Federal Aviation Administration and National Air Traffic Controllers Association, MEBA/AFL-CIO and National Air Traffic Controllers Association, MEBA/AFL-CIO, Tampa Local and National Air Traffic Controllers Association, MEBA/AFL-CIO, ZJX Local and National Air Traffic Controllers Association, MEBA/AFL-CIO, Birmingham Local and National Air Traffic Controllers Association, MEBA/AFL-CIO, Mia Local and National Air Traffic Controllers Association, MEBA/AFL-CIO, Orf Local and National Air Traffic Controllers Association, MEBA/AFL-CIO, Roanoke Local and National Air Traffic Controllers Association, MEBA/ AFL-CIO, Zdc Local and National Air Traffic Controllers Association, MEBA/AFL-CIO, Salt Lake City TRACON Local and National Air Traffic Controllers Association, MEBA/AFL-CIO, Rdu Local
[ v55 p254 ]
55 FLRA No. 44
FEDERAL AVIATION ADMINISTRATION
NATIONAL AIR TRAFFIC CONTROLLERS
NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION, MEBA/AFL-CIO, TAMPA LOCAL
NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION, MEBA/AFL-CIO, ZJX LOCAL
NATIONAL AIR TRAFFIC CONTROLLERS
NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION, MEBA/AFL-CIO, MIA LOCAL
NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION, MEBA/AFL-CIO, ORF LOCAL
NATIONAL AIR TRAFFIC CONTROLLERS
NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION, MEBA/ AFL-CIO, ZDC LOCAL
NATIONAL AIR TRAFFIC CONTROLLERS
SALT LAKE CITY TRACON LOCAL
NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION, MEBA/AFL-CIO, RDU LOCAL
AT-CA-70058, AT-CA-70067, AT-CA-70072,
AT-CA-70164, DE-CA-70121, DE-CA-70201,
WA-CA-70064, WA-CA-70134, WA-CA-70140 and AT-CA-70043
DECISION AND ORDER
February 26, 1999
Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent.
The consolidated 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 to provide the Union with information requested to facilitate the administration of a seniority policy determined by the Union at its National Convention.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision.
II. Background and Judge's Decision
The facts are set forth in detail in the Judge's decision, and are briefly summarized here. Pursuant to a stipulation between the parties, the Judge made the following, uncontroverted findings of fact:
The Union is the exclusive representative for a nationwide bargaining unit of Respondent's air traffic controllers. Under the parties' collective bargaining agreement (Agreement), the Union has the right to [ v55 p255 ] determine, at the local level, the seniority policy for the entire bargaining unit. This seniority policy would be applicable for all purposes except the administration of reductions in force by the Respondent.
After the Agreement became effective, the Union established a national seniority policy at its 1996 convention. Subsequently, the Union made various requests for information from the Respondent for information that the Union claimed was needed to administer the seniority policy and carry out its duties under the Agreement. The Respondent did not provide the requested information. At some facilities, the Respondent asked Union representatives to clarify the Union's particularized need for the information. The Union responded to these requests for clarification, but the Respondent still did not produce the records. At other facilities, the Respondent denied the Union's request on various grounds. These grounds included that the purpose for which the information was sought related to internal Union business, that the seniority policy was being challenged by the Respondent in a grievance and an unfair labor practice charge, [n2] and that no representational issue existed warranting the request.
At its Salt Lake City facility, the Respondent did not deny the Union's request for information outright, but instead stated that it was unsure whether it could produce the information by the deadline specified by the Union. Nevertheless, it is undisputed that the Respondent produced no information as a result of this or any other request.
