52:0629(60)CA - - Bureau of Indian Affairs, Uintah and Ouray Area Office, Ft. Duchesne, Utah and NFFE, Council of Consolidated Bureau of Indian Affairs Locals - - 1996 FLRAdec CA - - v52 p629



[ v52 p629 ]
52:0629(60)CA
The decision of the Authority follows:


52 FLRA No. 60

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

BUREAU OF INDIAN AFFAIRS

UINTAH & OURAY AREA OFFICE

FT. DUCHESNE, UTAH

(Respondent)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

COUNCIL OF CONSOLIDATED

BUREAU OF INDIAN AFFAIRS LOCALS

(Charging Party/Union)

DE-CA-40757

_____

DECISION AND ORDER

November 26, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.(1)

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 Regulations. The parties have agreed that no material issue of fact exists. The Department of the Interior (the Agency) filed a brief on behalf of the Respondent. The General Counsel also filed a brief.

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 a list containing the dates of birth (DOBs) of seven employees requested under section 7114(b)(4) of the Statute. For the reasons stated below, we find that the Respondent violated the Statute, as alleged.

II. Stipulation

An Engineering Equipment Operator damaged a Government vehicle while he was allegedly driving under the influence of alcohol (DUI). The Respondent terminated him "for misuse of a [G]overnment vehicle while on duty, endangering the safety of others, including [his] own, damaging [G]overnment property through negligence, misapplication of time and conduct unbecoming a Federal employee." Stipulation, Exhibit 7 at 1. The Union filed a grievance challenging the "termination from employment due to an incident of damaging a [G]overnment vehicle, [where] the employee's consumption of alcohol was involved[,]" and the Respondent denied the grievance. Stipulation, para. 16 (referencing Stipulation, Exhibit 8). Prior to the filing of the grievance, the Respondent had provided the Union with information stating that in a 5-year period there were 31 reported accidents, including the grievant's. Of those 31 accidents, 21 had accident reports and only the grievant's accident had resulted in disciplinary action. See Stipulation, Exhibit 8 at 3-4. The Union submitted the matter to arbitration and an arbitration hearing was scheduled for August 4-5, 1994.(2)

On July 21, in preparation for the hearing, the Union requested that the Respondent provide it with the DOBs of seven employees who "the Union believed had DUI convictions and suspended or revoked drivers licenses," but had not been terminated from their employment by the Respondent. Stipulation, para. 18-19. The Union requested these DOBs because it "had reason to believe that other [Bureau of Indian Affairs] employees with DUI convictions had not been terminated under similar circumstances as those involving" the grievant (Stipulation, para. 17) and it had learned that, in order to obtain the state driver license records from Utah of similarly situated employees, it had to provide the state with the drivers' names and their DOBs. The parties also stipulated that the Union asserted that it needed the requested information "in order to ascertain whether or not [the grievant's] termination was excessive given the status of the other employees' driv[ing] records and discipline after accidents involving [G]overnment vehicles." Id. at para. 21. In addition, the parties stipulated that the requested information does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining, and is contained within the Office of Personnel Management's (OPM's) system of records governing the official personnel files of Federal employees.

On July 25, the Respondent denied the Union's request for the DOBs.(3) The Union proceeded to arbitration without the requested information. The record does not disclose why the Union proceeded to arbitration without the requested information. On December 20, the arbitrator issued an award sustaining the grievant's removal. In his award, the arbitrator stated that the Union had produced no proof that similarly situated employees had, unlike the grievant, escaped discipline despite being involved in alcohol-related accidents with Government vehicles. In February 1995, after some settlement discussions and upon the request of the Respondent, three of the seven employees consented to the release of their DOBs, and the Respondent furnished that information to the Union.

