OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
DEPARTMENT OF VETERANS AFFAIRS, MEDICAL CENTER, NORTH CHICAGO, ILLINOIS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2107, AFL-CIO
Case No. CH-CA-20551
Linda L. Cobine, Esquire
For the Respondent
John F. Gallagher, Esquire
For the General Counsel
Mr. Lawrence S. Jenkins
For the Charging Party
Before: WILLIAM B. DEVANEY
Administrative Law Judge
Statement of the Case
This proceeding, under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the United States Code,
5 U.S.C. § 7101, et seq.(1), and the Rules
and Regulations issued thereunder, 5 C.F.R. § 2431, et seq., concerns whether
Respondent's refusal to furnish the names of all bargaining unit
employees who were rated "Outstanding" for the 1992 rating cycle;
the names of all persons who received a monetary award and the
amount of each award; and the amount allocated to each service of
Respondent for monetary awards was contrary to § 14(b)(4) and in
violation of §§ 16(a)(1), (5) and (8) of the Statute.
This case was initiated by a charge filed on June 16, 1992
(G.C. Exh. 1(a)); and the Complaint and Notice of Hearing issued on
December 30, 1992 (G.C. Exh. 1(b)), for a hearing at a location,
date and time to be determined. By Order dated April 22, 1993 (G.C.
Exh. 1(f)), the hearing was set for June 10, 1993, in Chicago,
Illinois, at a place to be deter-mined; and by Order dated May 20,
1993 (G.C. Exh. 1(h)), the place of the hearing was fixed, and,
pursuant thereto, a hearing was duly held on June 10, 1993, in
Chicago, Illinois, before the undersigned. All parties were
represented at the hearing, were afforded full opportunity to be
heard, to introduce evidence bearing on the issues involved, and
were afforded the opportunity to present oral argument which
Respondent exercised. At the close of the hearing, July 15, 1993,
was fixed as the date for mailing post-hearing briefs. Respondnet
and General Counsel each timely mailed a brief, received on, or
before, July 19, 1993. On July 26, 1993, General Counsel mailed a
"Motion To Strike Portions of Respondent's
Brief", received on August 3, 1993, and Respondent on August
4, 1993, mailed its "Answer to Strike Portions of Respondent's
Brief and Motion For Judicial Notice", which was received on August
General Counsel seeks to strike on page 20 of Respondent's
Closing Brief, Paragraph 5, sentences two and three, namely, that
Ms. Carol Campagnolo testified,
"Further, this information did not appear relevant to the Union's representational responsibilities.
No grievances were filed by any one employee dissatisfied
with his evaluation or award."
I fully agree with General Counsel that the transcript shows no
such testimony by Ms. Campagnolo(2)
and, accordingly, sentences two and three of Paragraph 5 are hereby
General Counsel further seeks to strike on Pages 21 and 22,
the paragraph beginning "Furthermore, . . ." on page 21, through
the second paragraph on page 22, which ends with the words, ". . .
and the Local Agreement.", for the reason that the Local Agreement
was neither offered nor received in evidence. Antilles Consolidated Education Association, (OEA/NEA), San
Juan, Puerto Rico, 36 FLRA 776, 785 (1990), specifically
addressed the question of collective bargaining agreements not
submitted at the hearing. I am aware that the Authority takes
notice of directives promulgated by an agency, U.S. Department of The Treasury, Customs Service, Washington,
D.C., 38 FLRA 875, 878 (1990); but a local agreement,
executed more than four years before the Master Agreement, which
was received in evidence (G.C. Exh. 4), is not a document of which
official notice may be taken. Accordingly, General Counsel's motion
to strike the paragraph on page 21 beginning with the word
"Furthermore" through the second paragraph on page 22, is granted
and those portions of Respondent's Closing Brief are hereby
stricken. Further, Respondent's "Motion For Judicial Notice" is
hereby denied and the tendered Local Agreement is hereby rejected.
Upon the basis of the entire record, I make the following findings
Findings of Fact
1. The American Federation of Government Employees,
AFL-CIO (AFGE), is the certified exclusive representative of
nationwide consolidated units of non-professional employees,
full-time, part-time and temporary (G.C. Exhs. 1(b), Par. 9; 4,
Art. 1, Sec. 1). American Federation of Government Employees, Local
2107, AFL-CIO (Union), is an agent of AFGE for the representation
of bargaining unit employees at Respondent's North Chicago,
Illinois, facility. The Union also represents professional
employees at the North Chicago Medical Center (Tr. 12).
