24:0630(64)CA - Commerce, Bureau of the Census and AFGE Local 2782 -- 1986 FLRAdec CA
[ v24 p630 ]
24:0630(64)CA
The decision of the Authority follows:
24 FLRA No. 64
U.S. DEPARTMENT OF COMMERCE,
BUREAU OF THE CENSUS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2782, AFL-CIO
Charging Party
Case No. 3-CA-40404
DECISION AND ORDER
I. STATEMENT OF THE CASE
This case is before the Authority on exceptions filed by the General
Counsel and the Respondent to the attached decision of the
Administrative Law Judge. The case concerns whether the Respondent
violated section 7116(a)(1), (5), and (8) of the Federal Service
Labor-Management Relations Statute by failing to comply with requests
for information by the Charging Party (the Union) under section
7114(b)(4) of the Statute.
II. BACKGROUND
The following information was requested by the Union: (1) seven
black notebooks maintained by the administrative office of the
Respondent's population division containing requests for personnel
actions, (2) other records in the population division bearing on
preselection for competitive position vacancies, and (3) copies of all
qualifications worksheets (minus all individually identifiable material)
used to rank candidates for competitive promotions during a specified
period. The Union claimed that the information was necessary for
grievances alleging violations of merit promotion procedures in certain
selection actions and for negotiations on the Respondent's merit
assignment program. The Respondent failed to furnish the information
and a complaint was issued alleging violations of the Statute.
III. THE JUDGE'S DECISION
The Judge concluded that the Respondent had not violated the Statute
by failing to furnish the notebooks or other population division records
bearing on preselection. He determined that the Union's request for all
the contents of all seven notebooks far exceeded what was necessary and
relevant to assist in processing grievances or in collective bargaining
negotiations and that other records bearing on preselection did not
exist. Accordingly, to this extent, he recommended that the complaint
be dismissed. However, the Judge concluded that the Respondent had
violated the Statute as alleged by failing to furnish the Union with a
sanitized copy of all qualification worksheets used to rank candidates
for competitive promotions for the period requested. Consequently, he
recommended that the Respondent be ordered to cease and desist from
refusing to furnish this information and that the Respondent be ordered
to furnish this information to the Union.
IV. POSITION OF THE PARTIES
The General Counsel argues that the Union's request for the seven
notebooks reasonably conveyed the intent that its request was limited to
selection actions and that consequently by determining that the request
exceeded what was necessary and relevant, the Judge erred in concluding
that there was no violation. The General Counsel also argues that the
Judge should have concluded that the Respondent violated the Statute by
failing to respond in a timely manner to the Union's request for the
notebooks and other population division records.
The Respondent argues that the Judge erred by concluding that the
complaint was broad enough to encompass the request for qualification
worksheets. The Respondent also argues that the Judge erred by
concluding that it was obligated to furnish the worksheets.
Specifically, the Respondent maintains that its obligation ceased when
it withdrew its proposed changes to the merit assignment plan. The
Respondent further maintains that in any event, there was no obligation
because the worksheets were requested to negotiate on the content of
crediting plans which is a matter outside the duty to bargain. Thus,
the Respondent claims that the complaint should have been dismissed in
its entirety.
V. ANALYSIS
A. The notebooks and other population division records
We concur in the Judge's recommended dismissal of the complaint with
respect to this information. The hearing testimony and an examination
of the seven notebooks, made a part of the record for inspection by the
Judge and the Authority, show that the notebooks contain a large amount
of information on various types of personnel actions, including
personnel actions for supervisory and management officials, which has no
bearing on the Union's functions as an exclusive representative under
the Statute and which is unrelated to the Union's claims that the
Respondent had engaged in preselection activity. We find, in agreement
with the Judge, that the Union did not limit its request to only those
particular, identifiable, relevant documents which were necessary to the
Union concerning the alleged preselections. Moreover, at the hearing,
the counsel for the General Counsel answered the Judge's question of
whether the Respondent "must provide everything that is requested in
order to satisfy the complaint" in the affirmative.
