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40:0449(42)CA
The decision of the Authority follows:
40 FLRA No. 42
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on the parties' stipulation of facts. The parties have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs with the Authority.
The complaint alleges that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to provide the Union with a crediting plan, requested pursuant to section 7114(b)(4) of the Statute, in connection with the Union's processing of a potential grievance.
For reasons discussed below, we find that the Respondent violated the Statute.
II. Facts
By letter dated June 19, 1989, the Union's Chief Steward requested Respondent's Warden to furnish the Union with certain information, including a promotion board's crediting plan, in connection with its processing of a potential grievance challenging the non-selection of a bargaining unit employee for promotion. The request specifically stated, "[i]n order for the Union to fulfill it's [sic] representational responsibilities we are requesting through the freedom of information act the . . . information[.]" Stipulation Exhibit No. 5. The Respondent, by letter dated June 29, 1989, responded to the request, advising the Union that it could not supply the requested information and that it had referred the request to the Bureau of Prisons General Counsel's Office in Washington, D.C. By notice dated July 11, 1989, the Union was informed that the Respondent's Washington, D.C. office had referred the Union's request to its regional office in Philadelphia.
During the course of a meeting on September 11, 1989, with Respondent's Warden and Personnel Officer, the Union's Chief Steward renewed his June 19, 1989, request for the promotion crediting plan pursuant to the Freedom of Information Act (FOIA), as well as section 7114(b)(4) of the Statute. By memorandum dated September 18, 1989, the Respondent's Personnel Officer refused to furnish the crediting plan. The Respondent contended that the crediting plan was not disclosable under section 7114 of the Statute. It also contended that because the position in question was outside of the bargaining unit, the matter was not grievable under the parties' negotiated grievance procedure.
The parties stipulated that the requested information is maintained by the Respondent 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.
III. Positions of the Parties
A. General Counsel
The General Counsel contends that the Respondent violated the Statute by failing and refusing to provide the Union with the crediting plan. The General Counsel argues that the stipulated record establishes that the Union requested promotion records, including the appropriate crediting plan, and that the information was needed to help the Union to decide whether to grieve a unit employee's non-selection. The General Counsel notes that the Respondent admitted that the information is maintained by it in the regular course of business and that the information does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining.
The General Counsel also contends that the requested crediting plan is clearly relevant and necessary for the Union to determine whether to file a grievance over the non-selection. In this regard, the General Counsel argues that the Union clearly stated its purpose and concomitant need for the information in its requests of June 19 and September 11, 1989, and contends that the crediting plan is a relevant and necessary tool to enable the Union to determine whether the selection process conformed to the merit promotion provision of the parties' agreement. The General Counsel argues that such information is critical to the Union in its evaluation of the strength and merits of the grievance. The General Counsel disagrees with the Respondent's assertion that the grievance is nongrievable and that therefore it has no obligation to furnish the requested information pursuant to section 7114(b)(4). In this regard, the General Counsel asserts that grievability determinations are to be made by the arbitrator.
The General Counsel further contends that the disclosure of the requested crediting plan is not prohibited by law, citing NLRB Union, Local 6 v. FLRA, 842 F.2d 483 (D.C. Cir. 1988) (NLRB Union), in which the court indicated that section 7106 of the Statute does not prohibit the disclosure of anything. Accordingly, the General Counsel contends that the Respondent cannot rely on section 7106 to support its refusal to release the crediting plan, citing also the Authority's decision on remand in National Labor Relations Board, 32 FLRA 305 (1988). Further, the General Counsel argues that the Privacy Act does not preclude release because there is no personal information involved in a crediting plan.
The General Counsel requests that the Authority order the Respondent to cease and desist from its violative conduct; to provide the requested crediting plan; and to post an appropriate Notice to Employees throughout the jurisdiction of the Bureau of Prisons, Allenwood Federal Prison Camp.
B. Respondent
Respondent contends that this case presents six questions: (1) Did the charge in this case provide a valid basis for the complaint; (2) was Union access to the crediting plan necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining; (3) was management prohibited by applicable law outside the Statute from releasing the crediting plan; (4) was management obligated to release the plan to the Union even though no grievance had been filed at the time of the request alleging that management's selection action had violated outside law; (5) did management have a right reserved by section 7106(a)(1) to refuse to give the crediting plan to the Union; and (6) did management have a right reserved by section 7106(a)(2)(C) to refuse to give the crediting plan to the Union.
