21:0595(77)CA - Defense Mapping Agency, Aerospace Center, St. Louis, Mo. and NFFE, Local 1827 -- 1986 FLRAdec CA
[ v21 p595 ]
21:0595(77)CA
The decision of the Authority follows:
21 FLRA No. 77
DEFENSE MAPPING AGENCY
AEROSPACE CENTER
ST. LOUIS, MISSOURI
Respondent
and
NATIONAL FEDERATION 0F FEDERAL
EMPLOYEES, LOCAL 1827
Charging Party
Case No. 7-CA-30165
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had not engaged in
the unfair labor practices alleged in the complaint and recommending
that the complaint be dismissed in its entirety. Thereafter, the
General Counsel filed exceptions to the Judge's Decision, and the
Respondent filed an opposition to the exception.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration, of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order.
In agreement with the Judge, the Authority concludes that the General
Counsel has not met the burden of proving that the Respondent failed to
comply with Section 7114(b)(4) of the Statute when it refused to furnish
requested information to the Charging Party in the particular
circumstances of this case. See Department of the Treasury, United
States Customs Service, Region IV, Miami, Florida 18 FLRA no. 53 (1985);
Social Security Administration and Northeastern Program Service Center,
18 FLRA No. 66 (1985); Department of the Air Force, Scott Air Force
Base, Illinois, 18 FLRA No. 75 (1985; and United States Environmental
Protection Agency, Health Effects Research Laboratory, Cincinnati, Ohio,
16 FLRA 52 (1984). We shall therefore dismiss the complaint. /1/
ORDER
IT IS ORDERED that the complaint in Case No. 7-CA-30165 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., April 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier, III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 7-CA-30165
DEFENSE MAPPING AGENCY AEROSPACE CENTER, ST. LOUIS, MISSOURI
Respondent
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1827
Charging Party
Mr. Louis P. Eaves
For the Respondent
Mr. Virgil Haun
For the Charging Party
Daniel Minahan, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns an unfair labor practice complaint issued by
the Regional Director, Region Seven, Federal Labor Relations Authority,
Denver, Colorado against the Defense Mapping Agency Aerospace Center,
St. Louis Missouri (Respondent), based on a charge filed by the National
Federation of Federal Employees, Local 1827 (Charging Party or Union).
The complaint alleged in substance, that Respondent violated sections
7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relatons
Statute, 5 U.S.C. Section 7101 et seq. (the Statute), by refusing to
furnish to the Union copies of certain documents sought by the Union to
properly represent an employee who had not been selected for an engraver
foreman position. The complaint alleged that the Union was and is
entitled to the data under Section 7114(b)(4). Respondent's answer
denied any violation of the Statute.
A hearing was held in St. Louis, Missouri. The Respondent, Charging
Party, 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. Respondent and
the General Counsel filed helpful briefs. /2/ Based on the entire
record, /3/ including my observation of the witnesses and their
demeanor, I make the following findings of fact, conclusions of law, and
recommendations.
Findings of Fact
1. At all times material, the Union is and has been a labor
organization within the meaning of 5 U.S.C. 7103 (a)(4). (GC-1(C);
GC-1(D).
2. At all times material, Respondent is and has been an agency
within the meaning of 5 U.S.C. 7103(a)(3). (GC-1(C); GC-1(D).
3. At all times, material, the Union has been certified as the
exclusive representative of all General Schedule and wage grade
employees of Respondent, exclusing management officials, professional
employees, confidential employees, employees engaged in Federal
personnel work in other than a purely clerical capacity, and supervisors
as defined in Title VII, Public Law 95-454. (GC 1(c)), 1(d). There are
approximately 1,300 employees in the unit. Respondent has approximately
2,400 employees outside the unit. (TR.90).
4. At all times material, Respondent and the Union have been parties
to a collective bargaining agreement with an effective date of 19
February 1982. (GC-2).
a. Article 9 contains a "broad-scope" grievance procedure.
(Tr 59, 103). Among other things, it defines a grievance as a
complaint by the Union or any unit employee concerning any matter
relating to the employment of any unit employee and any complaint
by the Union or any employee concerning any claimed violation,
misinterpretation, or misapplication of any law, rule or
regulation affecting conditions of employment.
b. Since the February 1982 effective date of the agreement,
the negotiated grievance procedure has never been applied to the
filing of supervisory or other non-bargaining unit positions.
