[ v51 p1751 ]
The decision of the Authority follows:
51 FLRA No. 148
FEDERAL LABOR RELATIONS AUTHORITY
DEFENSE MAPPING AGENCY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
ORDER GRANTING MOTION TO DISMISS COMPLAINT
July 31, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the General Counsel and the Charging Party to the attached decision of the Administrative Law Judge. The Agency filed an opposition to the exceptions.
The complaint alleges, inter alia, that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to furnish the Union with certain information requested pursuant to section 7114(b)(4).(1) The Judge found that the Respondent did not violate the Statute as alleged.
After exceptions were filed in this case, the Defense Mapping Agency, Hydrographic/Topographic Center (DMA) filed a motion to dismiss the complaint as moot. Subsequently, the Authority issued an Order to Show Cause why the complaint should not be dismissed as moot, to which the General Counsel and the Union responded.
Upon consideration of the entire record and the arguments of the parties, we conclude that this matter is moot. Accordingly, we grant DMA's motion and dismiss the complaint.
II. Background and Judge's Decision
The facts are fully set forth in the attached Judge's decision and are only briefly summarized here.
In September 1988, Robert Madison became president of NFFE Local 1482 (the Union), which was then the exclusive representative of a unit of employees at DMA's Louisville, Kentucky Office (the Respondent). In June 1991, DMA Headquarters in Washington, D.C. suspended Madison's security clearance and he was transferred to another unit to work on unclassified material.
In July 1991, the Union requested that the Activity provide, inter alia, the following information:
Related to a security clearance suspension of Robert Madison all intra management memos, notes, letters, etc. This is needed to see if the actions were taken in retaliation of [sic] union activities. This includes, but is not limited to, items within the Louisville Office, to DMA offices in Washington & St. Louis.
Judge's Decision at 3.
The Judge found that the Union requested this information to determine whether to file an unfair labor practice charge on Madison's behalf.
The Respondent replied to the Union's request by stating that the information requested did not exist at the Louisville Office and that "[a]ll requests for additional information related to security clearances should be forwarded through HRSAQ, St. Louis, to HRC in Washington." Id. The General Counsel issued a complaint alleging, inter alia, that the Respondent violated the Statute by failing to determine whether any of the requested information existed in Washington, D.C., instead of advising the Union to forward its request there.(2)
Madison's security clearance was restored shortly before the hearing. Following the hearing, while this case was still pending before the Judge, DMA "disestablished" the Louisville office, and terminated Madison through a reduction in force. After his termination, Madison began part-time employment with the U.S. Postal Service.
The Judge concluded that the Respondent did not violate the Statute as alleged. He noted that the complaint alleged a failure to provide information maintained in Washington, D.C., not in Louisville, and determined that any allegation relating to information in the Louisville office was not before him. The Judge also determined that the Activity did not violate the Statute by failing to determine whether the information existed in Washington, D.C., basing this determination on testimony that the Respondent would already have seen any document submitted there. The Judge made no reference to the disestablishment of the Louisville office in his decision.
III. Positions of the Parties on Motion to Dismiss
DMA asserts that the Louisville Office no longer exists, that the Union is no longer an exclusive representative, and that the information the Union requested can no longer be considered necessary for representational purposes. DMA contends that "[t]he closing of the Respondent Activity effectively eliminated any bargaining relationship formerly existing between the parties." Motion at 3. DMA also argues that "[n]o individual employee rights are involved" in this case. Id. at 4.
B. General Counsel
The General Counsel argues that DMA's motion should be dismissed because DMA, of which the Respondent was a field office, "continues in existence." General Counsel's Opposition to Motion at 4. The General Counsel contends that "the Authority has an interest in preventing future misrepresentations by the Defense Mapping Agency regarding the non-existence, location, and availability of information requested by exclusive representatives of its employees under § 7114(b)(4) of the Statute." Id. at 3-4.
