18:0611(74)CA - Bureau of Alcohol, Tobacco and Firearms, National Office, Washington, DC and NTEU -- 1985 FLRAdec CA
[ v18 p611 ]
18:0611(74)CA
The decision of the Authority follows:
18 FLRA No. 74
BUREAU OF ALCOHOL, TOBACCO
AND FIREARMS, NATIONAL OFFICE
WASHINGTON, D.C.
Respondent
and
NATIONAL TREASURY EMPLOYEES UNION
Charging Party
Case No. 9-CA-549
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had engaged in the
unfair labor practices alleged in the complaint and recommending that it
be ordered to cease and desist therefrom and take certain affirmative
action. Thereafter, the Respondent filed exceptions to the Judge's
Decision. /1/
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order, as modified herein.
The Judge found that the Respondent's failure to provide the National
Treasury Employees Union (the Union) with an unsanitized copy of a
promotion package in connection with a filed grievance constituted a
refusal to bargain in violation of section 7116(a)(1) and (5) of the
Statute, /2/ as well as a failure to comply with the requirements of
section 7114(b)(4) /3/ in violation of section 7116(a)(1) and (8) of the
Statute. /4/ Additionally, the Judge found that, by billing the Union
for the promotion package, the Respondent unilaterally changed a
condition of employment, without prior notice to the Union, and that
this constituted a refusal to bargain in violation of section 7116(a)(1)
and (5) of the Statute.
The duty to supply data under section 7114(b)(4) turns upon the
nature of the request and the circumstances in each particular case.
/5/ In this case, the Union requested the promotion package utilized by
the Respondent in filling a posted promotion position in connection with
unit employee John Harrison's grievance over his non-selection for a
position described in Announcement #AFT (WR) 80-27. The Union also
requested all relevant data pertaining to the manner in which the
Promotion Panel Raters arrived at the scores assigned to each applicant,
including the points assigned to each factor which the Raters evaluated
and how each of those factors was weighted in the ranking process. The
record shows that the Union was provided with a sanitized promotion
package containing SF 171s, Qualifications Record forms and supervisors'
evaluations and rating forms for applicants on the qualified, highly
qualified and best qualified lists. The Respondent deleted the
applicants' personal identifiers such as name, address, birthdate,
birthplace, phone number and social security number, and also deleted
information regarding the applicants' education and employment history
including, among other things, salary history, names of supervisors and
foreign language skills. The Respondent also deleted applicants'
references and the names of the Raters and selecting officials.
In order to process the grievance, the Union clearly needs
unsanitized copies of the successful applicant's forms to compare the
successful applicant's qualifications with John Harrison's
qualifications. /6/ The Respondent correctly provided the Union with
this data. The Union also needs certain data about the other qualified
applicants for the purpose of determining how John Harrison compares to
them and in order to determine whether, consistent with the collective
bargaining agreement, the selection was based on merit. In this regard,
the Union argued during the proceedings before the Administrative Law
Judge, and the Authority agrees that the Union needs to know and compare
the reputation of the educational and training institutions which the
other applicants attended and also the character, size and reputation of
the other applicants' previous places of employment and each applicant's
length of service in prior positions.
