22:0667(74)CA - Army Corp of Engineers, Kansas City District, Kansas City, MO and NFFE Local 29 -- 1986 FLRAdec CA
[ v22 p667 ]
22:0667(74)CA
The decision of the Authority follows:
22 FLRA No. 74
U.S. ARMY CORPS OF ENGINEERS
KANSAS CITY DISTRICT
KANSAS CITY, MISSOURI
Respondent
and
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 29
Charging Party
Case No. 7-CA-40283
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. Thereafter, the Respondent filed exceptions
to the Judge's Decision, and the General Counsel and the Charging Party
filed oppositions to the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order as modified herein.
The Authority adopts the Judge's conclusion that the Respondent
violated section 7116(a)(1), (5) and (8) of the Statute by failing and
refusing to furnish the Charging Party (the Union) with certain
necessary data it requested pursuant to section 7114(b)(4) of the
Statute. She ordered the Respondent to furnish the Union with a copy of
the "Status of Minority Employment" listing (the Minority Listing) /1/
maintained by the Respondent, but to "sanitize" the Minority Listing by
deleting all data pertaining to nonbargaining unit employees, and all
other data except the names and minority status of bargaining unit
employees. We agree.
The Respondent in its exceptions again contends that, notwithstanding
any obligation it might otherwise have under section 7114(b)(4) of the
Statute, the provisions of the Privacy Act /2/ prohibit it from
disclosing the Minority Listing. /3/ The Authority has previously
determined that disclosure of necessary data to exclusive
representatives pursuant to requests under section 7114(b)(4) of the
Statute is not prohibited by the Privacy Act if the disclosure will not
result in a clearly unwarranted invasion of privacy, /4/ and that in
making such determination in each case the Authority will balance the
necessity of the data for the Union's purposes against the degree of
intrusion on the individual's privacy interests caused by disclosure of
the data. The Authority notes that the necessary data here requested is
to be used by the Union to determine whether the Respondent is complying
with the provisions of the parties' collective bargaining agreement, to
determine whether to file grievances in certain merit promotion actions,
and to prepare for contract negotiations, and has considered the limited
circulation the data is likely to receive. /5/
In striking the balance between the limited intrusion on the privacy
interests of the three highest ranked individuals and the selected
employees, and the Union's need to identify these individuals and their
minority status in order to pursue its representational duties under the
Statute, which will also ensure that the Government's merit promotion
system operates fairly, the Authority finds that disclosure of the
necessary data would not result in a clearly unwarranted invasion of
privacy and hence would not contravene the Privacy Act so as to be
prohibited by law within the meaning of section 7114(b)(4) of the
Statute. Therefore, the Authority concludes that the Respondent
violated section 7116(a)(1), (5) and (8) of the Statute by failing and
refusing to furnish the Union with the necessary data contained in the
Minority Listing.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, it is hereby ordered that
U.S. Army Corps of Engineers, Kansas City District, Kansas City,
Missouri, shall:
1. Cease and desist from:
(a) Failing or refusing to furnish, upon request by the National
Federation of Federal Employees, Local 29, the exclusive representative
of a unit of its employees, the data contained in the "Status of
Minority Employment" listing which the Authority has deemed necessary
for the full and proper performance by such exclusive representative of
its representational duties.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, furnish to the National Federation of Federal
Employees, Local 29, the exclusive representative of a unit of its
employees, the data contained in the "Status of Minority Employment"
listing which the Authority has deemed necessary for the full and proper
performance by such exclusive representative of its representational
duties.
(b) Post at its facilities at the U.S. Army Corps of Engineers,
Kansas City District, Kansas City, Missouri, copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
District Engineer, or a designee, and shall be posted and maintained for
60 consecutive days thereafter, in conspicuous places, including
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that such
Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
Issued, Washington, D.C., July 24, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to furnish, upon request by the National
Federation of Federal Employees, Local 29, the exclusive representative
of a unit of our employees, the data contained in the "Status of
Minority Employment" listing which the Authority has deemed necessary
for the full and proper performance by such exclusive representative of
its representational duties.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, furnish the National Federation of Federal
Employees, Local 29, the exclusive representative of a unit of our
employees, the data contained in the "Status of Minority Employment"
listing which the Authority has deemed necessary for full and proper
performance by such exclusive representative of its representational
duties.
(Activity)
Dated:
By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VII, Federal Labor Relations Authority, whose address
is: 535 16th Street, Suite 310, Denver, CO 80202, and whose telephone
number is: (303) 837-5224.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 7-CA-40283
U.S. ARMY CORPS OF ENGINEERS, KANSAS CITY DISTRICT,
KANSAS CITY, MISSOURI,
Respondent
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 29,
Charging Party
Jane P. Cornwell,
For the Respondent
Gerald Eggemeyer and
Joseph Swerdzewski,
For the General Counsel
Federal Labor Relations Authority
Diane E. Carney,
For the Charging Party
Before: ISABELLE R. CAPPELLO
Administrative Law Judge
DECISION
This is a proceeding under Title VII of the Civil Service Reform Act
of 1978, Pub. L. No. 95-454, 92 Stat. 1192, 5 U.S.C. 7101 et seq.
(1982), commonly known as the Federal Service Labor-Management Relations
Statute, and hereinafter referred to as the Statute, and the rules and
regulations issued thereunder and published at 5 CFR 2411 et seq.
This proceeding was initiated by the filing of an unfair labor
practice charge on March 2, 1984, which was amended on May 24. The
Region VII Office of the Federal Labor Relations Authority (the
Authority) investigated the charges and, on May 30, issued a complaint
against Respondent.