The General Counsel's argument that the Judge should have concluded
that the Respondent violated the Statute by failing to respond in a
timely manner to the Union's requests for information also cannot be
sustained. This allegation was not included in the complaint and was
not developed in the record before the Judge. See Department of the
Navy, Pearl Harbor Naval Shipyard, Pearl Harbor, Hawaii, 14 FLRA 564,
566 (1984).
B. The qualification worksheets
We find that the Respondent's failure to furnish the Union with the
qualifications worksheets in dispute constituted a violation of the
Statute as alleged in the complaint. In so finding, we adopt the
Judge's ruling, as explained at note 1 of his decision, that the
complaint was broad enough to encompass the request for the
qualification worksheets. We also disagree with the Respondent's
contentions that it was not obligated to furnish the worksheets.
Contrary to the contention of the Respondent, we adopt the Judge's
ruling that the Respondent's obligation to furnish the qualification
worksheets did not cease when it withdrew its proposed changes to the
merit assignment plan. As explained by the Judge at page 12, note 14 of
his decision, the reopener provision in the parties' collective
bargaining agreement permitted both parties to initiate bargaining on
the assignment plan during the term of the agreement. See Internal
Revenue Service, 17 FLRA 731, 737 (1985), appeal filed as to other
matters sub nom. National Treasury Employees Union v. FLRA, No. 85-1361
(D.C. Cir. June 14, 1985). In addition, we reject the contention that
because the content of crediting plans is not negotiable, there is no
obligation under section 7114(b)(4) to furnish the qualification
worksheets. The issue of the release and disclosure of this information
is a separate issue which is not resolved by virtue of the content of
crediting plans being nonnegotiable. National Treasury Employees Union
and Department of the Treasury, U.S. Customs Service, 23 FLRA No. 91
(1986).
VI. CONCLUSIONS
We conclude in agreement with the Judge that the complaint should be
dismissed with respect to the Union's request for the notebooks and
other population division records. We also conclude in agreement with
the Judge that the Respondent violated section 7116(a)(1), (5), and (8)
of the Statute by failing to comply with the Union's request for the
qualification worksheets. However, for the reasons which follow we will
modify his recommended remedy.
In U.S. Customs Service, 23 FLRA No. 91, which issued after the
Judge's decision, we addressed in detail the release and disclosure of
crediting plan and related rating information. In finding the proposal
(providing that existing crediting plan information will be disclosed to
the union on request) nonnegotiable, we ruled that the proposal was
inconsistent with government-wide regulation because the proposal would
authorize a blanket disclosure of crediting plan information without
regard to whether the release of that information would undermine the
fairness and validity of selection procedures. Slip op. at 3. In terms
of this case, the Respondent has not argued, and has not shown, before
the Judge or before the Authority, and it is not otherwise apparent,
that the qualification worksheets requested by the Union pertaining to
past selection actions contain crediting plan or other related rating
information the release of which would undermine the fairness and
validity of the Respondent's current selection procedures. We are
concerned, however, that a remedy for the violation which orders
unqualified disclosure of the worksheets might require the Respondent to
release crediting plan or other related rating information which would
undermine the fairness and validity of the Respondent's current
selection procedures. Accordingly, we will modify the affirmative
remedy recommended by the Judge to require the Respondent to furnish the
worksheets to the Union which, consistent with FPM Supplement 335-1,
will not undermine the fairness and validity of the Respondent's current
selection procedures. See U.S. Customs Service.
VII. ORDER
A. Pursuant to section 2423.29 of the Rules and Regulations of the
Federal Labor Relations Authority and section 7118 of the Federal
Service Labor-Management Relations Statute, it is ordered that the U.S.
Department of Commerce, Bureau of the Census, shall:
1. Cease and desist from:
(a) Failing and refusing to furnish to the American Federation of
Government Employees, Local 2782, AFL-CIO, the employees' exclusive
representative, copies of the qualifications worksheets, minus
individually identifiable material, requested by the exclusive
representative on June 30, 1984, which will not undermine the fairness
and validity of current selection procedures.
(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 Federal Service Labor-Management Relations
Statute:
(a) Furnish to the American Federation of Government Employees, Local
2782, AFL-CIO, the employees' exclusive representative, copies of the
qualifications worksheets, minus individually identifiable material,
requested by the exclusive representative on June 30, 1984, which will
not undermine the fairness and validity of current selection procedures.
