43:1221(98)CA - - FAA, Aviation Standards National Field Office, Mike Monroney Aeronautical Center, OK City, OK and NFFE Local 2097 - - 1992 FLRAdec CA - - v43 p1221
[ v43 p1221 ]
The decision of the Authority follows:
43 FLRA No. 98
FEDERAL LABOR RELATIONS AUTHORITY
FEDERAL AVIATION ADMINISTRATION
AVIATION STANDARDS NATIONAL FIELD OFFICE
MIKE MONRONEY AERONAUTICAL CENTER
OKLAHOMA CITY, OKLAHOMA
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
DECISION AND ORDER
January 29, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This 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 complaint alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing and refusing to furnish the Union with the names of members of the Technical Evaluation Team, as requested by the Union under section 7114(b)(4) of the Statute, and violated section 7116(a)(1) and (5) of the Statute by failing to comply with a settlement agreement in which it agreed to provide the names to the Union. The General Counsel and the Respondent filed briefs with the Authority. For the reasons stated below, we find that the Respondent violated section 7116(a)(1), (5), and (8) by refusing to furnish the requested information, but did not violate the Statute by failing to comply with the settlement agreement.
The Union is the exclusive representative of a bargaining unit of certain of the Respondent's employees, including nonprofessional employees at the AVN Aircraft Maintenance and Engineering Division, AVN-300 (AVN-300) in Oklahoma City, Oklahoma. The Union and the Respondent are parties to a collective bargaining agreement that was effective October 27, 1989.
On or before July 1988 the Respondent began conducting a contracting out study at AVN-300, pursuant to OMB Circular No. A-76, to determine whether it would be cost effective to contract out certain operations of AVN-300. Pursuant to FAA Order 4405.10B (Order), the Respondent established a Source Evaluation Board (SEB) to evaluate contractor proposals and to provide the FAA Administrator with an assessment of such proposals. Although an agent of the Respondent disclosed the identities of SEB members to its employees in July 1988, the Respondent maintains that this disclosure was contrary to the Order. Also pursuant to the Order, the Respondent established a Technical Evaluation Team (TET) to assist the SEB by developing a plan for evaluating contractor proposals. The Respondent did not give notice to the Union before selecting the members of the TET, which includes bargaining unit employees. Performance of TET duties is not a job element for which employees are appraised in their performance appraisals.
In a letter to the Manager of AVN-300, dated December 6, 1988, the Union requested that the Respondent provide it with a list of the members of the TET, including the name of the Chairperson of the TET. On December 22, 1988, the Union requested the same information from the Contracting Officer at the AVN facility. On January 3, 1989, the Respondent refused to furnish the Union with this information and has continued to refuse to do so.
On July 31, 1989, the Regional Director of the Authority's Denver regional office approved a settlement agreement in this case, executed by the Respondent and the Union, in which the Respondent agreed to take certain affirmative action, including providing the Union with the names of members and the Chairperson of the TET. However, as the Respondent failed to provide the Union with these names, the Regional Director withdrew approval of the settlement agreement on February 21, 1990.
With regard to whether the information is necessary within the meaning of section 7114(b)(4)(B) of the Statute, the Union raised a number of contentions. First, the Union maintained that it needed the information to determine whether to request bargaining with the Respondent over the effect on the workload and performance requirements both of those unit employees who are members of the TET and of their coworkers who might be affected by the absence from work of TET members. The Union contended that it needed the names of those individuals to investigate the nature and extent of the adverse impact experienced by unit employees because of the selection of unit employees to serve on the TET. The Union also maintained that it needed the names of TET members to evaluate the propriety of appraisals issued to them. It further contended that it needed the information to investigate whether TET members have conflicts of interest that, under the Order, would preclude their membership on the TET.(*) The Union maintained that at the time it requested this information it was attempting to determine whether to file an unfair labor practice charge or a grievance against the Respondent for allegedly threatening not to select a Union official as a member of the TET due to a potential conflict of interest. Finally, it claimed that the names were necessary for it to determine whether to file an unfair labor practice charge against the Respondent on the theory that the TET meetings constitute formal discussions within the meaning of section 7114(a)(2)(A) of the Statute.
The Respondent contends that the requested information is not necessary because the Union does not need to know the identity of individual members of the TET in order to engage in collective bargaining.
The parties have stipulated that the requested information is normally maintained by the Respondent in the regular course of business; that it is reasonably available; that it does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining; and that the release of the information is not prohibited by law.