III. Positions of the Parties

A. Whether Release of the Information Is Prohibited by the Privacy Act

1. General Counsel

The General Counsel claims that the release of the requested information is not prohibited by the Privacy Act for two reasons.(4)

First, the General Counsel asserts that the requested information is releasable as a routine use under routine use "j" of the system of records known as OPM/GOVT-1. According to the General Counsel, a Federal employee's date of birth is defined as "identifying information" contained in OPM/GOVT-1, and the Union is entitled to the requested information under routine use "j" because the information is relevant and necessary to the Union's representational responsibilities concerning the grievant's termination and the subsequent grievance arbitration.

Second, the General Counsel contends that release of the employees' DOBs would not constitute a clearly unwarranted invasion of personal privacy within the meaning of FOIA Exemption 6 and, therefore, would not violate the Privacy Act.

2. Respondent

The Respondent claims that the release of the requested information is prohibited by the Privacy Act.

With respect to the routine use exception, the Respondent contends that the requested DOBs are not relevant and necessary for the Union to prosecute the grievance. The Respondent asserts that the requested information "is completely irrelevant" to the grievance because, "[a]lthough the supporting evidence cites the fact that the arresting officers suspected" that the grievant was DUI at the time of his accident, "that was not the reason for his removal." Respondent's Brief at 28 (emphasis in the original). Rather, the Respondent claims that the grievant was removed for many other reasons. Further, the Respondent claims that the Union failed, at the time of its request, to articulate any facts or reasonable basis for which it needed the DOBs. In this regard, the Respondent contends that the Authority must evaluate the relevance and necessity of the requested information as of the time of the request and the denial of the request, and should not consider the subsequent arbitrator's award in determining relevance and necessity. The Respondent asserts that even if the award is considered, it does not demonstrate that the requested information is relevant and necessary because the reasons for the grievant's removal "go far beyond just involvement with alcohol while driving." Id. at 31. The Respondent also asserts that the Union's request was based on mere speculation and "is more in the nature of a 'fishing expedition . . . .'" Id. at 19 (citation omitted). Additionally, the Respondent asserts that the DOBs are not necessary and relevant because the Union had "alternative, less intrusive, sources of information" which it could have used in seeking to mitigate the grievant's termination. Id. at 27 n.7 (citing Federal Personnel Manual (FPM) Letter 711-164).

With respect to FOIA Exemption 6, the Respondent asserts that disclosure of the requested information would constitute a clearly unwarranted invasion of personal privacy and, therefore, would violate the Privacy Act.

B. Whether the Information Is Necessary Within the Meaning of Section 7114(b)(4) of the Statute

1. General Counsel

The General Counsel contends that the requested information is necessary within the meaning of section 7114(b)(4) of the Statute in order to ascertain whether the grievant's termination was excessive in light of the driving records of other employees involved in alcohol-related accidents with Government vehicles. Noting the arbitrator's statement that the Union had produced no proof that similarly situated employees had, unlike the grievant, escaped discipline despite being involved in alcohol-related accidents with Government vehicles, the General Counsel contends that "[t]hat fact alone demonstrates that the Union needed the requested information to properly process the grievance." General Counsel's Brief at 5. Further, noting that the Respondent had informed the Union that in a 5-year period there had been 30 other accidents involving Government vehicles, including 20 involving damage to Government property, yet no other employee had received any discipline, the General Counsel asserts that only the Utah driving records would reveal whether alcohol had been involved in the accidents involving the employees whose DOBs the Union had requested.

The General Counsel further contends that the requested information was necessary for the Union to properly fulfill its representational duty because the information would have allowed the Union either to prove to the arbitrator that the grievant's removal was excessive, or to determine "whether to settle, how to settle prior to arbitration, or whether to proceed to arbitration at all." Id. at 6. According to the General Counsel, the Respondent's failure to provide the DOBs of the requested employees "contributed to either an unjust result in the arbitration or to unnecessary expense for both parties and the public at large." Id. at 6-7.