(b) Post at its facilities copies of the attached Notice on forms
furnished by the Federal Labor Relations Authority. Upon receipt of
such forms, they shall be signed by the Chief, Population Division,
Bureau of the Census, and shall be posted and maintained for 60
consecutive days thereafter in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that the
Notices are not altered, defaced, or covered by any other material.
3. Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
B. It is further ordered that the complaint is dismissed as to the
Union's other requests for information.
Issued, Washington, D.C., December 18, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, 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 and refuse to furnish to the American Federation of
Government Employees, Local 2782, AFL-CIO, the employees' exclusive
representative, copies of all qualifications worksheets, minus
individually identifiable material, requested by the exclusive
representative on June 30, 1984, which will not undermine the fairness
and validity of current selection procedures.
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 Labor-Management Relations Statute.
WE WILL furnish the American Federation of Government Employees,
Local 2782, AFL-CIO, the employees' exclusive representative, copies of
the qualifications worksheets, minus individually identifiable material
requested by the exclusive representative on June 30, 1984, which will
not undermine the fairness and validity of current selection procedures.
. . . (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 III, Federal Labor Relations Authority, whose address
is: P.O. Box 33758, 1118 18th Street, NW., Room 700, Washington, D.C.
20033-0758, and whose telephone number is: (202) 653-8500.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 3-CA-40404
U.S. DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS
Respondent
AND
AMERICA FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2782,
AFL-CIO
Charging Party
C. J. Schmidt, Esq. and
George E. Maden, Esq.
For the Respondent
Ms. Ruth Sanders and
Mr. Edward V. Hanlon
For the Charging Party
Ana de la Torre, Esq. and
Bruce D. Rosentein, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
Statement of the Case
This case arose under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101,
et seq.
Upon an unfair labor practice charge filed by the American Federation
of Government Employees, Local 2782, AFL-CIO (hereinafter referred to as
the Union) against the U.S. Department of Commerce, Bureau of the Census
(hereinafter referred to as the Respondent), the General Counsel of the
Authority, by the Regional Director for Region III, issued a Complaint
and Notice of Hearing alleging Respondent violated section 7116(a)(1),
(5) and (8) of the Statute by failing and refusing to provide the Union
with certain personnel records requested by the Union on "December 19,
l983, and at all times since . . . in connection with a pending
grievance, a potential grievance and an upcoming contract reopener." /1/
The hearing on the Complaint was conducted in Washington, D.C. at
which all parties were represented and afforded full opportunity to
adduce evidence, call, examine and cross-examine witnesses and argue
orally. Briefs were filed by all parties and have been carefully
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 the Union has been the exclusive collective
bargaining representative of various GS, GG and WG employees of
Respondent bargaining unit is comprised of approximately 3,000 employees
of which about 220 employees are employed in Respondent's Population
Division.
In early December 1983, Edward Hanlon, an employee in Respondent's
Population Division and the Union's Chief Steward, grieved what he
perceived to be Respondent's intention to select employee David Galdi to
fill a vacancy for which Hanlon was also a candidate. Subsequently,
around December 15, Hanlon went to the Population Division
Administrative Office to inquire about the status of a within-grade wage
increase he was scheduled to receive. In response to his inquiry, an
employee in the Administrative Office retrieved one of seven notebooks
which were labeled "Personnel" or "Personnel" or "Personnel Actions"
from a shelf and for about 30 seconds "flipped" through it before coming
to an index which contained the information concerning within-grade
increases. Hanlon testified that while the pages in the notebooks were
being "flipped", he noticed the book contained various document entitled
"Request for Personnel Action" (also called "SF52") and various memo's,
some titled "Recommendation for Promotion." According to Hanlon, on some
of the SF52's an employee' name appeared in handwriting with the comment
"designee" or "selectee" next to the name.