Therefore, the Authority finds that the General Counsel has
demonstrated that certain data deleted from the unsuccessful applicants'
forms in the promotion package was clearly necessary under section
7114(b)(4) of the Statute in order for the Union to determine the
fairness of the selection process. Further, the Authority finds that
such information contained in the promotion package should be furnished
to the Union in a form which includes data sufficient to show the
following: the unsuccessful applicants' previous employment records
(employers, length of service and places), the names of the educational
and training institutions attended by the applicants and dates of
attendance, and the weight assigned to each factor evaluated by the
Raters. /7/
Notwithstanding its obligations under section 7114(b)(4), the
Respondent contends that its sanitization of the data in the promotion
package was proper under the provisions of the Freedom of Information
Act (the FOIA) /8/ in order to prevent an unwarranted invasion of the
unsuccessful applicants' privacy. In Army and Air Force Exchange
Service (AAFES), Fort Carson, Colorado, 17 FLRA No. 92 (1985)
(hereinafter AAFES), the Authority concluded that the disclosure of
necessary data pursuant to a union request under section 7114(b)(4) of
the Statute is subject to the same scrutiny and the same balancing test
which is applied by the courts in evaluating FOIA requests under the 5
U.S.C. 522(b)(6) exemption. /9/
Applying the standard set forth in AAFES, supra, to this case, the
Authority finds that since the names of the individual applicants will
not be linked to their promotion evaluation forms, it is unlikely that
their identifies will become known even if the data which the Authority
has determined to be necessary is disclosed. /10/ Further, the
Authority notes that the necessary data requested would only be used by
the Union to process a grievance and there is no indication in the
record that any of the information would become generally known. Thus,
in striking the balance between the individual applicants' privacy
interest and the Union's need for the necessary data in the promotion
package in the circumstances of this case, the Authority has considered
the limited circulation the documents are likely to receive and the fact
that the names and personal identifiers of the applicants will not be
disclosed. Therefore, in view of the Union's need for the necessary
data in order to pursue its representational duties and to aid in
ensuring that the Government's merit promotion system operates fairly,
compared to the limited intrusion on the privacy of other unsuccessful
applicants, the Authority finds that disclosure of the necessary data
would not result in a clearly unwarranted invasion of the applicants'
privacy. The Authority also finds in the circumstances of this case,
that disclosure of the data would insure that the Government fairly
follows its own merit promotion procedures and encourages the use of
nondisruptive grievance procedures. /11/ Therefore, the Authority
concludes that the Respondent violated section 7116(a)(1), (5) and (8)
of the Statute by failing to furnish the Union with the necessary data
contained in the promotion package.
Respondent filed exceptions with regard to the Judge's conclusion
that it violated its duty to negotiate in good faith, and failed to
comply with the requirements of section 7114(b)(4) in violation of
section 7116(a)(1), (5) and (8) of the Statute, by requiring the Union
to pay for a copy of the promotion package. Subsequent to the Judge's
Decision herein, the Authority issued Veterans Administration Regional
Office, Denver, Colorado, 10 FLRA 453 (1982), wherein it found that in
the context of section 7114(b)(4) of the Statute, an agency's obligation
to furnish the exclusive representative with a copy of necessary data
upon request requires the furnishing of a copy of such data without cost
to the exclusive representative. Based on the rationale contained
therein, the Authority concludes in the present case that the Respondent
violated its duty to negotiate in good faith, and failed to comply with
the requirements of section 7114(b)(4), in violation of section
7116(a)(1), (5) and (8) of the Statute, by requiring the Union to pay
for a copy of the promotion package. /12/
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority hereby orders that the
Bureau of Alcohol, Tobacco and Firearms, National Office, Washington,
D.C., shall
1. Cease and desist from:
(a) Failing or refusing to furnish, upon request by the National
Treasury Employees Union, the exclusive representative of its employees,
the data contained in the promotion package for a position described in
Announcement #ATF (WR) 80-27 which the Authority has deemed necessary to
enable the exclusive representative to perform its representational
duties in connection with John Harrison's grievance.
(b) Failing or refusing to furnish, without charge, to the National
Treasury Employees Union, the exclusive representative of its employees,
a copy of the requested data which is necessary to enable such exclusive
representative to perform its representational duties in connection with
John Harrison's grievance.
(c) In any like or related manner interfering with, restraining, or
coercing its 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 Treasury Employees Union, the
exclusive representative of its employees, the data contained in the
promotion package for a position described in Announcement #ATF (WR)
80-27 which the Authority has deemed necessary to enable the exclusive
representative to perform its representational duties in connection with
John Harrison's grievance.
(b) Post at its facility at the Bureau of Alcohol, Tobacco and
Firearms, National Office, Washington, D.C., and its facility in San
Francisco, California, 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, or a designee, 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 insure that such Notices are not altered, defaced, or covered
by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IX, 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.