The complaint alleges that on or about February 7 and 15, 1984, and
pursuant to 5 U.S.C. 7114(b)(4), the Charging Party (also referred to
herein as the Union) submitted to Respondent written requests for a copy
of the "Status of Minority Employment" listing, which concerns the race,
sex, national origin, and disability status of Respondent's employees,
and that on or about February 8 and 23, and at all times since,
Respondent has failed and refused to furnish the Charging Party the data
requested, thereby engaging in unfair labor practices in violation of 5
U.S.C. 7116(a)(1), (5) and (8). /6/
Respondent admits that the listing has been requested, is normally
maintained by it in the regular course of business, and that it has
refused to furnish it. Respondent denies that the requested data is
reasonably available and necessary for collective bargaining. And it
avers that it is constrained from furnishing it by 29 CFR 1613.302(b);
by the Privacy act, 5 U.S.C. 552(b); and by 5 U.S.C. 7116(b)(4). And
it further avers that it disclosed all relevant and necessary data in
accordance with 5 U.S.C. 7114(b)(4).
A hearing on the matter was held in Kansas City, Missouri, on July
10, 1984. The parties appeared, adduced documentary evidence, and
examined witnesses. Briefs were filed on August 30, by Respondent, and
on August 31 by the General Counsel, pursuant to an August 6 order
extending the briefing time until August 31 for good cause shown by the
General Counsel of the Authority in an unopposed motion.
Based upon the record made in this proceeding, my observation of the
demeanor of the witnesses, and the briefs, I make the following findings
of fact and conclusions of law and recommend the entry of the following
order.
Findings of Fact /7/
1. It is admitted that the Charging Party is a labor organization
and the Respondent is an agency within the meaning of 5 U.S.C.
7103(a)(3) and (4).
2. It is also admitted that the Charging Party has been the
exclusive representative of a unit of Respondent's employees since
August 5, 1970. The bargaining unit fluctuates between 650 and 750
employees. Its members are spread over approximately 30 installations
in 5 states, with stewards in only 2 of the 30.
3. It is also admitted that the Respondent and the Charging Party
have been parties to a collective bargaining agreement, effective July
1, 1981 to July 1, 1984, which contains, inter alia, a provision stating
that no employee will be discriminated against because of, inter alia,
race, sex, national origin, and physical handicap. See Article 6 of GC
2 at page 7. The agreement also contains provisions relative to merit
promotion (Article 14 of GC 2 at page 25); equal employment opportunity
(EEO, Article 15 of GC 2 at page 28); and a grievance procedure which
provides for the processing of grievances concerning equal employment
and discrimination complaints (Article 9 of GC 2 at pages 14 and see
also TR 49 and 79).
4. In late November or early December, 1983, Gary W. Divine, Union
President, met with Elvin J. Gant, the Respondent's Equal Employment
Manager, to discuss ways both could "firm up" the relationship between
the Union and the Equal Employment Opportunity Office (EEOO), and to
discuss a grievance being processed by the Union (TR 22). During this
conversation Mr. Gant stated that there was "institutional racism"
within the Respondent and, in particular, stated that although there was
a large number of minority candidates ranked in the top three on merit
promotion referrals, they were routinely not selected (TR 22). Mr. Gant
also indicated that he had the documents to verify these statements.
/8/
5. Based upon the statements of Mr. Gant, the Union felt compelled,
for contract administration purposes, to investigate his allegation of
institutional racism. Accordingly, on December 30, 1983, in a letter to
Colonel Gurnie C. Gunter, Respondent's District Engineer, Mr. Divine,
referencing "information Local 29 ha(d) received from Mr. Gant of (his)
staff and in the interest of proper contract administration," requested,
pursuant to Section 7114(b)(4) of the Statute, "copies of all DA 2600's
dated 1 July 1981 to present; wherein one of the three highest ranked
candidates was not selected for the bargaining unit position in
question" (G.C. Exh. 3).
6. Department of Army Form 2600 (DA 2600) is a referral and
selection roster showing the position to be filled, and listing the best
qualified candidates and their present position. The form is forwarded
to the selecting supervisor. Article 14, Section 6 of the parties'
collective bargaining agreement provides that:
Selections. The selecting official should normally choose one
candidate from the three highest rankings. Any candidate may be
selected provided the selecting official furnishes a statement
indicating why he/she believes the selected candidate can perform
more effectively and efficiently than any candidate in the three
highest rankings.
See GC 2 at page 26.
7. Shortly thereafter, Robert G. Blaylock, Respondent's Chief of the
Management-Employee Relations and Training Branch of the Personnel
Office, told the Union that he would allow the Union access to the DA
2600s contained in the merit promotion files which the Union felt it
needed. The Union chief steward and another steward reviewed about 500
merit promotion packages, from which they pulled approximately 150 DA
2600s. According to Mr. Divine, the DA 2600s were requested so that the
Union could determine, under the merit promotion process, who was
selected for a position. This would, in turn, assist the Union in
finding out whether the individual selected was among the three highest
ranked candidates, whether a minority candidate was listed, and finally
whether the minority candidate was selected.
8. The Union's preliminary review of the DA 2600s revealed that the
three highest ranked candidates were not selected approximately 50 per
cent of the time. In addition, four position selections, with their
accompanying DA 2600s and supporting documents, were particularly
instructive to the Union.
a. The first concerned selections for two vacancies in the position
of power plant trainee. The DA 2600 listed 14 candidates which,
according to a stamp placed on the DA 2600 by the Personnel Office,
included 2 females and 1 minority. This DA 2600 was of interest because
the selecting supervisor wrote that he selected one of the two
candidates because "(h)is selection will also provide a start in
overcoming a severe underrepresentation of minorities in this career
field" (GC 4). Consequently, two facts became evident from this DA
2600: that the Personnel Office stamp indicated that the selecting
supervisor was being notified of minority and female applicants; and
that the supervisor's justifications for one of the selections indicated
that in at least one case minority consideration had been a factor in
the selection. Since it was the Union's understanding that the merit
promotion article (Article 14) of the agreement required selections only
to be based on merit, and not on race, creed, color, national origin or
sex, the Union felt there may have been a contract violation in this
instance. Respondent's chief of labor-management relations, Robert G.