In addition, the General Counsel argues that dismissal of the complaint now "will give 'reorganizing' agencies a green light to ignore their duties under the Statute by merely closing the office or activity against which the unfair labor practice charge was pending." GC's Response to Show Cause at 5. According to the General Counsel, DMA's solicitation of Madison's interest in job openings,(3) as well as its continued existence as an agency militate against a finding of mootness. The General Counsel requests that the Authority "order the Respondent to provide the information to the National Federation of Federal Employees, as successor to Local 1482, or, in the alternative, issue a cease and desist order that should be posted by DMA, as successor to the Louisville office[.]" Id. at 3.
C. The Union
The Union argues that the Louisville office existed when the Union requested the information, and that the present status of the parties does not matter. In addition, the Union maintains that DMA should not be permitted to close the Louisville Office "to get out of an unfair labor practice charge." Union's Response to Show Cause at 2. Finally, the Union argues that the issues in this case are very significant because the suspension of Madison's security clearance could affect his and his children's careers and because DMA continues to retaliate against Madison by denying him payment for his unused annual leave following the September 1994 reduction-in-force.(4)
IV. Analysis and Conclusions
A. An Unfair Labor Practice Case May Become Moot When Exclusive Recognition No Longer Exists and Individual Employee Rights Are Not Involved
The Authority has found unfair labor practice cases moot where the former exclusive representative was no longer recognized and no individual rights were involved. See, e.g., United States Department of Transportation, Federal Aviation Administration, Southwest Region, 11 FLRA 36 (1983) (FAA, Southwest). The only issue in FAA, Southwest was the union's institutional right to be represented at certain formal discussions. Because the union's exclusive recognition had been revoked, the Authority found that "any decision rendered herein [could not] have any practical legal effect" and dismissed the complaint. Id. Cf. Department of Health and Human Services, Office of the Secretary, Headquarters, 20 FLRA 175, n.2 (1985) (HHS) (case not moot, despite the replacement of the former exclusive representative by another union, because institutional rights of the new representative as well as individual rights of employees were involved); Federal Aviation Administration, Spokane Tower/Approach Control, 15 FLRA 668 (1984) (FAA, Spokane) (case not moot despite revocation of the union's exclusive recognition because rights of individual employees under section 7102 of the Statute were involved); Department of Transportation, Federal Aviation Administration, Oakland Air Route Traffic Control Center, Fremont, California, 14 FLRA 201 (1984) (FAA, Oakland) (case not moot despite revocation of the union's exclusive recognition because rights of individual employees to act on behalf of and be represented by a union were involved); Department of Transportation, Federal Aviation Administration, Boston Air Route Traffic Control Center, Nashua, New Hampshire, 11 FLRA 318 (1983) (FAA, Nashua) (case not moot despite revocation of the union's exclusive recognition because rights of individual employees to be free of discrimination based on protected activity were involved).
A case does not, however, become moot simply because a particular remedy may no longer be appropriate. For example, the fact that an employee no longer worked for the Border Patrol did not render the case moot "because [the Statute] provides remedies that are still available to FLRA." Department of Justice v. FLRA, 991 F.2d 285, 289 (5th Cir. 1993); see also AFGE, Local 1941 v. FLRA, 837 F.2d 495, 497 n.2 (D.C. Cir. 1988) (even after employee's death, suitable remedies, such as cease and desist order or posting of notice to employees by respondent agency, were still available).
B. The Closing of the Louisville Office Renders the Controversy in This Case Moot
It is undisputed that the Respondent and the Union no longer exist. The General Counsel points out, however, that the National Federation of Federal Employees (NFFE) and DMA continue to exist, and suggests that both NFFE and DMA may be regarded as "successors" to the Union and the Activity. However, the General Counsel offers no support for this suggestion and none is otherwise apparent. An agency is obligated, under section 7114(b)(4) of the Statute, to furnish information to the exclusive representative. NFFE is not the exclusive representative in this case, and no other exclusive representative exists to receive the requested information or to make any use of it. Nor is there any contention that DMA has an employer relationship with any of the employees in Local 1482's former bargaining unit.(5) In these circumstances, the General Counsel has not shown that DMA is a successor employer for purposes of assuming liability for any unfair labor practices committed by the Respondent.(6) Cf. Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973) (Supreme Court adopted principles Board announced in Perma Vinyl Corporation., 164 NLRB 968 (1967), that successor employer with notice of a pending unfair labor practice proceeding, under circumstances which charge him with notice, is held liable for remedies that are a consequence of predecessor's unfair labor practices); Local Union No. 46 Metallic Lathers, 259 NLRB 70 (1981), enforcement denied on other grounds sub nom. 727 F.2d 234 (2d Cir. 1984) (applying Perma Vinyl principles to assess liability on a successor union for the acts of a predecessor).