B. Judge's Decision
According to the Judge, the sole issue was whether the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to provide the Union with requested information within the meaning of section 7114(b)(4) of the Statute. The Judge rejected the Respondent's contentions that it was under no obligation to disclose the information, and that Congress intended to limit data disclosures to requests that arise during negotiations. Citing National Labor Relations Board, 38 FLRA 506, 519 (1990) (NLRB I), remanded on other grounds, National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB II), the Judge held that a union's information requests can cover the full range of representational responsibilities under the Statute, and are not confined to collective bargaining. The Judge noted that the Authority's interpretation of section 7114(b) of the Statute was affirmed in American Federation of Government Employees, AFL-CIO, Local 1345 v. FLRA, 793 F.2d 1360 (D.C. Cir. 1986) (Local 1345). The Judge also relied upon the Authority's decision in Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, New Bedford District Office, New Bedford, Massachusetts, 37 FLRA 1277, 1286 (1990), which held that section 7114(b)(4)(B) of the Statute entitles the exclusive representative to "information that is necessary to enable it to carry out its representational functions."
After rejecting the Respondent's argument that the Union, by agreeing to certain provisions in the parties' agreement, voluntarily limited its right to receive the requested information, the Judge found that the Union had demonstrated a particularized need for the information. The Judge relied upon the analytical framework set forth in Internal Revenue Service, Washington D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661 (1995) (IRS-Kansas City), which requires a union to articulate, with specificity, the reasons for the request, the uses to which the union will put the information, and the connection between the request and the Union's representational responsibilities under the Statute. Applying this analytical framework, the Judge found that "each written request stated that the information was required to determine seniority for bargaining unit employees." Judge's Decision at 11. The Judge further found that, except for the Respondent's officials in Salt Lake City, management denied the Union's requests. The Judge noted that the Union derives its authority to determine seniority from the Agreement; thus, the information would be used to administer a contractual provision. The Judge reasoned that the Union could not be expected to fulfill its obligation without receiving the information from the Respondent.
While finding that the Union had fully explained its particularized need for the requested information, the Judge also found that the Respondent had not met its burden under IRS-Kansas City to establish countervailing anti-disclosure interests that would outweigh the Union's particularized need for the information. In particular, the Judge was unpersuaded by the Respondent's contention that furnishing the requested information [ v55 p256 ] would make it jointly liable for any claims arising out of the Union's seniority policy. [n3] Absent a final determination by the Authority in NATCA, the Judge concluded that the Respondent's concerns regarding the validity of the seniority policy did not outweigh the Union's particularized need for the requested information. In reaching this conclusion, the Judge drew upon Department of the Air Force, Scott Air Force Base, Illinois, 51 FLRA 675, 686-89 (1995), petition for review denied, Department of the Air Force, Scott Air Force Base, Illinois v. FLRA, 104 F.3d 1396 (D.C. Cir. 1997), which found that an agency's doubts as to the merits of a union's grievances do not serve to defeat the union's showing of particularized need for requested information relating to that grievance. Overall, the Judge concluded that the Union's interest in obtaining the information outweighed the Respondent's countervailing interests in non-disclosure.
The Judge further found that the information requested was normally maintained by the Respondent in the course of business, was reasonably available, and was not guidance to management relating to collective bargaining.
III. Positions of the Parties
A. Respondent's Exceptions
First, the Respondent contends that the Judge erred in relying upon Authority precedent and decisions of various circuit courts of appeals permitting unions to obtain information relating to the full range of representational activity. The Respondent maintains that "what is spelled out as an agency obligation arising in the context of the duty to negotiate in good faith has, over time, been interpreted as a union right existing independently of the negotiation scenario." Exceptions at 8. The Respondent asserts that the Authority's statutory interpretation of collective bargaining for purposes of information requests "is not entitled to deference." Id.
