45:0120(12)CA - - Air Force, Scott AFB, Illinois and NAGE Local R7-23 - - 1992 FLRAdec CA - - v45 p120
[ v45 p120 ]
The decision of the Authority follows:
45 FLRA No. 12
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in Department of the Air Force, Scott Air Force Base v. FLRA, 956 F.2d 1223 (D.C. Cir. 1992) (Scott Air Force Base v. FLRA). 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 refusing to provide the Union with documentation concerning disciplinary action taken against a supervisor who allegedly used physical force against a bargaining unit employee. In a motion filed on May 11, 1992, the Respondent requested that the Authority remand the case to the Administrative Law Judge for the taking of additional evidence. For the following reasons, we conclude that the complaint must be remanded to the Administrative Law Judge for further proceedings.
A bargaining unit employee submitted a grievance concerning the alleged use of physical force against him by his supervisor. The grievant requested as a remedy that the supervisor be examined for medical fitness and that the supervisor receive appropriate discipline. Under the parties' collective bargaining agreement questions as to the grievability or arbitrability of a particular matter are referred to arbitration. The Union processed the grievance through each step of the negotiated grievance procedure up to and including the selection of an arbitrator. The Respondent denied the grievance at the final step of the grievance procedure prior to arbitration, claiming that it had taken appropriate action regarding the supervisor involved in the grievance.
After the Respondent denied the grievance at the third step, the Union requested from the Respondent "'all documentation concerning any disciplinary action taken against" the grievant's supervisor "'as referenced in'" the Respondent's denial of the grievance. Department of the Air Force, Scott Air Force Base, Illinois, 38 FLRA 410, 411 (1990). The Union stated that it needed the information "'in order to prepare the case for arbitration, specifically in regards (sic) to the remedial actions requested.'" Id. The Union further stated that it needed the information "'to assess the need to pursue arbitration.'" Id. The Respondent refused to provide the requested information because "'it identified the disciplined supervisor by name.'" Id. at 412. The Union then filed the unfair labor practice charge in this case, and the parties agreed to hold the arbitration proceeding in abeyance pending the outcome of the case.
After a hearing before an Administrative Law Judge, the Judge found that the Union was entitled to the requested information under section 7114(b)(4) of the Statute. The Judge interpreted the Union's request to encompass only management's final decision letter on any proposed discipline of the grievant's supervisor, or its equivalent. The Judge concluded that the information was necessary within the meaning of section 7114(b)(4) because the Union needed the information to evaluate the grievance, to decide whether to pursue it, and to prepare to represent the grievant in any further proceedings. The Judge further concluded that disclosure of the information was not prohibited by the Privacy Act, 5 U.S.C. § 552a. Accordingly, the Judge concluded that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the information.
Before the Authority, the Respondent argued that the Union did not need the requested information to pursue a legitimate purpose and that the release of the information was prohibited by law. The Authority concluded that the Union was entitled under section 7114(b)(4) to be furnished with management's final decision letter, or its equivalent, on any proposed discipline of the grievant's supervisor.
The Authority found that the information was necessary within the meaning of section 7114(b)(4) based on Authority precedent holding that a union has a right to information necessary for it to effectively evaluate and process a grievance. The Authority rejected the Respondent's argument that the information was not necessary because the grievance sought a remedy that an arbitrator cannot lawfully grant. The Authority viewed the bases for a determination of necessity under section 7114(b)(4) as presenting issues that are independent of the issue of the appropriateness of the relief requested by the grievance. In this regard, the Authority noted that the arbitrator had not yet had an opportunity to determine the remedy, if any, to be granted.
The Authority also concluded that disclosure was not prohibited by the Privacy Act, finding that disclosure would not constitute a clearly unwarranted invasion of personal privacy under exemption (b)(6) of the Freedom of Information Act, 5 U.S.C. § 552(b)(6). In reaching this conclusion, the Authority acknowledged that employees have a privacy interest in disciplinary and adverse actions taken against them, but concluded that, on the facts of this case, that interest is less compelling than the strong public interest reflected in the Union's need to perform its representational functions. In this regard, the Authority noted the following: when it made the information request the Union already knew that some disciplinary action had been taken against the supervisor; dissemination of the information was unlikely to go beyond those persons directly concerned with the arbitration proceeding; and the request involved only one supervisor and was made in furtherance of a specific grievance. The Authority also concluded that disclosure of the requested information is authorized as a routine use under exception (b)(3) of the Privacy Act. Accordingly, the Authority found that the Respondent violated section 7116(1), (5), and (8) of the Statute by refusing to furnish the requested information, and ordered that the Respondent furnish the final decision letter to the Union.
In Scott Air Force Base v. FLRA, the court remanded this case to the Authority so that the Authority could reconsider its determination that disclosure of the information was necessary, in light of National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB v. FLRA). In NLRB v. FLRA, the court concluded that an agency need not disclose certain requested information to a union unless the union has a "'particularized need' for such information." Id. at 534. The court also held that the Statute requires consideration of the "countervailing interests" against disclosure. Id. at 531. In Scott Air Force Base v. FLRA, the court held that the Authority had not considered such countervailing interests in reaching its determination that disclosure was necessary under section 7114(b)(4). The court instructed the Authority, on remand, to "consider the [A]gency's interest, if any, in protecting the secrecy of its disciplinary decisions[,]" and "the supervisor's privacy interest against disclosing the letter." 956 F.2d at 1224-25. Finally, the court advised the Authority to consider also "the interest in postponing disclosure until the grievability question is resolved." Id. at 1225. The court expressly did not rule on the Authority's Privacy Act analysis.
III. Respondent's Motion to Remand
The Respondent requests that the Authority remand this case to the Judge to allow the Judge to take additional evidence in the areas set out by the court. In particular, the Respondent contends that it is necessary to examine whether the Union has a continuing need for the information; the current status of the underlying grievance; and the confidentiality and privacy interests, which, according to the Respondent, may have changed significantly since the 1988 hearing in this case. The Respondent states that it is prepared "to supplement the record in all areas identified by the Court[,]" including the status of the underlying grievance, the needs for confidentiality for supervisors' disciplinary records, and the p