In addition, unlike HHS, FAA, Spokane, FAA, Oakland, and FAA, Nashua, there are no individual rights to be adjudicated in this case. Instead, as in FAA, Southwest, where only the union's institutional right to attend formal discussions was involved, the only right at issue here is the institutional right of the exclusive representative to obtain information under section 7114(b)(4). Even if the Authority were to consider Madison's individual interests in disputing the suspension of his security clearance, that consideration would not lead to a different result. Madison acknowledged at the hearing that "other than a possible [ULP] proceeding, the suspension 'can't be grieved or appealed or anything.'" Judge's Decision at 3 n.3 (citing Tr. at 33). Neither the General Counsel nor the Union has explained how an unfair labor practice proceeding could assist Madison in challenging the Respondent's suspension of his security clearance.(7)
In addition, the Union offers no support for its assertion that DMA is "still retaliating" against Madison. The Union's contention that the suspension of Madison's security clearance could affect his career and those of his children is similarly unsubstantiated. Finally, there is no evidence suggesting that DMA's closure of the Louisville office was in any way related to the pendency of this unfair labor practice complaint, and no basis on which to conclude that any other agencies would contemplate the closure of offices to evade their responsibilities under the Statute.
Therefore, we conclude that this case has been rendered moot by the closure of the Louisville office. Any decision we might render would, as a result, have no practical legal effect. Such a decision would also be tantamount to an advisory opinion, which is precluded by section 2429.10 of the Authority's regulations. See Community Services Administration, Region VIII, Denver, Colorado, 7 FLRA 762 (1982).
We reach this conclusion reluctantly, because we recognize that it brings to an end, without final resolution, a dispute that the General Counsel, after investigation, determined warranted the issuance of a complaint alleging that an unfair labor practice had been committed. That mootness can occur during the course of litigation is a regrettable potential byproduct of formal adjudication because delay can occur at each and every step of the process -- investigation, hearing, and the numerous possible appeals to the Authority and the courts -- that can precede final disposition. In this case, the events causing mootness occurred during the period between the hearing and issuance of the Judge's decision; this could also have happened at a different point along the way, however. Unfortunately, this is one of the realities that makes litigation a less than satisfactory way to resolve disputes.
The parties here have received only the recommended decision of the Judge. However, even if, upon review, the Authority were to disagree with the Judge's recommended decision, in the circumstances before us, a violation is no longer capable of being remedied. Indeed, even the most basic remedy -- the posting of a notice to employees -- is unavailable as the Respondent no longer exists. Cf. NLRB v. Continental Hagen Corp., 932 F.2d 828, 835 (9th Cir. 1991) (the closing of a facility rendered the posting of a notice to employees at that facility moot). Therefore, despite our reluctance to dismiss this case without addressing its merits, we do so because we conclude that no alternative will better effectuate the purposes and policies of the Statute.
The Respondent's motion is granted and the complaint is dismissed.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
| DEFENSE MAPPING AGENCY, HYDROGRAPHIC/TOPOGRAPHIC CENTER,
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1482
Barbara J. Bahr
Counsel for the Respondent
Robert L. Madison
Representative for the Charging Party
Sherrod G. Patterson
Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
Statement of the Case
The unfair labor practice complaint alleges that Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1), (5), and (8), when it failed and/or refused to furnish the Charging Party (NFFE or Union) certain information pursuant to section 7114(b)(4) of the Statute.(1) The complaint alleges that Respondent refused to furnish the Union information related to the suspension of Robert L. Madison's security clearance, maintained in Defense Mapping Agency offices in Washington, D.C. and St. Louis, Missouri, and the names of nonunit employees the Respondent tested during its Drug Testing Program.