2. Respondent

The Respondent asserts that the requested information is not necessary within the meaning of section 7114(b)(4) because the Union has not demonstrated that it had a particularized need for the DOBs of each of the seven employees. According to the Respondent, the Union asserted in the stipulation, without any factual basis, that it had reason to believe that the seven named employees had DUI convictions but had not been terminated from employment. Citing Department of the Treasury, United States Customs Service Region IV, Miami, Florida, 18 FLRA 400, 402-03 (1985) (Customs Service), the Respondent also claims that inasmuch as one of the seven named employees is the Respondent's Superintendent and is, therefore, subject to a different line of supervisory authority than unit employees, his DOB is not necessary in any event.

IV. Analysis and Conclusions

A. The Parties Are Bound by Their Stipulation of Facts

This case is before us based on a stipulation of facts by the parties. Among other things, the parties stipulated that "[t]here is no other agreement of any kind which varies, alters, or adds to [their s]tipulation of [f]acts"; however, neither "party, by entering this [s]tipulation, waives its right to raise objections on brief to the relevance, materiality or necessity of any stipulated fact." Stipulation, para. 26. In its brief, the Respondent attempts to refute several of the facts to which the parties have stipulated. Because the parties have agreed in their stipulation to the facts set forth therein, we find that the Respondent is bound by the facts as stipulated and may not subsequently attempt to vary, alter, or add to those facts.

B. The Requested Information Is Disclosable to the Union as a Routine Use Under Section 552a(b)(3) of the Privacy Act

OPM maintains general personnel records, which include the DOBs of Federal employees, in the system of records known as OPM/GOVT-1. OPM's routine use statement governing OPM/GOVT-1 provides, as routine use "j," that records may be disclosed "to officials of labor organizations recognized under 5 U.S.C. chapter 71 when relevant and necessary to their duties of exclusive representation . . . ." 57 Fed. Reg. 35706 (Aug. 10, 1992). Accordingly, to determine whether the routine use exception applies to the requested information contained in OPM/GOVT-1, we must decide whether the requested information is "relevant and necessary" within the meaning of routine use statement "j."(5) For the reasons set forth in U.S. Department of Transportation, Federal Aviation Administration, Little Rock, Arkansas, 51 FLRA 216, 223-26 (1995), in deciding this issue we apply OPM's "guidance to agencies" for interpreting the terms contained in FPM Letter 711-164.

The FPM Letter contains two requirements that a union must satisfy in order to establish that requested information is consistent with routine use "j": (1) the information is "relevant" to the express purpose for which it is sought, meaning that the nature of the information must bear a traceable, logical, and significant connection to the purpose to be served; and (2) the information is "necessary," meaning that there are no adequate alternative means or sources for satisfying the union's informational needs.

1. The Requested Information Is "Relevant" Within the Meaning of the FPM Letter

Addressing first the standard of "relevance," we have examined the record to assess whether the Union has established that the requested DOBs bear a traceable, logical, and significant connection to the purpose for which the information was sought.

The parties stipulated that the Union requested the DOBs to obtain the named employees' driver license records in order to determine whether the grievant was treated disparately. The plain language of the Union's request is consistent with the stipulation in that regard,(6) and the Respondent does not contend that it was unaware at the time it denied the Union's request that the Union wanted the information for that purpose. See generally U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1321 (1990) (the Authority rejected the respondent's contention that the union did not properly allege that the union wanted requested information for the purpose of establishing disparate treatment, where it was clear from the union's request and subsequent explanation that it wanted the data, in connection with a potential grievance, to determine if it was inconsistent with similar data).

We reject the Respondent's assertion that any information the Union obtained concerning the seven named employees' driving records is not relevant within the meaning of the FPM Letter because it did not terminate the grievant for the DUI infraction. The Union requested the DOBs to obtain information that it believed was relevant to one of the grounds for which the Respondent terminated the grievant--the DUI infraction. Where, as here, a union requests information to make a determination as to whether disparate treatment has occurred in a discipline case, such information is germane to the processing of an arbitration case involving the same issue. The Respondent has provided no support for its implicit assertion that if a request for information is not germane to all the grounds for which an employee is disciplined, it is not relevant within the meaning of the FPM Letter.(7)

