[ v22 p667 ]
The decision of the Authority follows:
22 FLRA No. 74 U.S. ARMY CORPS OF ENGINEERS KANSAS CITY DISTRICT KANSAS CITY, MISSOURI Respondent and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 29 Charging Party Case No. 7-CA-40283 DECISION AND ORDER The Administrative Law Judge issued the attached Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain 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, and the General Counsel and the Charging Party filed oppositions to the Respondent's exceptions. 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 Authority adopts the Judge's conclusion that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by failing and refusing to furnish the Charging Party (the Union) with certain necessary data it requested pursuant to section 7114(b)(4) of the Statute. She ordered the Respondent to furnish the Union with a copy of the "Status of Minority Employment" listing (the Minority Listing) /1/ maintained by the Respondent, but to "sanitize" the Minority Listing by deleting all data pertaining to nonbargaining unit employees, and all other data except the names and minority status of bargaining unit employees. We agree. The Respondent in its exceptions again contends that, notwithstanding any obligation it might otherwise have under section 7114(b)(4) of the Statute, the provisions of the Privacy Act /2/ prohibit it from disclosing the Minority Listing. /3/ The Authority has previously determined that disclosure of necessary data to exclusive representatives pursuant to requests under section 7114(b)(4) of the Statute is not prohibited by the Privacy Act if the disclosure will not result in a clearly unwarranted invasion of privacy, /4/ and that in making such determination in each case the Authority will balance the necessity of the data for the Union's purposes against the degree of intrusion on the individual's privacy interests caused by disclosure of the data. The Authority notes that the necessary data here requested is to be used by the Union to determine whether the Respondent is complying with the provisions of the parties' collective bargaining agreement, to determine whether to file grievances in certain merit promotion actions, and to prepare for contract negotiations, and has considered the limited circulation the data is likely to receive. /5/ In striking the balance between the limited intrusion on the privacy interests of the three highest ranked individuals and the selected employees, and the Union's need to identify these individuals and their minority status in order to pursue its representational duties under the Statute, which will also ensure that the Government's merit promotion system operates fairly, the Authority finds that disclosure of the necessary data would not result in a clearly unwarranted invasion of privacy and hence would not contravene the Privacy Act so as to be prohibited by law within the meaning of section 7114(b)(4) of the Statute. Therefore, the Authority concludes that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by failing and refusing to furnish the Union with the necessary data contained in the Minority Listing. ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, shall: 1. Cease and desist from: (a) Failing or refusing to furnish, upon request by the National Federation of Federal Employees, Local 29, the exclusive representative of a unit of its employees, the data contained in the "Status of Minority Employment" listing which the Authority has deemed necessary for the full and proper performance by such exclusive representative of its representational duties. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Upon request, furnish to the National Federation of Federal Employees, Local 29, the exclusive representative of a unit of its employees, the data contained in the "Status of Minority Employment" listing which the Authority has deemed necessary for the full and proper performance by such exclusive representative of its representational duties. (b) Post at its facilities at the U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 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 District Engineer, or a designee, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including 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 VII, 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., July 24, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, 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 Federation of Federal Employees, Local 29, the exclusive representative of a unit of our employees, the data contained in the "Status of Minority Employment" listing which the Authority has deemed necessary for the full and proper performance by such exclusive representative of its representational duties. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL, upon request, furnish the National Federation of Federal Employees, Local 29, the exclusive representative of a unit of our employees, the data contained in the "Status of Minority Employment" listing which the Authority has deemed necessary for full and proper performance by such exclusive representative of its representational duties. (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. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region VII, Federal Labor Relations Authority, whose address is: 535 16th Street, Suite 310, Denver, CO 80202, and whose telephone number is: (303) 837-5224. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 7-CA-40283 U.S. ARMY CORPS OF ENGINEERS, KANSAS CITY DISTRICT, KANSAS CITY, MISSOURI, Respondent and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 29, Charging Party Jane P. Cornwell, For the Respondent Gerald Eggemeyer and Joseph Swerdzewski, For the General Counsel Federal Labor Relations Authority Diane E. Carney, For the Charging Party Before: ISABELLE R. CAPPELLO Administrative Law Judge DECISION This is a proceeding under Title VII of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq. (1982), commonly known as the Federal Service Labor-Management Relations Statute, and hereinafter referred to as the Statute, and the rules and regulations issued thereunder and published at 5 CFR 2411 et seq. This proceeding was initiated by the filing of an unfair labor practice charge on March 2, 1984, which was amended on May 24. The Region VII Office of the Federal Labor Relations Authority (the Authority) investigated the charges and, on May 30, issued a complaint against Respondent. The complaint alleges that on or about February 7 and 15, 1984, and pursuant to 5 U.S.C. 7114(b)(4), the Charging Party (also referred to herein as the Union) submitted to Respondent