Respondent's answer admitted the allegations as to the Respondent, the Union, and the charge, but denied any violation of the Statute.
A hearing was held in Louisville, Kentucky. The Respondent, Union, and the General Counsel were represented and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The parties filed helpful briefs. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.
I. Information Requested Regarding Security Clearance
A. Findings of Fact
Robert Madison has been employed by Respondent since approximately 1979 as a Cartographer. Since September 1988 he has also been President of NFFE, Local 1482. Before June 1991 he possessed a security clearance at the level of Secret, Top Secret, and Access to Sensitive Compartmented Information which allowed him to work for Respondent on such classified material.
In June 1991 Madison's security clearance was suspended by Defense Mapping Agency headquarters in Washington, D.C. on the basis of allegations of spouse abuse and child abuse. He was transferred to another unit to work only on unclassified material.(2)
Madison did not believe that the stated reasons were the real reasons for the suspension of his clearance. He believed that the real reason was retaliation for his Union activity based on several disciplinary actions he had received within the previous year and a statement made to him by the former Head of Personnel Security.
In order to determine whether it was appropriate to file an unfair labor practice charge against Respondent based on the retaliation/disparate treatment theory(3), Mr. Madison, in his capacity as President, NFFE, Local 1482, requested Respondent to provide the following information generated in the Louisville office:
Related to a security clearance suspension of Robert Madison all intra management memos, notes, letters, etc. This is needed to see if the actions were taken in retaliation of union activities. This includes, but is not limited to, items within the Louisville Office, to DMA offices in Washington & St. Louis.
In making the request for this information, Mr. Madison was attempting to learn whether management and supervisory personnel in Louisville had put information into his security file concerning unrelated disciplinary actions on other matters not related to the reasons stated in his suspension letter.
Respondent, by Pamela Ransom, checked Mr. Madison's personnel security file maintained in the Louisville Office. She did not check Mr. Madison's file located at the Washington, D.C. personnel security office. It would be very unlikely that such information would be in his official file in Washington, D.C. because any such intra management documents from Louisville officials would have first been sent through Ms. Ransom. Ms. Ransom concluded that there were no documents meeting Mr. Madison's description. By letter dated August 16, 1991, Respondent replied as follows:
There are no intra management memos, notes, or letters at the Louisville Office related to your clearance suspension. All requests for additional information related to security clearances should be forwarded through HRSAQ, St. Louis, to HRC in Washington.
Respondent's security file on Mr. Madison in the Louisville office was a "working file." It contained a copy of a "conversation record," prepared by a security specialist, documenting a telephone conversation the security specialist had with Ms. Ransom. The "conversation record" set forth that Ms. Ransom had advised the security specialist of a telephone conversation she had with Mr. Madison's wife in which Mrs. Madison, among other things, requested assistance under the employee assistance program. Ms. Ransom acknowledged that the document related to the suspension of Mr. Madison's security clearance.
The "working file" on Mr. Madison also contained copies of DD Forms 398, which the employee himself completes, change of address forms, and clearance certificates.
Everything in Respondent's "working file" is also contained in the employee's official security file maintained in the Washington, D.C. headquarters. In addition, the Washington file contains copies of investigative reports from the Defense Investigative Service. The St. Louis office did not maintain a security file on Madison at the time.
Ms. Ransom testified that she referred Mr. Madison to the Washington office despite the fact that Mr. Madison, in his capacity as the Union President, did not have a bargaining relationship with either the Washington or the St. Louis offices. She testified that she did so because she could not request a copy of an employee's personnel security file from the Washington office because she did not have a need to know. If an employee requests his security file from Washington, it is sent to Ms. Ransom to be delivered, sealed, to the employee. The Washington office can also advise an employee how to secure information generated by other agencies.