Issued, Washington, D.C., June 21, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to furnish, upon request by the National
Treasury Employees Union, the exclusive representative of our employees,
the data contained in the promotion package for a position described in
Announcement #ATF (WR) 80-27 which the Authority has deemed necessary to
enable the exclusive representative to perform its representational
duties in connection with John Harrison's grievance.
WE WILL NOT fail or refuse to furnish, without charge, to the
National Treasury Employees Union, the exclusive representative of our
employees, a copy of the requested data which is necessary to enable
such exclusive representative to perform its representational duties in
connection with John Harrison's grievance.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, furnish the National Treasury Employees Union,
the exclusive representative of our employees, the data contained in the
promotion package which is needed to enable such exclusive
representative to perform its representational duties in connection with
John Harrison's grievance.
(Agency or Activity)
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.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Michael Sitcov, Esq.
For the Respondent
David S. Handsher, Esq.
For the Charging Party
Nancy E. Pritikin, Esq.
For the General Counsel, FLRA
Before: SAMUEL A. CHAITOVITZ, Administrative Law Judge
DECISION
Statement Of The Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, 92 Stat. 1191, 5 U.S.C. 7101 et seq. (hereinafter
referred to as the Statute) and the Rules and Regulations of the Federal
Labor Relations Authority (FLRA), 5 C.F.R.Chapter XIV, Sec. 2410 et seq.
Pursuant to a charge filed on June 19, 1980 by the National Treasury
Employees Union (hereinafter called NTEU and/or Charging Party) against
Bureau of Alcohol, Tobacco and Firearms, National Office (hereinafter
called Respondent and/or ATF) the General Counsel of the FLRA by the
Regional Director of Region 9 issued a Complaint and Notice of Hearing
on September 26, 1980. The Complaint alleges that Respondent violated
Sections 7116(a)(1), (5) and (8) of the Statute by providing NTEU with
overly sanitized documents requested in connection with a grievance and
by charging NTEU for the copying of the information NTEU requested.
Respondent filed an answer denying that it violated the Statute.
A hearing in this matter was conducted before the undersigned in San
Francisco, California. The General Counsel of the FLRA, Respondent and
Charging Party were represented and afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce evidence and
to argue orally. Briefs were filed and have been fully considered.
Upon the entire record in this matter, my observation of the
witnesses and their demeanor, and from my evaluation of the evidence, I
make the following:
Findings of Fact
At all times material herein NTEU has been the collective bargaining
representative of ATF's non-professional General Schedule and Wage Grade
employees. At all times material herein NTEU and ATF have been parties
to a collective bargaining agreement which provides in Article 9,
Section 15 that in processing grievances with respect to an employee
involved in a competitive action, the contents of a promotion file may
be reviewed by the employee or his union and the review will be in
accordance with the Privacy Act and Article 34 of the agreement.
On February 8, 1980 a grievance was filed on behalf of John Harrison
concerning his nonselection for a posted position. On behalf of
Harrison NTEU requested the promotion package. Pursuant to ATF's
direction, on February 29, 1980 NTEU requested of ATF Assistant to the
Director (Disclosure) a copy of the complete package of all qualified
candidates for the position that was the subject of Harrison's
grievance. ATF Assistant to the Director (Disclosure) handles requests
made pursuant to the Freedom of Information Act (FOIA). By letter dated
May 28, 1980, ATF Assistant to the Director (Disclosure) sent NTEU a
"sanitized" copy of the promotion package and a bill for $21.40 for the
promotion package. In the past, NTEU had on a number of occasions
requested ATF to supply it with information and NTEU had never, in the
past, been billed for material supplied it by ATF.
The "sanitized" package consisted primarily of the application forms
(Form 171's) submitted by the applicants together with the roster of
eligibles and the scores awarded the applicants. The material was
sanitized by deleting the names of all applicants, except the selected
employee, and of the rating panel, and of all other information that
might enable one to identify an applicant (e.g. language taken in high
school, dates and places of prior employments, etc.) or reviewer.