Blaylock, conceded that it was the policy of the Personnel Office to
make merit selections for promotion "without regard to race or sex or
any other non-merit factor" (TR 88).
b. The Union's review of the DA 2600s also received a possible
problem with a selection for the position of civil engineering
technician in the Construction Division. In a November 16, 1983,
memorandum to the selecting supervisor for this position, Mr. Gant
stated, in part, that there was one minority applicant on the referral
list for this position, and that Respondent had a severe
underrepresentation of minority employees in this particular career
field, which should be considered together with other selection
criteria. The first DA 2600 for this position indicates that on
December 12, 1983, the selecting supervisor made his selection. In a
memorandum dated December 15, 1983, to Colonel Gunter, Mr. Gant states
that, given the underrepresentation currently existing, the proposed
selection did not reflect appropriate support for the spirit, intent, or
the implementation of affirmative action policies or objectives.
Thereafter, in a memorandum dated December 16, 1983, the then acting
Construction Division Chief stated that while he agreed with Mr. Gant's
comments, he supported the selecting supervisor's justifications for the
selection. However, the second DA 2600 for this position, dated January
22, 1984, shows that the selection supervisor overturned his original
selection and selected a black male based upon merit factors,
underrepresentation and Respondent's affirmative action program,
indicating that the selection was partly based upon minority
consideration, rather than merit only.
c. The Union's review of a DA 2600 for the position of Miscellaneous
Documents Examiner, and its investigation of an unrelated employee
grievance, revealed another possible problem selection. During
investigation of the grievance, the Union learned that the selecting
supervisor had originally proposed selecting two employees, but that Mr.
Gant did not concur in one of the selections because of the absence and
underrepresentation of black employees in this particular career field,
and he recommended selection of the black employee on the referral list.
Mr. Gant's March 17, 1983 memorandum to the selecting supervisor stated
that race can be considered in the selection process and that support
for equal employment opportunity (EEO) will be relied upon to determine
whether a division chief has met the critical equal employment
opportunity element of his or her job performance standards.
Subsequently, the selecting supervisor selected the black female, and
failed to select any of the three highest ranked candidates, even though
the Union's investigation of the grievance revealed that the black
female had the lowest ranking of all the candidates. Further, this DA
2600 was again stamped with a statement that the list included seven
females and one minority.
d. Finally, the Union's review of a DA 2600 for the Contract
Specialist or Contract Administrator position disclosed a fourth
questionable selection regarding the administration of the contract's
non-discrimination and merit promotion articles. This DA 2600 showed
four candidates with the three highest rankings, a stamp stating that
the list included nine females and four minorities, and that the person
selected was not among one of the candidates in the three highest
rankings. The DA 2600, however, did not reveal whether any of the four
highest ranked candidates were minorities, and the Union was unable to
identify whether two of the four were minorities.
e. The Union's preliminary review of the other DA 2600s disclosed
that the candidates in the top three rankings were not being selected
approximately one half of the time, and that underrepresentation was a
consideration in the selection process.
f. The Union was left with two areas where patterns of
discrimination may have been occurring -- (1) minority candidates being
among the three highest rankings and not being selected, and (2)
minority candidates being given preferential treatment and selected over
candidate within the three highest rankings. However, from the DA 2600s
alone, only the female candidates could normally be identified. The
minority candidates could not readily be identified. Accordingly, in
order to fully investigate Mr. Gant's allegation of institutional racism
and to complete its discrimination analysis, the Union felt it needed
the names and the minority status of the candidates to see if there was
the possibility of a union grievance or contract compliance problem with
the merit promotion article, the employee rights article, and the EEO
article.
9. As a result, in late January 1984, Mr. Divine met with Mr. Gant
in the EEOO. According to Mr. Divine, he asked Mr. Gant about the stamp
showing the number of female and minority applicants on the DA 2600s and
if this was done by the EEOO. He was told by Mr. Gant that the stamp
was put on by the Personnel Office, and that Mr. Gant did review the
stamp for accuracy and completeness using a Status of Minority
Employment listing. /9/ The listing is a computer-generated, by-name
listing of all minorities and women in Respondent's workforce which also
identifies their grade, pay plan, position title, occupational series
and organizational element. Mr. Gant uses this listing, as raw data, to
compile the Affirmative Action Panel Report, a quarterly publication,
which assesses Respondent's work force profile in terms of race, gender,
grade, pay plan, and organizational element. Mr. Divine asked Mr. Gant
if the Union could have access to the information on the listing, and
explained the Union's investigation based on Mr. Gant's earlier
allegation of institutional racism. Mr. Gant replied that the EEOO
would be willing to cooperate in the Union's investigation and in
gathering information. Mr. Gant did not indicate that he would give the
listing to Mr. Divine.
10. On February 7, 1984, Mr. Divine sent another letter to Colonel
Gunter. He referred to his earlier letter of December 30, 1983,
requesting copies of the DA 2600s from July 1, 1981 (see finding 5,
above) and noted that the Personnel Office had allowed the Union access
to them. He requested one copy of each status of Minority Employment
listing for the past two years so that the Union might "adequately
analyze" the DA 2600s, and cited 5 U.S.C. 7114(a)(4). See GC 8. He
stated his "understanding that these document (were) maintained by the
Equal Employment Manager and w(ould) be provided upon request" (GC 8).