2. There are negotiated grievance procedures which cover
both professional and non-professional employees (Tr. 12). Article
32, Performance Appraisal System, of the non-professional agreement
contains the following provisions:
"Section 6 - Awards and Other
"A. Whenever an employee is rated Highly Satisfactory on his/her annual performance
evaluation rating, the appropriate supervisory official will review the rating prior to sending a
copy to the official personnel folder to determine if the employee should be recommended for
a monetary award under the Incentive Awards Program. The employee will be furnished a
copy of the performance rating.
"B. Whenever an employee is rated Outstanding, the employee will automatically be
considered for a monetary award under the provisions of the Incentive Awards Program and
receive a certificate.
"C. Awards for performance will be distributed in a fair and equitable manner. (G.C. Exh.
The annual performance appraisal year for all employees is from
April 1 to March 31.
3. Because of complaints from employees who had been
rated "Outstanding" but had received no monetary award and felt
that the awards money had not been equitably distributed (Tr. 19,
20, 45) and because of other complaints as to whether awards were
fairly and equitably distributed, the Union's Chief Steward, Mr.
Lawrence S. Jenkins, on June 4, 1992, submitted the following
request for information:
"Pursuant to 5 USC 7114(b)(4) and 5 USC 7103(a)(9) I request the following info that's
relevant and necessary to represent the interests of
bargaining unit employees.
"1. Names of all employee(s) of the bargaining unit who have received from there (sic)
'Rating Officials' the rating of Outstanding.
"2. Names of all persons considered and received a
monetary award. And
"3. The amount received for each individual
"4. The amount allocated to each service at this
medical center for the concern of equity.
"The requested information is necessary and relevant because the union is receiving
complaints that persons other then (sic) the rating officials are denying and or instructing rating
officials to downgrade several employees of the Bargaining unit from the rating of outstanding to
the lower rating of Highly Successful." (G.C. Exh.
4. By memorandum dated June 9, 1992, Respondent's
Chief, Personnel Service, Mr. Robert L. Grant, replied as
"1. This memorandum is in response to your request dated June 4, 1992, asking for
information about the 1992 Performance Management System
"2. As you know, we cannot release the performance rating of record and/or cash award
received for any bargaining unit member without his or her consent. To do otherwise would
violate the Privacy Act.
"3. Since we cannot disclose individual dollar amounts or performance ratings, I can tell you
that the Medical Center Director approved an Awards Budget of $192,000. This represents a
15% increase over last year.
"4. Specific to services, the following represents
the number of Outstandings:
Chaplain..............3 Medical Media.........1
Ambulatory Care.......1 MAS..................20
Education.............2 Nuclear Med...........7
Director's Office.....1 Psychology...........11
Fiscal................5 Social Work...........8
(G.C. Exh. 3).
5. Although Mr. Jenkins testified that after he received
Mr. Grant's June 9, 1992, response he had no further communication
with the VA on this issue (Tr. 15), the record shows that he did
have further communication on this issue; and that, apparently, he
made a further information request on June 24, 1992(3), inasmuch as Mr. Grant, by memorandum dated
October 9, 1992, responded to Mr. Jenkins' ". . . Information
Request of 6/24/92 (Outstanding Ratings)" as follows:
"1. Please consider this my response to your information request concerning all "Bargaining
Unit" employees who were denied cash awards as a result of being promoted during the rating
cycle ending March 31, 1992, with respect to an
"2. In accordance with your request, below listed
are the employees that were affected:
Allen, John E. Rehabilitation Medicine Service
Bieber, Kenneth Nursing Service
Clark, Jeffrey Continuous Quality Improvement
Esterrich, Ileana A. Rehabilitation Medicine Service
Ferraresi, Margaret E. Rehabilitation Medicine Service
Fowkes, Anne L. Rehabilitation Medicine Service
Franklin, Janet Continuous Quality Improvement
Hasberry, Joyce Psychiatry Service
Hilgenberg, June Nursing Service
Johnson, Sadie Psychology Service
Kim, Edmund Psychiatry Service
Marchini, Donna R. Rehabilitation Medicine Service
Reed, Sheryl Nursing Service
Shah, Kay Nuclear Medicine
Snyder, Colleen Laboratory Service
Tompkins, Jacquelyn Medical Administration Service
Weichers, Mary Psychiatry Service
Wray, Crystal Medical Administration Service"
(G.C. Exh. 5).