By letter to Respondent dated December 19, 1983 the Union, by Chief
Steward Hanlon, requested all seven notebooks located in the
Administrative Office. The request, citing 5 U.S.C. Chapter 71, stated:
"It is known these notebooks contain SF52's cut for the
division, that they have indexes with them that contain employee's
name, type of action requested, and a division number for the
SF52. It is strongly believed that some of these SF52's have
employees (sic) names (preselectees) written on the forms for what
are supposed to be competitive vacancies. It is also strongly
believed that promotion recommendation memos recommending
promotion of certain employees for competitive vacancies, are also
contained in these volumes containing the SF52's."
The Union's letter provided the following "justification" for the
request:
"1. Grievance of Edward Hanlon involving illegal preselection
for every Population Division grade 13 position he has ever
applied for and been denied.
"2. Potential Union grievance on behalf of all employees
harmed by the merit principles violations of Population Division
which now appear to have been persistent, patent managerial
policy.
"3. Pursuant to the 30 day contract reopener on CAM Chapter
E-4.
To bargain on the Merit Promotion System, the Union needs
evidence and information on how the Agency implements the present
plan so that Union bargaining proposals may be formulated to stop
poor managerial practices, plan violations, favoritism, and
pre-selections." (Emphasis in the original).
On December 28, 1983, the Union notified Respondent that it was
instituting a grievance "concerning the administration of the Merit
Promotion Plan . . . and the negotiated agreement dealing with the
filling of competitive vacancies . . . " which would apply to the entire
Census Bureau. /2/
By two separate letters on December 29, 1983 the Union notified
Respondent that based upon its investigation of the "pre-selection of
David Galdi," supara, /3/ it appeared that preselection also occurred
involving employees Barbara vander Vate, Michael Levin and others for
GS-13 positions in the Population Division which Hanlon had applied for
in the past. The letters stated that the Hanlon grievance might be
extended to include every job he ever applied for in the Population
Division; that "it now appears likely that every job or almost every
job filled since at least October 1980 in the Population Division
involved pre-selection and favoritism;" and that it appeared the
Administrative Office kept "careful records" of this preselection for
the 1981-1984 fiscal years.
By letter dated January 13, 1984, Respondent notified the Union that,
absent factual support for the Union allegations of pre-selection in the
administration of the Merit Promotion Plan, it was not taking further
action on the Union's December 28, 1983, grievance, supra. On the
following day Respondent notified the Union that Hanlon's December 29,
1983 grievance, supra, alleging preselection of vander Vate and Levin
was denied since Respondent concluded that the qualification and rating
process were in accordance with the Bureau's Merit Promotion Program.
On January 19, 1984 Hanlon filed a formal grievance with Respondent
alleging the preselection of vander Vate, Levin and the selections made
for every other grade 13 position he applied for in the Population
Division. On that same day the Union filed a formal grievance with
Respondent alleging preselection and favoritism in the Population
Division "for almost every single competitive position it has filled
since at least October 1981." The Union alleged Respondent "violated the
Merit Promotion Plan, Civil Service Reform Act, Government in Ethics
Act, the contract, (and any) other pertinent rule, law, and regulation
dealing with the filling of competitive vacancies."
Apparently pursant to a contract reopener provision Respondent, at
some undisclosed time during this period, proposed changes in the
agency's Merit Promotion Plan. According to unchallenged testimony
received at the hearing, the parties contract also contained a provision
permitting "full scope bargaining," i.e. both parties were permitted to
make whatever proposals they wished "bearing on the subjects of
bargaining." /4/ By letter dated March 20, 1984 Hanlon, who had by now
become the Union's President, reminded Respondent that it had not
responded to prior "Chapter 71" requests for information, namely the
binders located in the Administration Office. Hanlon stated, inter
alia:
"These documents are requested by the Union pursuant to your
proposed bargaining changes to the Merit Assignment Plan, to
possible bargaining on CAM Chapter E-4, pursuant to Mr. Hanlon's
formal grievance on preselection involving Population Division,
and pursuant to the Union's formal grievance on preselection in
the Agency." /5/
Respondent denied the Union's request for information by letter dated
April 3, 1983, stating:
"Regarding your requests of . . . December 19, 1983, since
division administrative practices are neither a part of the Merit
Assignment Plan nor have any bearing on the process, it is not
clear that the documents requested are necessary for the full and
proper discussion and understanding of the formal grievance on
preselection or bargaining the Agency's proposed changes to the
Merit Assignment Plan. Consequently, we must deny your request at
this time."