With regard to the procedural issue, the Respondent contends that the charge referred only to the Union's June 19, 1989 FOIA request and did not make reference to the September 11 request. The Respondent argues that instead of filing a new charge based on the Union's September 11 request and the Respondent's denial of that request on September 18, the General Counsel attempted to cure this basic defect by artful wording in the complaint. It contends that the General Counsel is not privileged to cure the defect in this manner.
The Respondent further argues that while the record would support a conclusion that the Union's subsequent request on September 11 was an event that was closely related to the original request of June 19, in the sense that the subject matter of the two requests was essentially the same, the specifications set out in the complaint cannot be said to bear any relationship to the charge because the management action that the Union actually complained of in the charge, an implied refusal to turn over the information in response to a FOIA request, is not an unfair labor practice. It contends that the Authority has no jurisdiction to adjudicate a complaint that alleges that management has improperly denied a FOIA request and that therefore the charge does not allege an offense cognizable by the Authority.
Next, the Respondent contends that, assuming the charge was sufficient to bring the question of a section 7114(b)(4) violation before the Authority, the Union failed to meet the threshold requirement that access to the crediting plan was necessary to enable it to carry out its representational functions. In this regard, it asserts that a union's bare assertion that it needs data to process grievances does not automatically obligate an agency to supply such data. It argues that the Union's requests did not specify on what grounds it might challenge the selection action other than management made an error in the selection or by selecting another candidate. The Respondent contends that the routine release of crediting plans is inconsistent with a controlling Government-wide regulation, and that therefore the Union's request must be made in connection with a specific grievance and the grievant must allege that the selection violated "applicable law" within the meaning of section 7106(a)(2) of the Statute. Alternatively, the Respondent argues that even if law and regulation "would authorize the disclosure of a crediting plan directly to the union in some circumstances, those circumstances would still require, at a minimum: (1) that a grievance must have been filed[;] (2) that the grievant is asserting that error allegedly committed by a rating and ranking official violates 'law' within the meaning of section 7106(a)(2) of the statute or the selecting official discriminated against him in some fashion prohibited by law, and; (3) that but for this error the grievant would have been selected." Respondent's Brief at 10-11.
The Respondent also contends that the prospective grievance is not arbitrable and therefore, that there was no obligation to release the information. It argues that, under Department of the Treasury, IRS v. FLRA, 110 S. Ct. 1623 (1990) (IRS v. FLRA), if the exercise of a management right is involved, the management decision is not grievable unless it is alleged that the management action violated external law. Therefore, according to the Respondent, there is always a "threshold question of statutory jurisdiction which must be resolved before the Authority can determine whether an agency accused of refusing to provide information in fact had any obligation to supply that information." Respondent's Brief at 13. The Respondent argues that in this case, where the nature of the possible grievance is unidentified and there is no allegation that management's action violated external law, the General Counsel has not met the burden of showing that the potential grievance concerns an arbitrable matter and that disclosure of the crediting plan is necessary within the meaning of section 7114(b)(4) of the Statute.
The Respondent further contends that revealing the crediting plan would violate FPM Supplement 335-1, Subchapter S6, and 5 C.F.R. Part 300. It disagrees with the Authority's decision in Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 26 FLRA 407 (1987) (Fort Bragg) that the Authority may, on a case-by-case basis, order the release to the Union of specific crediting plans if it does not require a blanket disclosure of all agency crediting plans. The Respondent argues that the Authority should abide by the OPM's reading of its own regulations, which bars the release of individual crediting plans.
Further, the Respondent contends that it had a reserved right under section 7106(a)(1) to refuse to turn over the crediting plan. In this regard, the Respondent argues that the court's decision in NLRB Union is erroneous. The Respondent contends that management's right to determine its internal security practices encompasses a right to adopt policies limiting the release of those agency documents to which legitimate security considerations attach. It argues that there is a reasonable connection between the security measure followed by the Respondent to safeguard its crediting plans and the established need to prevent the compromise of such plans.