Discussion and Conclusions
Judge Naimark found in Bureau of Alcohol, Tobacco and Firearms,
National Office and Western Region, San Francisco, California, Case No.
9-CA-390, OALJ 81-064 (1981) (hereinafter called the ATF Case), a case
involving the same parties and request for the same promotion package,
that "by requiring the Union to request data under the FOIA, and
treating it as a member of the general public, Respondent was evading
its obligation under 7114(b) of the Act . . . its action constituted a
refusal to bargain in violation of Section 7116(a)(5)." As part of his
recommended Order Judge Naimark ordered ATF "to cease refusing to
furnish NTEU all information relevant to the processing of a grievance .
. . ." The case before me raises the issue of whether the information
that had been supplied by the ATF FOIA Officer to NTEU was sufficient to
satisfy ATF's obligations under the Statute.
ATF argues that Section 7114(b)(4) of the Statute /13/ does not
require it to provide the requested promotion package to NTEU for the
processing of a grievance. Rather ATF contends that Section 7114(b),
(4), (B) only requires it to give NTEU necessary information to be used
in negotiations and collective bargaining. ATF contends that grievances
are not part of the collective bargaining process. ATF's argument is
rejected. Such a narrow definition of collective bargaining and
negotiations would frustrate the very purposes of the Statute. Rather,
the policing of collective bargaining agreements and the processing of
grievances are very fundamental aspects of the collective bargaining
process. Therefore, in agreement with Judge Naimark and with his
analysis /14/ I conclude that NTEU was entitled, pursuant to Section
7114(b)(4) of the Statute, to the promotion package in the instant case.
/15/
The promotion package in the subject case is, on its face, relevant
and necessary to the reviewing of and processing a grievance involving a
failure to promote one of the applicants. Thus absent any special
privilege, NTEU would be entitled to the promotion package. See ATF
Case, supra, and Department of the Treasury, Internal Revenue Service,
Milwaukee, District, 8 A/SLMR 1125 (1978).
ATF further contends that requiring NTEU to seek this information as
a member of the general public through the FOIA procedures did not
violate the Statute. That issue is not before me and was disposed of by
Judge Naimark, ATF Case, supra. Rather, in light of all of the
foregoing there are two basic issues before me; first, whether in
providing the promotion package ATF "over sanitized" it, thereby failing
to provide NTEU with information it was entitled to receive and
secondly, whether ATF violated the Statute by charging NTEU for the
information supplied.
ATF contends that the Freedom of Information Act, 5 USC 552(b)(6)
/16/ justified it in making the deletions in the promotion package. In
dealing with the interests created by the two separate laws in question,
the FOIA and the Statute, the interests so created must be weighed and
balanced. In the subject case all of the deletions seem to have gone
solely to preventing the identification of the applicants and the
reviewers. Thus the subject case involves balancing the right of NTEU
under the Statute to obtain the information it needs to protect the
interests of employees it represents and the interests of the applicants
for a promotion and the reviewer under the FOIA to keep their identify
secret. Such privacy rights raised under the FOIA have been rejected in
the past when balanced against a union's representative rights under
Executive Order 1149 /17/ and the Statute. /18/ In the instant case I
find NTEU's right and need to the unsanitized promotion package
outweighs the loss of privacy of any employee or reviewing official
whose identify would thereby become known. /19/ ATF justified the
deletions solely on the basis of FOIA privilege, 5 U.S.C. 552(b)(6) and
not under the Terms of the Privacy Act, 5 USC 552(a)( 5). But in either
case ATF has failed to establish that it would have been unlawful to
supply the requested information.
Accordingly I conclude that Respondent was not privileged to delete
the items it did from the promotion file and by so doing, ATF failed to
supply NTEU with information to which NTEU was entitled. ATF's failure
to supply NTEU with the requested information therefore constituted a
violation of Sections 7116(a)(1), (5) and (8) of the Statute.