(TR. 89-91).
c. Article 9-3c. provides, in part, that raising an EEO
complaint with an EEO counselor shall consittute an election by an
employee and shall preclude raising the same issue(s) as a
grievance.
d. Article 9-4e. provides, in part, that a grievance must be
filed within 21 calendar days of the date of occurence of the
matter grieved or within 21 calender days of the date that the
aggrieved party could reasonably be expected to have been aware of
the occurrence grieved.
e. Article 14 deals with providing the Union information
"relevant and necessary for the proper discharge of its obligation
under Public Law 95-454 and this agreement." Article 14-1g.
provides that specific information requested for investigating
and/or processing complaints/grievances/appeals will be provided
without undue delay, normally within 7 workdays.
f. Article 36 deals with employee details, reassignments and
temporary promotions. Article 37 deals with the merit staffing
program. (G.C. Ex. 2).
5. Respondent has consistently refused to engage in negotiations
regarding the filling of supervisory positions. (Tr. 66-67, 69, 89).
6. At all times material, Louis Paul Eaves. (hereinafter Eaves), has
occupied the position of labor relations officer for Respondent, and has
been and is now a supervisor and/or management official within the
meaning of 5 U.S.C. 7103(a)(10) and/or (11), and an agent of Respondent
(GC-1 (c); GC-1(D).
7. On 12 November 1982, Respnodent issued a vacancy announcement for
an engraver foreman position. The position is a supervisory position.
(G.C. 3; Tr.20). As such, it is excluded from the bargaining unit
represented by the Union.
8. Bargaining unit employees were eligible to apply for the
position. (TR. 20). Applicants would be evaluated and ranked in
accordance with the agency's merit staffing plan. (G.C. 3; Res. Ex. 5;
Tr. 20). According to the merit staffing plan, a panel is convened to
identify essential knowledge, skills, abilities, and personal
characteristics (KSAPS) for the position and to establish ranking
levels. The Union is not represented on the panel for supervisory and
other non-bargaining unit positions. Applicants submit self-rating
sheets, also commonly called KSAPS, which describe how they meet the
rating and ranking criteria established by the panel. The panel scores
the KSAPS submitted by the applicants and compiles a register of the
applicant who will be referred for an interview with the selecting
official. (Tr. 20-22; 92-93, Res. Ex. 5).
9. Herbert Foster is a bargaining unit employee of the Respondent
who works as a negative engraver. (Tr. 17). He is now a special
representative of the Union and, from 1977 through 1982, Foster applied
for the engraver foreman position. (Tr. 20).
10. By notice dated December 10, 1983, Foster was notified that he
would not be referred for an interview for the engraver foreman
position. (Res. Ex. 2; Tr. 77.) Upon receipt of the notice, Foster
decided to investigate the process that led to his nonselection. On
December 14, 1983, he asked a staffing specialist in Respondent's
personnel office for copies of the KSAPS submitted by other applicants
so he could compare them with his own. He also requested that the
rating panel be reconvened, so he could persuade it to raise his score,
as was once done in the case of another employee. Both requests were
refused. (Tr. 24-25).
11. Foster contacted an EEO Counselor regarding his non-selection on
December 16, 1982. He alleged various forms of racial discrimination.
The EEO Counselor recorded the informal complaint and set forth a plan
to investigate it. (Res. Ex. 1.). Foster also asked the EEO Counselor
for help in obtaining copies of the KSAPS submitted by other applicants.
The EEO counselor said he could not do this; that Foster could only
see his own KSAPS. (Tr. 26)
12. Foster then asked his Union steward, Brady Barr, for assistance
in securing the documents. (Tr. 26), Foster had not decided what action
to take, but wanted to make that determination after a review of the
documents. (Tr. 29, 31). By letter dated January 4, 1983, Union
steward Barr sent the following letter to Respondent:
In order for the Union to discharge its obligation under Title VII,
CSRA, P.l. 95-454, Local 1827, NFFE hereby request the following:
(1) Copies of all KSAPS and Rating Sheets for all candidates
referred for selection on Referral Certificate for above vacancy
announcement.