Drawing upon the definition of collective bargaining found in section 7103(a)(12) of the Statute [n4] , the Respondent argues that an agency's duty under section 7114(b)(4) of the Statute "ends at the point the collective bargaining agreement is reached or executed in writing." Exceptions at 9. In the Respondent's view, the duty to furnish information should be limited to agencies "engaged in collective bargaining with an exclusive representative," a phrase found in section 7117(c) of the Statute. Exceptions at 11. While recognizing that NLRB II, 952 F.2d at 526, holds that an agency's duty to furnish information under section 7114(b)(4) extended to contract administration as well as negotiation, the Respondent contends that this holding is dictum, and that the Authority is "free to reject that part of the opinion." Exceptions at 13 n.1. Citing U.S. Department of Veterans Affairs v. FLRA, 1 F.3d 19, 23 (D.C. Cir. 1993) for the proposition that the existence or requirement of collective bargaining is critical to information requests, the Respondent goes one step further, arguing that "it is actually the existence or requirement of negotiations that is critical to the [Respondent's] obligation" to provide information under section 7114(b)(4) of the Statute. Exceptions at 21.
Second, the Respondent contends that its anti-disclosure interests outweighed the Union's particularized need to receive the information. The Respondent claims that it was trying to avoid an unfair labor practice charge for assisting the Union in implementing the underlying seniority policy. The Respondent claims that the "impropriety" of the seniority policy would render the Respondent jointly liable for the Union's possible breach of its duty of fair representation. To support its contention that it "could have been seen as cooperating with the union in its discrimination against non-dues paying members," the Respondent cites U.S. Air Force, Loring Air Force Base, Limestone, Maine, 43 FLRA 1087 (1992) (Loring). Exceptions at 24.
According to the Respondent, filing an unfair labor practice charge against the Union "was only the first step the [Respondent] was legally and contractually bound to take." Id. Had it provided the Union with the requested information when it "knew, or should have known, that the union's actions relative to its implementation of the new seniority policy violated the Statute," the Respondent reasons, "joint and several liability [ v55 p257 ] would have attached." Id. The Respondent cites Lummus Co. v. NLRB, 339 F.2d 728, 737 (D.C. Cir. 1964) for the proposition that, "[w]here a union's discriminatory acts are widespread or notorious, the employer can reasonably be charged with notice of the acts and be held liable for them." Exceptions at 25. Should the Authority uphold the Judge's decision against the Union in NATCA (See n.2, supra), the Respondent states that it could not have committed an unfair labor practice by withholding information to which the Union was not entitled. The Respondent claims that the recommended decision leaves agencies with a "Hobson's choice" that Congress could not have intended in drafting section 7114(b)(4)(B) of the Statute. Exceptions at 26.
The Respondent further argues that the requested information was not "necessary" for the proper administration of the Agreement. Since the Respondent itself was grieving the "propriety" of the underlying seniority policy, a policy it claims was "contractually barred," the Respondent reasons that it had "a legitimate, countervailing interest in ensuring that a seniority policy contrary to the express terms of the [Agreement] was not implemented by the union." Exceptions at 30. In support, the Respondent cites Internal Revenue Service National Office and National Treasury Employees Union, 21 FLRA 646, 649 n.3 (1986), for the proposition that if the substance of the information request is "not cognizable under law," an agency is relieved of its obligations under section 7114(b)(4) of the Statute. Exceptions at 30. The Respondent maintains that the Union's seniority policy was "contrary to the express terms of the collective bargaining agreement." Id. While conceding that an agency that refuses to provide information and ultimately loses the underlying grievance does so "at its own peril[,]" the Respondent asks that the Authority not compel an agency to provide information "for which the union had no valid need." Id. at 31.
Third, the Respondent argues that, in light of the decision in NATCA, the Judge's decision here requiring production of the requested information was "internally inconsistent." Exceptions at 32. The Respondent also notes the Judge's commentary that a decision by the Authority affirming the decision in the related duty of fair representation case would appear to render this case moot. [n5] The Respondent asserts that the Judge's decision "would require the [Respondent] to provide information to [the Union] which it can not use for the purpose for which it was sought." Id. Additionally, the Respondent contends that the Order "requires the [Respondent] to admit to (and post) an unfair labor practice it did not commit, an action the FLRA's affirmation of [the Judge's] recommended decision [in NATCA] will not cure." Id.