§ 14(b) provides, in relevant part, that,
"(b) The duty of an agency . . . shall include the obligation--
"(4) . . . to furnish to the exclusive 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;
"(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors, relating to
collective bargaining; . . ." (5
U.S.C. § 7114(b)(4)).
Paragraph 4 of the Union's June 4, 1992, information
request, "The amount allocated to each service at this medical
center for the concern of equity", at best is ambiguous; but the
Union intended to ask for the amount of money allocated to each
service for awards (Tr. 24) and Respondent so understood
(Respondent's Brief, p. 18). Respondent offered no testimony or
evidence as to whether the Awards Budget (G.C. Exh. 3) was
allocated to services but asserts in its Brief that, ". . . there
is no document which exists or has ever existed to compute the
actual total amount of award funds received by each North Chicago
service . . . Certainly a document, if it had existed, which
detailed the amount of money allocated to each Service would have
been an internal management document to provide guidance to the
Service Chiefs. Information regarding the amount of money that each
Service had available for awards for the Performance Evaluations
would have been for management guidance in order that each Service
Chief could determine how the number of awards related to the total
amount of money to be divided. This internal management document
would not have been releasable under the Labor Act." (Respondent's
Brief, p. 18).
Except for the information requested in Paragraph 4, which
Respondent asserts never existed, there is no doubt whatever, as
General Counsel states in his Brief, pp. 6-7, that the information
is normally maintained by Respondent in the regular course of
business (14(b)(4)(A)); that it is reasonably available
(14(b)(4)(B)) and that it does not constitute guidance, advice or
counsel within the meaning of 14(b)(4)(C). Nor can there be the
slightest doubt that, to the extent not prohibited by law, the
Union needed the information requested in order to ascertain
whether, pursuant to the Agreement of the parties, awards for
performance were distributed in a fair and equitable manner (G.C.
Exh. 4) and to resolve potential grievances growing out of
complaints received that awards had not been distributed fairly.
Compare, U.S. Air Force,
Loring Air Force Base, Limestone, Maine, 43 FLRA 1087
Whether "necessary", within the meaning of § 14(b)(4)(B),
disclosure of such information is, nevertheless, subject to the
limitations of the Privacy Act (5 U.S.C. § 552a) and of the Freedom
of Information Act (5 U.S.C. § 552), i.e.,
as ". . . then Judge Ginsburg cogently explained . . .: 'The broad
cross-reference in 5 U.S.C. § 7114(b)(4) - "to the extent not
prohibited by law" - picks up the Privacy Act unmodified; that Act,
in turn, shelters personal records absent the consent of the person
to whom the record pertains, unless disclosure would be required
under the [FOIA]. Once placed wholly within the FOIA's domain, the
union requesting information relevant to collective bargaining
stands in no better position than members of the general public. .
. .'" United States Department of Defense
v. Federal Labor Relations Authority, No.
92-1223, U.S. , S. Ct. , 62 U.S.L.W. 4143 (hereinafter,
"DoD") (February 23, 1994), quoting from
then Judge Ginsburg's concurring opinion in FLRA v. Department of Treasury,
Financial Management Service, 884 F.2d 1446 (D.C. Cir.
1989), cert. denied, 493 U.S. 1055 (1990).
