39:0298(23)CA - - HHS, SSA, Baltimore, MD, and Region X, Seattle, WA and AFGE Local 3937 - - 1991 FLRAdec CA - - v39 p298



[ v39 p298 ]
39:0298(23)CA
The decision of the Authority follows:


39 FLRA No. 23

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

AND

SOCIAL SECURITY ADMINISTRATION

REGION X, SEATTLE, WASHINGTON

(Respondents/Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3937, AFL-CIO

(Charging Party/Union)

79-CA-90694

79-CA-00010

DECISION AND ORDER

January 31, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent Social Security Administration, (SSA) Baltimore, Maryland filed briefs with the Authority.

The complaint alleges, in Case No. 79-CA-90694, 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 Union with information requested under section 7114(b) of the Statute. In Case No. 79-CA-00010, the complaint alleges that the Respondents violated section 7116(a)(1) and (5) of the Statute by bypassing the exclusive representative and dealing directly with a unit employee concerning a grievance filed under the negotiated grievance procedure.

For the following reasons, we find that the Respondents violated the Statute as alleged in the complaints.

II. Facts

The American Federation of Government Employees (AFGE), AFL-CIO is the exclusive representative of consolidated units of professional and nonprofessional employees of the SSA, Baltimore, Maryland. Local 3937 is recognized by the Respondents as the agent of AFGE for the purpose of representing bargaining unit employees at SSA.

In 1989, the Respondents issued Vacancy Announcement No. X89-89 for a Management Analyst, GS-343-11/12, position in the SSA, Office of the Assistant Regional Commissioner, Management and Budget, Human Resource Management and Training Branch, Seattle, Washington. The position is not in the bargaining unit represented by the Union. Among others, two employees in AFGE's unit, William R. Louden, a Claims Representative, and Jeffery A. Saul, a Claims Representative and the Chief Steward of Local 3937, applied for the Management Analyst position.

Subsequently, the Department of Health and Human Services (HHS), Region X Personnel Office (RPO) advised Louden and Saul that they did not meet the minimum qualifications for the Management Analyst position. Both Saul and Louden had applied for a similar Management Analyst position in 1988, and were rated eligible.

By memorandum to Douglas McDonald, Regional Personnel Officer, Louden asserted that his experience met the specialized experience requirements for the position and requested that the RPO reconsider his qualifications for the position. The Respondents' Office of the Regional Director, Region X responded to Louden by informing him that his application had been reconsidered and that he did not meet the specialized experience requirements. Therefore, the Respondents stated that their initial determination would not be changed.

Saul sent a separate letter to the RPO in which he questioned the rating process used for Vacancy Announcement X89-89 and requested reconsideration of his application. The Respondents replied to Saul's letter by informing him that his application had been reviewed a second time and he was not eligible for the position because his application did not clearly show that he had 1 year of specialized experience, as required by the Vacancy Announcement.

By memorandum dated August 31, 1989, to the SSA Regional Commissioner, Region X, Saul, on behalf of the Union, requested that the Respondents furnish, pursuant to section 7114(b)(4) of the Statute, the following information:

A. Per the [S]tatute I need full and complete application packages for all people who applied for the vacancy 89-89. This includes but is not limited to applicants for promotion, lateral reassignment, transfer, job enhancement and EEO considerations.

B. Copies of any and all correspondence issued from HHS RPO to any of the applicants. This includes but is not limited to forms RX 39 and singular letters advising applicants of their status and position in the selection process.

C. Copies of any and all documents that relate to the selection of employees for the BQ list. This includes but is not limited to the panel breakdown sheets of points and referral lists that go to Ms[.] Ruby that she uses to make her selections.

Exhibit 11 to Stipulation. In the information request, the Union stated that it was going to file grievances on behalf of applicants/employees and that the information was relevant and necessary to evaluate the Respondents' assertions of fairness and correctness in the selection process. The Union further stated that "[t]he material must be unsanitized to also test the issue of possible Labor Relations and personal animus towards the applicants." Id.

On August 31, 1989, the Union filed a grievance under the negotiated grievance procedure on behalf of Louden contending that Louden's application for Vacancy Announcement No. X89-89 was incorrectly rejected by the Respondents. On September 6, 1989, the Union filed a grievance under the negotiated grievance procedure on behalf of Saul contending that the Respondents incorrectly rated Saul as ineligible for the vacancy.