On April 18, 1984 Respondent provided the Union with a copy of a
proposed Priority Placement Program suggested to the Union that
bargaining commence on May 1. The Union on May 1 replied by suggesting
that negotiations be delayed until June 1 for various reasons and
Respondent subsequently suggested that negotiations commence on July 2.
The Union responded on June 29, 1984 /6/ informing Respondent that, "if
the Union decides to bargain, prior to bargaining and in order to have
all relevant information on which to formulate bargaining proposals," it
required the notebooks from the Administrative Office, supra, for the
period March 1982 to March 1984 "in order to ascertain priority
placement activities."
On June 30, 1984 the Union sent another letter to Respondent, this
one entitled "Merit Assignment Program (MAP) Bargaining and Requests
Under 5 U.S.C. Chapter 71." That correspondence stated, inter alia:
" . . . since rating and ranking are alleged to be key factors
in facilitating Agency-wide pre-selection, the Union needs the
following information to determine how the present rating and
ranking procedures are used to facilitate pre-selection, the input
of the immediate supervisor (often accused of pre-selection), and
the relationship of illegal pre-selection activities under the
existing system to Merit Assignment. This information will be
used to formulate the Union's bargaining proposals, if the Union
decides to bargain. The information requested is as follows:
"1) The Black Notebooks maintained by Nancy Hope of POP
division, allegedly showing how pre-selection is done and how
rating and ranking procedures are developed to facilitate
pre-selection.
"2) Using POP Division as an example, all other records in POP
Division bearing on pre-selection, including the development of
ranking factors.
. . . . .
"6) A copy of all qualifications worksheets (minus all
individually identifiable material) used to rank candidates for
competitive promotions in the last year so that the relationship
of awards, performance ratings, education, background, and
experience can be studied in relation to your new proposals and
the present system." /7/
Respondent did not reply to the Union's June 29 and 30 requests for
information. However, on the day of hearing herein, Respondent for the
first time notified the Union it was withdrawing its proposals regarding
changes in the Merit Assignment Programs. Hanlon testified that
regardless of Respondent's position, pursuant to the reopener provision
providing for future negotiations on the Merit Promotion Plan and the
"full scope bargaining" provision in the parties collective bargaining
agreement, the Union nevertheless might still wish to negotiate on
changes in the Merit Promotion Plan. /8/
Discussion and Conclusions
Counsel for the General Counsel contends Respondent violated section
7116(a)(1), (5) and (8) of the Statute when it failed and refused to
furnish the Union with the documents requested on December 19, 1983,
June 29, 1984 and June 30, 1984, supra.
Respondent contends: (1) the Union's request for the entire contents
of the seven black notebooks was too broad in scope to require
compliance since many of the documents in the notebooks contained
material unrelated to the matters for which their production was
ostensibly sought; (2) it was under no duty to supply" . . . all other
records in (the Population) Division bearing on preselection . . . "
since such documents are non-sexistent; and (3) the request for copies
of "all qualifications worksheets . . . used to rank candidates for
competitive promotions . . . " seeks information for bargaining on a
nonnegotiable matter and accordingly Respondent was under no obligation
to make the data available to the Union.
It is well settled that under section 7114(b)(4) of the Statute /9/
management is required to furnish an exclusive representative with
necessary and relevant information which would enable it to effectively
carry out its representational obligations including processing a
grievance, determining whether to file a grievance and negotiating on
matters affecting working conditions. See United States Environmental
Protection Agency, Health Effects Research Laboratory, Cincinnati, Ohio,
16 FLRA No. 16 (1984) and cases cited therein and cf. American
Federation of Government Employees, AFL-CIO, Local 3483, 13 FLRA No. 80
(1984). However, the Authority has held that no requirement to provide
information will be found where the information sought does not exist
(Division of Military and Naval Affairs, State of New York, Albany, New
York, 8 FLRA 307 (1982) at 320-321, and cases cited therein) or was not
contained in the requested documents (Marine Corps Logistics Base,
Barstow, California, 14 FLRA No. 105 (1984)). Further, an agency will
not be found to have violated the Statute for failing to produce
information where the data requested is broader than reasonably
necessary to the performance of representational responsibilities in
question (Director of Administration Headquarters, U.S. Air Force, 6
FLRA 110 (1981) and cf. United States Customs Service, Region IV, Miami,
Florida, 3 FLRA 876 (1980)) or an insufficient nexus exists between the
nature of the requested information sought and the purpose which such
data is to be used (Internal Revenue Service, Buffalo District, Buffalo,
New York, 7 FLRA 654 (1982)).