Finally, the Respondent contends that disclosure of the plan would interfere with management's right under section 7106(a)(2)(C) to make selections from among properly ranked and certified candidates. In this regard it distinguishes NLRB Union, asserting that in this case we are not dealing with the content of management's internal deliberations, as in NLRB Union, but, with a document that contains information that, if it became known to prospective applicants for the same type of vacancies, would impair management's right to select. The Respondent contends that "unless the Authority can reasonably conclude that release of [t]he crediting plan will have no effect on the continued viability of that plan to evaluate applicants for future vacancies in that type of position . . . it must find that the [Respondent] did not violate section 7114(b)(4) as alleged." Id. at 30.
IV. Analysis and Conclusions
A. The Charge Provided a Valid Basis for Complaint
We conclude that the charge provided a valid basis for the complaint. The Respondent concedes that the information requested on September 11, 1989, was essentially the same as that requested on June 19, 1989. It also does not allege that it was prejudiced by the fact that the charge did not include the September 11, 1989, request or its September 18, 1989, refusal to furnish the information under section 7114(b)(4). Rather, it contends only that although the request on June 19 was made pursuant to the FOIA, the complaint relies on the June 19 request and the September 18 refusal to provide the information as the basis for the allegation that the Respondent did not comply with Section 7114(b)(4), and that, therefore, the complaint bears no relationship to the charge.
The Authority has held that the issuance and contents of a complaint comply with the requirements in section 2423.12 of our Rules and Regulations if the allegations in the complaint bear a relationship to the charge and are closely related to the events complained of in the charge. Bureau of Land Management, Richfield District Office, Richfield, Utah, 12 FLRA 686, 698 (1983); Department of the Interior, Washington, D.C. and Bureau of Indian Affairs, Washington, D.C. and Flathead Irrigation Project, St. Ignatius, Montana, 31 FLRA 267, 276 (1988). In Department of Defense Dependents Schools, Mediterranean Region, Naples American High School (Naples, Italy), 21 FLRA 849 (1986), the Authority adopted the judge's findings that: (1) the charge serves merely to initiate an investigation and to determine whether a complaint in a matter should be issued; (2) a charge is sufficient in an administrative proceeding if it informs the alleged violator of the general nature of the violation charged against him; and (3) where a procedural defect exists concerning the charge, a respondent must be prejudiced by the alleged defect. 21 FLRA at 861. Moreover, in analogous situations arising under the National Labor Relations Act, 29 U.S.C. §§ 151 et seq., courts have found that it is the function not of the charge but of the complaint to give notice to a respondent of specific claims made against it; that the purpose of a charge is merely to set in motion the machinery of an inquiry; and that the investigation may deal with unfair labor practices that are related to those alleged in the charge and grow out of those allegations while the processing is pending. See NLRB v. Fant Milling Co., 360 U.S. 301, 307-308 (1959).
In this case, we find that the allegations in the complaint bear a relationship to the charge and are closely related to the events complained of in the charge. The charge put the Respondent on general notice of the allegation that it had violated the Statute by refusing to furnish the requested crediting plan pursuant to the Union's request and that the General Counsel would be initiating an investigation on that allegation. Further, it is clear that the Respondent understood the scope of the allegations against it and has addressed the issues relating to those allegations in its submission before the Authority. Therefore, we find that the Respondent was not prejudiced by the fact that the charge does not specifically refer to the Union's September 11 request. Accordingly, we find that the facts and allegations in the complaint are properly before the Authority.
B.The Respondent Violated the Statute by Refusing to Provide the Union with the Requested Information
We conclude that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by refusing the Union's request for information pursuant to section 7114(b)(4) of the Statute.
The Authority previously has addressed disclosure of information contained in crediting plans in various contexts. In National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 23 FLRA 681 (1986) (Customs Service), the Authority found that a proposal that would require an agency to disclose existing crediting plans to a union, on request, was inconsistent with FPM Supplement 335-1, subchapter S5-3(c), which the Authority found to be a Government-wide rule or regulation. The Authority noted that subchapter S5-3(c) provides that "[c]rediting plans . . . should not be released . . . if, in the agency's view, such release would undermine the fairness and validity of the selection procedure." Id. at 683. The Authority found that a determination as to whether release of crediting plans would create an unfair advantage or compromise the utility of the selection process should be made on a case-by-case basis. The Authority concluded that the proposal in Customs Service would have authorized a blanket disclosure of existing crediting plans without regard to whether the release of such plans would undermine the fairness and validity of the selection procedure. Consequently, the Authority concluded that the proposal was inconsistent with the FPM and was outside the duty to bargain. The Authority reached a similar conclusion in American Federation of Government Employees, AFL-CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command - Redstone Arsenal Commissary, 27 FLRA 69, 72-74 (1987). See also U.S. Department of Defense, Defense Logistics Agency, Defense General Supply Center, Richmond, Virginia, 37 FLRA 895 (1990).