Ms. Ransom testified that sometime after this correspondence, Mr. Madison advised her that he was aware of the conversation record and had seen it. Ms. Ransom assumed that Mr. Madison must have followed through with Respondent's advice and made a request of the Washington office.
Mr. Madison did not deny that he had seen the conversation record or that he had made a request of the Washington office or of the Defense Investigative Service for his file. He denied, however, that he had received the information described in the above request.
B. Discussion and Conclusions
Under section 7114(a) of the Statute, a labor organization which has been accorded exclusive recognition is entitled to "act for, and negotiate collective bargaining agreements" covering all employees in the unit. Section 7114(b)(4) of the Statute provides that an agency shall, upon request, furnish the exclusive representative, to the extent not prohibited by law, data which is normally maintained in the regular course of business; which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and which does not constitute guidance, advice, counsel or training provided for management officials or supervisors, relating to collective bargaining.
The complaint alleges that Respondent violated the Statute by failing to furnish the Union information related to the suspension of Robert L. Madison's security clearance maintained in Defense Mapping Agency offices in Washington, D.C. and St. Louis, Missouri. The General Counsel claims that Respondent was under a duty under the Statute to provide this information from the Washington office (it did not exist in St. Louis) instead of directing Madison to obtain it himself.
Respondent claims that the requested information was not normally maintained in Mr. Madison's security file located in Washington, D.C. and was not necessary for the Union to perform its representational duties.
The record reflects that Mr. Madison sought information generated in the Louisville office related to the suspension of his security clearance, including items prepared within the Louisville Office and sent to agency offices in Washington. Mr. Madison did not claim that any official located in the Washington, D.C. headquarters had written the type of document he sought.
Given Ms. Ransom's testimony that the standard proce- dure required that any document generated in Louisville concerning personnel security come through her office prior to going to the Washington, D.C. office, and the fact that the logical place for any such document to first reside was Ms. Ransom's office, I agree with Respondent that no unfair labor practice can be founded upon Respondent's failure to check Mr. Madison's personnel security file in the Washington, D.C. office and provide such information maintained there. Such information was "normally maintained" and "reasonably available" in Respondent's Louisville office.(4) Respondent referred Mr. Madison to the Washington, D.C. office in an effort to assist him to obtain even more complete information than he had requested (his security file).
In view of this disposition, it is not necessary to reach the other issues posed by the parties.(5)
A preponderance of the evidence does not establish that Respondent committed an unfair labor practice in violation of section 7116(a)(1), (5), and (8), as alleged, by failing and refusing to furnish the Union information related to the suspension of Robert L. Madison's security clearance, maintained in Defense Mapping Agency offices in Washington, D.C. and St. Louis, Missouri.
II. Information Requested Relating to Drug Testing
A. Findings of Fact
On July 24, 1991, the Union, by Local 1482 President Madison, requested the Respondent to furnish "the name of the non-unit employee tested in April 1991."
The Union wanted this information because it believed that Respondent was testing disproportionate numbers of bargaining unit, as opposed to nonbargaining unit, employees. Approximately every two months Respondent randomly selects about 15 to 20 employees for drug testing. There are six bargaining unit employees for each supervisor or management official at Respondent. Thirteen bargaining unit employees and one nonbargaining unit employee were tested in this first test.
On August 16, 1991, Respondent refused to provide the name of the nonbargaining unit employee it had tested. Respondent stated:
In accordance with the 1989 Negotiated Agreement, Drug Testing Article, only names of bargaining unit employees are to be furnished to the Union. We have complied with the contract.
The referenced section of the Drug Testing Article of the collective bargaining agreement between the Union and Respondent provides, in relevant part, as follows:
The employer will provide the Union a list of the names of all [Louisville Office] LUO bargaining unit employees randomly tested under the DMA Drug Free Workplace Plan within 28 days after the test date. . . . The number of non-unit employees who were randomly tested will also be shown on the list.
NOTE: Directed by FSIP, Case No. 90 FSIP 4.