Based on the parties' stipulation, we also reject the Respondent's assertions that the request was based on mere speculation and constituted a "fishing expedition." Regarding the former assertion, the parties stipulated that the Union, on the day it requested the DOBs, had "reason to believe that other BIA employees with DUI convictions had not been terminated under similar circumstances as those involving [the grievant]." Stipulation, para. 17. The parties also agreed that the Union stated that it needed the information to prepare for arbitration and to determine if the grievant had been treated disparately with regard to his alleged drunk driving and damaging a Government vehicle. See Stipulation, para. 17-19. These stipulations demonstrate that the request was based on more than mere speculation.

With respect to the Respondent's latter assertion, the fact that the request was limited to seven named employees belies this assertion. In this regard, we note the General Counsel's unrefuted explanation that the Union did not request the DOBs for all employees identified by the Respondent as being involved in driving accidents because the Union had no reason to believe that all employees had been involved in alcohol-related accidents while driving a Government vehicle.

In sum, the requested information would have assisted the Union's stated purpose of determining whether the Respondent treated the grievant in a disparate manner from other similarly situated employees. The DOBs would have allowed the Union to obtain from Utah the driver license records of the seven named employees it believed had accidents similar to that of the grievant and would have allowed the Union to determine if any of the employees were charged with DUI when they were involved in accidents while driving a Government vehicle. This information would also have enabled the Union to make comparisons among employees in order to ascertain whether the Respondent administered discipline to the grievant in a fair and equitable manner. Upon receipt of the information, and after reviewing the driving records, the Union may have decided to settle the grievance, how to settle prior to arbitration, or whether to proceed to arbitration at all. Accordingly, we find that the requested DOBs of the seven employees bear a traceable, logical, and significant connection to the purpose for which the information was sought and are relevant to the express purpose for which the Union sought the information within the meaning of the FPM Letter.

2. The Requested Information Is "Necessary" Within the Meaning of the FPM Letter

For the following reasons, we find that the information is "necessary" within the meaning of the FPM Letter. The Union needed the requested information to determine whether there was disparate treatment of the grievant, and we find that the General Counsel has established that this need could not have been satisfied through less intrusive means than by using the employees' DOBs to obtain access to their state driver license records. In this regard, the Respondent had provided the Union with records over a 5-year period showing that there had been numerous accidents involving Government vehicles or damage to Government property, but that no other employee had received any discipline. The Respondent does not dispute the General Counsel's assertion that, "by [the] Respondent's own accounting, there were no disciplinary files for the Union to request in order to compare the discipline meted out to [the grievant] vis-a-vis other employees. Only the Utah driving records would reveal whether or not alcohol had been involved in the other accidents." General Counsel's Brief at 5. That information--whether alcohol had been involved in the other accidents--was necessary to the Union because it would have allowed the Union to determine whether to settle the grievance or invoke arbitration and to demonstrate to the arbitrator that the grievant's termination was excessive. Additionally, as this case concerns employee discipline, the Union's need for the information is compelling. See U.S. Department of Veterans Affairs, Veterans Affairs Medical Center, Dallas, Texas, 51 FLRA 945, 958 n.12 (1996).

We reject the Respondent's assertion that there are less intrusive sources of information that the Union could have used to mitigate the grievant's termination, and, therefore, the information is not necessary. The proper inquiry is whether the Union's need for information that would reveal if other employees who had been in accidents involving Government vehicles had also been charged with DUI could be satisfied through less intrusive means. The Respondent's records did not contain such information. Further, the Respondent has not asserted that there are less intrusive means of satisfying the Union's need for information that would reveal if other employees who had been in accidents involving Government vehicles had also been charged with DUI. Rather, the General Counsel has established that the only adequate way to obtain information about the accidents involving the named employees is from state driver license records, and the only way to obtain these records from the state is through the use of those employees' DOBs. Accordingly, based on the foregoing, we find that the information is necessary, within the meaning of routine use statement "j."