written requests for a copy of the "Status of Minority Employment" listing, which concerns the race, sex, national origin, and disability status of Respondent's employees, and that on or about February 8 and 23, and at all times since, Respondent has failed and refused to furnish the Charging Party the data requested, thereby engaging in unfair labor practices in violation of 5 U.S.C. 7116(a)(1), (5) and (8). /6/ Respondent admits that the listing has been requested, is normally maintained by it in the regular course of business, and that it has refused to furnish it. Respondent denies that the requested data is reasonably available and necessary for collective bargaining. And it avers that it is constrained from furnishing it by 29 CFR 1613.302(b); by the Privacy act, 5 U.S.C. 552(b); and by 5 U.S.C. 7116(b)(4). And it further avers that it disclosed all relevant and necessary data in accordance with 5 U.S.C. 7114(b)(4). A hearing on the matter was held in Kansas City, Missouri, on July 10, 1984. The parties appeared, adduced documentary evidence, and examined witnesses. Briefs were filed on August 30, by Respondent, and on August 31 by the General Counsel, pursuant to an August 6 order extending the briefing time until August 31 for good cause shown by the General Counsel of the Authority in an unopposed motion. Based upon the record made in this proceeding, my observation of the demeanor of the witnesses, and the briefs, I make the following findings of fact and conclusions of law and recommend the entry of the following order. Findings of Fact /7/ 1. It is admitted that the Charging Party is a labor organization and the Respondent is an agency within the meaning of 5 U.S.C. 7103(a)(3) and (4). 2. It is also admitted that the Charging Party has been the exclusive representative of a unit of Respondent's employees since August 5, 1970. The bargaining unit fluctuates between 650 and 750 employees. Its members are spread over approximately 30 installations in 5 states, with stewards in only 2 of the 30. 3. It is also admitted that the Respondent and the Charging Party have been parties to a collective bargaining agreement, effective July 1, 1981 to July 1, 1984, which contains, inter alia, a provision stating that no employee will be discriminated against because of, inter alia, race, sex, national origin, and physical handicap. See Article 6 of GC 2 at page 7. The agreement also contains provisions relative to merit promotion (Article 14 of GC 2 at page 25); equal employment opportunity (EEO, Article 15 of GC 2 at page 28); and a grievance procedure which provides for the processing of grievances concerning equal employment and discrimination complaints (Article 9 of GC 2 at pages 14 and see also TR 49 and 79). 4. In late November or early December, 1983, Gary W. Divine, Union President, met with Elvin J. Gant, the Respondent's Equal Employment Manager, to discuss ways both could "firm up" the relationship between the Union and the Equal Employment Opportunity Office (EEOO), and to discuss a grievance being processed by the Union (TR 22). During this conversation Mr. Gant stated that there was "institutional racism" within the Respondent and, in particular, stated that although there was a large number of minority candidates ranked in the top three on merit promotion referrals, they were routinely not selected (TR 22). Mr. Gant also indicated that he had the documents to verify these statements. /8/ 5. Based upon the statements of Mr. Gant, the Union felt compelled, for contract administration purposes, to investigate his allegation of institutional racism. Accordingly, on December 30, 1983, in a letter to Colonel Gurnie C. Gunter, Respondent's District Engineer, Mr. Divine, referencing "information Local 29 ha(d) received from Mr. Gant of (his) staff and in the interest of proper contract administration," requested, pursuant to Section 7114(b)(4) of the Statute, "copies of all DA 2600's dated 1 July 1981 to present; wherein one of the three highest ranked candidates was not selected for the bargaining unit position in question" (G.C. Exh. 3). 6. Department of Army Form 2600 (DA 2600) is a referral and selection roster showing the position to be filled, and listing the best qualified candidates and their present position. The form is forwarded to the selecting supervisor. Article 14, Section 6 of the parties' collective bargaining agreement provides that: Selections. The selecting official should normally choose one candidate from the three highest rankings. Any candidate may be selected provided the selecting official furnishes a statement indicating why he/she believes the selected candidate can perform more effectively and efficiently than any candidate in the three highest rankings. See GC 2 at page 26. 7. Shortly thereafter, Robert G. Blaylock, Respondent's Chief of the Management-Employee Relations and Training Branch of the Personnel Office, told the Union that he would allow the Union access to the DA 2600s contained in the merit promotion files which the Union felt it needed. The Union chief steward and another steward reviewed about 500 merit promotion packages, from which they pulled approximately 150 DA 2600s. According to Mr. Divine, the DA 2600s were requested so that the Union could determine, under the merit promotion process, who was selected for a position. This would, in turn, assist the Union in finding out whether the individual selected was among the three highest ranked candidates, whether a minority candidate was listed, and finally whether the minority candidate was selected. 8. The Union's preliminary review of the DA 2600s revealed that the three highest ranked candidates were not selected approximately 50 per cent of the time. In addition, four position selections, with their accompanying DA 2600s and supporting documents, were particularly instructive to the Union. a. The first concerned selections for two vacancies in the position of power plant trainee. The DA 2600 listed 14 candidates which, according to a stamp placed on the DA 2600 by the Personnel Office, included 2 females and 1 minority. This DA 2600 was of interest because the selecting supervisor wrote that he selected one of the two candidates because "(h)is selection will also provide a start in overcoming a severe underrepresentation of minorities in this career field" (GC 4). Consequently, two facts became evident from this DA 2600: that the Personnel Office stamp indicated that the selecting supervisor was being notified of minority and female applicants; and that the supervisor's justifications for one of the selections indicated that in at least one case minority consideration had been a factor