As noted, the language that was incorporated into the agreement was imposed upon the parties by the Federal Service Impasses Panel (FSIP) as part of the collective bargaining process.
The Union's initial proposal in the negotiations specified that management would provide the Union with the names of both nonbargaining unit and bargaining unit employees who were selected for random drug testing. The Union wanted all the names so that it could ensure that the procedure was being done randomly. During the course of negotiations, the Union dropped its request for the names of nonbargaining unit employees and accepted Respondent's proposal. The Union accepted Respondent's proposal because the Union traded the demand to receive the names of nonbargaining unit employees selected for random drug testing for something else. Mr. Madison could not recall what concession the Union received when it dropped the proposal for nonbargaining unit names.
As the proposals were submitted to the Panel, the Union's proposal called for Respondent to provide "a list of the names of all Louisville Office (LOU) bargaining unit employees randomly tested" under the drug testing program and the "number of nonunit employees who were randomly tested and their position titles." The Union argued that disclosure of the position titles of nonbargaining unit employees tested would provide the Union with additional assurance that the Employer's data regarding the number of nonunit employees tested are accurate. The Respondent's position provided that the Respondent would furnish the Union with "a list of the names of all LOU bargaining unit employees randomly tested," and the "number of nonunit employees who were randomly tested." Thus, the only difference by the time the issue had reached the FSIP for decision was whether or not the position titles of the nonbargaining unit employees would be provided to the Union.
The FSIP imposed the above noted provision, stating as follows:
[I]t appears that the parties' proposals differ only as to whether the Employer should be required to provide the Union, in addition to the number of nonunit employees randomly tested, their position titles. In the circumstances of this case, we are persuaded that the additional information sought by the Union is unnecessary, and that an accounting of the number of nonunit employees tested should be sufficient to meet its needs in monitoring the randomness of the program. Thus, we shall order the parties to adopt the Employer's proposal to resolve the issue. Should legitimate questions arise, however, concerning the accuracy of the data provided by the Employer, we note that the Union may request the additional information it desires under section 7114(b)(4) of the Statute.
Mr. Madison testified that, during the negotiations, the Union did not waive its statutory right under section 7114(b)(4) of the Statute to obtain information regarding the names of nonbargaining unit employees.
Respondent admits, and I find, that information regarding the name of the nonbargaining unit employee tested under its Drug Testing Program in April 1991 is normally maintained in the regular course of business, is reasonably available, does not constitute guidance, advice, counsel or training provided for management officials or supervisors, relating to collective bargaining, and is not prohibited from disclosure by law.
B. Discussion and Conclusions
Respondent agrees with the General Counsel that, absent a waiver of the right to receive the names of nonbargaining unit employees selected for random drug testing, the infor- mation is "necessary" and the Union would be entitled to it under the Authority's decision in U.S. Department of Transportation, Federal Aviation Administration, 46 FLRA 1475 (1993). See also U.S. Department of Transportation, Washington, D.C. and Federal Aviation Administration, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Connecticut, 47 FLRA 110 (1993). Respondent contends that the Union did clearly and unmistakably waive any right to receive the names of nonbargaining unit employees. The General Counsel and the Union dispute that contention.
The record establishes that, in spite of the asserted importance of having a provision that the Respondent provide the Union the names of nonbargaining unit employees chosen for random drug testing in order to police the randomness of Respondent's drug testing program, the Union traded off the proposal during the bargaining process for something else. Given this quid pro quo exchange during the negotiations, the Union waived its right to require the Respondent to furnish the names of nonbargaining unit employees in these circumstances for the life of the agreement. U.S. Department of the Navy, United States Marine Corps, Washington, D.C. and Marine Corps Logistics Base, Albany, Georgia, 38 FLRA 832 (1990); U.S. Marine Corps, Combat Development Command, Quantico Marine Corps Base, Quantico, Virginia, 46 FLRA 560 (1992).