3. Summary

As the Union has established both the relevance and necessity of the requested information under FPM Letter 711-164, the DOBs of the named employees are disclosable to the Union as a routine use under section 552a(b)(3) of the Privacy Act.(8) Because the information is disclosable as a routine use under section 552a(b)(3) of the Privacy Act, there is no need to address whether release of the DOBs would constitute an unwarranted invasion of personal privacy under FOIA Exemption 6. Each exception to the Privacy Act operates independently. See, e.g., Department of the Air Force, Scott Air Force Base, Illinois, 51 FLRA 675, 691 (1995) (Scott AFB) and cases cited therein, petition for review filed, No. 96-1060 (D.C. Cir. Feb. 16, 1996).

C. The Requested Information Is "Necessary" Within the Meaning of Section 7114(b)(4) of the Statute

In Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661 (1995) (Member Talkin concurring) (IRS, Kansas City), the Authority set forth the analytical framework for determining whether information is "necessary" under section 7114(b)(4) of the Statute. Applying IRS, Kansas City to the facts in this case, we find that the Union has satisfied its burden of demonstrating that the requested information is required for it to adequately represent its members.

As stipulated by the parties, at the time of its information request, the Union asserted that to prepare for the grievant's arbitration hearing, it needed the requested information in order to ascertain whether the grievant's termination was excessive given the status of the other employees' driving records and discipline after accidents involving Government vehicles. This statement articulates the Union's reason for requesting the DOBs of the named employees. It also explains the particular uses to which it would put the information if it were disclosed.

The Union has established with the requisite specificity a need for these records. In this regard, the stipulation shows that the Union requested the DOBs of only the seven named employees because the Union had reason to believe that those employees had circumstances similar to the grievant's. The Union also established why it needed the DOBs of the named employees. Pursuant to longstanding precedent in both the private and Federal sectors, it is well established that a union has a substantial interest in information that will assist it in determining whether to proceed to arbitration.(9) See, e.g., Scott AFB, 51 FLRA at 682 and cases cited therein. In general, one evident reason for this interest is the commitment of resources required when a grievance is submitted to arbitration. Accordingly, we find that the Union needed the DOBs to adequately represent its members. The Union has both articulated and established a particularized need for this information, without which it would have been unable either to make an informed judgment whether to challenge the Respondent's denial of the grievance or, if necessary, to prepare for arbitration.

The Respondent's claim--that in the stipulation the Union asserted without any factual basis that it had reason to believe that the seven named employees had DUI convictions but had not been terminated from employment--does not provide any basis on which to find that the requested information is not necessary within the meaning of the Statute. We note that both the Respondent and the Union agreed that the Union "had reason to believe that other [Bureau of Indian Affairs] employees with DUI convictions had not been terminated under similar circumstances as those involving" the grievant. Stipulation, para. 17.

The Respondent's reliance on Customs Service with respect to the Superintendent's DOB does not warrant a finding that his DOB is not necessary. In Customs Service, the Authority found that requested information concerning a non-unit employee was not necessary under section 7114(b)(4) in that "the lines of authority responsible for taking disciplinary action against the non-unit employee and for reviewing such action were different than for the [two unit employees who were the grievants], and that the incidents involving the non-unit employee involved facts and events dissimilar to those involving the grievants." 18 FLRA at 403 (footnote omitted). In this case, the Superintendent's DOB is necessary because the Union had reason to believe that the Superintendent, like the other named employees, had been involved in circumstances similar to those of the grievant.(10) See discussion in IV.B.1 note 7, supra.

In these circumstances, we conclude that the Union has satisfied its burden of articulating and establishing, with the required specificity, why it needed the requested information, the uses to which the information would be put, and the connection between those uses and the Union's representational responsibilities under the Statute. Accordingly, we find that the DOBs are necessary within the meaning of section 7114(b)(4) of the Statute.