By letter dated September 21, 1989, the Respondents' Assistant Regional Commissioner, Management and Budget denied the Union's information request, asserting that as the advertised position was a nonbargaining unit position, "it would be appropriate for [Saul] to request such information directly from the Regional Personnel Officer as an individual applicant, but not as a representative of other applicants." Exhibit 15 to Stipulation. By memorandum dated September 22, 1989, to the SSA Regional Commissioner, the Union again requested the information set forth in its August 31 memorandum.

On September 22, 1989, Louden sent a letter to the RPO in which he stated the following:

I currently have a grievance filed regarding Vacancy Announcement 89-89. In order to document that an error was made in the preliminary screening of my application for the above position, my Union Representative (Jeffrey A. Saul) requested copies of all applications that passed this screening process. The request was made to the SSA Regional Commissioner. A response from the Office of the Regional Commissioner states that 'pursuit of employee concerns must be done by individual employees.' While I disagree with this response, I believe the request is still valid. Therefore, in the interests of pursuing my own concerns, I now make the same request of you.

Exhibit 17 to Stipulation.

By letter dated September 29, 1989, the Regional Personnel Officer responded to Louden's September 22 letter, stating, in part, the following:

I am aware that you filed a grievance under the AFGE negotiated grievance procedure and that the grievance was returned to you. As you know, your grievance was returned because the Management Analyst position for which you applied is not in the bargaining unit. Grievances relating to issues concerning non-bargaining unit positions must be filed under the Agency Grievance Procedure. However, since I will be the first stage official and in order to insure the time limitation for filing a stage 1 grievance is met, I will consider your letter as a first stage grievance under the Agency Procedure.

In order to begin processing your grievance, I will need additional information from you. Please provide me with details that identify clearly the matter you are grieving, explain the basis for your grievance, provide any argument you have to support your grievance, and specify the personal relief you seek (i.e., a specific remedy directly benefiting you.)

Exhibit 18 to Stipulation. As to Louden's request for information, the Regional Personnel Officer directed Louden to make a separate request to the RPO for the information under the Freedom of Information Act (FOIA).

The Union was not provided with a copy of the Regional Personnel Officer's September 29 letter to Louden. Moreover, the grievance, which was filed by the Union on behalf of Louden under the negotiated grievance procedure, was not returned to Louden as the Regional Personnel Officer stated in his letter. Instead, the grievance was still being pursued by the Union.

On October 3, 1989, Saul, as Chief Steward of the Union and an employee, sent a letter to the SSA Regional Commissioner, Region X complaining that the Regional Personnel Officer: (1) failed to provide him, as Louden's Union representative, with a copy of the September 29 letter to Louden; and (2) offered Louden appeal rights, as an employee, that were not offered to Saul.

On October 5, 1989, Louden sent a letter to the Regional Personnel Officer in which he provided the requested information. Louden stated that (1) his grievance had not been returned as the Regional Personnel Officer stated in his September 29, 1989, letter; and (2) he disagreed with Regional Personnel Officer's contentions that his grievance had to be filed under the HHS, Agency Grievance Procedure (AGP) and that he was not entitled to representation.

By letter dated October 27, 1989, the Respondents responded to the Union's request for information by reaffirming that the requested information would not be provided because the advertised position was not in the bargaining unit represented by the Union. In the letter, the Respondents acknowledged that an employee who was being represented by the Union was given an answer to his grievance and that the answer should have been delivered to the Union. On October 30, 1989, the Director, FOIA/Privacy Act Division, Office of Public Affairs, Office of the Secretary, HHS, responded to Louden's request for information by providing Louden with only a sanitized copy of the successful candidate's application for Vacancy Announcement X89-89. The application was sanitized by deleting the applicant's home address, home telephone number, Social Security number and other personal information.

On October 5, 1989, the Respondents' Operations Supervisor denied Louden's grievance at step 1 of the negotiated grievance procedure on the grounds that the grievance was not filed under the appropriate grievance procedure. Subsequently, the Respondents denied Louden's grievance under the AGP, including a final denial of the AGP grievance by the HHS Regional Director on December 5, 1989. The grievances filed by the Union on behalf of Saul and Louden under the negotiated grievance procedure are still being processed.

The parties stipulated that the information requested by the Union in its August 31 letter is normally maintained by the Respondents in the regular course of business, is reasonably available, and does not constitute guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining. Stipulation, paragraph 36.