The parties are bound by the provision imposed by the FSIP. The FSIP decision concerning the provision imposed provides that the Union may request the "additional information it desires under section 7114(b)(4) of the Statute" [the position titles of nonbargaining unit employees] should "legitimate questions arise . . . concerning the accuracy of the data provided by the Employer" [the names of bargaining unit employees and the number of nonunit employees].
It is concluded that a preponderance of the evidence does not establish that Respondent violated section 7116(a)(1) and (5) and (8) of the Statute, as alleged, by failing to furnish the Union the names of nonunit employees the Respondent tested during its Drug Testing Program.
Based on the above findings and conclusions, it is recommended that the Authority issue the following Order:
The complaint is dismissed.
Issued, Washington, DC, November 30, 1994
GARVIN LEE OLIVER
Administrative Law Judge
(If blank, the decision does not have footnotes.)
1. The exceptions relate solely to the Union's request for information. Accordingly, the Judge's recommended dismissal of other allegations in the complaint will not be addressed.
2. It is undisputed that the St. Louis office did not maintain a security file on Madison at the time of the request.
3. The Union's response to the order to show cause included a letter to Madison stating that DMA in St. Louis had a large number of Cartographer positions to fill and that Madison should respond if he was interested in one of them. We assume that the General Counsel's reference is to that letter.
4. This allegation appears to refer to a dispute between Madison and the U.S. Postal Service concerning buying back annual leave accumulated during his tenure at Respondent. It is unclear the extent, if any, to which DMA was involved in this dispute.
5. The record is silent as to the effect of the disestablishment of the Louisville office on the functions previously performed in that office.
6. As DMA was not named as a respondent and is not a successor employer, we do not address whether it could have been found liable for any of the Respondent's actions or, if it were found liable, what remedy would now be appropriate.
7. The Judge noted the Supreme Court's decision in Department of the Navy v. Egan, 484 U.S. 518 (1988), in which the Court held that the Merit Systems Protection Board lacked statutory authority to examine the merits of the Navy's denial of an employee's security clearance in adjudicating the employee's appeal from his removal. The General Counsel has provided no authority, and we are aware of none, to show that a complaint alleging a retaliatory suspension of a security clearance may be adjudicated in an unfair labor practice proceeding. Since Egan, courts have consistently adhered to the principle that the merits of an agency's withdrawal of a security clearance are unreviewable. E.g. Hill v. Department. of Air Force, 844 F.2d 1407, 1411 (10th Cir. 1988), cert. denied, 488 U.S. 825 (1988) (court lacked jurisdiction under Egan to review employee's claim that agency's denial of employee's security clearance was in violation of the Constitution).
ALJ's Footnotes Follow:
1. Respondent and the Union settled disputes relating to other allegations immediately before the hearing and, at the request of Counsel for the General Counsel, these were severed from the complaint. (Tr. 8-9).
2. Madison's security clearance at the level of Secret and Top Secret was restored in June 1993.
3. Mr. Madison acknowledged that, other than a possible unfair labor practice proceeding, the suspension "can't be grieved or appealed or anything." (Tr. 33).
4. Contrary to Respondent's position, I conclude that the "conversation record," described above, fell within Mr. Madison's request for "all intra management memos, notes, letters, etc." related to his security clearance suspension including "items within the Louisville Office, to DMA offices in Washington & St. Louis." The complaint does not allege that Respondent failed to furnish such information maintained in the Louisville office. This is probably because Respondent denied that any such information existed and referred the Union to the St. Louis and Washington, D.C. offices, the violation addressed by the complaint. The General Counsel did not move to amend the complaint at the hearing. Accordingly, any allegation relating to "items within the Louisville office" is not before the Authority. See Library of Congress, 15 FLRA 589, 591 (1984).
5. If it were deemed necessary to decide the issue, I would conclude, in agreement with Respondent's position, that the information is not "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining." It appears that the information sought by the Union concerning the reason Mr. Madison's security clearance was suspended could not be used by the Union in any proceeding challenging the Respondent's reason for the suspension, the need for the information expressed by Mr. Madison. See Department of the Navy v. Eagan, 484 U.S. 518, 108 S.Ct. 818 (1988).