in the selection. Since it was the Union's understanding that the merit promotion article (Article 14) of the agreement required selections only to be based on merit, and not on race, creed, color, national origin or sex, the Union felt there may have been a contract violation in this instance. Respondent's chief of labor-management relations, Robert G. Blaylock, conceded that it was the policy of the Personnel Office to make merit selections for promotion "without regard to race or sex or any other non-merit factor" (TR 88). b. The Union's review of the DA 2600s also received a possible problem with a selection for the position of civil engineering technician in the Construction Division. In a November 16, 1983, memorandum to the selecting supervisor for this position, Mr. Gant stated, in part, that there was one minority applicant on the referral list for this position, and that Respondent had a severe underrepresentation of minority employees in this particular career field, which should be considered together with other selection criteria. The first DA 2600 for this position indicates that on December 12, 1983, the selecting supervisor made his selection. In a memorandum dated December 15, 1983, to Colonel Gunter, Mr. Gant states that, given the underrepresentation currently existing, the proposed selection did not reflect appropriate support for the spirit, intent, or the implementation of affirmative action policies or objectives. Thereafter, in a memorandum dated December 16, 1983, the then acting Construction Division Chief stated that while he agreed with Mr. Gant's comments, he supported the selecting supervisor's justifications for the selection. However, the second DA 2600 for this position, dated January 22, 1984, shows that the selection supervisor overturned his original selection and selected a black male based upon merit factors, underrepresentation and Respondent's affirmative action program, indicating that the selection was partly based upon minority consideration, rather than merit only. c. The Union's review of a DA 2600 for the position of Miscellaneous Documents Examiner, and its investigation of an unrelated employee grievance, revealed another possible problem selection. During investigation of the grievance, the Union learned that the selecting supervisor had originally proposed selecting two employees, but that Mr. Gant did not concur in one of the selections because of the absence and underrepresentation of black employees in this particular career field, and he recommended selection of the black employee on the referral list. Mr. Gant's March 17, 1983 memorandum to the selecting supervisor stated that race can be considered in the selection process and that support for equal employment opportunity (EEO) will be relied upon to determine whether a division chief has met the critical equal employment opportunity element of his or her job performance standards. Subsequently, the selecting supervisor selected the black female, and failed to select any of the three highest ranked candidates, even though the Union's investigation of the grievance revealed that the black female had the lowest ranking of all the candidates. Further, this DA 2600 was again stamped with a statement that the list included seven females and one minority. d. Finally, the Union's review of a DA 2600 for the Contract Specialist or Contract Administrator position disclosed a fourth questionable selection regarding the administration of the contract's non-discrimination and merit promotion articles. This DA 2600 showed four candidates with the three highest rankings, a stamp stating that the list included nine females and four minorities, and that the person selected was not among one of the candidates in the three highest rankings. The DA 2600, however, did not reveal whether any of the four highest ranked candidates were minorities, and the Union was unable to identify whether two of the four were minorities. e. The Union's preliminary review of the other DA 2600s disclosed that the candidates in the top three rankings were not being selected approximately one half of the time, and that underrepresentation was a consideration in the selection process. f. The Union was left with two areas where patterns of discrimination may have been occurring -- (1) minority candidates being among the three highest rankings and not being selected, and (2) minority candidates being given preferential treatment and selected over candidate within the three highest rankings. However, from the DA 2600s alone, only the female candidates could normally be identified. The minority candidates could not readily be identified. Accordingly, in order to fully investigate Mr. Gant's allegation of institutional racism and to complete its discrimination analysis, the Union felt it needed the names and the minority status of the candidates to see if there was the possibility of a union grievance or contract compliance problem with the merit promotion article, the employee rights article, and the EEO article. 9. As a result, in late January 1984, Mr. Divine met with Mr. Gant in the EEOO. According to Mr. Divine, he asked Mr. Gant about the stamp showing the number of female and minority applicants on the DA 2600s and if this was done by the EEOO. He was told by Mr. Gant that the stamp was put on by the Personnel Office, and that Mr. Gant did review the stamp for accuracy and completeness using a Status of Minority Employment listing. /9/ The listing is a computer-generated, by-name listing of all minorities and women in Respondent's workforce which also identifies their grade, pay plan, position title, occupational series and organizational element. Mr. Gant uses this listing, as raw data, to compile the Affirmative Action Panel Report, a quarterly publication, which assesses Respondent's work force profile in terms of race, gender, grade, pay plan, and organizational element. Mr. Divine asked Mr. Gant if the Union could have access to the information on the listing, and explained the Union's investigation based on Mr. Gant's earlier allegation of institutional racism. Mr. Gant replied that the EEOO would be willing to cooperate in the Union's investigation and in gathering information. Mr. Gant did not indicate that he would give the listing to Mr. Divine. 10. On February 7, 1984, Mr. Divine sent another letter to Colonel Gunter. He referred to his earlier letter of December 30, 1983, requesting copies of the DA 2600s from July 1, 1981 (see finding 5, above) and noted that the Personnel Office had allowed the Union access to them. He requested one copy of each status of Minority Employment listing for the past two years so that the Union might "adequately analyze" the DA 2600s, and cited 5 U.S.C. 7114(a)(4). See GC 8. He stated his "understanding that these document (were) maintained by the Equal Employment Manager and w(ould) be provided upon request" (GC 8). 