2. General Counsel's Opposition
In answer to the Respondent's exceptions, the General Counsel first contends that "[t]he duty to furnish information under section 7114(b)(4) of the Statute has been interpreted by the Federal courts to encompass information necessary to administer a collective bargaining agreement." General Counsel's Opposition at 4. The General Counsel cites Local 1345 for the proposition that an agency's duty to provide information extends to "the full range of union responsibilities in both the negotiation and the administration of a labor agreement." Id. The General Counsel also cites NLRB II, for the proposition that an agency's duties under section 7114(b)(4) of the Statute extend to contract administration as well as contract negotiations. According to the General Counsel, "the Judge's legal conclusions were supported by the record and the Respondent's exceptions provide no basis for departing from the well-established interpretation of section 7114(b)(4) of the Statute." General Counsel Opposition at 5
The General Counsel argues that the Judge "properly rejected the Respondent's countervailing anti-disclosure interests as insufficient to outweigh the Charging Parties' particularized need for the information." General Counsel's Opposition at 5. The General Counsel points out that, at the time that the Respondent denied the information requests, there had not been a determination that the Union was barred, either by operation of the Statute or the Agreement, from implementing its policy. Moreover, the General Counsel asserts that the Respondent failed to raise its concerns regarding joint and several liability at the time that it denied the Union's requests. The General Counsel contends that "an agency denying a request for information should be required to articulate its countervailing anti-disclosure interests at the time it denies the information request and not for the first time in an unfair labor practice proceeding." Id. at 7 (citing Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, Dallas, Texas, 51 FLRA 545, 551 (1995) (INS); EEOC, 51 FLRA at 258)).
The General Counsel also denies that the possibility of joint and several liability ever existed. The General Counsel asserts that the Authority's approach to [ v55 p258 ] joint and several liability, as set forth in Loring, is patterned after labor law precedent in the private sector. According to the General Counsel, the NLRB's treatment of a union-run hiring hall in Wolf Trap Foundation for the Performing Arts, 287 NLRB 1040 (1988) (Wolf Trap), supplemental decision as to other matters, 289 NLRB 760 (1988), establishes that an employer will not automatically be found jointly and severally liable for a union's unfair labor practices against bargaining unit members; instead, the facts of each case are analyzed to determine the employer's liability. The General Counsel argues that, unlike the disputed hiring practices in Wolf Trap, the Union's seniority policy here is not discriminatory on its face. Furthermore, the General Counsel notes that the consolidated complaint against the Union in the related case did not allege that the Union caused the Respondent to discriminate against employees in violation of section 7116(b)(2) of the Statute. Finally, the General Counsel maintains that the Respondent's filing of a grievance and an unfair labor practice charge against the Union for establishing the underlying seniority policy would have insulated the Respondent, at least in part, from liability.
3. Union's Opposition
The Union argues that the scope of section 7114(b)(4) of the Statute has been "firmly resolved." Union's Opposition at 7. To support its position that an agency's duty to provide information extends to the full range of representational activity, the Union cites Department of Housing and Urban Development, San Francisco, California, 40 FLRA 1116, 1121 (1991), and NLRB II, 952 F.2d at 526.
The Union contends that accepting the Respondent's rationale "would have a significant impact on settled case law in other areas of federal labor relations." Union's Opposition at 8. For example, citing Veterans Administration, Washington, D.C. and Veterans Administration Regional Office, Buffalo, New York, 28 FLRA 260 (1987), the Union notes that exclusive representatives often request information to determine whether to file a grievance. The Union asserts that under the Respondent's stricter interpretation of section 7114(b)(4), management would be relieved of its obligation to provide unions with information they need to determine whether the issue is grievable. The Union claims that under such an interpretation of the Statute, "the balance of equities between labor and management envisioned by the Statute would be weighted heavily in favor of management." Union's Opposition at 8-9.