Finally General Counsel contends that ATF violated the Statute by
billing NTEU for the requested information. The record establishes that
a past practice existed of supplying the Union with requested
information free of charge. The charging of the Union therefore
constituted a unilateral change of a condition of employment, without
prior notice to NTEU, and violated Sections 7116(a)(1) and (5) of the
Statute. ATF's contention that it was permitted, in dealing with FOIA
requests, to charge a fee is rejected. The instant case and the ATF
Case, supra, holds that NTEU was entitled to this information under the
Statute, not the FOIA, and in fact requiring it to utilize the FOIA
violated the Statute, ATF Case, supra. Accordingly the FOIA billing
requirements, as such, do not operate to change an existing employment
practice. However, this does not mean as General Counsel contends, that
Section 7114(b)(4) entitles NTEU to the requested information free of
charge. Rather all Section 7114(b)(4) of the Statute means is that NTEU
is entitled to have the information made available. Reasonable costs,
if any, and similar procedures dealing with the supplying of such
information is to be worked out by the parties to a collective
bargaining relationship.
ATF contends that the General Counsel and Charging Party are barred
by res judicata from challenging the propriety of the deletions made by
ATF in the documents it supplied to NTEU because of the litigation of
ATF Case, supra. ATF's contention is rejected because the ATF Case,
supra, dealt with whether ATF violated the Statute by requiring NTEU to
utilize the FOIA procedures in order to secure information, whereas the
instant case deals with whether the information ATF subsequently
furnished NTEU was adequate under the Statute's requirements and whether
ATF violated the Statute by billing NTEU for the information supplied.
Thus, although the matters raised in both cases are related, and it
might have made good sense to consolidate and litigate the two cases
together, the matters raised in each case are legally and factually
separate issues involving allegations of separate and distinct
violations of the Statute. Accordingly, I reject ATF's contention that
the subject case is barred because of the prior litigation of the ATF
Case, supra.
In light of all of the foregoing I conclude that NTEU was entitled,
pursuant to Section 7116(b)(4), to the promotion package and that ATF
over sanitized the promotion package furnished to NTEU. The failure to
provide NTEU with the unsanitized copy of the promotion package
constituted a refusal to bargain in violation of Sections 7116(a)(5) and
(1) of the Statute. Further this constituted a failure to comply with
the requirements of Section 7114(b) of the Statute and thus a violation
of Sections 7116(a)(8) and (1) of the Statute. Additionally by billing
NTEU for the promotion package, ATF unilaterally changed a condition of
employment, without prior notice to NTEU, and this constituted a refusal
to bargain in violation of Sections 7116(a)(5) and (1) of the Statute.
In view of the foregoing I recommend the Authority adopt the
following order:
ORDER
Pursuant to Section 7118(a)(7) of the Federal Service
Labor-Management Relations Statute and Section 2423.29 of the Rules and
Regulations, it is hereby ordered that Bureau of Alcohol, Tobacco and
Firearms, National Office, Washington, D.C., shall:
1. Cease and desist from:
(a) Refusing or failing to furnish, upon request by the
National Treasury Employees Union, or any other exclusive
representative of its employees, complete promotion packages and
all information relevant to the processing of a grievance, which
information is necessary to enable the National Treasury Employees
Union, or any other exclusive representative, to discharge its
obligation as the exclusive representative to represent the
interests of all employees in the exclusively recognized unit.
(b) Billing and charging National Treasury Employees Union for
information and documents furnished it.
(c) Changing the practice of not billing for information and
documents furnished to National Treasury Employees Union without
first notifying National Treasury Employees Union and affording it
the opportunity to consult and negotiate, to the extent consonant
with law and regulations, concerning any such change.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative actions:
(a) Upon request, make available to the National Treasury
Employees Union, or any other exclusive representative of its
employees, promotion packages and all information relevant to the
processing of a grievance, which information is necessary to
enable the National Treasury Employees Union, or any other
exclusive representative, to discharge its obligation as the
exclusive representative to represent the interests of all
employees in the exclusively recognized unit.
(b) Notify the National Treasury Employees Union of any
intention to change the practice of not billing for information
and documents furnished to National Treasury Employees Union and
upon request, consult and negotiate with such representatives, to
the extent consonant with law and regulations, concerning such
changes.