D. Summary

We have found that the DOBs of the seven named employees requested by the Union are disclosable under the routine use exception to the Privacy Act and are necessary within the meaning of section 7114(b)(4) of the Statute. Further, all other statutory requirements for disclosure of the requested information were either admitted or not disputed by the Respondent. Accordingly, we conclude that the Respondent's refusal to furnish the Union with all seven DOBs, as requested by the Union, constitutes a failure to comply with section 7114(b)(4) and, thereby, a violation of section 7116(a)(1), (5) and (8) of the Statute.(11)

E. The Appropriate Remedy for the Respondent's Violation of the Statute Is a Cease and Desist Order

As a remedy for the Respondent's violation of the Statute, the General Counsel requests that the Authority require the Respondent to: (1) furnish the Union with the DOBs of all seven named employees; and (2) submit, upon the request of the Union, a joint request to (a) the arbitrator to reexamine the case and to consider any evidence the Union is able to present or (b) the Federal Mediation and Conciliation Service for another arbitrator to consider the grievance if the original arbitrator is unavailable.(12) We find, in the circumstances of this case, that the appropriate remedy for the Respondent's violation of the Statute is a cease and desist order.

It is undisputed that the arbitrator's award at issue in this case is final and binding upon the parties. The Union's only stated reason for requesting the seven DOBs was to prepare for the arbitration in the grievant's case. Nothing in the stipulation or the record establishes that the requested information would be useful in fulfilling the Union's representational duties at the present time. For instance, there is no assertion that the Union has a need for the information to pursue broader representational obligations than preparing for the arbitration hearing involving the grievant. Consequently, we find, in the circumstances of this case, that the General Counsel's requested remedy that the Union be provided with the requested DOBs has been rendered moot by the finality of the award and conclude that it would not effectuate the purposes and policies of the Statute to direct the Respondent to furnish the Union with the requested DOBs. See, e.g., Department of Veterans Affairs, Department of Veterans Affairs Medical Center, Fort Lyon, Colorado, 41 FLRA 1091, 1100-01 (1991) (citing Veterans Administration, Washington, D.C. and Veterans Administration, Regional Office, Buffalo, New York, 28 FLRA 260, 267 (1987) (the Authority held that it would not order the respondent to provide the requested information to the union where there was no basis to conclude that the information would be useful in fulfilling the union's representational duties at the present time); cf. U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Salt Lake City, Utah, 40 FLRA 303, 311 (1991) (the Authority found that the record did not support the respondent's argument that the information was no longer needed). In light of our conclusion that the arbitration award is final and binding, it is unnecessary to address the portions of the General Counsel's proposed remedy related to the reopening of the arbitration proceeding.

V. Order

Pursuant to section 2423.29 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Bureau of Indian Affairs, Uintah & Ouray Area Office, Ft. Duchesne, Utah, shall:

1. Cease and desist from:

(a) Failing or refusing to furnish to the National Federation of Federal Employees, Council of Consolidated Bureau of Indian Affairs Locals, the employees' exclusive bargaining representative, data for the Union to effectively represent unit employees in grievance arbitration proceedings, or for the purpose of deciding whether to continue to arbitrate a grievance, which is normally maintained in the regular course of business, which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining, which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining, and which is not prohibited by law from release.

(b) In any like or related manner interfering with, restraining, or coercing bargaining unit 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) Post at its facilities in Ft. Duchesne, Utah 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 Deputy Commissioner of Indian Affairs, U.S. Department of the Interior, 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 Regulations, notify the Regional Director of the Denver Region, 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

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Bureau of Indian Affairs, Uintah & Ouray Area Office, Ft. Duchesne, Utah violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify our employees that:

WE WILL NOT fail or refuse to furnish to the National Federation of Federal Employees, Council of Consolidated Bureau of Indian Affairs Locals, the employees' exclusive bargaining representative, data for the Union to effectively represent unit employees in grievance arbitration proceedings, or for the purpose of deciding whether to continue to arbitrate a grievance, which is normally maintained in the regular course of business, which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining, which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining, and which is not prohibited by law from release.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

_______________________
(Agency)

Dated:___________ By:__________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Denver Regional Office, whose address is: 1244 Speer Boulevard, Suite 100, Denver, CO 80204, and whose telephone number is: (303) 844-5224.