Because the Court in DoD,
supra, held, inter
". . . The terms of the Labor Statute in no way suggest that the Privacy Act should be read in
light of the purposes of the Labor Statute. If there is an exception, therefore, it must be found
within the Privacy Act itself. Congress could have enacted an exception to the Privacy Act's
coverage for information 'necessary' for collective-bargaining purposes, but it did not do
so . . . Nowhere, however, does the Labor Statute amend FOIA's disclosure requirements or
grant information requestors under the Labor Statute special status under FOIA [footnote
omitted]. Therefore, because all FOIA requestors have an equal, and equally qualified, right to
information, the fact that respondents are seeking to vindicate the policies behind the Labor
Statute is irrelevant to the FOIA analysis." (62 U.S.L.W. at
Moreover, as the Court further emphasized,
". . . We must weigh the privacy interest of bargaining unit employees in nondisclosure . . .
against the only relevant public interest in the FOIA balancing analysis - the extent to which
disclosure of the information sought would 'she[d] light on an agency's performance of its
statutory duties' or otherwise let citizens know 'what their government is up to.'" (DoD, supra,
id. at 4146).
Accordingly, the Authority may no longer apply as the public
interest in disclosure the interest in promoting federal sector
collective bargaining, as the Court in DoD,
supra, specifically rejected this position,
and the Authority must now consider ". . . the only relevant
'public interest in disclosure' to be weighed in this balance is
the extent to which disclosure would serve the 'core purpose of the
FOIA,' which is 'contribut[ing] significantly to public
understanding of the operations or activities of
the government.'" (DoD, supra, id. at 4145), and, ". .
. the fact that respondents are seeking to vindicate the policies
behind the Labor Statute is irrelevant to the FOIA analysis."
id. at 4146).
The Privacy Act, 5 U.S.C. § 552a, provides that,
"(b) CONDITIONS of DISCLOSURE - No agency shall disclose any record which
is contained in a system of records . . . except pursuant to a written request by, or with the
prior written consent of, the individual to whom the record pertains, unless disclosure of the
record would be--
(2) required under section 552 of this
(3) for a routine use as defined in subsection (a)(7) of this section and
described under subsection (e)(4)(D) of this section;
Although the Freedom of Information Act (FOIA) predominately
favors disclosure, there are exemptions from the statute's broad
policy of disclosure including, as applicable here:
"(b) This section does not apply to matters that are--
. . . .
"(6) personnel and medical files and similar files the disclosure of which
would constitute a clearly unwarranted invasion of personal privacy;
. . ." (5 U.S.C. § 552(b)(6)).
For reasons fully stated by General Counsel (Brief, pp. 18-19),
information concerning awards is governed by the "routine use"
exception of the Privacy Act, 5 U.S.C. § 552a(b)(3). National Treasury Employees Union, 46 FLRA 234, 239-246
(1992); U.S. Department of Transportation, Federal
Aviation Administration, New England Region, Burlington,
Massachusetts, 38 FLRA 1623, 1632 (1991). Whether not
prohibited from disclosure by (b)(2) or (3) of the Privacy Act,
disclosure still is subject to the qualification of § (b)(6) of the
FOIA, i.e., that, "personnel and medical
files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy". This limitation
on release requires a balance of the "harm" to the individual whose
privacy is breached against the public interest served by
disclosure. As the Supreme Court made clear in DoD, supra, for the purposes of
FOIA, the public interest is solely, "the extent to which
disclosure of the information sought would 'she[d] light on an
agency's performance of its statutory duties' or otherwise let
citizens know 'what their government is up to.'", DoD, supra, at 62 U.S.L.W.
Respondent maintains records of each award as part of its
fiscal management and to administer the Incentive Awards Program.
The amount of money involved, $192,000.00 budgeted for
1992 (G.C. Exh. 3), is substantial and the public has a right to
know how Respondent distributes the awards money; whether awards
reflect favoritism, disparate or discriminatory treatment or
arbitrary conduct; whether they were rational; and whether
Respondent was faithfully performing its duties.
On the other hand, employees who received outstanding
evaluations have a strong privacy interest in preventing
disclosure, so much so that the Court of Appeals for the District
of Columbia Circuit, in FLRA v.
United States Department of Commerce, National
Oceanic and Atmospheric Administration, National Weather Service,
Silver Spring, Maryland, 962 F.2d 1055 (D.C. Cir. 1992)
(hereinafter, "National Weather Service"),
held that supplying information identifying those employees who had
received outstanding evaluations (i.e.,
unsanitized data) constituted an unwarranted invasion of personal
privacy. See, also, Ripskis v. Department of Housing and Urban Development, 746 F.2d 1
(D.C. Cir. 1984). National Weather Service,
supra, applied, as the Supreme Court in
DoD, supra, now has
mandated, that, ". . . for purposes of the exemption 6 balance, the
public interest is defined solely by the values animating the FOIA;
to wit, ensuing 'that the Government's
activities be opened to the sharp eye of public scrutiny.'"
