and the application of merit system principles.

Having found that disclosure of the requested information serves important public interests, we need to balance the competing privacy interests of employees in order to determine whether disclosure would result in a clearly unwarranted invasion of the employees' personal privacy.

Although employees have an interest in preserving the privacy of their appraisals, no assertion has been made that the release of the requested information would be stigmatizing. In this regard, we note our recent decision in National Labor Relations Board, Office of the General Counsel, Washington, D.C. and National Labor Relations Board Union, 37 FLRA 1036 (1990) (NLRB). In NLRB, we addressed an arbitrator's finding that information in unit employees' performance appraisals was not stigmatizing because it would not "'subject the person to harassment, disgrace, loss of employment, or friends[.]'" NLRB at 1044 (quoting American Federation of Government Employees, Local 1760 v. FLRA, 786 F.2d 554, 556 (2d Cir. 1986)). We noted that a finding that information is not stigmatizing is not determinative in balancing competing interests insofar as "[e]mployees' privacy interests extend to 'non-stigmatizing' comments in their appraisals." Id. Therefore, we find that the General Counsel's contention that the requested information is not stigmatizing is not determinative in balancing the competing interests.

Finally, we note that the Union asserts that the requested information is for the Union's purpose of performing its representational functions and will not be distributed. There is no indication or reason to believe that the contents of the documents would become generally known. Internal Revenue Service, Washington, D.C., and Internal Revenue Service, Omaha District, Omaha, Nebraska, 25 FLRA 181, 185 (1987) (Omaha District). On balance, we conclude that the public interest in disclosure to NTEU, Chapter 42, as the agent of the exclusive representative, outweighs the personal privacy interests of unit employees here and, consequently, that such disclosure does not constitute a clearly unwarranted invasion of employees' personal privacy. Accordingly, release of the requested information is not prohibited.

As discussed earlier, we conclude that disclosure of the disputed documents is necessary within the meaning of section 7114(b)(4) of the Statute for the Union to carry out its representational functions. Consistent with that conclusion, we find that disclosure of the information sought also falls within the routine use established by the Office of Personnel Management (OPM) and the Internal Revenue Service. As noted in Omaha District (25 FLRA at 186), OPM has determined that a "routine use" of personnel records is disclosure to "officials of labor organizations . . . when relevant and necessary to their duties as exclusive representati[ve.]" The Respondents stipulated that the materials requested are contained within the Respondents' system of records, and it is undisputed, as stated by the General Counsel, that NTEU, Chapter 42 is described as a "routine user" of the requested data in the relevant systems of records notice contained in the Federal Register, Vol. 50, No. 140 (July 22, 1985). Therefore, as we have found that the requested information was necessary for the Union to carry out its representational function, we find that disclosure of the requested information is warranted under the routine use provision in 5 U.S.C. º 552a(b)(3).

VI. Summary and Remedy

We find that the Respondents were required under section 7114(b)(4) of the Statute to provide NTEU, Chapter 42 with the requested information because we find that the information was normally maintained by the Respondents, was reasonably available and necessary for NTEU, Chapter 42 to carry out effectively its representational functions, and did not constitute guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining. Disclosure of the information is not prohibited by the Privacy Act. Therefore, we find that the Respondents' refusal to provide the requested information constitutes a failure to comply with section 7114(b)(4) in violation of section 7116(a)(1), (5), and (8) of the Statute.

As noted above, the grievance involved in the instant case was resolved without the requested information. See Helena District. Noting the arguments of the parties in response to our request for submissions following the issuance of Helena District, we find that the appropriate remedy for the violation in this case is a cease and desist order. It would not effectuate the purposes and policies of the Statute at this time to now direct the Respondents to furnish the Union with the requested information. We shall also order an appropriate posting.

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 U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Helena District, Helena, Montana shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request by the National Treasury Union, Chapter 42, the designated agent of the exclusive representative of a unit of its employees, requested information that is reasonably available and necessary for the agent to effectively represent unit employees in grievance proceedings.

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

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

(a) Post at its facilities in its Helena District, Helena, Montana, where bargaining unit employees represented by the National Treasury Union, Chapter 43 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 District 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 ensure that such notices are not altered, defaced, or covered by any other material.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VII, 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 refuse to furnish, upon request by the National Treasury Union, Chapter 42, the designated agent of the exclusive representative of a unit of our employees, requested information that is reasonably available and necessary for the agent to effectively represent unit employees in grievance proceedings.

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 Federal Service Labor-Management Relations Statute.

________________________
(Ag