11. On February 8, 1984, Mr. Blaylock replied to Mr. Divine's February 7 letter to Colonel Gunter. In the letter he stated that the: Statute prohibits the release of employment information by race or national origin. Any such data maintained may be used only in studies and analyses which contribute affirmatively to achieving the objectives of the equal employment opportunity program (See 5 CFR 29, Section 1613.302). See GC 9. Mr. Blaylock testified that the citation used in his letter was incorrect and should have been 29 CFR 1613.302. See TR 90. The correct citation is to a regulation of the Equal Employment Opportunity Commission (EEOC). /10/ Mr. Blaylock never contacted anyone at EEOC for an interpretation of the regulation or for guidance as to what it might mean. He thought it was "plain enough" (TR 91), but admitted that he really did not know the "standard" for individual privacy under the regulation (TR 95). 12. On February 9, 1984, Mr. Divine wrote to Mr. Blaylock and stated his view that refusal to furnish the requested data violated the Statute. 13. On February 15, 1984, in a letter to Colonel Gunter, Mr. Divine made a request for five items, and reiterated the request for the Status of Minority Employment, a copy of which, he explained, he had viewed briefly in the presence of Mr. Gant in late January 1984. Mr. Divine explained to Colonel Gunter that he was making the request as President of Local 29, "in order to prepare for upcoming contract negotiations and to ensure proper administration of the current contract" (GC 11). One of the "primary articles" to be renegotiated was the one concerning "merit promotion" (TR 50). 14. On February 23, 1984, Mr. Blaylock replied to Mr. Divine's letter of February 15. He furnished five of the items requested, but declined to furnish the Status of Minority Employment listing with the comment: "again I must remind you that the release of this information is prohibited by 29 CFR, Section 1613.302" (GC 12). 15. At the hearing, Mr. Blaylock testified that he also relied upon the Privacy Act in declining to furnish the requested listing, but never mentioned reliance upon it to the Union. The Union never indicated to him that it was "investigating a potential grievance" (TR 96). 16. At the hearing, the Union President testified that the Status of Minority Employment listing was needed in order to administer the current contract provisions, particularly Article 6 dealing the non-discrimination provision; Article 14, the merit-promotion provision; and Article 15, the equal employment opportunity provision. He further testified that it was needed also for contract negotiations due to commence in July 1984 because one of the primary articles to be negotiated was the merit promotion one, the Respondent having already given to the Union a "totally new promotion package" (TR 51). The Union had to know the extent of the problem in the merit promotion area as it related to discrimination; whether the contract needed tightening in that area; what emphasis would be placed on minority status and underrepresented positions; how these factors would be identified; and what weight should be given to them in the merit selection process. 17. Respondent never asked the Union why it needed the listing, or to clarify its request. Respondent never offered to sanitize the listing to limit it to bargaining unit members -- an action which the Union President testified would have been acceptable as far as non-unit positions were concerned. 18. However, on or about April 23, 1984, as part of a separate unfair labor practice charge, Respondent did provide to the Union the EEO Affirmative Action Panel Report for the first quarter of fiscal year 1984, as well as a listing of positions designated as underrepresented and other positions filled within the last year. See R 2. The Panel Report was not offered as alternative data to the Union's request for the Status of Minority Employment listing. See TR 56. The Panel Report, while giving an overall profile of Respondent's work force, was of no use to the Union's investigation of discrimination in the merit promotion area, since it did not identify employees by name, and did not allow the Union to identify the minority status of actual candidates on the DA 2600s. And the gross statistics represented by the Panel Report do not allow the Union to identify potential discrimination problems with particular vacancies, or a series of vacancies, which are required to file a grievance, or determine the extent of possible grievances. 19. The data contained in the Status of Minority Employment listing is maintained in Respondent's computer system. This data can be generated into a listing, in the form of a computer print-out, at little cost. When the listing is in computer print-out form, the listing is maintained in the EEO office and is used to compile the EEO Affirmative Action Reports. The form is destroyed after the Reports are compiled. 20. Respondent admits that the Status of Minority Employment listing was and is data normally maintained in the regular course of its business, and does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining. 21. Respondent has furnished to the Union the names and addresses of bargaining-unit employees, and allows the Union access to its internal mail system. Discussion and Conclusions The General Counsel has established, by a preponderance of the evidence, /11/ that Respondent committed an unfair labor practice, in violation of 5 U.S.C. 7116(a)(1), (5) and (8), by failing to furnish the Status of Minority Representation listings as requested by the Union pursuant to 5 U.S.C. 7114(b)(4). a. The requested data met the statutory conditions for production. With exceptions to be discussed infra, all that section 7114(b)(4) explicitly requires to justify a request for information is proof that the information sought is (1) "data;" that it is (2) "normally maintained by the agency in the regular course of business;" (3) that it is "readily available;" and (4) that it is "necessary for the full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining." See section 7114(b)(4) quoted fully in footnote 1, supra. Respondent admits that the listings are data, normally maintained by it in the regular course of business. It is established by the record that this data can be easily generated in the form of a computer printout and is, thus, readily available. As to the