(id. at 1060). Although the Authority's
decision (38 FLRA 120 (1990)) had been to the contrary, the Court
denied enforcement because the Authority ". . . misapplied the
balancing test required by exemption 6 of the FOIA . . .", and, as
noted, the Supreme Court in DoD,
supra, has mandated that the Authority
apply only the public interest of the FOIA, i.e., that, ". . . because all FOIA requestors have an
equal, and equally qualified, right to information, the fact that
respondents are seeking to vindicate the policies behind the Labor
Statute is irrelevant to the FOIA analysis." (DoD, supra, 62 U.S.L.W. at
4146). As the Authority has not applied the FOIA mandated public
interest, the decision of the Court in National
Weather Service will be followed.
Of course, here, the Union sought not only the names of
bargaining unit employees rated "Outstanding"; but it also sought
the "Names of all persons considered and received a monetary award"
and, "The amount received for each individual named." (G.C. Exh.
2). Employees who received an award and the amount received would
be an additional, and further, privacy interest over and above
their rating as "Outstanding" which would substantially increase
their privacy interest. Balancing the public interest in disclosure
against the Union's blanket request, to have identified all
bargaining unit employees who were rated "Outstanding" and/or the
names of all persons considered for a monetary award and the amount
each named individual received would have constituted an
unwarranted invasion of personal privacy. The substantial public
interest in knowing how public funds for awards is spent
overwhelmingly overbalances any meager privacy interest in
disclosing the amount of each award and the service of each
recipient (as well as the occupation of each recipient if
requested); but with the name of each recipient removed. This will
adequately protect the privacy interest of the individuals and,
even though as more information is supplied, e.g., service and occupation of each recipient, there
may be some slight encroachment on personal privacy, the
substantial public interest greatly exceeds such modest intrusion
of personal privacy. Indeed, neither the identity of employees who
were rated "Outstanding" nor disclosure of the amount received by
individuals as an award is sacrosanct and either, or both, may have
to give way to the public's pervasive right to know whether
Respondent faithfully fulfilled its public trust in granting awards
when such personal identification is essential to the satisfaction
of the public interest, as, presumably, Respondent found necessary
in supplying the names of bargaining unit employees rated
"Outstanding" who were promoted during the rating cycle and,
accordingly, denied cash awards (G.C. Exh. 5). From the testimony
of Ms. Campagnolo (Tr. 45-46), Respondent may, by its October 9,
1992, response (G.C. Exh. 5) have intended to answer the substance
of the Union's request No. 2, in essence, "Who was considered for
awards and who received an award?" by its response, but the Union
was entitled to know what employees were considered for
awards(4) and who received awards.
For example, if only "Outstanding" employees had been considered
and each "Outstanding" employee received an award except those
promoted during the rating cycle and who were, for that reason,
denied a cash award, Respondent could have responded to the Union's
request No. 2 of June 4, 1992, essentially as it did to a
subsequent request on October 9, 1992 (G.C. Exh. 5). If employees
other than "Outstanding" were considered for an award it should
have so stated, as well as whether any award was given to other
than to an "Outstanding" employee. Respondent resolved the (b)(6)
exemption as to disclosure of the names of employees rated
"Outstanding" who were promoted during the rating cycle and, for
that reason, denied a cash award, by disclosing those names. The
propriety of that action is not before me and I express no opinion
as to its correctness beyond emphasizing, again, that the strong
public interest in knowing whether Respondent faithfully fulfilled
its duty in granting awards, weighs heavily against the right of
personal privacy when disclosure is essential to resolution of the
Respondent denies that money was allocated to each service
for awards. In the absence of any testimony or evidence to the
contrary, the simple answer to the Union's request No. 4 is "none".
At the same time, the record does not show how awards were made. Of
course, the answer to Union's request No. 3 will show whether each
award was of the same amount.(5) If
awards were of different amounts, the Union would be entitled, upon
request, to information as to the basis for determining awards,
e.g., percentage of earnings; random,;
etc. in any event, I quite agree with
General Counsel that such data is devoid of Privacy Act concerns.