In the case herein the Union sought production of seven notebooks to
support its grievance on preselection in the Population Division and in
order to assist it in formulating bargaining proposals on a Merit
Promotion Plan and priority placement procedures. As to these matters
it is obvious that necessary and relevant information would include form
SF-52's concerning vacancies, position descriptions, promotions,
appointments, conversions and the like and memoranda, recommendations,
transmittal slips, letters, worksheets and related documents as well as
the ranking procedures and factors in effect. However, as revealed in
an index of these notebooks /10/ and the notebooks themselves, the
notebooks contain substantial additional data not relevant to matters at
issue herein or necessary for full and proper discussion, understanding
and negotiations of these subjects. Thus, the notebooks contain
documents requesting such actions as leave without pay, resignations,
return to duty, terminations, quality step increase awards, name
changes, terminations of details, separations and transfers,
reassignments, change of duty hours and merit pay cash awards. The
notebooks also include the following documents not necessary or relevant
to the Union's avowed concerns: employee accountability and clearance
forms; draft position descriptions never used; draft ranking factors
never used; letters dealing with return to duty or offering a position;
transmittal slips regarding leave without pay, notary papers, unsigned
forms and change of duty hours; a doctor's statement; a memorandum
requesting a payroll schedule change and an employee professional
background statement.
The Union required information for two specific purposes: evaluating
and processing preselection grievances and negotiating on Merit
Promotion Plan matters including Priority Placement Procedures. The
Union could quite easily have worded its request so as to convey that
only data relating to those matters was being sought. The request, so
long as it specifically identified the revelant information sought,
could have been stated in explicit and detailed language or in broad,
general terms at the Union's election. Both such descriptions have been
found by the Authority in litigated cases to give rise to a obligation
to furnish necessary and relevant data under the Statute. See e.g.
Social Security Administration, 15 FLRA No. 180 (1984); Army and Air
Force Exchange Service (AAFES), Lowry Air Force Base Exchange, Ft.
Carson, Colorado, 13 FLRA No. 65 (1983); Veterans Administration
Regional Office, Denver, Colorado, 7 FLRA 629 (1982); Department of
Health and Human Services, Social Security Administration, Field
Assessment Office, 12 FLRA No. 84 (1983); and Internal Revenue Service,
Western Region, San Francisco, California, 9 FLRA 480 (1982). However,
the Union herein decided to merely request the entire contents of the
notebooks without limiting the request to only those particular,
identifiable, relevant documents necessary to pursue the matters at
issue.
Accordingly, as the Union's request for all the contents of all seven
notebooks far exceeded what was necessary and relevant to assist it in
processing grievances or negotiating on a condition of employment, and
no good cause having been shown as to why such a broad request should
require production of the information, I am constrained to conclude
insufficient evidence exists to support the contention that Respondent's
refusal to furnish the notebooks violated the Statute. Cf. Director of
Administration Headquarters, U.S. Air Force, supra; United States
Customs Service, Region IV, Miami, Florida, supra; and Internal Revenue
Service, Buffalo District, Buffalo, New York, supra.
The Union also requested " . . . all other records in the POP
Division bearing on pre-selection, including the development of ranking
factors." No evidence adduced at the hearing indicates that such "other
records" exist and indeed Colleen Woodard, Labor Relations Officer for
the Bureau of the Census, testified that such documents do not exist.
Accordingly, I conclude no violation of section 7116 of the Statute has
not been established by Respondent's failure to furnish the requested
information. Division of Military and Naval Affairs, State of New York,
Albany, New York, supra.