last element of proof, the necessity for the data sought, the Authority has held that "matters related to discrimination in employment" are "within the scope of the duty to bargain, under section 7117 of the Statute." See American Federation of Government Employees, AFL-CIO, and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 617 (1980). (See also Respondent's apparent concession on this point, at page 14 of its brief.) The Authority has not yet ruled on the necessity of minority employment listings in a situation similar to the present case but, in situations arising in the private sector, the National Labor Relations Board had ruled; and the Board's decisions can be instructive, if not dispositive for Federal-sector, labor-relations matters. See Director of Administration, Headquarters, U.S. Air Force, 6 FLRA 110, 120-123 (1981). Thus, in Lucky Markets, Inc., 251 NLRB 836, 837 (1980), the union asked for, inter alia, a list containing the names, ages, race, sex, and marital status of all employees in the bargaining unit. The Board held the list was relevant and necessary, and must be disclosed, citing its prior decision in Westinghouse Electric Corporation, 239 NLRB 106, 108 (1978) wherein the Board, after noting the Union's duty of fair representation, stated: Since the cases have plainly established that a union has a right to protect the employees it represents from discriminatory treatment by an employer, it follows that a union needs information related to race and sex in order to make proposals and then to take other action to correct such discrimination. Also see Safeway Stores, Inc. v. N.L.R.B., 691 F.2d 953, 957 (C.A. 10, 1982), holding that when anti-discrimination clauses are inserted into a bargaining agreement, the union has a duty to ensure that the contractual obligations are being met by the employer, and enforcing an order that information pertaining to the employment status, ethnic background and sex of employees be disclosed. A similar role for Federal sector unions was explicated by Congressman William D. Ford, in a post-enactment statement in which he commented upon the fact that House and Senate conferees in the U.S. Congress had decided to remove from the Statute "the exclusion of discrimination matters from the definition of conditions of employment" which determines which matters are negotiable. Congressman Ford stated that this decision was made because of the belief that: "Federal sector unions should shoulder their full obligation to help achieve equality of employment opportunity in their agencies." See 124 Cong. Rec. H13606, daily ed. Oct. 14, 1978, quoted in full on page 991 of the Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, (hereinafter, Legislative History), Committee Print No. 96-7 of the Subcommittee on Postal Personnel and Modernization of the Committee on Post Office and Civil Service, House of Representatives, 96th Cong., 1st Session. Congressman Ford was a member of the Subcommittee, and a sponsor of legislation that led to enactment of the Statute. Here, the Union has shouldered this responsibility and bargained for and won from Respondent provisions in its contract relating to merit promotion (which the parties agree must not be on any other factor, such as race or sex); to equal employment opportunity; and to the handling of grievances involving equal employment and discrimination complaints. See finding 3, above. Here, the Union was investigating an allegation of institutional racism, made in particular as to merit promotion selections and by one of Respondent's own managers. See finding 4. If true, the allegation raised problems of contract administration and the possible filing of grievances over actions that were becoming stale. Whether it was true depended upon information as to the minority status of candidates selected and rejected for promotion, a status which the Union could not always identify. See findings 8d and f. The Status of Minority Employment listings sought from Respondent contain this information. Here, the Union was also preparing for upcoming negotiations over a contract due to expire July 1, 1984; and one of the primary articles to be renegotiated was the merit promotion article. See finding 13. The Union's investigation of discrimination in merit promotion selections was crucial to determining its negotiation strategies; whether the merit promotion article needed to be strengthened; or whether, and to what degree, minority status and underrepresentation should be given weight in the selection process. See finding 16. The gross statistics, which Respondent did furnish to the Union, were helpful in showing underrepresented areas in the work force; but they were inadequate for showing whether current contract provisions were being violated as to particular merit promotion selections, and exact problems with the selection process that might help with the renegotiation of the merit promotion article being proposed by Respondent. These are sufficient facts upon which to conclude that the information sought was necessary to enable the Union to effectively carry out its statutory representational obligations to bargain, to administer its contract, and to obtain evidence in order to handle any grievances based upon allegations of discrimination in making selections for promotions. It is noted that some of these selections were made over two years ago (see finding 5); and the Union needed to act promptly in determining whether to file grievances. See United States Environmental Protection Agency, Health Effects Research Laboratory, Cincinnati, Ohio, 16 FLRA 52, 54 (1984) wherein the Authority repeated its ruling that section 7114(b)(4) "requires management to furnish an exclusive representative with information which would enable the union to effectively carry out its representational obligation in connection with the processing of an employee grievance of the determination whether to file a grievance" b. The Union was precise enough in its demand. Respondent argues that the Union was not precise enough in stating its needs for the information sought. See RBr 14. What the Union told Respondent's managers was that it had information from the Equal Employment Manager that required it to look at copies of merit promotion papers (DA 2600s) for the past several years, wherein one of the three highest ranked candidates was not selected for a bargaining unit position (finding 5); that after looking at such papers it needed the Status of Minority Employment listings for the same years to adequately analyze the DA 2600s (finding 10); that it had viewed a listing, briefly, in the presence of the Equal Employment Manager (finding 