United States Department of Veterans Affairs,
Regional Office, San Diego, California, 44 FLRA 312, 314
Having found that Respondent violated §§ 16(a)(1), (5) and
(8) of the Statute by failing and refusing to furnish information
to the Union, it is recommended that the Authority adopt the
Pursuant to § 2423.29 of the Rules and Regulations, 5 C.F.R.
§ 2423.29, and § 18 of the Statute, 5 U.S.C. § 7118, it is hereby
ordered that the Department of Veterans Affairs, Medical Center,
North Chicago, Illinois, shall:
1. Cease and desist from:
(a) Failing and refusing to provide the American
Federation of Government Employees, Local 2107, AFL-CIO ("Union"),
the exclusive representative of its employees, requested
information that is reasonably available and necessary for it to
properly perform its representational responsibilities in
connection with the Incentive Awards Program.
(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
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Federal Service
Labor-Management Relations Statute:
(a) Upon request of the Union, furnish, without
names: (1) all employees considered for monetary awards and all
employees who received monetary awards; (2) the amount of each
recipient's Incentive Award with the Service and classification of
each recipient; (3) if awards were not of an uniform amount, basis
for fixing each award.
(b) Post at its facilities at the Medical Center at
North Chicago, Illinois, copies of the attached Notice on forms to
be furnished by the Federal Labor Relations Authority. Upon receipt
of such forms, they shall be signed by the Director of the Medical
Center, and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards
and other places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that such Notices are not
altered, defaced, or covered by any other material.
(c) Pursuant to § 2423.30 of the Regulations, 5
C.F.R. § 2423.30, notify the Regional Director, Chicago Region,
Federal Labor Relations Authority, 55 West Monroe Street, Suite
1150, Chicago, Illinois 60603-9729, in writing, within 30 days from
the date of this Order, as to what steps have been taken to comply
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: May 13, 1994
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY
OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to provide the American Federation of
Government Employees, Local 2107, AFL-CIO (hereinafter, "Union"),
the exclusive representative of our employees, requested
information that is reasonably available and necessary for the
Union to properly perform its representational responsibilities in
connection with the Incentive Awards Program.
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
WE WILL, upon request of the Union, furnish, without names: (1)
all employees considered for monetary awards and all employees who
received monetary awards; (2) the amount of each recipient's
Incentive Award with the Service and classification of each
recipient; (3) if awards were not of an uniform amount, basis for
fixing each award.
Date: ________________________________ By: __________________________________
This Notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced or covered by any
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 Chicago Region, Federal
Labor Relations Authority, whose address is: 55 West Monroe Street,
Suite 1150, Chicago, Illinois 60603-9729, and whose telephone
number is: (312) 353-6306.
1. For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, i.e., Section 7114(b)(4) will be referred to, simply, as, "§ 14(b)(4)".
2. Although Ms. Campagnolo did not testify that, "No grievances were filed. . . .", Mr. Jenkins did. (Tr. 29).
3. It is possible that Mr. Grant confused the date; that the only information request by the Union was that of June 4, 1992; and that Mr. Grant's response of October 9, 1992, was simply the furnishing of information requested on June 4, 1992; but Ms. Campagnolo's testimony clearly indicates a further request, "limited in scope" (Tr. 47).
4. The record does not show the
qualification for consideration for an award beyond the provision
of Article 32, Section 6 B of the parties' Agreement that,
"B. Whenever an employee is rated Outstanding, the employee will
automatically be considered for a monetary award under the
provisions of the Incentive Awards Program and receive a
certificate." (G.C. Exh. 4).
Would an employee, not rated "Outstanding", who, for example, had made a suggestion which was adopted and had proved of great value to Respondent be eligible for an award? The record does not show.
5. If awards were given only to "Outstanding" employees; if Respondent's Exhibit 3 constitutes all "Outstanding" employees, 247; if 18 "Outstanding" who were promoted and, for that reason, denied a cash award (G.C. Exh. 5) is subtracted, leaving a balance of 229, the budget for awards, $192,000.00 (G.C. Exh. 3), would have permitted an award of about $838.00 if each were equal.