III. Positions of the Parties

A. Union

1. Case No. 79-CA-90694

The Union maintains that the information requested in section "A" of its August 31, 1989, memorandum is necessary to determine whether the grievants were considered fairly for the vacancy. According to the Union, complete application packages for all individuals who applied for Vacancy Announcement X89-89 are necessary for the Union to determine whether other candidates, who met the specialized experienced requirements, included the percentage or amount of time they spent on each of their job duties on their applications and to compare their qualifications/experience with that of the grievants. The Union contends that the information requested in section "B" is necessary for the Union to identify the other minimally qualified applicants to cross-check whether the Respondents have provided all the information requested in section "A". With respect to the information requested in section "C" the Union maintains that this information is needed to determine where the grievants would have been rated/ranked in comparison to other candidates who were found to be minimally qualified for the vacancy. Finally, the Union asserts that "it would have accepted the requested data in 'A, B, and C' in a sanitized format if it were coded or indexed by individual applicant." Stipulation at 10, para. 37.

2. Case No. 79-CA-00010

The Union asserts that the Respondents were aware that Louden had filed a grievance under the negotiated grievance procedure concerning Vacancy Announcement X89-89 and that the Union was representing Louden in his contractual grievance. Consequently, the Union contends that the Respondents' September 29 letter to Louden informing him that his grievance must be filed under the AGP and soliciting information from him constituted an impermissible bypass of the Union.

B. General Counsel

1. Case No. 79-CA-90694

The General Counsel asserts that section 7114(b)(4) of the Statute obligates an agency to provide a union with requested information that is necessary to the performance of its representational functions, including information needed to determine whether to file a grievance and to process a grievance. The General Counsel argues that, in this case, the Union presented the Respondents with a specific request for information for the purpose of determining whether to file a grievance concerning the filling of Vacancy Announcement X89-89. The General Counsel further contends that the requested information was necessary for the Union to determine "why certain individuals were ranked as at least minimally qualified while others were not rated so highly . . . ." General Counsel's Brief at 9.

The General Counsel states that the Respondents' sole basis for refusing to provide the requested information was that the requested information related to the filling of a nonbargaining unit position, a matter which the Respondents contended was not grievable under the negotiated grievance procedure. Citing Internal Revenue Service, Washington, D.C., and Internal Revenue Service, Omaha District, Omaha Nebraska, 25 FLRA 181, 185 (1987), the General Counsel argues that the Respondents' assertion that the matter was nongrievable does not relieve it of its obligation to furnish otherwise necessary information. In addition, the General Counsel argues that the Privacy Act does not provide a defense to the Respondents' refusal to provide the requested information because the Union was willing to accept the requested documents in a sanitized format. Accordingly, the General Counsel contends that the Respondents' continued refusal to provide the requested information is violative of section 7116(a)(1), (5), and (8) of the Statute.

2. Case No. 79-CA-00010

The General Counsel contends that the Respondents violated section 7116(a)(1) and (5) of the Statute by bypassing the Union and dealing directly with a bargaining unit employee concerning a grievance and independently violated section 7116(a)(1) of the Statute by interfering with the employee's right to be represented by the Union. The General Counsel argues that the Respondents, through the Regional Personnel Officer's September 29, 1989, letter, impermissibly bypassed the Union by: (1) advising Louden that his contractual grievance was in the wrong forum; (2) stating that his grievance must be processed under the AGP; and (3) soliciting information directly from Louden which pertained to his pending contractual grievance and could be used by the Respondents in formulating their actions regarding the processing of the contractual grievance.

C. Respondents

1. Case No. 79-CA-90694

Respondent SSA (hereinafter the Respondent) contends, on behalf of both Respondents, that it was not obligated to furnish the requested information because: (1) the information pertained to a nonbargaining unit position; (2) the requested information is not within its control; and (3) release of the requested information would violate the Privacy Act.

First, the Respondent argues that the "union did not make a sufficient showing that the information was necessary for discussion, understanding and negotiation of subjects within the scope of collective bargaining." Respondent's Brief at 9 (emphasis in original). The Respondent asserts that the requested information concerned the selection process for a nonbargaining unit position, "a matter which falls outside the scope of collective bargaining and outside the coverage of the Collective Bargaining Agreement[.]" Id. at 10. The Respondent maintains that an agency should be allowed to "'act at its own peril' when determining whether to provide information in connection with a grievance or potential grievance." Id. at 9. In the Respondent's view, where an agency withholds information requested in connection with a grievance based on a good faith question of arbitrability, the arbitrability of the subject matter of the grievance should be the deciding factor in determining an agency's obligation to provide information under section 7114(b)(4) of the Statute. The Respondent argues, in this regard, that the arbitrability question should be decided "in the context of the ULP process[]" or by an arbitrator. Id. at 22.