13); and that it also needed the listings to prepare for the upcoming contract negotiations and to ensure proper administration of the current contract. See finding 13. The Union President told the Equal Employment Manager, before the requests for the listings were made, that he needed access to the information on the listing in connection with the allegation of institutional racism (finding 9). With this information, an intelligent manager could have concluded that the Union was concerned about discrimination in particular past merit-promotion selections. In view of the fact that Respondent had submitted a new merit-promotion package to the Union in connection with renegotiation of this contract article, an intelligent manager could have also concluded that the Union needed to know what past practices were in regard to merit promotion selections vis-a-vis minorities. Had Respondent's managers been sincerely in doubt as to the need for the requested information, they could have requested clarification, which they did not do. See finding 17. Instead, Respondent's managers simply took the position that they need not furnish the information. See findings 11 and 14. Under these circumstances, the demand must be held as precise enough; and the Union cannot be faulted for not elaborating further. c. It is irrelevant that the Union is able to obtain requested information from alternative sources. Respondent stresses the fact that the Union has other means of obtaining the information sought, in that it "need only contact its membership and request the statistical information regarding race, sex, and national origin or any other pertinent data" (RBr 16). Respondent points to the sources it has made available to the Union -- namely use of its internal mail system, and the names and addresses of all bargaining-unit employees. The fact that a union has alternative means to obtain information it seeks from the agency, through use of section 7114(b)(4), raises an unsettled issue of statutory construction, one on which the Authority has expressly reserved consideration. See Veterans Administration Regional Office, Denver, Colorado (VA), 10 FLRA 453, 458, fn. 11 (1982). Nothing in the legislative history of the Statute provides any clue of congressional intent on this issue. See references to section 114(b)(4) at pages 92, 93, 144, 262, 337, 403, 404, 694, 914, 926, 974, and 995 (a post-enactment statement) of the Legislative History of the Statute. The language of the Statute seems plain enough, however. It deals specifically with exemptions from its reach (see footnote 1, above). It makes no mention of an exemption when alternative sources of information are available to a union. And this makes sense. After all, Congress found that allowing employees to participate in decisions that affect them, through labor organization of their own choosing, contributes to "the effective conduct of public business." See 5 U.S.C. 7101(a)(1)(B). Ineffectiveness will result if public unions are required to scramble around for information necessary for them to represent public employees, even though the information is maintained by public agencies in their files or computer memories. The time and resources which a public union could spend on representational duties on behalf of public employees would be diverted to this needless pursuit of information. In dealing with other issues raised under section 7114(b)(4), the Authority has favored a broad interpretation of management's duty under it. When called upon to decide whether an agency had a duty to furnish information for purposes of a grievance involving a matter that was non-negotiable under the parties' contract, the Authority noted how "broadly" section 7114(b)(4) reached, and concluded that the duty to furnish the information did exist. See U.S. Customs Service, Region VII, Los Angeles, California, 10 FLRA 251, 253 (1982). And when called upon to decide whether the agency must furnish the data cost free, the Authority held that it must. See its VA decision wherein it held that an interpretation requiring cost-free information "would further Congressional intent to require an agency to furnish the data" (10 FLRA at 456). So here, I conclude that Congressional intent is furthered by requiring an agency to furnish to a union information necessary to the union's representational duties, when it is normally maintained by and reasonably available to the agency, and without regard to whether sources other than the agency's files or computer memory may be available to the union for the information. d. The release of the data sought is not "prohibited by law" within the meaning of section 7114(b)(4). In denying the Union's request for the data, Respondent relied solely upon regulations of the Equal Employment Opportunity Commission (EEOC). See findings 11 and 14. These regulations provide that: (a) Each agency shall establish a system which provides statistical employment information by race or national origin. (b) Data shall be collected only by visual identification and shall be disclosed only in the form of gross statistics. An agency shall not collect or maintain any information of the race or national origin of individual employees except when an automated data processing system is used in accordance with standards and requirements prescribed by the Commission to insure individual privacy and the separation of that information from personnel records. See 29 CFR 1613.302, emphasis by Respondent (RBr 3). These regulations were formulated and last amended by EEOC prior to passage of the Statute. See 34 FR 5371 (Mar. 19, 1969) as amended at 34 FR 14024 (Sept. 4, 1969) and redesignated at 43 FR 60971 (Dec. 29, 1978). The General Counsel argues that the EEOC "regulation" cannot preclude release of data to which it is otherwise entitled under section 7114(a)(4), in that section 7114(a)(4) conditions release only to the extent not prohibited by "law," and that "law" refers to a congressional enactment, not an agency regulations. As in cases cited at pages 7 and 9-10 of Respondent's brief, courts, including the United States Supreme Court, have held that an agency or departmental regulation can have "the force and effect of law if it be not in conflict with express statutory provision." See Maryland Casualty Co. v. United States, 251 U.S. 342, 349 (1920), noting that the regulation must also be "addressed to and reasonably adapted to the enforcement of an act of Congress the administration of which is confided to such department." EEOC, of course, is not charged with the administration of the Statute here involved. And here this Statute expressly deals with the release of