11. On February 8, 1984, Mr. Blaylock replied to Mr. Divine's
February 7 letter to Colonel Gunter. In the letter he stated that the:
Statute prohibits the release of employment information by race
or national origin. Any such data maintained may be used only in
studies and analyses which contribute affirmatively to achieving
the objectives of the equal employment opportunity program (See 5
CFR 29, Section 1613.302).
See GC 9. Mr. Blaylock testified that the citation used in his
letter was incorrect and should have been 29 CFR 1613.302. See TR 90.
The correct citation is to a regulation of the Equal Employment
Opportunity Commission (EEOC). /10/ Mr. Blaylock never contacted anyone
at EEOC for an interpretation of the regulation or for guidance as to
what it might mean. He thought it was "plain enough" (TR 91), but
admitted that he really did not know the "standard" for individual
privacy under the regulation (TR 95).
12. On February 9, 1984, Mr. Divine wrote to Mr. Blaylock and stated
his view that refusal to furnish the requested data violated the
Statute.
13. On February 15, 1984, in a letter to Colonel Gunter, Mr. Divine
made a request for five items, and reiterated the request for the Status
of Minority Employment, a copy of which, he explained, he had viewed
briefly in the presence of Mr. Gant in late January 1984. Mr. Divine
explained to Colonel Gunter that he was making the request as President
of Local 29, "in order to prepare for upcoming contract negotiations and
to ensure proper administration of the current contract" (GC 11). One
of the "primary articles" to be renegotiated was the one concerning
"merit promotion" (TR 50).
14. On February 23, 1984, Mr. Blaylock replied to Mr. Divine's
letter of February 15. He furnished five of the items requested, but
declined to furnish the Status of Minority Employment listing with the
comment: "again I must remind you that the release of this information
is prohibited by 29 CFR, Section 1613.302" (GC 12).
15. At the hearing, Mr. Blaylock testified that he also relied upon
the Privacy Act in declining to furnish the requested listing, but never
mentioned reliance upon it to the Union. The Union never indicated to
him that it was "investigating a potential grievance" (TR 96).
16. At the hearing, the Union President testified that the Status of
Minority Employment listing was needed in order to administer the
current contract provisions, particularly Article 6 dealing the
non-discrimination provision; Article 14, the merit-promotion
provision; and Article 15, the equal employment opportunity provision.
He further testified that it was needed also for contract negotiations
due to commence in July 1984 because one of the primary articles to be
negotiated was the merit promotion one, the Respondent having already
given to the Union a "totally new promotion package" (TR 51). The Union
had to know the extent of the problem in the merit promotion area as it
related to discrimination; whether the contract needed tightening in
that area; what emphasis would be placed on minority status and
underrepresented positions; how these factors would be identified; and
what weight should be given to them in the merit selection process.
17. Respondent never asked the Union why it needed the listing, or
to clarify its request. Respondent never offered to sanitize the
listing to limit it to bargaining unit members -- an action which the
Union President testified would have been acceptable as far as non-unit
positions were concerned.
18. However, on or about April 23, 1984, as part of a separate
unfair labor practice charge, Respondent did provide to the Union the
EEO Affirmative Action Panel Report for the first quarter of fiscal year
1984, as well as a listing of positions designated as underrepresented
and other positions filled within the last year. See R 2. The Panel
Report was not offered as alternative data to the Union's request for
the Status of Minority Employment listing. See TR 56. The Panel
Report, while giving an overall profile of Respondent's work force, was
of no use to the Union's investigation of discrimination in the merit
promotion area, since it did not identify employees by name, and did not
allow the Union to identify the minority status of actual candidates on
the DA 2600s. And the gross statistics represented by the Panel Report
do not allow the Union to identify potential discrimination problems
with particular vacancies, or a series of vacancies, which are required
to file a grievance, or determine the extent of possible grievances.
19. The data contained in the Status of Minority Employment listing
is maintained in Respondent's computer system. This data can be
generated into a listing, in the form of a computer print-out, at little
cost. When the listing is in computer print-out form, the listing is
maintained in the EEO office and is used to compile the EEO Affirmative
Action Reports. The form is destroyed after the Reports are compiled.
20. Respondent admits that the Status of Minority Employment listing
was and is data normally maintained in the regular course of its
business, and does not constitute guidance, advice, counsel, or training
provided for management officials or supervisors relating to collective
bargaining.
21. Respondent has furnished to the Union the names and addresses of
bargaining-unit employees, and allows the Union access to its internal
mail system.
Discussion and Conclusions
The General Counsel has established, by a preponderance of the
evidence, /11/ that Respondent committed an unfair labor practice, in
violation of 5 U.S.C. 7116(a)(1), (5) and (8), by failing to furnish the
Status of Minority Representation listings as requested by the Union
pursuant to 5 U.S.C. 7114(b)(4).
a. The requested data met the statutory conditions for production.
With exceptions to be discussed infra, all that section 7114(b)(4)
explicitly requires to justify a request for information is proof that
the information sought is (1) "data;" that it is (2) "normally
maintained by the agency in the regular course of business;" (3) that it
is "readily available;" and (4) that it is "necessary for the full and
proper discussion, understanding and negotiation of subjects within the
scope of collective bargaining." See section 7114(b)(4) quoted fully in
footnote 1, supra. Respondent admits that the listings are data,
normally maintained by it in the regular course of business. It is
established by the record that this data can be easily generated in the
form of a computer printout and is, thus, readily available.
As to the last element of proof, the necessity for the data sought,
the Authority has held that "matters related to discrimination in
employment" are "within the scope of the duty to bargain, under section
7117 of the Statute." See American Federation of Government Employees,
AFL-CIO, and Air Force Logistics Command, Wright-Patterson Air Force
Base, Ohio, 2 FLRA 604, 617 (1980). (See also Respondent's apparent
concession on this point, at page 14 of its brief.)