Next, the Respondent asserts that the requested information is not within its control. According to the Respondent, "[t]he Agency Merit Promotion process in the regions is completely the responsibility of the Regional Personnel Office[]" and all documents relating to a merit promotion action are maintained solely by the RPO. Id. at 19 n.10.

Finally, the Respondent asserts that the Union "did not indicate to Respondent a willingness to allow for sanitizing the material until the joint stipulation was developed . . . ." Id. at 18-19. According to the Respondent, the release of the information requested by the Union "would be a clearly unwarranted invasion of personal privacy of those employees who had applied for the subject position and who had not consented to such disclosure[.]" Id.

2. Case No. 79-CA-00010

The Respondent argues that the September 29 letter from the Regional Personnel Officer to Louden was not an illegal bypass of the Union because the HHS RPO has no bargaining relationship with the Union. The Respondent also argues that it had no obligation to give the Union a copy of the letter because it pertained to the processing of a grievance under the AGP.

First, the Respondent asserts that the HHS, RPO "does not have a bargaining relationship with AFGE for the SSA bargaining unit, and has no role in the processing of grievances under the Negotiated Grievance Procedure for the AFGE bargaining unit in SSA." Id. at 7.

Second, the Respondent contends that when the Regional Personnel Officer received Louden's September 22, 1989, letter, he "interpreted it as a request for information in connection with a grievance under the Agency Procedure[.]" Id. at 7. According to the Respondent, the Regional Personnel Officer "responded by . . . explaining the Agency Procedure and requested further information from Mr. Louden so that the Agency grievance could be processed []." Id. The Respondent contends that because "Louden did not specify a personal representative for his Agency grievance, the letter was sent directly to him." Id.

Finally, the Respondent argues that an exclusive representative does not have the right to represent employees in an AGP grievance. According to the Respondent, Saul had not been designated as Louden's personal representative in the AGP grievance when the Regional Personnel Officer sent the September 29 letter to Louden and, accordingly, the Regional Personnel Officer had no obligation to provide Saul with a copy of the letter.

IV. Analysis and Conclusions

A. Case No. 79-CA-90694

We find that the Respondents violated section 7116(a) (1), (5) and (8) of the Statute by refusing to provide the Union with information to which it was entitled under section 7114(b)(4) of the Statute.

1. The Requested Information Was Necessary for the Union to Perform its Representational Responsibilities

The Statute establishes a framework of rights and obligations for Federal employees, labor organizations and agencies and provides mechanisms for the enforcement of those rights and obligations. Under section 7114(a) of the Statute, a labor organization which has been accorded exclusive recognition is entitled to "act for, and negotiate collective bargaining agreements" covering, all employees in the unit. Section 7114(b)(4) of the Statute provides that an agency's duty to "negotiate in good faith" includes the obligation to furnish a union, upon request, with data that: (1) is normally maintained by the agency, in the regular course of business; (2) is 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 under section 7114(b)(4) of the Statute the exclusive representative is entitled to information that is necessary to enable it to carry out effectively its representational responsibilities, including information which will assist it in the investigation, evaluation, and processing of a grievance. See, for example, U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1319 (1990) (INS, Border Patrol), petition for review filed sub nom. U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas v. FLRA, No. 90-4960 (5th Cir. Dec. 28, 1990); U.S. Department of the Air Force, Air Force Logistics Command, Sacramento Air Logistics Center, McClellan Air Force Base, California, 37 FLRA 987, 995 (1990) (Sacramento Air Logistics Center).

It is also well established that where a union requests information under section 7114(b)(4) of the Statute, and an agency refuses to furnish the requested information, the agency acts at its peril. If the information requested by the union is found to meet the requirements of section 7114(b)(4) of the Statute, the agency will be found to have violated section 7116(a)(1), (5), and (8) of the Statute by refusing to provide the requested information. See generally, U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990) (Portsmouth), 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). See also, for example, Department of the Air Force, Scott Air Force Base, Illinois, 38 FLRA 410, 421 (1990); U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 38 FLRA 120, 136 (1990) (National Weather Service); U.S. Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 38 FLRA 3, 6-7 (1990).