information to a union. In formulating this provision, Congress took pains to spell out specific conditions and exemptions governing the furnishing of information by agencies to unions representing their employees. Thus, it is unlikely that Congress would have intended for agencies, such as EEOC, to promulgate their own regulations on the matter, or, in this case, to have its express statutory provisions frustrated because of an agency regulation promulgated even before Congress spoke to the duty to produce, in 5 U.S.C. 7114(b)(4). The unlikelihood of such a congressional intent is bolstered by the fact that Congress, in formulating the provisions of the Statute, used the terms "law, rule or regulation" in the sections immediately preceding and following section 7114(b)(4), as well as in several other provisions of the Statute. See sections 7114(a)(5)(B); 7114(c)(2) and (3); 7117(a)(1); and 7122. This indicates that the use of only the term "law," in section 7114(b)(4), was deliberate and purposeful. As the General Counsel argues at page 27 of his brief, to construe the use of the term "law" to include "regulation" could thwart the exclusive representative's right to information from an agency, because an agency could simply promulgate its own regulations prohibiting the release of the information. Thus, I conclude that Congress did not intend the use of the term "law," in section 7114(b)(4), to embrace regulations of EEOC. As an affirmative defense in answering the complaint, Respondent raised, for the first time, the issue of the Privacy Act prohibiting the release of the requested data. See findings 11 and 14. Respondent's Chief of Management-Employee Relations and Training Branch testified that he also relied upon the Privacy Act in declining to release the data, but admits that he never mentioned the Privacy Act to the Union. See finding 15. While I do not conclude that Respondent was precluded from raising the issue in its answer to the complaint, I note that the failure to raise it with the Union accounts for why the Union did not try to obtain the listings in an appropriately sanitized format to meet Privacy Act considerations. See finding 15. The pertinent portion of the Privacy Act, 5 U.S.C. 5529(b), provides that: No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of the individual to whom the record pertains, unless disclosure would be -- . . . (2) required under section 552 of this title. . . . Section 552 of Title 5 is the Freedom of Information Act (FOIA) Section 552(b)(6) of FOIA prohibits disclosure of "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." No "clearly unwarranted" intrusion would result from the disclosure here sought. Assuming that Respondent compiled its Status of Minority listing in accordance with the EEOC regulations quoted above, it did so "only by visual identification." Thus, the information sought is "public" in a sense, anyway, and unlike information that exists only in agency files, as was the situation in the cases cited by Respondent at pages 9-12 of its brief. See Detroit Edison Co. v. N.L.R.B., 440 U.S. 301 (1979) holding protected employee aptitude tests; Local 2047, American Federation of Government v. Defense General Supply, 423 F. Supp. 481 (E.D. VA, 1976), affirmed per uniam, 573 F.2d 184 (C.A. 4, 1978), holding protected the names of employees on lists in respect to awards, promotions, reductions in force, and abuse of leave; and National Federation of Federal Employees, Local 1745 and Veterans Administration, 13 FLRA 543 (1983) holding non-negotiable a union proposal to allow disclosure of records used by a promotion panel to any rejected candidate for the position, on the ground of Privacy Act restrictions. /12/ Balanced against the minor invasion of personal privacy involved here is the Union's need for the information in order to protect the bargaining unit against discrimination in job actions, to administer the contract's provisions on equal employment opportunity and merit promotions, and to bargain intelligently on Respondent's proposal for a revised merit promotion article. While the Union could go out and visually identify each bargaining unit employee, this would require an enormous effort and waste of official time, as the bargaining unit is scattered over approximately 30 installations in 5 States with stewards in only 2 of the 30 installations. While the Union could solicit this information from the bargaining-unit members by use of the mails, there is no assurance of a complete or prompt enough response to be helpful in scheduled contract negotiations or in filing grievances on job actions which were already over two years old. /13/ However, the listings should be sanitized to exclude non-bargaining unit employees. See United States Environmental Protection Agency, Health Effects Research Laboratory, Cincinnati, Ohio, 16 FLRA 52, 55 (1984), holding that information as to non-bargaining unit employees (performance appraisal work sheets) need not be furnished under section 7114(b)(4) as the information was not necessary or relevant to assist the Union in determining whether a grievance was warranted over the failure of certain bargaining unit employees to be rated outstanding. Here, the Union apparently agrees that information as to non-bargaining unit employees is not appropriate or needed. See finding 17. /14/ The listings should also be sanitized to exclude all but the names and minority status of bargaining-unit employees, since these are the sole concerns of the Union in obtaining these listings. See findings 8d and f and 16. In view of the above conclusions, it is unnecessary to decide other issues raised by the General Counsel. Ultimate Findings and Recommended Order The General Counsel has proved, by a preponderance of the evidence, that Respondent has committed unfair labor practices, in violation of 5 U.S.C. 7116(a)(1), (5) and (8) as alleged in the complaint. Accordingly, and pursuant to 5 CFR 2423.29 and 5 U.S.C. 7118, the Authority hereby orders that the U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, shall: 1. Cease and desist from: (a) Refusing or failing to furnish upon request of the National Federation of Federal Employees, Local 29, herein NFFE, the Status of Minority Employment listing for all unit employees, as appropriately sanitized, which information is necessary and relevant for the NFFE to discharge its obligations as the exclusive representative to represent the interests of all employees in the exclusively represented unit. (b) 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, make available to NFFE, the Status of Minority Employment listing for all unit employees, as