The Authority has not yet ruled on the necessity of minority
employment listings in a situation similar to the present case but, in
situations arising in the private sector, the National Labor Relations
Board had ruled; and the Board's decisions can be instructive, if not
dispositive for Federal-sector, labor-relations matters. See Director
of Administration, Headquarters, U.S. Air Force, 6 FLRA 110, 120-123
(1981). Thus, in Lucky Markets, Inc., 251 NLRB 836, 837 (1980), the
union asked for, inter alia, a list containing the names, ages, race,
sex, and marital status of all employees in the bargaining unit. The
Board held the list was relevant and necessary, and must be disclosed,
citing its prior decision in Westinghouse Electric Corporation, 239 NLRB
106, 108 (1978) wherein the Board, after noting the Union's duty of fair
representation, stated:
Since the cases have plainly established that a union has a
right to protect the employees it represents from discriminatory
treatment by an employer, it follows that a union needs
information related to race and sex in order to make proposals and
then to take other action to correct such discrimination.
Also see Safeway Stores, Inc. v. N.L.R.B., 691 F.2d 953, 957 (C.A.
10, 1982), holding that when anti-discrimination clauses are inserted
into a bargaining agreement, the union has a duty to ensure that the
contractual obligations are being met by the employer, and enforcing an
order that information pertaining to the employment status, ethnic
background and sex of employees be disclosed.
A similar role for Federal sector unions was explicated by
Congressman William D. Ford, in a post-enactment statement in which he
commented upon the fact that House and Senate conferees in the U.S.
Congress had decided to remove from the Statute "the exclusion of
discrimination matters from the definition of conditions of employment"
which determines which matters are negotiable. Congressman Ford stated
that this decision was made because of the belief that: "Federal sector
unions should shoulder their full obligation to help achieve equality of
employment opportunity in their agencies." See 124 Cong. Rec. H13606,
daily ed. Oct. 14, 1978, quoted in full on page 991 of the Legislative
History of the Federal Service Labor-Management Relations Statute, Title
VII of the Civil Service Reform Act of 1978, (hereinafter, Legislative
History), Committee Print No. 96-7 of the Subcommittee on Postal
Personnel and Modernization of the Committee on Post Office and Civil
Service, House of Representatives, 96th Cong., 1st Session. Congressman
Ford was a member of the Subcommittee, and a sponsor of legislation that
led to enactment of the Statute.
Here, the Union has shouldered this responsibility and bargained for
and won from Respondent provisions in its contract relating to merit
promotion (which the parties agree must not be on any other factor, such
as race or sex); to equal employment opportunity; and to the handling
of grievances involving equal employment and discrimination complaints.
See finding 3, above. Here, the Union was investigating an allegation
of institutional racism, made in particular as to merit promotion
selections and by one of Respondent's own managers. See finding 4. If
true, the allegation raised problems of contract administration and the
possible filing of grievances over actions that were becoming stale.
Whether it was true depended upon information as to the minority status
of candidates selected and rejected for promotion, a status which the
Union could not always identify. See findings 8d and f. The Status of
Minority Employment listings sought from Respondent contain this
information.
Here, the Union was also preparing for upcoming negotiations over a
contract due to expire July 1, 1984; and one of the primary articles to
be renegotiated was the merit promotion article. See finding 13. The
Union's investigation of discrimination in merit promotion selections
was crucial to determining its negotiation strategies; whether the
merit promotion article needed to be strengthened; or whether, and to
what degree, minority status and underrepresentation should be given
weight in the selection process. See finding 16.
The gross statistics, which Respondent did furnish to the Union, were
helpful in showing underrepresented areas in the work force; but they
were inadequate for showing whether current contract provisions were
being violated as to particular merit promotion selections, and exact
problems with the selection process that might help with the
renegotiation of the merit promotion article being proposed by
Respondent.
These are sufficient facts upon which to conclude that the
information sought was necessary to enable the Union to effectively
carry out its statutory representational obligations to bargain, to
administer its contract, and to obtain evidence in order to handle any
grievances based upon allegations of discrimination in making selections
for promotions. It is noted that some of these selections were made
over two years ago (see finding 5); and the Union needed to act
promptly in determining whether to file grievances. See United States
Environmental Protection Agency, Health Effects Research Laboratory,
Cincinnati, Ohio, 16 FLRA 52, 54 (1984) wherein the Authority repeated
its ruling that section 7114(b)(4) "requires management to furnish an
exclusive representative with information which would enable the union
to effectively carry out its representational obligation in connection
with the processing of an employee grievance of the determination
whether to file a grievance"
b. The Union was precise enough in its demand. Respondent argues
that the Union was not precise enough in stating its needs for the
information sought. See RBr 14. What the Union told Respondent's
managers was that it had information from the Equal Employment Manager
that required it to look at copies of merit promotion papers (DA 2600s)
for the past several years, wherein one of the three highest ranked
candidates was not selected for a bargaining unit position (finding 5);
that after looking at such papers it needed the Status of Minority
Employment listings for the same years to adequately analyze the DA
2600s (finding 10); that it had viewed a listing, briefly, in the
presence of the Equal Employment Manager (finding 13); and that it also
needed the listings to prepare for the upcoming contract negotiations
and to ensure proper administration of the current contract. See
finding 13. The Union President told the Equal Employment Manager,
before the requests for the listings were made, that he needed access to
the information on the listing in connection with the allegation of
institutional racism (finding 9).