The Union maintains that the Respondent's interpretation of section 7114(b)(4) of the Statute has been raised before, and discredited by, the Authority. Citing IRS-Kansas City and EEOC, the Union claims that the Authority "issued detailed decisions dealing with the threshold of proof that a union needs to meet in order to establish that requested information is necessary to the union's `representational responsibilities,'" as opposed to "`collective bargaining responsibilities.'" Union's Opposition at 9. The Union claims that a reviewing court would give deference to the Authority's reasonable interpretation of the Statute because the subject matter is within the Authority's "sphere of specialized expertise." Union's Opposition at 10-11, citing National Labor Relations Board v. FLRA, 2 F.3d 1190, 1197 (D.C. Cir. 1993).
The Union calls the Respondent's proffered reasons for failing to provide the requested information "hollow and suspicious." Union's Opposition at 12. The Union considers the Respondent's stated interest in avoiding an unfair labor practice charge to be a "smokescreen," and contends that it is more likely that the Respondent's frustration with the substance of the seniority policy motivated its actions. Id. at 12-13.
The Union also denies that the Respondent is presented with a "Hobson's choice," claiming that there is no exception to the Respondent's statutory duty to provide the requested information merely because the Respondent was challenging the validity of the underlying policy. The Union cites Defense Mapping Agency, Aerospace Center, St. Louis, Missouri, 21 FLRA 595, 606 (1986) (Defense Mapping I) in support of its position. The Union questions the Respondent's assertion that the seniority policy was contrary to the terms of the Agreement, noting that an arbitrator subsequently found that the Union's adoption of a national seniority policy did not violate the Agreement.
IV. Analysis and Conclusions
A. The Duty to Furnish Information within the "Scope of Collective Bargaining" under Section 7114(b)(4)(B) of the Statute
The arguments presented here by the Respondent in support of this exception, as to why existing case law is not dispositive but, rather, should be reversed, are not persuasive. It is a longstanding principle that the scope of the information entitlement under section 7114(b)(4) of the Statute extends to the full range of representational activity, not just the context of pending negotiations between labor and management. See Local 1345, 793 F.2d at 1363, wherein the court held that this right to information "applies not only to information needed to negotiate an agreement, but also to data relevant to its [ v55 p259 ] administration," and that this meant the "full range of union responsibilities." (emphasis in original). In so holding, the court also held that this broad duty to provide information was "part and parcel of the fundamental duty to bargain." Id. The circuit court cited NLRB v. Acme Industrial Co., 385 U.S. 432, 435-36 (1967) and NLRB v. Truitt Manufacturing Co., 351 U.S. 149, 153 (1956). In doing so, the court acknowledged the longstanding private sector law which requires employers to give unions access to information in connection with contract administration, and not just contract negotiations.
This same broad range of union information entitlements was also true under Executive Order 11491, as amended, which preceded section 7114(b)(4). See Department of the Navy, Portsmouth Naval Shipyard and Portsmouth Federal Employees Metal Trades Council, 4 FLRA 619, 624 (1980); Department of Health Education and Welfare, Social Security Administration, Kansas City Payment Center and Social Security Local 1336, American Federation of Government Employees, AFL-CIO, A/SLMR 467, 472 (1974). Congress indicated that it expected continuity of administration from the Executive Order to the Statute, providing that policies established under the Executive Order would remain in effect "unless superceded by specific provision of this chapter or by regulations or decisions issued pursuant to this chapter." 5 U.S.C. § 7135(b). Given the Local 1345 court's statement that the duty to supply information is part and parcel of the fundamental duty to bargain, it is worth noting that the stated duty to bargain under the Executive Order and the Statute is virtually identical. Compare 5 U.S.C. § 7114(a) with Executive Order 11491, section 10(a). In interpreting the Statute, we agree with our concurring colleague, who quotes Justice Ginsberg's observation that it is doubtful that Congress would have denied "unions information their private sector counterparts routinely receive." Concurring Opinion at 24.