(c) Post at its facility at the Bureau of Alcohol, Tobacco and
Firearms, National Office, Washington, D.C. and San Francisco,
California, copies of the attached notice marked "Appendix" on
forms to be furnished by the Federal Labor Relations Authority.
Upon receipt of such forms, they shall be signed by the Director
and shall be posted and maintained by him for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards
and other places where notices to employees are customarily
posted. The Director shall take reasonable steps to insure that
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director of Region IX, 530 Bush Street,
Suite 542, San Francisco, California 94108, in writing within 30
days from the date of this Order as to what steps have been taken
to comply herewith.
SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: August 21, 1981
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
We hereby notify our employees that:
WE WILL NOT refuse or fail to furnish, upon request by the National
Treasury Employees Union, or any other exclusive representative of its
employees, complete promotion packages and all information relevant to
the processing of a grievance, which information is necessary to enable
the National Treasury Employees Union, or any other exclusive
representative, to discharge its obligation as the exclusive
representative to represent the interests of all employees in the
exclusively recognized unit.
WE WILL NOT bill and charge National Treasury Employees Union for
information and documents.
WE WILL NOT change the practice of not billing for information and
documents furnished to National Treasury Employees Union without first
notifying National Treasury Employees Union and affording it an
opportunity to consult and negotiate, to the extent consonant with law
and regulations, concerning any such change.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce any employee in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
WE WILL, upon request, make available to the National Treasury
Employees Union, or any other exclusive representative of its employees,
complete promotion packages and all information relevant to the
processing of a grievance, which information is necessary to enable the
National Treasury Employees Union, or any other exclusive
representative, to discharge its obligation as the exclusive
representative to represent the interests of all employees in the
exclusively recognized unit.
WE WILL, notify the National Treasury Employee Union of any intention
to change the practice of not billing for information and documents
furnished to National Treasury Employees Union and, upon request,
consult and negotiate with such representatives, to the extent consonant
with law and regulations, concerning such changes.
(Agency or Activity)
Dated: By: (Signature)
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 any employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate directly
with the Regional Director, Region IX, Federal Labor Relations
Authority, whose address is: 530 Bush Street, Suite 542, San Francisco,
California 94108, and whose telephone number is: (415) 556-8105.
--------------- FOOTNOTES$ ---------------
/1/ The General Counsel filed an untimely opposition to the
Respondent's exceptions which has not been considered.
/2/ Section 7116(a)(1) and (5) of the Statute provides:
Sec. 7116. Unfair labor practices
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter;
* * * *
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/3/ Section 7114(b)(4) of the Statute provides:
Sec. 7114. Representation rights and duties
* * * *
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation--
* * * *
(4) in the case of an agency, to furnish to the exclusive
representative involved, or its authorized representative, upon
request and, to the extent not prohibited by law, data--
(A) which is normally maintained by the agency in the regular
course of business;
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining; and
(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining(.)
/4/ Section 7116(a)(8) of the Statute provides:
(a) For the purpose of this chapter, it shall be an unfair
labor practice for an agency--
* * * *
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
/5/ See, e.g., United States Environmental Protection Agency, Health
Effects Research Laboratory, Cincinnati, Ohio, 16 FLRA No. 16 (1984);
Internal Revenue Service, Buffalo District, Buffalo, New York, 7 FLRA
654 (1982); Director of Administration, Headquarters, U.S. Air Force, 6
FLRA 110 (1981).
/6/ See, e.g., Celmins v. United States Dep't of Treasury, 457
F.Supp. 13 (D.D.C. 1977).