III. Positions of the Parties
The Respondent first argues that the requested names were not necessary for collective bargaining purposes. The Respondent states that there is no evidence that the selection of an employee as a TET member entailed any loss of grade or pay, any change in work hours, or any effect on the workload and performance requirements of any other employees. Therefore, the Respondent argues, the TET assignments will have no more than a de minimis impact and, consequently, no obligation to bargain will arise.
Next, the Respondent argues that the Union does not need the names to determine whether proper allowances and adjustments were made to the performance appraisals of TET members. The Respondent contends that employees are not appraised on the performance of TET duties, and that the Union can address grievances concerning performance appraisals if and when employees receive appraisals with which they are not satisfied.
Further, the Respondent contends that the issue of conflicts of interest under the Order is not a condition of employment subject to collective bargaining because the Order places a limitation "on management's prerogative to assign certain employees to a SEB or TET, not on any employee's right to engage in any activities." Respondent's brief at 5 (emphasis in original). In this regard, the Respondent claims that "[e]mployees have no inherent right to participate on a TET" and that disqualification from serving on a TET has no adverse impact on anyone. Id. As the matter is not subject to collective bargaining, the Respondent asserts that it cannot serve as a basis for disclosure of members' names under section 7114(b)(4)(B) of the Statute.
The Respondent also argues that the names were not necessary for the Union to determine whether to file an unfair labor practice charge concerning whether the TET meetings constitute formal discussions under the Statute. It contends that the function of the TET is to select a source for the procurement of products or services, and not to set policy on personnel matters. The Respondent further argues that the TET members could not help the Union with any investigation because they are prohibited by the Order from discussing SEB business with anyone unless such disclosure is authorized by the Source Selection Officer.
Additionally, the Respondent argues that even if the identities of the TET members were relevant to some legitimate collective bargaining purpose, its failure to disclose the names would not violate the Statute because the Respondent's interests "in maintaining the confidentiality of the source selection process outweigh the interest of the union in knowing the participants." Id. at 10. Citing various sections of Title 48 of the Code of Federal Regulations and the regulations contained in the Order and its appendix, the Respondent maintains that "the best way to minimize the potential for corruption in the source selection process is to restrict to the maximum extent possible any dissemination of information of the operations of SEB's and teams such as the TET." Id. at 9. The Respondent argues that this includes protecting the identities of the participants on the TET because "malefactors cannot attempt to influence the decisions of contracting officials if they don't even know who they are." Id. The Respondent contends that the Union is an interested party with regard to contracting out decisions that could affect employees whom it represents. The Respondent suggests that the Union could seek other types of information that would allow it to address its concerns without knowing the identities of TET members.
Finally, the Respondent maintains that although it has not complied with all of the terms of the settlement agreement in this case, that does not provide a legal basis for finding an independent violation of the Statute.
B. General Counsel
The General Counsel argues that the requested names are necessary for the Union to discharge its representational functions. The General Counsel maintains that the Authority has given a broad reading to section 7114(b)(4) of the Statute and has repeatedly refused to limit disclosure to data necessary only for collective bargaining.
The General Counsel argues that the Union had a legitimate interest in determining the adverse impact on unit employees and their co-workers caused by the assignment of the employees to the TET, and that the Union needed the names of the members so that it could contact them to determine whether there had been a sufficient adverse impact to warrant bargaining. The General Counsel further argues that without the names the Union could not ascertain "whether TET members were having problems with their performance appraisals due to their performance of TET duties, whether its Union official was being treated differently from other employees in being excluded from the TET for a conflict of interest, or whether TET meetings involved formal discussions over which unfair labor practice charges should be filed." General Counsel's brief at 9. The General Counsel contends that, without the requested information, the Union could not conduct an investigation in order to make an informed decision on the proper course of action with regard to these matters. In support of this argument, the General Counsel cites a number of Authority decisions regarding disclosure of data that was deemed necessary to determine whether to undertake various representational actions, including the filing of an unfair labor practice charge and the investigation of potential grievances.
The General Counsel argues that the Respondent's failure to comply with the terms and conditions of the settlement agreement constitutes a violation of section 7116(a)(1) and (5) of the Statute, citing various Authority decisions as illustrative of the proposition that "the failure to comply with a settlement agreement approved by one of the Authority's Regional Directors is violative of the Statute[.]" Id. at 12.