(2) Copy of Position Description for position indicated on
announcement, also indicate position number.
(3) POW (Class & Wages) rationale for making position
supervisory rather than non-supervisory.
(4) Copy of SF 52 requesting establishment of position.
(5) Copy of WP0-4413-28 (Supervisory) position description.
(6) Copy of referred certificate.
I. A.W. 14-1(g) of Agreement, please expedite - time constraints.
(G.C. Exh. 4).
13. Respondent, by L. P. Eaves, denied Barr's request by letter
dated January 10, 1983. The letter provided as follows:
This will respond to your letter of 4 January 1983 requesting
information relevant to Vacancy Announcement No. 155-82A, dated 12
November 1982.
The position is a supervisory position (Engraver Foreman,
WP-413-30) and is, thus beyond the scope of the bargaining unit.
Article 37 (Merit Staffing Program) is applicable only to
positions within the bargaining unit as is the rest of the
Agreement.
There has been a number of decisions by the Federal Labor
Relations Authority to the effect that management is not obligated
to negotiate with regard to the filling of positions outside of
the bargaining unit. There is no provision of the Agreement by
which management waived its right to exclude from the bargaining
unit. There is no provision of the Agreement by which management
waived its right to exclude from the bargaining process the
filling of non-bargaining unit positions and, accordingly,
management actions, with regard to such positions, are not subject
to challenge under the negotiated grievance procedures.
In view of the above, your request must be denied. Your letter
does not specify any relationship between conditions of employment
of unit employees and filling of the position in question so as to
establish a need for the information relevant to any right of
representation. If you wish to clarify this matter for me, I will
reconsider my decision.
14. On January 19, 1983, Union chief steward Francis Jett responded
to Eaves. He requested the exact same information and stated, "(T)his
information is necessary and relevant to process a grievance. This
informaton is being requested in accordance with the Labor-Management
Agreement Article 14-1-G." (G.C. Ex. 6).
15. Upon receipt of Jett's letter of January 19, 1983, Evans
contacted Jett by telephone and requested additional clarification
regarding the relevancy of the information. The conversation took place
between 19 January and 25 January 1983, the date of Eaves' written
response to Jett. Eaves requested clarification regarding the need or
relevancy of the information. Jett stated that the information was
relevant to grievances which the Union intended to process under the
negotiated grievance procedures. (G.C. 7; Tr. 75-76). Eaves learned
from the EEO office that Foster had an EEO complaint pending. (Tr. 104).
On January 25, 1983 Eaves replied to Jett's request of January 19, 1983
in part, as follows:
In your letter you state that the requested information is for
the purpose of processing a grievance. In our recent
conversation, you indicated that you intended to process the
grievance under the negotiated grievance procedures (Article 9).
I continue to be of the opinion that disputes regarding the
filling of supervisory position are not subject to resolution
under the negotiated grievance procedures. I have also been
informed that Mr. Louis Foster has filed an EEO complaint
regarding the same matter. Thus, any grievance filed by Mr.
Foster would also be precluded by Article 9-3c. Please provide
the name(s) of the employee(s) whom you propose to represent in
this matter under the negotiated grievance procedure.
We obviously have a very basic grievability/arbitrability
issue. I suggest we submit the issue to arbitration and if the
Union ultimately prevails, I will provide the appropriate
information and accept any subsequently filed grievance under the
negotiated grievance procedures.
16. Sometime after the exchange of correspondence, Eaves again asked
Jett for the name of the employee the Union proposed to represent. Jett
replied that it was Louis Foster. (Tr. 76.).
17. On January 25, 1983, Foster filed a formal EEO complaint. (Tr.
37).
18. The Union was never furnished the data in its letters.
19. Basically, the data requested by the Union would have shown the
relative scores and qualifications of the applicants and whether the
criteria developed by the rating panel for the position, a
newly-established position. (Tr. 31-37, 58). The Union has
characteristically reviewed data of this nature before deciding whether,
or how, to represent an employee not selected for a promotion to a
bargaining unit position. (Tr. 46, 57-58). However, as noted, the
Union has never before sought to represent an employee with respect to a
position outside the bargaining unit. (Tr. 66,90). Similarly,
Respondent would have routinely provided much or all of the data,
perhaps in a sanitized form, if the position for which Foster was not
selected had been a bargaining unit position. (Tr. 104-105.