Although the Authority has found proposals authorizing blanket disclosure of crediting plans to be outside the duty to bargain, the Authority has required the disclosure of information relating to crediting plans where a union has established the right to such information to fulfill its representational functions under section 7114(b)(4) of the Statute. For example, the Authority has found that unions are entitled to crediting plans in order to determine whether to file grievances on behalf of unit employees. The failure of an agency to provide the requested information in such circumstances has been found to violate the Statute. See Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 34 FLRA 461 (1990); United States Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, 26 FLRA 630 (1987); Fort Bragg, 26 FLRA 407.
More particularly, in Fort Bragg the Authority found that the FPM did not prohibit the release of the requested data, which included crediting plans. Utilizing the case-by-case approach suggested in Customs Service for determining whether the release of crediting plans would create an unfair advantage or compromise the utility of the selection process, the Authority concluded that disclosure of the plans would not conflict with the FPM. The Authority noted that the requests were limited to two specific selection actions and did not require the blanket disclosure of all agency crediting plans. Moreover, disclosure of the plans was necessary for the union to fulfill its representational duties. Consequently, noting that the selection actions had been substantially completed, the Authority concluded that disclosure would not result in an unfair advantage to prospective candidates and would not destroy the integrity of the agency's selection process. 26 FLRA at 413.
In this case, the Union's request for the crediting plan was clearly to fulfill its representational functions under section 7114(b)(4) of the Statute. A unit member was not selected to fill a vacancy for which he had applied. The Union requested the appropriate crediting plan in order to determine whether to file a grievance over the selection action. The Union also requested information on each of the applicants for the position, including performance appraisals, education and experience. Stipulation, Exhibit 5. There is no evidence in the stipulated record that the Respondent objected to disclosing this information. Without the additional information that would be provided by the crediting plan, however, the Union has no way of evaluating the information that it apparently has received in order to determine whether it should file a grievance on behalf of the prospective grievant. Indeed, in this situation, the crediting plan is critical to a determination of whether the selection procedure was improperly conducted or whether there is a strong argument that the prospective grievant should have been chosen for the position. Therefore, we find that the information was necessary within the meaning of section 7114(b)(4).
We recognize that the Respondent has some concerns that disclosure of the requested plan might affect the integrity of the evaluation process. In view of the fact that the selection process at issue here has been completed, and that there is no evidence that the Union would use the requested information for any purpose other than to evaluate this grievance, however, we conclude that disclosure will not result in an unfair advantage to prospective candidates and will not destroy the integrity of the Agency's selection process. See Fort Bragg, 26 FLRA at 413. Accordingly, the failure of the Respondent to provide the requested information in such circumstances is a violation of the Statute.
We also find that the Respondent's assertion that the grievance was nongrievable did not relieve the Respondent of its obligation to furnish otherwise necessary information pursuant to section 7114(b)(4) of the Statute. See U.S Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1320 (1990) (agency's assertion that a grievance is nongrievable did not negate the agency's obligation under section 7114(b)(4) to provide information relating to that grievance) and cases cited therein. In this regard, we reject the Respondent's argument that the Supreme Court's decision in IRS v. FLRA requires dismissal of the complaint because it has not been established that the information was requested for a grievance that involves a violation of external law and, therefore, a grievance that would be arbitrable. In our view, IRS v. FLRA, a negotiability case involving whether the union's proposal interfered with management's rights under section 7106(a) of the Statute, is not applicable to the issue of a union's rights under section 7114(b)(4). Rather, we will continue to follow the court's decision in NLRB Union, which held that section 7106 does not bar the disclosure of information under section 7114(b)(4). As the Court of Appeals for the District of Columbia Circuit stated in that case, "[n]othing in § 7106 prohibits management from disclosing any or all of the data relied upon or accumulated by it in acting within those areas." 842 F.2d at 486. See also Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California, 38 FLRA 965, 973-4 (1990), petition for review filed sub nom. Department of the Air Force, Sacramento Air Logistics Center, McClellan Air Force Base, California v. FLRA, No. 91-1070 (D.C. Cir. Feb. 8, 1991)(the Authority found, consistent with the court's decision in NLRB Union, that the disclosure of requested information was not inconsistent with the agency's right to discipline employees under section 7106(a)(2)(A)).