The breadth of the information entitlement flowing from section 7114(b)(4), and that it extends beyond just those situations involving actual negotiations, continues to be affirmed time and again. See Department of Justice, Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota v. FLRA, 144 F.3d 90, 93 (D.C. Cir. 1998) (union may request information under the Statute "by articulating a particularized need for the information in terms of fulfilling its representational duties and overseeing the administration of the collective bargaining agreement"); American Federation of Government Employees, Local 2343 v. FLRA, 144 F.3d 85, 88-89 (D.C. Cir. 1998) (AFGE Local 2343) (union must articulate connection between uses to which requested information will be put and union's representational responsibilities under the Statute). This broad interpretation of an agency's duty has been applied in a variety of contexts. In NLRB II, for example, the D.C. Circuit held that an agency's duties under section 7114(b)(4) of the Statute apply to contract administration as well as contract negotiations. 952 F.2d at 526.
We are mindful that the meaning of an individual section of a statute is determined in reference to the entire statutory scheme. Division of Military and Naval Affairs, (New York National Guard), Latham, New York, 53 FLRA 111, 118 (1997) (citing Sutherland, Statute. Const. § 46.05 5th Ed.). However, requiring the Respondent to furnish the disputed information here does not entail any deviation from the statutory definition of collective bargaining. "Collective bargaining" has the same meaning in section 7114(b)(4)(B) as that which is set forth in section 7103(a)(12). The determination of seniority policy clearly relates to a condition of employment. Thus, the matter falls within the scope of collective bargaining, as evidenced by the Agreement that the Respondent itself negotiated with the Union here.
Since the Respondent contends that the Union may only make information requests in the context of negotiations, our inquiry necessarily turns to the uses that the Union intends to make of the information it has requested. See AFGE Local 2343, 144 F.3d at 88-89. It is here that the Respondent's argument proves to be unconvincing. The plain language of section 7114(b)(4)(B) of the Statute calls upon agencies to furnish unions with data that is "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining (emphasis added)." While here, the Union is not seeking information to negotiate a collective bargaining agreement, the information sought is nevertheless necessary for "full and proper discussion [and] understanding" of subjects within the scope of collective bargaining, namely, the determination of seniority policy and the administration of the Agreement itself. Nothing in section 7114(b)(4)(B) requires that a union prove "the existence or requirement of negotiations" (Exceptions at 21), in the present tense, to obtain information within the scope of collective bargaining. The Respondent's own citation to Sutherland's Statutory Construction (at 21.14), when read more fully, discounts any attempt at arguing for a conjunctive reading of this portion of the Statute.
Furthermore, as a practical matter, accepting the Respondent's narrow construction of its duty to furnish [ v55 p260 ] information would effectively strip exclusive representatives of the ability to obtain information that they need to adequately represent their membership and discharge their responsibilities under the Statute. It would be internally inconsistent for the Statute to permit agencies to negotiate an agreement that cedes to a union the right to determine seniority policy for the bargaining unit, and then not also require agencies to furnish the union with information necessary for an understanding of the subject matter so that the union may carry out its obligations under that agreement. The Respondent's interpretation of its statutory duty would create other anomalies as well. For example, section 7121(a) of the Statute requires parties to include an arbitration provision in their negotiated agreement, yet the Respondent's construction of section 7114(b)(4) of the Statute would deprive the exclusive representative of the means to determine whether to submit a grievance to arbitration. For these reasons, we reaffirm that an agency's duties under section 7114(b)(4)(B) apply to all aspects of a union's "representational responsibilities" under the Statute.
B. The Judge Correctly Determined that the Union's Showing of Particularized Need Outweighed the Respondent's Countervailing Interests in Non-Disclosure of the Requested Information
The evidence shows that any countervailing interests presented by the Respondent are insufficient to outweigh the Union's particularized need for the information sought. As noted by the General Counsel, the Respondent did not question the validity of the Union's seniority policy at the time that it denied the information requests. An agency must articulate its interest in non-disclosure at the time that it denies a union's request for information. See U.S. Department of Justice, Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota, 51 FLRA 1467, 1473 (1996), reconsideration denied, 52 FLRA 1323 (1997), aff'd, 144 F.3d 90 (1998); IRS-Kansas City, 50 FLRA at 670. The record indicates that the Respondent failed to articulate its interests to the Union in this manner. Thus, the Respondent's expression of countervailing interests for the first time at the unfair labor practice hearing does not absolve the Respondent of its obligations under the Statute.