With this information, an intelligent manager could have concluded
that the Union was concerned about discrimination in particular past
merit-promotion selections. In view of the fact that Respondent had
submitted a new merit-promotion package to the Union in connection with
renegotiation of this contract article, an intelligent manager could
have also concluded that the Union needed to know what past practices
were in regard to merit promotion selections vis-a-vis minorities. Had
Respondent's managers been sincerely in doubt as to the need for the
requested information, they could have requested clarification, which
they did not do. See finding 17. Instead, Respondent's managers simply
took the position that they need not furnish the information. See
findings 11 and 14. Under these circumstances, the demand must be held
as precise enough; and the Union cannot be faulted for not elaborating
further.
c. It is irrelevant that the Union is able to obtain requested
information from alternative sources.
Respondent stresses the fact that the Union has other means of
obtaining the information sought, in that it "need only contact its
membership and request the statistical information regarding race, sex,
and national origin or any other pertinent data" (RBr 16). Respondent
points to the sources it has made available to the Union -- namely use
of its internal mail system, and the names and addresses of all
bargaining-unit employees.
The fact that a union has alternative means to obtain information it
seeks from the agency, through use of section 7114(b)(4), raises an
unsettled issue of statutory construction, one on which the Authority
has expressly reserved consideration. See Veterans Administration
Regional Office, Denver, Colorado (VA), 10 FLRA 453, 458, fn. 11 (1982).
Nothing in the legislative history of the Statute provides any clue
of congressional intent on this issue. See references to section
114(b)(4) at pages 92, 93, 144, 262, 337, 403, 404, 694, 914, 926, 974,
and 995 (a post-enactment statement) of the Legislative History of the
Statute.
The language of the Statute seems plain enough, however. It deals
specifically with exemptions from its reach (see footnote 1, above). It
makes no mention of an exemption when alternative sources of information
are available to a union. And this makes sense. After all, Congress
found that allowing employees to participate in decisions that affect
them, through labor organization of their own choosing, contributes to
"the effective conduct of public business." See 5 U.S.C. 7101(a)(1)(B).
Ineffectiveness will result if public unions are required to scramble
around for information necessary for them to represent public employees,
even though the information is maintained by public agencies in their
files or computer memories. The time and resources which a public union
could spend on representational duties on behalf of public employees
would be diverted to this needless pursuit of information.
In dealing with other issues raised under section 7114(b)(4), the
Authority has favored a broad interpretation of management's duty under
it. When called upon to decide whether an agency had a duty to furnish
information for purposes of a grievance involving a matter that was
non-negotiable under the parties' contract, the Authority noted how
"broadly" section 7114(b)(4) reached, and concluded that the duty to
furnish the information did exist. See U.S. Customs Service, Region
VII, Los Angeles, California, 10 FLRA 251, 253 (1982). And when called
upon to decide whether the agency must furnish the data cost free, the
Authority held that it must. See its VA decision wherein it held that
an interpretation requiring cost-free information "would further
Congressional intent to require an agency to furnish the data" (10 FLRA
at 456).
So here, I conclude that Congressional intent is furthered by
requiring an agency to furnish to a union information necessary to the
union's representational duties, when it is normally maintained by and
reasonably available to the agency, and without regard to whether
sources other than the agency's files or computer memory may be
available to the union for the information.
d. The release of the data sought is not "prohibited by law" within
the meaning of section 7114(b)(4).
In denying the Union's request for the data, Respondent relied solely
upon regulations of the Equal Employment Opportunity Commission (EEOC).
See findings 11 and 14. These regulations provide that:
(a) Each agency shall establish a system which provides
statistical employment information by race or national origin.
(b) Data shall be collected only by visual identification and
shall be disclosed only in the form of gross statistics. An
agency shall not collect or maintain any information of the race
or national origin of individual employees except when an
automated data processing system is used in accordance with
standards and requirements prescribed by the Commission to insure
individual privacy and the separation of that information from
personnel records.
See 29 CFR 1613.302, emphasis by Respondent (RBr 3). These
regulations were formulated and last amended by EEOC prior to passage of
the Statute. See 34 FR 5371 (Mar. 19, 1969) as amended at 34 FR 14024
(Sept. 4, 1969) and redesignated at 43 FR 60971 (Dec. 29, 1978).
The General Counsel argues that the EEOC "regulation" cannot preclude
release of data to which it is otherwise entitled under section
7114(a)(4), in that section 7114(a)(4) conditions release only to the
extent not prohibited by "law," and that "law" refers to a congressional
enactment, not an agency regulations.
As in cases cited at pages 7 and 9-10 of Respondent's brief, courts,
including the United States Supreme Court, have held that an agency or
departmental regulation can have "the force and effect of law if it be
not in conflict with express statutory provision." See Maryland Casualty
Co. v. United States, 251 U.S. 342, 349 (1920), noting that the
regulation must also be "addressed to and reasonably adapted to the
enforcement of an act of Congress the administration of which is
confided to such department." EEOC, of course, is not charged with the
administration of the Statute here involved. And here this Statute
expressly deals with the release of information to a union. In
formulating this provision, Congress took pains to spell out specific
conditions and exemptions governing the furnishing of information by
agencies to unions representing their employees. Thus, it is unlikely
that Congress would have intended for agencies, such as EEOC, to
promulgate their own regulations on the matter, or, in this case, to
have its express statutory provisions frustrated because of an agency
regulation promulgated even before Congress spoke to the duty to
produce, in 5 U.S.C. 7114(b)(4).
The unlikelihood of such a congressional intent is bolstered by the
fact that Congress, in formulating the provisions of the Statute, used
the terms "law, rule or regulation" in the sections immediately
preceding and following section 7114(b)(4), as well as in several other
provisions of the Statute. See sections 7114(a)(5)(B); 7114(c)(2) and
(3); 7117(a)(1); and 7122. This indicates that the use of only the
term "law," in section 7114(b)(4), was deliberate and purposeful. As
the General Counsel argues at page 27 of his brief, to construe the use
of the term "law" to include "regulation" could thwart the exclusive
representative's right to information from an agency, because an agency
could simply promulgate its own regulations prohibiting the release of
the information.