The Union's final request of June 30, 1984 was for "(a) copy of all
qualifications worksheets (minus all individually identifiable material)
used to rank candidates for competitive promotions in the last year . .
. " Respondent argues that the Union has indicated that this information
is necessary to formulate proposals regarding a crediting plan /11/
which, Respondent contends, is not negotiable. Respondent, citing the
court's decision in U.S. Customs Service v. Federal Labor Relations
Authority, 739 F. 2d 829 (2d. Cir. 1984), reasons that since crediting
plans are not negotiable, an agency has no obligation to provide
information for union bargaining proposals on this subject.
In U.S. Customs Service, supra, the court set aside the decision of
the Authority in National Treasury Employees Union and NTEU Chapter 153,
161, and 183 and U.S. Customs Service, Region II, 11 FLRA No. 47 (1983)
wherein the Authority found, inter alia, that a union's negotiating
proposal setting forth a specific crediting plan was negotiable. The
court refused to enforce the Authority's order concluding that requiring
the Customs Service to bargain with the union over the contents of
crediting plans would interfere with rights reserved to management under
the Statute. However, I am constrained to follow the Authority's
holding until such time as the Authority specifically revises its
position on the matter or it becomes apparent that the Authority will no
longer adhere to this position. I conclude therefore, that based upon
existing Authority precedent Respondent was required to furnish the
Union that qualifications worksheets it requested. Cf. National
Treasury Employees Union and NTEU Chapter 153, 161, 183, supra;
National Treasury Employees Union and Department of Health and Human
Services, Region X, Seattle, Washington, 5 FLRA 688 (1981); and
International Association of Fire Fighters, Local F-61 and Philadelphia
Naval Shipyard, 3 FLRA 438 (1980).
Moreover, in the case herein the Union did not propose a crediting
plan for negotiations wherein it could be ascertained that the proposed
plan, in fact, impermissibly impinged on management rights. All that is
before me is a request for information, i.e. sanitized copies of the
qualifications worksheets used to rank candidates for competitive
promotions during the last year. /12/ Thus, it would be premature to
conclude that whatever proposal the Union might make, if any, would
concern a nonnegotiable matter. Indeed, after reviewing the
qualifications worksheets the Union might decide to make no proposals
/13/ or submit a proposal dealing with grieving matters regarding the
ranking of candidates for promotion and relevant procedures. /14/ Such
subjects would clearly be negotiable. Accordingly, I conclude that by
its failure to furnish the Union with a sanitized copy of all
qualifications worksheets used to rank candidates for competitve
promotions for the period requested, Respondent violated section 7116
(a)(1), (5) and (8) of the Statute.
In view of the entire foregoing, I recommend the Authority issue the
following:
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the U.S. Department of Commerce, Bureau of the
Census shall:
1. Cease and desist from:
(a) Failing and refusing to furnish to the American Federation
of Government Employees, Local 2782, AFL-CIO, the employees'
exclusive representative, a copy of all qualifications worksheets,
minus all individually identifiable material, used to rank
candidates for competitive promotions during the period between
July 1, 1983 and June 30, 1984.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Furnish the American Federation of Government Employees,
Local 2782, AFL-CIO a copy of all qualifications worksheets, minus
all individually identifiable materials, used to rank candidates
for competitive promotions during the period between July 1, 1983
and June 30, 1984.
(b) Post at its D.C. metropolitan area facilities 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 an appropriate official 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. 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 III, Federal
Labor Relations Authority, 1111 18th Street, N.W., Suite 700, P.O.
Box 33758, Washington, D.C. 20033-0758, in writing, within 30 days
from the date of this Order, as to what steps have been taken to
comply herewith.
It is further ordered that the remaining allegations be, and hereby
are, dismissed.
/s/ SALVATORE J. ARRIGO
Administrative Law Judge
Dated: February 5, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) In its brief Respondent objected to including under the Complaint
herein the failure of Respondent to furnish various information the
Union requested after December 19, 1983. Respondent made the same
objection at the hearing at which time I informed Respondent that I
construed the Complaint to be broad enough to encompass the requests for
information made after December 19. Respondent indicated it did not
wish additional time to prepare its defense and was ready to proceed and
present its case on the allegations. Thereafter the matter was fully
litigated. Accordingly, I hereby reaffirm my rulings made at the
hearing on this issue and overrule Respondent's objection.