Moreover, even assuming that the Respondent is correct in its assertion that NLRB Union is distinguishable from this case, we reject the Respondent's contention that it had a reserved right under section 7106(a)(1) and 7106(a)(2)(C) to refuse to turn over the crediting plan. First, we reject the Respondent's argument that release of the requested information would directly interfere with its right under section 7106(a)(2)(C) to make selections from among properly ranked and certified candidates. As stated above, it is significant that the selection process at issue in this case has been completed and that there is no evidence that the Union would use the requested information to destroy the integrity of any future selection process. The release of the one crediting plan that has been requested would not preclude the Respondent in any way from establishing the requirements or qualifications for any position or from revising the requirements or qualifications for the position covered by this crediting plan. Therefore, even if we deemed such an analysis to be appropriate, we would not find disclosure of the crediting plan to directly interfere with management's right under section 7106(a)(2)(C) of the Statute. See U.S. Department of the Navy, Naval Aviation Depot, Marine Corps Air Station, Cherry Point, North Carolina and International Association of Machinists and Aerospace Workers, Local 2297, 36 FLRA 28, 31 (1990).
As to the Respondent's argument that the release of the crediting plan would interfere with its right to determine its internal security practices, the Authority has held that an agency's right to determine its internal security practices concerns the right to determine policies and take actions that are part of its management's plan to secure or safeguard its personnel, its physical property, and its operations. See, for example, National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618, 625 (1990). Additionally, in arguing that a particular plan or policy falls within the scope of the right to determine internal security practices, an agency must show that there is a reasonable link between the plan or policy and the security of its personnel, property or operations. American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Robins Air Force Base, Georgia, 37 FLRA 197, 200 (1990), petition for review filed, United States Department of the Air Force v. FLRA, No. 90-1530 (D.C. Cir. Nov. 13, 1990). We find that the Respondent has not identified in what manner the release of a specific crediting plan, requested with respect to a particular promotion action, would affect its ability to secure or safeguard its personnel, physical property, or operations. Accordingly, even assuming that the Respondent is correct in arguing that disclosure of information under section 7114(b)(4) could impermissibly interfere with its rights under section 7106(a), we find that the release of the crediting plan would not directly interfere with management's right to determine its internal security practices.
V. Order
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the U.S. Department of Justice, Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery, Pennsylvania, shall:
1. Cease and desist from:
(a) Failing and refusing to furnish, upon request by the American Federation of Government Employees, Council 33, Local No. 148, AFL-CIO, the exclusive representative of its employees, the crediting plan for Vacancy Announcement No. 89-NERO-100, requested in connection with such representative's processing of a potential grievance challenging the promotion action.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights assured them by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and polices of the Statute:
(a) Upon request, furnish the American Federation of Government Employees, Council 33, Local No. 148, AFL-CIO, the exclusive representative of its employees, the crediting plan for Vacancy Announcement No. 89-NERO-100, requested in connection with such representative's processing of a potential grievance challenging the promotion action.
(b) Post at its facilities at the Allenwood Federal Prison Camp, Montgomery, Pennsylvania, 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 Warden of the Allenwood Federal Prison Camp, Montgomery, Pennsylvania, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that 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, Boston Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
NOTICE TO ALL EMPLOYEES
WE WILL NOT fail and refuse to furnish, upon request by the American Federation of Government Employees, Council 33, Local No. 148, AFL-CIO, the exclusive representative of our employees, the crediting plan for Vacancy Announcement No. 89-NERO-100, requested in connection with such representative's processing of a potential grievance challenging the promotion action.
WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.
WE WILL, upon request, furnish the American Federation of Government Employees, Council 33, Local No. 148, AFL-CIO, the exclusive representative of our employees, the crediting plan for Vacancy Announcement No. 89-NERO-100, requested in connection with such representative's processing of a potential grievance challenging the promotion action.
(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, Boston Regional Office, Federal Labor Relations Authority, whose address is: 10 Causeway Street, Room 1017, Boston, MA 02222-1046 and whose telephone number is: (617) 565-7280.
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