Dissenting Opinion of Chair Segal:

The March 1995 stipulation between the parties states their agreement on particular "facts" and that no material issues of fact exist. I concur with the majority that parties are bound by the facts to which they stipulate. However, whether these resolve all of the material facts necessary to adjudicate the complaint is a legal judgment and, as such, not subject to stipulation by the parties. E.g., United States Border Patrol, Tucson Sector, Tucson, Arizona, 48 FLRA 391, 394 (1993) (Authority remanded a complaint to the regional director because there were "material issues of fact not resolved by the stipulated record[.]"). In this regard, I do not agree with the majority that the stipulated record establishes the facts on which to determine that the requested information is necessary, within the meaning of section 7114(b)(4), or that disclosure of the information is not prohibited by the Privacy Act.

As relevant here, the parties stipulate that the Union "had reason to believe", at the time of its request for the dates of birth, that "other [Agency] employees with DUI convictions had not been terminated under similar circumstances" to those of the grievant. Stipulation, para. 17. However, nothing in the stipulation establishes that the grievant was terminated, even in part, for DUI. The parties also stipulate that the Union needed the dates of birth of the seven named individuals in order to obtain State driving records for them, and to "ascertain whether or not [the grievant's] termination was excessive given the status of the other employees' drivers records and discipline after accidents involving [G]overnment vehicles."(*) Stipulation, para. 21. However, I am unable to discern from the stipulated record that any of the seven named individuals were, or were believed by the Union to have been, involved in accidents involving Government vehicles.

Although paragraph 17 of the stipulation refers to the grievant and the seven named individuals as "similarly situated" and their circumstances as "similar," it is evident from the briefs submitted to the Authority that the parties do not attach the same meaning to this stipulation. Compare, e.g., Resp. Brief at 26 (disputing that the Union has shown that the named employees were, or that the Union had a reason to believe that they were, convicted of DUI while driving a Government vehicle) with, e.g., G.C. Brief at 3 (the requests were for dates of birth of employees the Union believed to have had driving accidents involving both Government vehicles and alcohol). The General Counsel relies on paragraph 18 of the stipulation as establishing that the Union believed the named employees were in such accidents. However, neither the cited paragraph nor the exhibit it references describes the named employees as having been in accidents involving Government vehicles. See Stipulation, para. 18.

A factual finding with respect to the similarity of circumstances involving the named employees and the grievant is critical, in my view, to determining whether, as the Union asserted, the requested information would permit it to evaluate whether the grievant was treated in a disparate manner. See G.C. Brief at 5-6. Given the ambiguity in the stipulated record, and the evident dispute between the parties in this regard, I am unable to conclude that the named employees were, or the Union had a basis to believe they were, similar to the grievant such that comparisons between their treatment would be warranted.

Accordingly, I do not find that the stipulated record establishes the connection between the requested information and the Union's representation of the grievant sufficient to conclude that the Union has established a particularized need for the information or that the information is disclosable pursuant to routine use "j." Because I find the stipulated record ambiguous with respect to this material issue of fact, I would remand this case to the Regional Director for development of the record, through further stipulations or, if necessary, through findings by an Administrative Law Judge following a hearing.




FOOTNOTES:
(If blank, the decision does not have footnotes.)


Authority's Footnotes Follow:

1. Chair Segal's dissenting opinion is found at the end of this decision.

2. Unless otherwise specified, all dates refer to 1994.

3. The stipulation, dated April 1995, states that the Respondent has failed to furnish the Union with the requested information since "July 1995." Stipulation, para. 24. However, it is clear from the record that such reference is inadvertent and should state "July 1994."