There is no requirement that information requested under section 7114(b)(4) of the Statute actually be used in a grievance. Further, an agency is required to furnish information concerning nonbargaining unit positions when the information is necessary for the union to effectively fulfill its representational responsibilities. See, for example, Sacramento Air Logistics Center at 995; Department of Defense Dependents Schools, Washington, D.C. and Department of Defense Dependents Schools, Germany Region, 28 FLRA 202, 205 (1987).

In addition, an agency's contention that a potential grievance is not grievable does not relieve an agency from its obligation to furnish requested data. See, for example, INS, Border Patrol, at 1320; Internal Revenue Service, Washington, D.C., and Internal Revenue Service, Omaha District, Omaha, Nebraska, 25 FLRA 181, 185 (1987). We reject, in this regard, the Respondents' assertion that it is necessary to determine whether a grievance, or potential grievance, is grievable before determining whether a respondent is required to furnish the requested information. Instead, consistent with the foregoing principles, it is clear that a grievability determination is not a necessary element of an agency's obligation to provide information in these circumstances.

In this case, the Union requested the Respondents to provide it with all documents pertaining to the filling of Vacancy Announcement X89-89 for the purpose of investigating whether there were grounds for filing grievances on behalf of two bargaining unit employees who were rated ineligible for the vacant position. It is apparent from the Union's request that the Union was requesting the information for the purpose of determining whether the grievants' ratings were inconsistent with the ratings of other applicants. In these circumstances, we find it clear that the requested information was necessary, within the meaning of section 7114(b)(4), for the Union to perform its representational responsibilities under the Statute.

2. The Requested Information Is Normally Maintained and Reasonably Available

We reject the Respondents' contention that the requested documents are not within its control, but are "maintained solely by the RPO." Respondents Brief at 19 n.10. We note that the Respondents stipulated that the information requested by the Union is normally maintained by the Respondents in the regular course of business and is reasonably available and does not constitute guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining. We note also that the Respondents do not dispute the contentions, set forth in the complaint, that: (1) the HHS, Region X Personnel Office is responsible for providing personnel related services for Respondents' employees and (2) the Regional Personnel Officer is "an agent of [the] Respondents." Exhibit 1(h) to Stipulation at 3.

In these circumstances, the fact that the requested information is maintained by the RPO does not relieve the Respondents of the obligation to provide the information under section 7114(b)(4). See, for example, National Weather Service, 38 FLRA at 128-29 (finding that performance appraisals maintained at the NOAA's Western Administrative Service Center were normally maintained by the Respondent National Weather Service); Department of Health and Human Services, Social Security Administration, 36 FLRA 943, 948 (1990) (finding that travel orders and vouchers kept at the HHS, Philadelphia Regional Office were normally maintained by the Respondent SSA).

3. The Requested Information May Be Sanitized

The Union stipulated that it would have accepted the information requested in a sanitized format if it were coded or indexed by individual applicants. Therefore, we find it unnecessary to decide, in this case, whether disclosure of the requested information in an unsanitized form would be prohibited by law, within the meaning of section 7114(b)(4).

We reject the Respondents' argument that they did not violate the Statute when they refused to provide the Union with the requested information because the Union did not indicate that it was willing to accept the information in a sanitized form until the parties developed the joint stipulation. The record establishes that the Respondents refused to provide the requested information to the Union because it pertained to a nonbargaining unit position. The Respondents did not, at any time, indicate to the Union that they were refusing to furnish the information because the Union requested unsanitized information. Moreover, the Respondents have not, at any time, offered to sanitize and correlate the requested information. Instead, the Respondents have asserted, from the Union's initial request throughout the processing of this case, that the Union is not entitled to the requested information because it pertains to a nonbargaining unit position. The Respondents' unlawful refusal to furnish the Union with the requested information has prevented the Union from carrying out its representational responsibilities under the Statute and, thereby, violated the Respondents' obligations under section 7114(b)(4). See INS, Border Patrol at 1324-25.

B. Case No. 79-CA-00010

We find that the Respondents, through their agent, the HHS, Regional X Personnel Officer, violated section 7116(a)(1) and (5) of the Statute by bypassing the Union and dealing directly with a bargaining unit employee concerning a grievance filed under the negotiated grievance procedure and independently violated section 7116(a)(1) of the Statute by interfering with the employee's rights to designate and rely on the Union to process his grievance through the negotiated grievance procedure.