/7/ The Authority finds that the General Counsel has failed to meet
its burden of establishing why the following data is necessary under
section 7114(b)(4) of the Statute: the unsuccessful applicants' names,
personal identifiers, foreign language skills, references, salary
histories, the identities of their former supervisors and the names of
the Raters and selecting officials. In so finding, the Authority
concludes that the Respondent correctly deleted this data, inasmuch as
this data has not been shown to be necessary under section 7114(b)(4) of
the Statute for the Union to determine if the selection process was
fair. The Authority notes particularly that linking the names and the
personal identifiers of the unsuccessful candidates with their SF 171s
and their work evaluation forms would not significantly aid the Union in
processing this grievance. See Celmins v. United States Dep't of
Treasury, supra, 457 F.Supp. at 17. Cf. Veterans Administration
Regional Office, Denver, Colorado, 7 FLRA 629 (1982) (wherein, the
Authority concluded in the circumstances of the case, that disclosure of
the names of unsuccessful candidates was necessary).
/8/ Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 256
(codified as amended at 5 U.S.C. 552 (1982)).
/9/ Under exemption (b)(6) of the FOIA, an agency is allowed to
withhold personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of privacy.
/10/ Should the information become widely circulated, the Authority
would necessarily take this experience into account in future similar
cases.
/11/ See Celmins v. United States Dep't of Treasury, supra, 457
F.Supp. at 16.
/12/ Further, in rejecting the Respondent's contention that the Judge
failed to consider its defense that the parties' collective bargaining
agreement supersedes any requirements set forth in section 7114(b)(4) of
the Statute, the Authority notes that the agreement was entered into
prior to the enactment of the Statute, and evidence submitted with
regard to the parties' practice subsequent to enactment of the Statute
does not show a clear and unmistakable waiver by the union of such
right. Bureau of Alcohol, Tobacco and Firearms, National Office and
Western Region, San Francisco, California, 8 FLRA 547, n.1 (1982). See
also Office of Program Operations, Field Operations, Social Security
Administration, San Francisco Region, 10 FLRA 172 (1982); Department of
the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981).
/13/ Sec. 7114 Representation rights and duties . . .
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation--
(4) in the case of an agency, to furnish to the exclusive
representative involved, or its authorized representative, upon
request and, to the extent not prohibited by law, data--
(A) which is normally maintained by the agency in the regular
course of business;
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining; and
(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining; and . . .
/14/ ATF Case, supra.
/15/ Even in the absence of Section 7114(b)(4) of the Statute, NTEU
would be entitled to the requested information. As the collective
bargaining representative of employees, NTEU must be able to adequately
and properly represent these employees in the processing of grievances,
a procedure specifically provided for in the Statute. See Section 7121
of the Statute. The Statute clearly was not intended to provide NTEU
with rights and obligations, without the ability to enforce and carry
them out. Rather, it is clear that, as the collective bargaining
representative, NTEU is entitled under the Statute to receive the
information it needs to adequately and fairly police and enforce the
collective bargaining agreement and to prosecute grievances. See the
reasoning of Judge Arrigo in Veterans Administration Regional Office,
Denver, Colorado, 7-CA-406, OALJ 81-044 (1981).
Thus ATF's contention that somehow Article 9 Section 15B of the
Collective Bargaining Agreement supercedes Section 7114(b)(4)(B) of the
Statute is rejected.
/16/ Section 552(b)(6) exempts from the general disclosure
requirements of the FOIA "personal and medical files and similar files
the disclosure of which would constitute a clearly unwarranted invasion
of personal privacy."
/17/ Department of Defense, State of New Jersey, supra; Department
of the Treasury, Internal Revenue Service, Milwaukee, Wisconsin, 8
A/SLMR 113, A/SLMR No. 974, aff'd 6 FLRC 797, FLRC 78A-31 (1978);
Internal Revenue Service, Chicago District Office, 8 A/SLMR 309, A/SLMR
No. 1004 (1978); Department of Health, Education and Welfare, Region
VIII, 8 A/SLMR 949, A/SLMR No. 1109 (1978); Department of the Treasury,
Internal Revenue Service and IRS Milwaukee District, 8 A/SLMR 1125,
A/SLMR No. 1133 (1978).
/18/ Cf. Veterans Administration Regional Office, Denver, Colorado,
supra.
/19/ ATF has not set forth any reasons for deleting any of the
information other than to protect the identity of the applicants or
reviewers.