4. The Privacy Act regulates the disclosure of any information contained in an agency "record" within a "system of records," as those terms are defined in the Privacy Act, that is retrieved by reference to an individual's name or some other personal identifier. 5 U.S.C. § 552a(a)(4), (5). With certain enumerated exceptions, the Privacy Act prohibits the disclosure of personal information about Federal employees without their consent. Two exceptions to this prohibition are relevant here. First, exception (b)(3) of the Privacy Act, 5 U.S.C. § 552a(b)(3) (the routine use exception), provides for release of information "for a routine use as defined in section (a)(7) . . . ." A "routine use" is defined in section (a)(7) as the use of covered information "for a purpose which is compatible with the purpose for which it was collected." Second, exception (b)(2) of the Privacy Act (the Freedom of Information Act or FOIA exception) provides that the prohibition against disclosure is not applicable if disclosure of the requested information would be required under the Freedom of Information Act, 5 U.S.C. § 552. Exemption (b)(6) of the FOIA (Exemption 6) provides, in turn, that information contained in "personnel and medical files and similar files" may be withheld if disclosure of the information would result in a "clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). If such an invasion would result, then disclosure is not required by the FOIA.

5. The Respondent notes that, under 5 U.S.C. § 552a(a)(7), a routine use may encompass only such use as is compatible with the purpose for which the information was collected. However, the Respondent does not argue that the intended use of the requested records in this case is inconsistent with the purpose for which the records were collected. Accordingly, this issue is not in contention and we assume, for the purpose of this decision, that the intended use of the records at issue in this case is compatible with the purpose for which they were collected within the meaning of section 552a(a)(7).

6. The Union's request stated that "[i]n order . . . [to] properly prepare" for the grievant's arbitration hearing, the Union wanted the DOBs of the seven named employees listed in the request to check "legal records" to confirm whether those employees had "valid driver[']s license[s]," or "other legal problem[s] which would be good cause for them to be untruthful" and that it was led to do its search based on "third party information." Stipulation, Exhibit 10.

7. With respect to the Superintendent's DOB in particular, arbitrators regularly consider evidence of disparate treatment of supervisors as relevant in determining whether a unit employee was disciplined for just cause, and, consequently, such information is also relevant. See Department of Defense Dependents Schools, Washington, D.C. and Department of Defense Dependents Schools, Germany Region, 28 FLRA 202, 203-05 (1987) (referencing North Germany Area Council, Overseas Education Association v. FLRA, 805 F.2d 1044 (D.C. Cir. 1986)).

8. The necessity under section 7114(b)(4) of the Statute for requested information must be evident at the time of the union's request and the agency action which is the subject of the unfair labor practice proceeding. See Department of Health and Human Services, Washington, D.C., 49 FLRA 61, 70 (1994) and case cited therein. Similarly, we find that relevance and necessity for requested information under the FPM Letter must be evident at the time of the union's request and the agency action which is the subject of the unfair labor practice proceeding. Consequently, in reaching our determination, we have not considered the arbitrator's award, which was issued subsequent to the Union's request and the Respondent's denial of the request.

9. The fact that the Union proceeded to arbitration without the information does not affect whether the information was necessary, within the meaning of section 7114(b)(4) of the Statute, at the time of the request. Cf. The Kroger Company, 226 NLRB 512 (1976) (the National Labor Relations Board found, in relevant part, that the respondent violated the National Labor Relations Act by failing to furnish the union with information requested in order to prepare a grievance for arbitration, notwithstanding the fact the union proceeded to arbitration without receiving the information). See also Department of the Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Detroit District, Detroit, Michigan, 43 FLRA 1378 & n.* (1992) (the Authority adopted the judge's conclusion that "mootness" will not constitute a valid defense to finding a violation of the Statute for refusing to furnish requested information because whether a violation occurs must be evaluated by considering the facts at the time of the demand and the refusal (see Judge's Decision at 43 FLRA at 1389)).

10. There is no assertion that the Superintendent was not required, as part of his employment, to drive a Government veh