Agencies unlawfully bypass an exclusive representative when they communicate directly with bargaining unit employees concerning grievances, disciplinary actions and other matters relating to the collective bargaining relationship. See, for example, Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 345 (1990) (McClellan Air Force Base). Such conduct constitutes direct dealing with an employee and is violative of section 7116(1) and (5) of the Statute because it interferes with the union's rights under section 7114(a)(1) of the Statute to act for and represent all employees in the bargaining unit. Such conduct also constitutes an independent violation of section 7116(a)(1) of the Statute because it demeans the union and inherently interferes with the rights of employees to designate and rely on the union for representation. See, for example, id.; 438th Air Base Group (MAC) McGuire Air Force Base, New Jersey, 28 FLRA 1112 (1987) (McGuire Air Force Base); Social Security Administration, 16 FLRA 434 (1984).

We reject the Respondent's contention that the September 29 letter, from the Regional Personnel Officer, to Louden, was not an improper bypass of the Union because the Respondents do not have a bargaining relationship with the Union at the regional level. As previously noted, the Regional Personnel Officer serves as the Respondents' agent with respect to personnel related matters involving the Respondents' employees in SSA, Region X. In these circumstances, we conclude that the Respondents are responsible for the acts and conduct of its agent, regardless of the organizational location of its agent. See Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 36 FLRA 41 (1990), petition for review filed sub nom. Department of Justice, Immigration and Naturalization Service v. FLRA, No. 90-4599 (5th Cir. Aug. 14, 1990) (finding the respondent agency responsible for the conduct of an organizational entity, acting as the agent or "representative of the agency," although the organizational entity was not in the same chain of command). See also U.S. Department of Labor, Mine Safety and Health Administration, 35 FLRA 790 (1990).

Second, we reject the Respondents' contention that the Union did not have a right to a copy of the Regional Personnel Officer's September 29 letter because it pertained to the processing of a grievance under the AGP. The record establishes that Louden's September 22 letter pertained to the processing of his grievance under the negotiated grievance procedure. In fact, Louden specifically referred in that letter to his current grievance and noted that Saul was his Union representative. Notwithstanding Louden's specific reference to his pending grievance, the Regional Personnel Officer processed Louden's letter as the first step of an AGP grievance. In addition, when the Union complained that it did not receive a copy of the letter, the Respondents acknowledged that an employee was given "an answer to his grievance[,]" which "should have been delivered to the [Union]." Exhibit 25 to Stipulation at 1-2.

Finally, we conclude that the Regional Personnel Officer's September 29 letter, which informed Louden that he was required to process his grievance under the AGP and requested additional information from him, clearly interfered with the Union's rights to act for and represent Louden and with Louden's rights to designate and rely on the Union for representation. See McClellan Air Force Base; McGuire Air Force Base. Accordingly, based on the foregoing, we find that the Respondents, through their agent, the Regional Personnel Officer, unlawfully bypassed the Union by dealing directly with Louden concerning his grievance in violation of section 7116(a)(1) and (5) of the Statute, and independently violated section 7116(a)(1) of the Statute by interfering with Louden's right to have his grievance processed by the Union under the negotiated grievance procedure. We note, in this regard, that our conclusion that the Respondents violated the Statute is not based on a finding that the Respondents acted in bad faith in communicating to Louden the Respondents' belief that his grievance could be processed only under the AGP. Instead, noting that the Respondents were aware that Louden was represented by the Union in his grievance under the negotiated procedure, we find that the Respondents acted at their peril in communicating directly to Louden.

V. Summary

In this case, we conclude that the information requested by the Union is normally maintained by the Respondents in the regular course of business, is reasonably available, and is necessary for the Union to determine whether to process grievances on behalf of employees who were rated ineligible for the vacant position. We also conclude that release of the requested information is not prohibited by law and does not constitute guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining. Therefore, the Respondents were required by 7114(b)(4) of the Statute to supply the requested information to the Union and Respondents' failure to do so violated section 7116(a)(1), (5), and (8) of the Statute. Accordingly, we will direct the Respondents to cease and desist from their violation of the Statute and to supply the requested information, in a sanitized and correlated form.

Further, we conclude that the Respondents, through their agent, the HHS, Region X Personnel Officer: (1) violated section 7116(a)(1) and (5) of the Statute by bypassing the Union and dealing directly with a bargaining unit employee concerning a grievance filed under the negotiated griev