Thus, I conclude that Congress did not intend the use of the term
"law," in section 7114(b)(4), to embrace regulations of EEOC.
As an affirmative defense in answering the complaint, Respondent
raised, for the first time, the issue of the Privacy Act prohibiting the
release of the requested data. See findings 11 and 14. Respondent's
Chief of Management-Employee Relations and Training Branch testified
that he also relied upon the Privacy Act in declining to release the
data, but admits that he never mentioned the Privacy Act to the Union.
See finding 15. While I do not conclude that Respondent was precluded
from raising the issue in its answer to the complaint, I note that the
failure to raise it with the Union accounts for why the Union did not
try to obtain the listings in an appropriately sanitized format to meet
Privacy Act considerations. See finding 15.
The pertinent portion of the Privacy Act, 5 U.S.C. 5529(b), provides
that:
No agency shall disclose any record which is contained in a
system of records by any means of communication to any person, or
to another agency, except pursuant to a written request by, or
with the prior written consent of the individual to whom the
record pertains, unless disclosure would be -- . . . (2) required
under section 552 of this title. . . .
Section 552 of Title 5 is the Freedom of Information Act (FOIA)
Section 552(b)(6) of FOIA prohibits disclosure of "personnel and medical
files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy."
No "clearly unwarranted" intrusion would result from the disclosure
here sought. Assuming that Respondent compiled its Status of Minority
listing in accordance with the EEOC regulations quoted above, it did so
"only by visual identification." Thus, the information sought is
"public" in a sense, anyway, and unlike information that exists only in
agency files, as was the situation in the cases cited by Respondent at
pages 9-12 of its brief. See Detroit Edison Co. v. N.L.R.B., 440 U.S.
301 (1979) holding protected employee aptitude tests; Local 2047,
American Federation of Government v. Defense General Supply, 423 F.
Supp. 481 (E.D. VA, 1976), affirmed per uniam, 573 F.2d 184 (C.A. 4,
1978), holding protected the names of employees on lists in respect to
awards, promotions, reductions in force, and abuse of leave; and
National Federation of Federal Employees, Local 1745 and Veterans
Administration, 13 FLRA 543 (1983) holding non-negotiable a union
proposal to allow disclosure of records used by a promotion panel to any
rejected candidate for the position, on the ground of Privacy Act
restrictions. /12/
Balanced against the minor invasion of personal privacy involved here
is the Union's need for the information in order to protect the
bargaining unit against discrimination in job actions, to administer the
contract's provisions on equal employment opportunity and merit
promotions, and to bargain intelligently on Respondent's proposal for a
revised merit promotion article. While the Union could go out and
visually identify each bargaining unit employee, this would require an
enormous effort and waste of official time, as the bargaining unit is
scattered over approximately 30 installations in 5 States with stewards
in only 2 of the 30 installations. While the Union could solicit this
information from the bargaining-unit members by use of the mails, there
is no assurance of a complete or prompt enough response to be helpful in
scheduled contract negotiations or in filing grievances on job actions
which were already over two years old. /13/
However, the listings should be sanitized to exclude non-bargaining
unit employees. See United States Environmental Protection Agency,
Health Effects Research Laboratory, Cincinnati, Ohio, 16 FLRA 52, 55
(1984), holding that information as to non-bargaining unit employees
(performance appraisal work sheets) need not be furnished under section
7114(b)(4) as the information was not necessary or relevant to assist
the Union in determining whether a grievance was warranted over the
failure of certain bargaining unit employees to be rated outstanding.
Here, the Union apparently agrees that information as to non-bargaining
unit employees is not appropriate or needed. See finding 17. /14/
The listings should also be sanitized to exclude all but the names
and minority status of bargaining-unit employees, since these are the
sole concerns of the Union in obtaining these listings. See findings 8d
and f and 16.
In view of the above conclusions, it is unnecessary to decide other
issues raised by the General Counsel.
Ultimate Findings and Recommended Order
The General Counsel has proved, by a preponderance of the evidence,
that Respondent has committed unfair labor practices, in violation of 5
U.S.C. 7116(a)(1), (5) and (8) as alleged in the complaint.
Accordingly, and pursuant to 5 CFR 2423.29 and 5 U.S.C. 7118, the
Authority hereby orders that the U.S. Army Corps of Engineers, Kansas
City District, Kansas City, Missouri, shall:
1. Cease and desist from:
(a) Refusing or failing to furnish upon request of the National
Federation of Federal Employees, Local 29, herein NFFE, the Status of
Minority Employment listing for all unit employees, as appropriately
sanitized, which information is necessary and relevant for the NFFE to
discharge its obligations as the exclusive representative to represent
the interests of all employees in the exclusively represented unit.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request, make available to NFFE, the Status of Minority
Employment listing for all unit employees, as appropriately sanitized,
which information is relevant and necessary to enable NFFE to discharge
its obligations as the exclusive representative to represent the
interests of all employees in the exclusively represented unit.
(b) Post at its facilities copies of the attached Notice To All
Employees on forms to be furnished by the Regional Director, Region VII,
Federal Labor Relations Authority. Upon receipt of such forms they
shall be signed by the District Engineer, U.S. Army Corps of Engineers,
Kansas City District, Kansas City, Missouri, and shall be posted and
maintained by him for sixty (60) consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. The District Engineer
shall take reasonable steps to insure that such Notices are not altered,
defaced, or covered by any other material.
(d) Pursuant to 5 CFR 2423.30, notify the Regional Director, Region
VII, Federal Labor Relations Authority, in writing, within 30 days from
the date of this Order, as to what steps have been taken to comply
herewith.