20. Testimony at the hearing disclosed the Union desired to review
the data to determine whether or not to assist Foster in filing a
grievance or complaint in a number of possible forums. These included
the possibilities of a grievance under the negotiated grievance
procedure, a prohibited personnel practice complaint before the Merit
Systems Protection Board, an EEO complaint under Equal Employment
Opportunity regaulations, or an unfair labor practice charge with the
Federal Labor Relations Authority for discrimination against a union
representative.
21. The data requested by the Union is normally maintained by the
agency in the regular course of business and does not constitute
guidance, advice, counsel or training provided for management officials
or supervisors relating to collective bargaining. (G.C. Ex. 1(c), 1(d).
Discussion, Conclusions, and Recommendations
The General counsel contends that the data sought by the Union in its
reuquests to Respondent was "necessary for full and proper discussion,
understanding and negotiation of subjects within the scope of collective
bargaining," within the meaning of section 7114(b)(4) /4/ of the
Statute.
Respondent notes that the Authority has held that procedures for the
filling of supervisory or other non-bargaining unit positions do not
constitute a condition of employment within the meaning of the Statute,
and that an employer is not obligated to bargain regarding such matters.
/5/ Respondent claims that the parties negotiated grievance procedures
does not extend to disputes regarding supervisory and other
non-bargaining unit positions, and Respondent has consistently refused
to engage in such bargaining. Therefore, Respondent asserts that the
Union is not entitled to information under section 7114(b)(4) regarding
a matter beyond the scope of collective bargaining and which does not
constitute a condition of employment.
Respondent also maintains that the question of the Union's
entitlement to the requested information is a matter of contract
interpretation which should have been resolved via arbitration. In
addition, Respondent contends that a grievance by, or on behalf of
Foster, even if otherwise viable, would have been precluded by Article
9-3c. of the agreement, since Foster raised the matter with an EEO
counselor, and it would also have been untimely under Article 9-4e. of
the agreement. Respondent also argues that the Union failed to
demonstrate the requested information was relevant to any
representational need.
Respondent's argument that since the Union referenced Article 14-1g.
of the negotiated agreement in making its request for the data, any
dispute as to the Union's entitlement to the information involves the
interpretation and application of that article and should be resolved
under the negotiated grievance procedure rather than as un unfair labor
practice is rejects. Article 14-1g basically provides a time frame for
responding to requests for information. This dispute does not involve
essentially an interpretation of article 14-1g., but rather whether
Respondent has engaged in un unfair labor practice by refusing to supply
information within the scope of section 7114(b)(4) to the Union. The
Union's right, if any, to the requested data in the present case stems
from that section of the Statute rather than from the collective
bargaining agreement. The refusal to supply information within the
scope of section 7114(b)(4) consittutes a violation of sections
7116(a)(1), (5) and (8) of the Statute irrespective of whether the
refusal might also constitute a breach of the parties' agreement. Cf.
Department of Defense Dependents Schools, 12 FLRA No. 12 (1983);
Internal Revenue Service and Brookhaven Service Center, 6 FLRA No. 127
(1981).
The next issue is whether and to what extent the authority must or
may consider the grievability or arbitrability of a potential grievance
in deciding whether a Union is entitled to data under Section
7114(b)(4).
Section 7121(a)(1) of the Statute requires that all collective
bargaining agreements contain procedures for the settlement of questions
of arbitrability. It also declares that these procedures "shall be the
exclusive procedures for resolving grievances which fall within its
coverage." The Authority has strictly construed this language. In
Portsmouth Naval Shipyard, 11 FLRA No. 80, 11 FLRA 456 (1983), the
Administrative Law Judge recommended dismissal of a complaint against an
agency that had refused to proceed to arbitration, on the ground that
the grievance submitted by the union was clearly and unmistakably
excluded from the reach of the parties' agreement. The Authority held
to the contrary, finding that "all questions of arbitrabilty must be
submitted to an arbitrator." The Authority found that the Judge had
erred "by attempting to resolve the arbitrability question himself." See
also Truman Memorial Veterans Hospital, Columbia, Missour, 11 FLRA No.