IV. Analysis and Conclusions
A. The Respondent Violated the Statute by Failing and Refusing to Provide the Requested Information
Section 7114(b)(4)(B) of the Statute provides that an agency must furnish a union, upon request, with data that, as relevant here, is "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining[.]" The Authority has held, and the courts have affirmed, that section 7114(b)(4) encompasses information necessary for an exclusive representative to perform effectively the full range of its representational responsibilities. See, for example, American Federation of Government Employees, Local 1345, AFL-CIO v. FLRA, 793 F.2d 1360, 1364 (D.C. Cir. 1986) (AFGE v. FLRA). See also, U.S. Department of Transportation, Federal Aviation Administration, National Aviation Support Facility, Atlantic City Airport, New Jersey, 43 FLRA 191, 196-97 (1991) (transcript of Equal Employment Opportunity Commission hearing found necessary to enable union to process grievance); United States Department of Veterans Affairs, Washington, D.C. and Veterans Administration Medical Center, Amarillo, Texas, 42 FLRA 333, 342-44 (1991) (VAMC, Amarillo), petition for review filed sub nom. U.S. Department of Veterans Affairs, Washington, D.C., U.S. Department of Veterans Affairs Medical Center, Amarillo, Texas v. FLRA, No. 91-1578 (D.C. Cir. Nov. 25, 1991) (minutes of monthly staff meetings found necessary to enable union to determine whether to file an unfair labor practice alleging that it was denied the opportunity to be present at formal discussions under section 7114(a)(2)(A) of the Statute); U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 38 FLRA 120, 130-31 (1990), application for enforcement filed sub nom. FLRA v. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, No. 91-1175 (D.C. Cir. April 12, 1991) (names and duty stations of employees receiving certain specified ratings found necessary to enable union to monitor the performance appraisal system); U.S. Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 38 FLRA 3, 6-7 (1990) (copies of portions of requested laws and regulations found necessary to enable union to prepare for negotiations).
In this case the parties stipulated that the Union requested the information for various purposes, including: (1) to determine whether to request bargaining with the Respondent over the effect on the bargaining unit of the selection of unit employees as TET members; (2) to evaluate the propriety of appraisals issued to TET members; (3) to investigate whether employee-TET members had disqualifying conflicts of interest in order to determine whether to file an unfair labor practice charge or a grievance based on the alleged nonselection of a Union official to the TET due to a potential conflict of interest; and (4) to contact TET members to determine whether the TET meetings constituted formal discussions under section 7114(a)(2)(A) of the Statute prior to deciding whether to file an unfair labor practice charge against the Respondent for failing to give the Union an opportunity to be present at such meetings, as required by the Statute.
We conclude that the Union requested the information for legitimate representational functions. As set forth above, the Authority has consistently required the disclosure of information for such purposes as proffered by the Union here: preparing for negotiations; monitoring the collective bargaining agreement; and determining whether to file unfair labor practice charges or grievances. Based on our case precedent, we believe that the information is clearly necessary under the established standards for interpreting section 7114(b)(4) of the Statute.
More particularly, we initially conclude that the requested information would assist the Union in determining both whether it should request bargaining over the effect on bargaining unit employees of the selection from the unit of TET members and, if so, what the scope of that bargaining should be. With regard to the Agency's argument that the Agency has no obligation to bargain with the Union over the selection of unit employees to the TET because it has not been shown that the impact on the employees has been more than de minimis, we believe that this contention begs the question. It is exactly for this reason -- to determine the extent of the effect, if any, on the employees whom it represents -- that the Union seeks the information.
Similarly, we reject the Respondent's argument that the Union does not need to know the names of the TET members in order to evaluate the propriety of their appraisals because "[p]erformance of TET duties is not a job element for which employees are appraised in their performance appraisals." Respondent's brief at 4. The Union cannot be certain that in fact the appraisals are not affected by TET membership unless it has access to those appraisals. If the Union concluded that the evidence suggested that there was such an effect, it might consider filing a grievance precisely because employees are not supposed to be appraised on their performance of TET duties. Under Authority law, arbitrators have the authority to determine whether management has applied established elements and standards consistent with law, regulation or a properly negotiated provision of a collective bargaining agreement. U.S. Department of Health and Human Services, Social Security Administration and American Federation of Government Employees, Local 1122, 34 FLRA 323, 327 (1990). Accordingly, it is clear that the Union is seeking the information in part to determine whether to pursue a potential grievance.