appropriately sanitized, which information is relevant and necessary to enable NFFE to discharge its obligations as the exclusive representative to represent the interests of all employees in the exclusively represented unit. (b) Post at its facilities copies of the attached Notice To All Employees on forms to be furnished by the Regional Director, Region VII, Federal Labor Relations Authority. Upon receipt of such forms they shall be signed by the District Engineer, U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, and shall be posted and maintained by him for sixty (60) consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The District Engineer shall take reasonable steps to insure that such Notices are not altered, defaced, or covered by any other material. (d) Pursuant to 5 CFR 2423.30, notify the Regional Director, Region VII, 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. /s/ ISABELLE R. CAPPELLO Administrative Law Judge Dated: November 30, 1984 Washington, DC --------------- FOOTNOTES$ --------------- (1) The Minority Listing is statistical data, compiled from data collected by visual identification by the Respondent, which lists the names, grade plan, pay plan, position title, occupational series and organizational element of all female and minority employees in the Respondent's work force. (2) Privacy Act of 1974, Pub. L. No. 83-579, 88 Stat. 1896 (codified as amended at 5 U.S.C. Section 552a (1982)). (3) The Respondent also contends that, pursuant to the provisions of Equal Employment Opportunity Regulation, 29 C.F.R. Section 1613.302 (1984), it could not lawfully provide the Minority Listing to the Union. The Respondent argues that the restrictive language in section 7114(b)(4) of the Statute, limiting an agency's duty to furnish data "to the extent not prohibited by law," incorporates the Equal Employment Opportunity Commission (EEOC) regulation. The Authority finds that, while the EEOC has the authority to issue regulations that take precedence over other laws when such regulations apply to EEOC's own proceedings (see Internal Revenue Service, Fresno Service Center, Fresno, California v. FLRA, 706 F.2d 1019 (9th Cir. 1983)), its procedural regulations such as here involved serve rather only as guidelines to agencies, and do not have the force and effect of "law" as that term is used in section 7114(b)(4) of the Statute. See generally General Electric Company v. Gilbert, 429 U.S. 125 (1976). (4) See Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 17 FLRA 624 (1985), reversed and remanded as to other matters, sub nom. American Federation of Government Employees, AFL-CIO, Local 1345 v. FLRA, No. 85-1378 (D.C. Cir. June 27, 1986); Bureau of Alcohol, Tobacco and Firearms, National Office, Washington, D.C., 18 FLRA No. 74 (1985); U.S. Equal Employment Opportunity Commission, Washington, D.C., 20 FLRA No. 37 (1985). (5) Should the data in fact become widely known, the Authority would necessarily take this experience into account in future similar cases. (6) 5 U.S.C. 7116(a) make it an unfair labor practice: (1) to interfere with, restrain, or coerce any employee in the exercise 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 . . . (or) (8) to otherwise fail or refuse to comply with any provision of this chapter. 5 U.S.C. 7114 provides that: (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. . . . (7) Abbreviations to be used herein are as follows: "TR" refers to the transcript. The General Counsel's unopposed motion to correct the transcript is granted. "GC" refers to the exhibits of the General Counsel and "R" to those of Respondent. "GCBr" refers to the brief of the General Counsel and "RBr" to that of Respondent. (8) This finding is based on the uncontradicted testimony of Mr. Divine, who was a credible witness. Mr. Gant was called as a witness by counsel for Respondent, but was asked no questions about this particular conversation with Mr. Divine. See TR 73-76. (9) Mr. Divine testified that Mr. Gant "showed" him the listing which he "looked at" (TR 45). Mr. Divine denied "show(ing)" the listing to Mr. Divine but admitted that the listing was on his desk when he talked to Mr. Divine about it. See TR 73. I find that Mr. Divine did view the listing during the late January discussion in Mr. Gant's office, as Respondent concedes (see RBr 3), and that Mr. Gant at least indicated to Mr. Divine its position on a desk. (10) See page 14, infra, for a full quotation. (11) This is the statutory burden of proof. See 5 U.S.C. 7118(a)(7) and (8). (12) Another case cited by Respondent, International Union of Electrical, Radio and Machine Workers, AFL-CIO, CLC v. National Labor Relations Board, 658 F.2d 18 (1980) could not be found where cited. In any event, the copies of EEO complaints apparently involved there, would also be kept in agency files and not be generally available to the public. (13) Compare Veterans Administration Regional Office, Denver, Colorado, 7 FLRA 629 (1982), adopting the conclusion of Administrative Law Judge Salvatore J. Arrigo that "arguments against supplying such data (names of individuals corresponding to the alphanumerical designations used by the rating panel needed to process a grievance over a merit promotion selection), such as those raised by Respondent herein with regard to the applicability of the Freedom of Information Act, have been frequently raised and rejected when the privacy rights under the Executive Order (11491, under which Federal sector labor relations were conducted prior to the Statute) and the paramount public interest," 7 FLRA at 637-638. (14) As to the other exemptions from disclosure in section 7114(b)(C), Respondent admits that they are not applicable here. See paragraph 8(d) to GC 1(d) and (e). 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 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT refuse or fail to furnish, upon request, to the National Federation of Federal Employees, Local 29, herein NFFE, the Status of Minority Employment listing for all unit employees, as appropriately sanitized, which information is necessary and relevant for the NFFE to discharge its obligations as the exclusive representative to represent the interests of all employees in the exclusively represented unit. WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL, upon request, furnish to NFFE the Status of Minority Employment listing for all unit employees, as appropriately sanitized. (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 employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region VII, whose address is: 1531 Stout Street, Suite 301, Denver, CO 80202 and whose telephone number is: (303) 837-5224.