90, 11 FLRA 516 (1983).
The Authority reiterated this view in the context of a request for
data in U.S. Customs Service, Region VII Los Angeles, California, 10
FLRA No. 47, 10 FLRA 251 (1982). The Authority rejected the agency's
contention that it had no duty to furnish the requested information
because the employee's grievance involved a matter which was
nongrievable under the parties' negotiated agreement. Without passing
upon merits of the agency's contention and noting its previous
interpretations of section 7121 in Interpretation and Guidance, 2 FLRA
273 at 279, n.7 (1979), that questions of arbitrability must be
submitted to arbitration unless the parties mutually agree otherwise,
the Authority observed simply that the request satisfied the criteria in
Section 7114 (b)(4) and ordered the activity to furnish the data
requested.
In light of the Customs case, it would be improper in this proceeding
to pass upon the merits of Respondent's contentions that a grievance
relating to nonselection for supervisory positions is not subject to
resolution under the negotiated grievance procedure, or that any
grievance filed for Foster would, under the procedure, have been both
untimely and barred by Foster's EEO complaint. As the Authority
emphasized in Portsmouth Naval Shipyard, supra, "all questions of
arbitrability must be submitted to an arbitraror. " 11 FLRA at 457.
The Authority has ruled that data falls within the standard of
section 7114(b)(4) of being "necessary for full and proper discussion,
understanding and negotiation of subjects within the scope of collective
bargaining" in a case of this nature if it is "necessary and relevant in
order to enable the union to effectively carry out its statutory
representational obligation in the processing of an employee grievance."
Veterans Administration Regional Office. Denver, Colorado, 10 FLRA 453,
455 (1982). The fact that matters pertaining to non-bargaining unit
positions do not relate to conditions of employment of unit employees
and are outside the duty to bargain under the Statute does not preclude
disclosure of information relating to non-bargaining unit positions to
an exclusive representative if such information is otherwise shown to be
necessary and relevant to the performance of the statutory rights and
duties of the exclusive representative.
The statutory representational rights and duties of an exclusive
representative include the rights to represent the interest of all
employees in the unit and to present and process their grievances
through tne negotiated grievance procedure and to binding arbitration.
See sections 7114(a)(1) and 7121(b)(3)(A)-(C). While a union has no
obligation to file a grievance for any employee, it must fairly
represent the interests of all bargaining unit employees. It is well
settled that a union has a right to information necessary and relevant
to determine whether or not to file a grievance in the first instance.
Department of the Navy, Portsmouth, Naval Shipyard, 4 FLRA 619, 624
(1980).
The record establishes that the Union initially requested the
documents "in order to discharge its obligation under Title VII, CSRA,
P.L. 95-454." It later stated that the information was necessary and
relevant to process a grievance and that the grievance was on behalf of
a bargaining unit employee, Louis Foster. However, despite the agency's
request for clarification, the Union did not specify the grievant's
charges or indicate the issues involved in the potential grievance.
An agency is not obligated to provide information regarding a
grievance which is so vague and ill-defined that the relevancy of the
requested information cannot be ascertined. Internal Revenue Service,
Buffalo District, Buffalo, New York, 7 FLRA 644 (1982). The General
Counsel points out that the value of the data in evaluating unfairness
or disparate treatment concerning promotion to unit positions is well
established and should be equally recognized in this instance. It is
true that certain information /6/ used by a panel considering candidates
for promotion to a unit position would be presumptively relevant to a
unit employee's grievance. U.S. Customs Service, Region VII, supra.
However, where the information sought pertains to a position outside the
bargaining unit, as here, the information is not presumptively relevant.
In such circumstances, the Union is required to show, by reference to
the circumstances of the case, more precisely the relevance of the data
it desires. Cf. Curtiss-Wright Corp v. NLRB, 347 F. 2d 61, 69, 59 LRRM
2433 (3rd Cir. 1965).