Finally, we conclude that the Union needs the information in order to determine whether to file unfair labor practice charges. With regard to its concern that a Union official was unlawfully denied membership on the TET because of an alleged potential conflict of interest, the Union would have no way to uncover information concerning any similar conflicts involving current TET members unless it has access to those individuals. Similarly, it would have no way to determine whether the TET meetings constitute formal discussions in which it has a statutory right to participate if it cannot contact individuals who attend the meetings. We reject the Respondent's arguments that it is clear from the Order that the TET meetings are not formal discussions under section 7114(a)(2)(A) of the Statute and that, in any event, the TET members could not assist the Union in its investigation because they are not authorized to disclose any information related to the source selection proceedings. Although the Respondent may be correct in asserting that the purpose and procedures of the SEB and the TET have no relationship to personnel matters, it is possible that talks with TET members may disclose that, in practice, discussions concerning personnel matters occur during TET meetings. If this were the case, the TET members could discuss aspects of the meetings relating to personnel matters without disclosing "the source evaluation proceedings . . . in such a way as [ ] to reveal specific contractor, cost, or evaluation information[,]" which the Order specifically prohibits. Appendix to the Order, Chapter III, 7.a.
With regard to information requested to assist a union in investigating whether to file an unfair labor practice charge or a grievance, we note that it is the union, and not the Authority, that must determine whether the potential charge or grievance is meritorious. See, for example, VAMC, Amarillo, 42 FLRA at 344 (in finding that the union had a right to obtain the minutes of staff meetings to determine whether to file an unfair labor practice charge alleging a denial of its right to participate in formal discussions, Authority declined to address whether the staff meetings constituted formal discussions); AFGE v. FLRA, 793 F.2d at 1364 ("It is well-settled that section 7114 creates a duty to provide information that would enable the [u]nion to process a grievance or to determine whether or not to file a grievance.").
The Respondent argues that even if the Union has a legitimate interest in obtaining the names of the TET members, the Respondent's interests in protecting the confidentiality and integrity of the source selection process outweigh the Union's interest. We disagree. The Respondent maintains that it refused to supply the information in order to "minimize the potential for corruption in the source selection process . . . ." Respondent's brief at 9. It is concerned that, because the Union is an "interested party," its possession of the names of the TET members would lead to attempts "to influence the decisions of contracting officials . . . ." Id. We find no evidence to substantiate the Respondent's fears. Rather, the evidence establishes that the TET members play only an auxiliary role in the source selection process that could not lead to the type of corruption that concerns the Respondent. Significantly, Chapter III, 5.c of the appendix to the Order states:
Access to Information. Since team members and advisors are to be utilized in discrete areas, they should not be given access to information concerning overall Board activities. Team members, who are not SEB members, and advisors shall not attend Board meetings unless specifically requested by the SEB.
Further, there is nothing in the record to indicate that the Union seeks the requested information for purposes other than those set forth in the stipulation and no reason to assume that the Union would use the information to corrupt the source selection process, as suggested by the Respondent. We will not deny otherwise appropriate information to the Union merely because it may be an "interested party" in the underlying contracting out activities. See U.S. Department of Justice, Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery, Pennsylvania, 40 FLRA 449, 458 (1991), petition for review filed sub nom. U.S. Department of Justice, Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery, Pennsylvania v. FLRA, No. 91-1293 (D.C. Cir. June 21, 1991, D.C. Cir.) (in the absence of evidence that the union would use requested crediting plan information for any purpose other than to evaluate a grievance, Authority concluded that disclosure would not destroy the integrity of the agency's selection process). Therefore, we reject the Respondent's arguments that providing the names of the TET members would jeopardize the confidentiality of the source selection process or in any way contravene the requirements of the Order and the Federal acquisition procedures contained in Title 48 of the Code of Federal Regulations.
Accordingly, we conclude that the requested information is necessary within the meaning of section 7114(b)(4)(B) of the Statute. As the parties have stipulated that the information meets all the other requirements of section 7114(b)(4), we find that the Respondent violated section 7116(a)(1), (5) and (8) by failing and refusing to provide it to the Union on request.