(2) During the hearing the parties resolved various aspects of this
controversy which resolution included limiting this case to matters
concerning only the Population Division within the Census Bureau.
(3) The text of one letter reveals that the vacancy announcement
involving Galdi was withdrawn.
(4) The parties' collective bargaining agreement was not placed in
evidence at the hearing.
(5) CAM Chapter E-4 refers to that portion of Respondent's
administrative manual which treats Respondent's Merit Assignment Plan.
(6) Meanwhile, on May 15, 1984 the Union filed the unfair labor
practice charge herein alleging:
"The Agency refused to supply information reasonably available
and necessary for Agency-proposed bargaining on Priority Placement
& The Merit Promotion Plan. This information is also necessary
for on-going Union and personal grievances on violation of merit
promotion procedures, violation of the Merit Promotion Plan and
Priority Placement and pre-selection. This information had been
requested in writing citying 5USC71."
The Union amended the charge on August 14 to alleged:
"Since on or about December 19, 1983 and continuing to date,
the above-named Agency, by its officers and agents has failed and
refused to provide information to the Union in violation of
Section 7114(b) of the Statute.
(7) Union President Hanlon testified that with regard to this matter,
the Union " . . . may wish to make proposals changing the way factors
are given for awards, experience, training . . . performance ratings,
education." On cross-examination Hanlon testified: "I requested the
items in number six in order to put together proposals regarding the
ranking of candidates . . . "
(8) At no time did Respondent indicate it would be burdensome to
supply the Union with any of the information requested.
(9) Section 7114(b)(4) provides:
"(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(.)"
(10) The index (Joint Exhibit No. 27) was prepared by Respondent and
placed in evidence in lieu of providing the Union or Counsel for the
General Counsel with the notebooks at the hearing. In response to my
ruling, Respondent has supplied me with copies of the notebooks for in
camera inspection. I have informed the parties that these copies of the
notebooks will remain in the record under seal for inspection only by
reviewing authorities until the conclusion of litigation in this matter,
thereafter to be returned to Respondent.
(11) Respondent relys upon a reply Union President Edward Hanlon gave
to a question put to him by Respondent's counsel on cross-examination.
The entire cross-examination on this matter is as follows:
"Q (By Mr. Schmidt) Mr. Hanlon, isn't it true that you
requested the items in number six in order to develop a crediting
plan?
"A I requested the items in number six in order to put together
proposals regarding the ranking of candidates. If that is a
crediting plan, yes, but that's what I did it for."
(12) The record does not disclose precisely what information is
contained on "qualifications worksheets."
(13) As a union is entitled to information to assist it in deciding
whether to file a grievance, in my view it follows that it is also
entitled to data in order to determine whether to make contract
proposals on an otherwise negotiable matter.
(14) I find no merit in Respondent's position that since the agency
withdrew its proposals concerning the Merit Assignment Program, that
matter is no longer a subject for collective bargaining and the agency
therefore is not obligated to furnish the information. Testimony
establishes that the contract reopener provision in the parties'
collective bargaining agreement allows either Union or Respondent to
make proposals regarding changes in the agency's Merit Promotion Plan.
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 fail and refuse to furnish to the American Federation of
Government Employees, Local 2782, AFL-CIO, the employees' exclusive
representative, a copy of all qualifications worksheets, minus all
individually identifiable material, used to rank candidates for
competitive promotions during the period between July 1, 1983 and June
30, 1984.
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 furnish the American Federation of Government Employees,
Local 2782, AFL-CIO a copy of all qualifications worksheets, minus all
individually identifiable materials, used to rank candidates for
competitive promotions during the period between July 1, 1983 and June
30, 1984.
. . . (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 Authority, Region, whose address
is: 1111-18th Street, N.W., Suite 700, P.O. Box 33758, Washington, D.C.
20033-0758 and whose telephone number is: (202) 653-8500.