The General counsel claims that Foster could grieve his nonselection
for the supervisory position, but, even if he could not, he would be
entitled to file a grievance, given the broad definition of "grievance"
in the agreement, for example, by seeking the removal of any records
adversely commenting on his Union activities, or, based on a review of
the records, he might be able to claim that the criteria established for
the selection were contrary to law or regulation. The Union did not set
forth in its request to Respondent any facts which might raise such
issues. It cannot merely leave the relevancy open to conjecture or
surmise. Cf. San Diego Newspaper Guild v. NLRB, 548 F.2d 863, 868, 94
LRRM 2923 (9th Cir., 1977). It had to show more than an abstract
relevance. When seeking information to which the presumption does not
apply, a union must demonstrate that the information is of probable or
potential relevance under a "discovery - type" standard. Cf. Oil,
Chemical & Atomic Workers v. NLRB, 113 LRRM 3163 (D.C. Cir., 1983);
NLRB, v. Acme Industrial Co., 385 U.S. 432, 437, 64 LRRM 2069 (1967).
The Union had the duty to demonstrate the relevance and necessity for
the information at the time the request was made so that problems could
possibly be worked out after some further minimal effort at the
bargaining table. It is only after such effort that the problem is
properly presented to the Authority and the courts. Cf. Soule Glass and
Glazing Co. v. NLRB, 652 F.2d 1055, 1098-1099, 107 LRRM 2781, 2806 (1st
Cir. 1981) and cases cited therein; Emeryville Research Center, Shell
Development Co. v. NLRB, 441 F.2d 880, 77 LRRM 2043 (9th Cir., 1971);
438th Air Base Group, McGuire Air Force Base, 2-CA-609, 4 ALJDR (1982).
In view of the Union's failure to initially demonstrate to Respondent
that the information requested in this instance was necessary and
relevant in order to enable it to discharge its responsibilities under
the Statute, a preponderance of the evidence does not support a
violation by respondent of sections 7116(a)(1), (5) and (8) of the
Statute by refusing to furnish the information prusuant to section
7114(b)(4), as alleged. Internal Revenue Service, buffalo District,
Buffalo, New York, supra; Director of Administration, Headquarters,
U.S. Air Force, 6 FLRA 110, 121-122 (1981).
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order.
ORDER
IT IS HEREBY ORDERED that the complaint in Case No. 7-CA-30165 be,
and it hereby is, DISMISSED.
/s/ Garvin Lee Oliver
Administrative Law Judge
Dated: January 24, 1984
Washington, D.C.
FOOTNOTES$ -----------
(1) In so concluding, however, the Authority does not adopt the
Judge's comment that certain requested information relating to position
within the bargaining unit is "presumptively relevant" whereas
information sought pertaining to positions outside the bargaining unit
is not presumptively relevant. As the Authority has previously stated,
a determination must be made in the particular circumstances of each
case whether data requested by an exclusive representative is
"necessary" within the meaning of section 7114(b)(4) of the Statute and
whether such information must be disclosed. See, e.g., Army and Air
Force Exchange Service (AAFES), Fort Carson, colorado, 17 FLRA 624
(1985), petition for review filed, sub nom. American Federation of
Government Employees, Local 1345 v. FLRA, No. 85-1378 (D.C. Cir. June
21, 1985); Bureau of Alcohol, Tobacco and Firearms, National Office,
Washington, D.C., 18 FLRA No. 74 (1985).
(2) Respondent's request to file a limited reply brief is hereby
denied.
(3) The motions of Respondent and the General Counsel to correct the
transcript are granted; the transcript is hereby corrected as set forth
therein. Respondent's Exhibit 4, an informal settlement agreement in
Case No. 57-CO-20012, should not have been received. Accordingly, no
consideration has been given to that Exhibit. The General Counsel's
request that the receipt of Respondent's Exhibit 6 be reconsidered is
denied. However, I agree with the General Counsel that Respondent's
Exhibit 6 and the testimony supporting its introduction into evidence
fail to establish that the Union waived its rights under section
7114(b)(4).
(4) Section 7114(b)(4) provides that the duty of an agency and an
exclusive representative to negotiate in good faith 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, under standing, and negotiation of subjects
within the scope of collective bargaining; and
"(C) which does not constitute guidance, advice, cousel, or
training provided for management officials or supervisors,
relating to collective bargaining(.)"
(5) See, e.g., National Council or Field Labor Locals, 3 FLRA 289
(1980).
(6) See National Federation of Federal Employees, Local 1745, 13 FLRA
No. (1983), concerning the applicability of the Privacy Act to records
used by promotion panels.