Moreover, even if such countervailing interests are considered, they must be rejected. Thus, the Respondent would not have been exposing itself to joint and several liability by complying with the Union's request for information. In Wolf Trap, the union's hiring hall discriminated on its face; thus, the employer's acquiescence to the hiring hall implicated the employer. Here, the charges against the Union in the related unfair labor practice case stem from the Union's decision to use a questionable forum to determine a facially neutral seniority policy. The record does not show that the Union's decision to use its convention to vote on the policy is something that the Respondent contemplated or sanctioned. Thus, the Respondent would not have been liable for providing the requested information. Nothing prevented the Respondent from complying with its duty under the Statute to provide the requested information unless and until the underlying seniority policy was invalidated. As noted in Defense Mapping I, 21 FLRA at 606, the fact that an agency and a union are engaged in an ongoing dispute that touches upon the information sought does not negate an agency's obligation to provide the requested information.
The Respondent's attempt to distinguish this case from Defense Mapping I is flawed. To be sure, there are circumstances in which the necessity of the information sought by an exclusive representative may be called into question. In IRS-National Office, for example, the Authority noted that in circumstances wherein an underlying grievance is not cognizable under law, an agency would be relieved of its duty to produce information. Id. at 649, n.3. Here, the subject matter of the Union's request (seniority) unquestionably falls within the ambit of "collective bargaining" under the Statute.
The Respondent bases its refusal to furnish the requested information not upon the nature of the information sought, but rather upon the "propriety" of the request in light of the dispute surrounding the Union's seniority policy. The Respondent's assertions that the Union's seniority policy is "contractually barred" and "contrary to the express terms of the collective bargaining agreement" ignore the fact that an arbitrator found the Union's seniority policy to be consistent with the Agreement. See n.1, supra. Indeed, the Respondent concedes that if its underlying grievance challenging the Union's seniority policy is ultimately rejected, the prior failure to provide the disputed information would constitute an unfair labor practice. Furthermore, even if the instant seniority policy were to be invalidated, the Union still possesses the right to determine seniority policy under the Agreement. Accordingly, the Union would have the same particularized need to the information in question.
Since the Respondent has not excepted to the Judge's finding that the Union has established a particularized need for the requested information, and since the Respondent has failed to demonstrate a countervailing interest that would outweigh the Union's particularized [ v55 p261 ] need, the Judge's determination on this point was proper.
C. The Case is Not Moot, and Would Not be Rendered Moot by any Disposition in NATCA
The Authority construes the Respondent's exception as challenging the validity of the Judge's decision on grounds of mootness. An unfair labor practice case becomes moot where the former exclusive representative is no longer recognized, and where no individual rights are involved. Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Louisville, Kentucky, 51 FLRA 1751, 1754-55 (1996) (Defense Mapping II) (citing United States Department of Transportation, Federal Aviation Administration, Southwest Region, 11 FLRA 36 (1983)). In determining mootness, consideration is given to whether any decision rendered by the Authority could have a practical legal effect. Defense Mapping II, 51 FLRA at 1757. However, a case does not become moot simply because a particular remedy may no longer be appropriate. Id. at 1755. When a cease and desist order and the posting of notice remain viable remedies, a case is not moot. American Federation of Government Employees, Local 3615, AFL-CIO, 53 FLRA 1374, 1375 (1998); United States Air Force Academy, Colorado Springs, Colorado, 52 FLRA 874, 878 (1997).