/s/ ISABELLE R. CAPPELLO
Administrative Law Judge
Dated: November 30, 1984
Washington, DC
--------------- FOOTNOTES$ ---------------
(1) The Minority Listing is statistical data, compiled from data
collected by visual identification by the Respondent, which lists the
names, grade plan, pay plan, position title, occupational series and
organizational element of all female and minority employees in the
Respondent's work force.
(2) Privacy Act of 1974, Pub. L. No. 83-579, 88 Stat. 1896 (codified
as amended at 5 U.S.C. Section 552a (1982)).
(3) The Respondent also contends that, pursuant to the provisions of
Equal Employment Opportunity Regulation, 29 C.F.R. Section 1613.302
(1984), it could not lawfully provide the Minority Listing to the Union.
The Respondent argues that the restrictive language in section
7114(b)(4) of the Statute, limiting an agency's duty to furnish data "to
the extent not prohibited by law," incorporates the Equal Employment
Opportunity Commission (EEOC) regulation. The Authority finds that,
while the EEOC has the authority to issue regulations that take
precedence over other laws when such regulations apply to EEOC's own
proceedings (see Internal Revenue Service, Fresno Service Center,
Fresno, California v. FLRA, 706 F.2d 1019 (9th Cir. 1983)), its
procedural regulations such as here involved serve rather only as
guidelines to agencies, and do not have the force and effect of "law" as
that term is used in section 7114(b)(4) of the Statute. See generally
General Electric Company v. Gilbert, 429 U.S. 125 (1976).
(4) See Army and Air Force Exchange Service (AAFES), Fort Carson,
Colorado, 17 FLRA 624 (1985), reversed and remanded as to other matters,
sub nom. American Federation of Government Employees, AFL-CIO, Local
1345 v. FLRA, No. 85-1378 (D.C. Cir. June 27, 1986); Bureau of Alcohol,
Tobacco and Firearms, National Office, Washington, D.C., 18 FLRA No. 74
(1985); U.S. Equal Employment Opportunity Commission, Washington, D.C.,
20 FLRA No. 37 (1985).
(5) Should the data in fact become widely known, the Authority would
necessarily take this experience into account in future similar cases.
(6) 5 U.S.C. 7116(a) make it an unfair labor practice:
(1) to interfere with, restrain, or coerce any employee in the
exercise of any right under this chapter; . . .
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter . . . (or)
(8) to otherwise fail or refuse to comply with any provision of
this chapter.
5 U.S.C. 7114 provides that:
(b) The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation -- . . .
(4) in the case of an agency, to furnish to the exclusive
representative involved, or its authorized representative, upon
request and, to the extent not prohibited by law, data --
(A) which is normally maintained by the agency in the regular
course of business;
(B) which is reasonably available and necessary for full and
proper discussion, understanding, and negotiation of subjects
within the scope of collective bargaining; and
(C) which does not constitute guidance, advice, counsel, or
training provided for management officials or supervisors,
relating to collective bargaining. . . .
(7) Abbreviations to be used herein are as follows: "TR" refers to
the transcript. The General Counsel's unopposed motion to correct the
transcript is granted. "GC" refers to the exhibits of the General
Counsel and "R" to those of Respondent. "GCBr" refers to the brief of
the General Counsel and "RBr" to that of Respondent.
(8) This finding is based on the uncontradicted testimony of Mr.
Divine, who was a credible witness. Mr. Gant was called as a witness by
counsel for Respondent, but was asked no questions about this particular
conversation with Mr. Divine. See TR 73-76.
(9) Mr. Divine testified that Mr. Gant "showed" him the listing which
he "looked at" (TR 45). Mr. Divine denied "show(ing)" the listing to
Mr. Divine but admitted that the listing was on his desk when he talked
to Mr. Divine about it. See TR 73. I find that Mr. Divine did view the
listing during the late January discussion in Mr. Gant's office, as
Respondent concedes (see RBr 3), and that Mr. Gant at least indicated to
Mr. Divine its position on a desk.
(10) See page 14, infra, for a full quotation.
(11) This is the statutory burden of proof. See 5 U.S.C. 7118(a)(7)
and (8).
(12) Another case cited by Respondent, International Union of
Electrical, Radio and Machine Workers, AFL-CIO, CLC v. National Labor
Relations Board, 658 F.2d 18 (1980) could not be found where cited. In
any event, the copies of EEO complaints apparently involved there, would
also be kept in agency files and not be generally available to the
public.
(13) Compare Veterans Administration Regional Office, Denver,
Colorado, 7 FLRA 629 (1982), adopting the conclusion of Administrative
Law Judge Salvatore J. Arrigo that "arguments against supplying such
data (names of individuals corresponding to the alphanumerical
designations used by the rating panel needed to process a grievance over
a merit promotion selection), such as those raised by Respondent herein
with regard to the applicability of the Freedom of Information Act, have
been frequently raised and rejected when the privacy rights under the
Executive Order (11491, under which Federal sector labor relations were
conducted prior to the Statute) and the paramount public interest," 7
FLRA at 637-638.
(14) As to the other exemptions from disclosure in section
7114(b)(C), Respondent admits that they are not applicable here. See
paragraph 8(d) to GC 1(d) and (e).
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse or fail to furnish, upon request, to the National
Federation of Federal Employees, Local 29, herein NFFE, the Status of
Minority Employment listing for all unit employees, as appropriately
sanitized, which information is necessary and relevant for the NFFE to
discharge its obligations as the exclusive representative to represent
the interests of all employees in the exclusively represented unit.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, furnish to NFFE the Status of Minority
Employment listing for all unit employees, as appropriately sanitized.
(Agency or Activity)
Dated:
By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region VII,
whose address is: 1531 Stout Street, Suite 301, Denver, CO 80202 and
whose telephone number is: (303) 837-5224.