B. The Respondent Did Not Violate the Statute by Failing to Comply with the Settlement Agreement
Section 2423.11(b)(1) of the Authority's Rules and Regulations permits the parties to resolve a potential unfair labor practice case prior to the issuance of a complaint by entering into an informal settlement agreement. The same procedure is followed if a complaint has already issued. 5 C.F.R. § 2423.11(c). If the Regional Director with whom the unfair labor practice charge was filed approves the settlement agreement and the respondent complies with its terms, "no further action shall be taken in the case." 5 C.F.R. § 2423.11(b)(1). If the respondent fails to comply with the settlement agreement, however, the Regional Director may "institute further proceedings." Id.
Typically, if a respondent does not comply with a settlement agreement that was entered into after a complaint was issued, the Regional Director will reinstate the original complaint. See, for example, Department of Health and Human Services, Social Security Administration and Social Security Administration, Field Operations, New York Region, 24 FLRA 94 (1986) (SSA); Department of the Treasury, United States Customs Service, Region IV, Miami, Florida, 19 FLRA 421, 422 (1985) (Customs Service). The respondent may then bring the issue to the Authority of whether the settlement agreement was breached, and, if so, whether the respondent violated the Statute as alleged in the original complaint. See SSA; Customs Service (Authority found that settlement agreements had not been violated and dismissed the reinstated complaints). There is no Authority precedent that finds the violation of a settlement agreement that has been approved by a Regional Director of the Authority to be an independent violation of the Statute. Such a settlement agreement must conform to the requirements established by the Regional Director, and, therefore, is not wholly a product of negotiations between the parties to the collective bargaining process. Consequently, noncompliance with such an agreement does not give rise to a violation of either section 7116(a)(5) or section 7116(b)(5) of the Statute. Compare Great Lakes Program Service Center, Social Security Administration, Department of Health and Human Services, Chicago, Illinois, 9 FLRA 499 (1982) (respondent violated section 7116(a)(1) and (5) of the Statute by repudiating a memorandum of understanding negotiated between an authorized representative of the respondent and the charging party in settlement of an unfair labor practice charge). See also American Federation of Government Employees, Local 1923, AFL-CIO, 20 FLRA 749 (1985) (union violated section 7116(b)(1) and (5) by repudiating a settlement agreement negotiated with the agency in settlement of a grievance).
Our disposition of this allegation should in no way be viewed as condonation of a respondent's failure to comply with a settlement agreement to which it has voluntarily agreed. At the least, such conduct causes Authority regional office personnel to waste the considerable amounts of time required to negotiate and monitor settlement agreements. More significantly, repeated refusals to abide by settlement agreements could constitute an abuse of our processes. If the General Counsel believes that a respondent is unlikely to comply with a settlement agreement, the General Counsel may safeguard the Authority's processes by requiring that the parties enter into a formal settlement agreement that is enforceable in federal court. 5 C.F.R. § 2423.11(c). Of course, if the respondent engages in additional violative conduct when it repudiates any settlement agreement, that conduct can form the basis of an additional unfair labor practice allegation. We conclude here today only that the failure to comply with an informal settlement agreement entered into pursuant to section 2423.11 of our Rules and Regulations, without more, does not constitute an independent violation of the Statute.
Accordingly, we will dismiss the portion of the complaint that alleges a violation of the Statute based on the Respondent's failure to comply with the settlement agreement.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Federal Aviation Administration, Aviation Standards National Field Office, Mike Monroney Aeronautical Center, Oklahoma City, Oklahoma shall:
1. Cease and desist from:
(a) Failing and refusing to furnish the National Federation of Federal Employees, Local 2097, the representative of certain of its employees, the names of the members and the chairperson of the Technical Evaluation Team.
(b) In any like or related manner, interfering with, restraining, or coercing their employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Upon request, furnish the National Federation of Federal Employees, Local 2097, the names of the members and the chairperson of the Technical Evaluation Team.
(b) Post at its AVN Aircraft Maintenance and Engineering Division, AVN-300, located at the Mike Monroney Aeronautical Center, Oklahoma City, Oklahoma, 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 Manager, AVN-300, Aircraft Maintenance and Engineering Division and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to their respective employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Denver Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
The portion of the complaint alleging that the Respondent violated the Statute by failing to comply with a settlement agreement is dismissed.
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 National Federation of Federal Employees, Local 2097, the representative of certain of our employees, the names of the members and the chairperson of the Technical Evaluation Team.
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.
WE WILL, upon request, furnish the National Federation of Federal Employees, Local 2097, the names of the members and the chairperson of the Technical Evaluation Team.
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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Denver, Colorado Regional Office, whose address is: 1244 Speer Boulevard, Suite 100, Denver, Colorado 80204, and wh