Here, the Union is still the exclusive representative. Regardless of the ultimate disposition of NATCA, the Authority's Order here still has practical legal effect. The Respondent has been found to have committed an unfair labor practice by failing to provide the Union with information necessary for the administration of a portion of the Agreement. Judge's Decision at 12. Even if the underlying seniority policy were to be ruled invalid, the Union still has a right to determine seniority policy and can still articulate a particularized need for the information to formulate and administer that policy. For these reasons, we deny the Respondent's exception and find that the instant case is not moot.
Pursuant to section 2423.41 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Federal Aviation Administration shall:
1. Cease and desist from:
(a) Failing and refusing to furnish the National Air Traffic Controllers Association, MEBA/AFL-CIO; Tampa Local; ZJX Local; Birmingham Local; MIA Local; ORF Local; Roanoke Local; ZDC Local; Salt Lake City TRACON Local; and Raleigh-Durham Local, the exclusive representative of bargaining unit employees, information which is necessary for it to determine seniority under the parties' collective bargaining agreement.
(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 Statute:
(a) Upon request, furnish the National Air Traffic Controllers Association, MEBA/AFL-CIO; Tampa Local; ZJX Local; Birmingham Local; MIA Local; ORF Local; Roanoke Local; ZDC Local; Salt Lake City TRACON Local; and Raleigh-Durham Local information which is necessary for the exclusive representative to determine seniority under the parties' collective bargaining agreement.
(b) Post at all its facilities nationwide where employees in the bargaining unit exclusively represented by the National Air Traffic Controllers Association are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director of Air Traffic and shall be posted and maintained for sixty 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.
(c) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Washington, D.C. 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 herewith. [ v55 p262 ]
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the Federal Aviation Administration has violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.
We hereby notify bargaining unit employees that:
WE WILL NOT fail and refuse to furnish the National Air Traffic Controllers Association, MEBA/AFL-CIO; Tampa Local; ZJX Local; Birmingham Local; MIA Local; ORF Local; Roanoke Local; ZDC Local; Salt Lake City TRACON Local; and Raleigh-Durham Local information which is necessary for the exclusive representative to determine seniority under the parties' collective bargaining agreement.
WE WILL NOT, in any like or related manner, interfere with, restrain or coerce bargaining unit employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.
WE WILL upon request, furnish the National Air Traffic Controllers Association, MEBA/AFL-CIO; Tampa Local; ZJX Local; Birmingham Local; MIA Local; ORF Local; Roanoke Local; ZDC Local; Salt Lake City TRACON Local; and Raleigh-Durham Local information which is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.
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, Washington Regional Office, Federal Labor Relations Authority, whose address is: Tech World Plaza, 800 K Street, NW, Suite 910, Washington, D.C. 20001, and whose telephone number is: 202- 482-6700.
Footnote # 1 for 55 FLRA No. 44 - Authority's Decision
Footnote # 2 for 55 FLRA No. 44 - Authority's Decision
The grievance alleged that the Union had breached the Agreement by formulating a seniority policy at the national, rather than local, level. Although the record indicates that the grievance was pending at the time that the parties entered into the stipulation referenced above, an arbitrator has since found that the Union had not violated the Agreement. See Union's Opposition at 4-5, Attachment 1 at 13 and 14. The arbitrator declined to make a finding as to whether the Union had breached its duty of fair representation to nonunion members when it formulated the seniority policy at the Union's National 1996 Convention.
Footnote # 3 for 55 FLRA No. 44 - Authority's Decision
In National Air Traffic Controllers Association, MEBA, AFL-CIO, Case No. AT-CO-70017 (NATCA), a judge found that the Union violated its duty of fair representation under sections 7114(a)(1) and 7116(b)(1) and (8) of the Statute when it adopted the underlying seniority policy at issue here at its 1996 National Convention without the full and consistent input of nonunion members. The Union's exceptions to the Judge's Decision are pending before the Authority.
Footnote # 4 for 55 FLRA No. 44 - Authority's Decision
(12) "collective bargaining" means the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in the appropriate unit of the agency to meet at reasonable times and consult and bargain in a good faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession.
Footnote # 5 for 55 FLRA No. 44 - Authority's Decision