[ v45 p1022 ]
45:1022(105)CA
The decision of the Authority follows:
45 FLRA No. 105
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the Union to the attached decision of the Administrative Law Judge.1/
The complaint alleged that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing and refusing to furnish to the Union certain requested data pursuant to section 7114(b)(4) of the Statute. The Judge found that the Respondent did not violate the Statute by failing to furnish the data requested and recommended that that allegation of the complaint be dismissed. The Judge found, however, that the Respondent did violate section 7116(a)(1), (5), and (8) of the Statute by failing to inform the Union that certain data requested did not exist and recommended that the Authority issue an appropriate remedial Order.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm those rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order to the extent consistent with this decision.2/
II. The Union's Exceptions
A. First Exception
The Union's first exception disputes the Judge's conclusion that at the time of the Union's request for documents concerning investigations of the Union and its officers, the Respondent was not investigating the Union, the Union's president or any Union official and had not done so in the past. The Union contends that the Judge did not properly consider testimony that the Union and the Union president had been in the past, and were at the time of the information request, the subject of covert investigations by the Respondent.
Under section 7114(b)(4) of the Statute, an agency is required to furnish an exclusive representative of its employees, upon request and to the extent not prohibited by law, information that is reasonably available and necessary for the union to effectively carry out its representational functions and responsibilities. For example, U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Helena District, Helena, Montana, 39 FLRA 241, 251 (1991). The Judge concluded that the Union failed to establish that the information requested concerning investigations of the Union, its President or any Union official was necessary for the Union to fulfill its representational functions. We agree. The Union failed to establish that the Respondent was currently investigating the Union, its President or any Union official, or had done so during the period covered by the information request.3/ The Union also failed to show that the Respondent acted in any manner to restrict any Union official in the exercise of his or her representational duties or to discipline any Union official so as to prompt the filing of a grievance or other representational action by the Union. Accordingly, the Union has not shown that it needed the requested information, if available, to effectively carry out its representational functions and responsibilities. Compare Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 30 FLRA 127 (1987), where the Authority found that the agency's refusal to provide certain information concerning management's disciplinary action of a union official violated the Statute.4/
To the extent the Judge relied on and credited the testimony of the Respondent's witness in making his findings, we have consistently held that the demeanor of witnesses is an important factor in resolving issues of credibility, and that the Judge has the benefit of observing the witnesses. We will not overrule a Judge's determination regarding the credibility of witnesses unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. We have examined the record carefully and find no basis for reversing the Judge's credibility finding. See U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Service Center, Ogden, Utah, 41 FLRA 1212 (1991).
B. Second Exception
The Union's second exception disputes the Judge's conclusion that management did not unreasonably delay in furnishing requested data concerning a former employee after receiving the employee's waiver of rights under the Privacy Act. The Union argues that management's delay in furnishing the data was unreasonable because the information was not furnished until four months after the unfair labor practice charge was filed. The Union claims that it provided the privacy waiver not because it thought such a waiver was necessary but because it wanted the documents. The Union maintains that the waiver was not required for the release of the documents.
The Judge found that the Union acceded to management's request for a waiver from the individual involved and concluded that, under the circumstances, it was reasonable to fix the Respondent's obligation as attaching when it was in receipt of the waiver, and not when the charge was filed. The Judge found that a period of four weeks from the time when management received the waiver to the date when it supplied the data was not unreasonable.5/
Initially, we note that the obligation to furnish information pursuant to section 7114(a) attaches at the time the request is made and not, as contended by the Union, when the charge is filed. In this case, the request was made on April 26, 1991, or three weeks before the filing of the May 7, 1991, charge. Thus, the Respondent provided the information to the Union approximately five months after the request.
In concluding that the delay was not unreasonable, the Judge did not consider whether a waiver of rights under the Privacy Act was required. We conclude that it was not. The information at issue requested by the Union was: "All records concerning any investigation of [the former employee] during the past five years." Judge's decision at 4. Thus, the Union, acting as the former employee's representative involving a matter that happened while the individual was a unit employee, had requested only information that concerned the employee personally. The Respondent did not contend that it could not release the requested information to the employee. Indeed, it furnished the information upon receiving the employee's permission to do so.
The Authority has held that the Privacy Act does not preclude release of information concerning an employee when the information is sought by a union as the employee's representative. Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410, 1423 (1991). In such circumstances, the union's access to the relevant records would not be a clearly unwarranted invasion of personal privacy. Id. As there is no dispute in this case that the Union was acting as the former employee's representative involving a matter that happened while the individual was a unit employee, we find that the Privacy Act waiver was not necessary for the release of the requested information.
We further find that the Respondent's delay of close to five months was unreasonable in the circumstances of this case.
As noted above, under section 7114(b)(4) of the Statute, an agency is required to furnish an exclusive representative of its employees, upon request and to the extent not prohibited by law, information that is reasonably available and necessary for the union to effectively carry out its representational functions and responsibilities. The Authority has held that such information must be furnished in a timely manner in order to effectuate the purposes and policies of the Statute. See Bureau of Prisons, Lewisburg Penitentiary, Lewisburg, Pennsylvania, 11 FLRA 639, 641-42 (1983) (Bureau of Prisons). In Bureau of Prisons, the Authority found that the respondent did not violate the Statute when it supplied certain information after approximately a two-month delay because the respondent had furnished almost all of the information requested by the union almost immediately and had made a diligent effort to find certain information that was not contained in the respondent's current records. In contrast, in U.S. Food and Drug Administration and U.S. Food and Drug Administration, Region VII, Kansas City, Missouri, 19 FLRA 555, 557 (1985), the Authority found that a delay in furnishing certain information until five months after the respondent received the information was unreasonable and violated the Statute because the information was normally maintained by the respondent in the regular course of business and was reasonably available and necessary within the meaning of section 7114(b)(4). See also U.S. Department of the Treasury, United States Customs Service, Southwest Region, Houston, Texas, 43 FLRA 1362, 1374 (1992) (delay of nine months to supply information violated Statute where no reasonable basis existed for not furnishing it earlier).
In this case, there is no dispute that the Respondent was obligated to furnish the information regarding the former employee. See note 5, above. There is also no evidence that the information was not normally maintained by the Respondent in the regular course of business and was not reasonably available. Additionally, we have found that, contrary to the contention made by the Respondent to the Union, a Privacy Act waiver was not required in order to permit the release to the Union of the requested information. Therefore, we conclude that the Respondent did not have a reasonable basis for failing to provide the requested information in a timely manner.
Accordingly, we find that Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to provide the requested information concerning the former employee in a timely manner.
III. 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, Office of Justice Programs, shall:
1. Cease and desist from:
(a) Failing or refusing to inform the American Federation of State, County and Municipal Employees, Local 2830, the exclusive representative of certain of its employees, where appropriate, that information requested in connection with its representation of unit employees does not exist or is not reasonably available.
(b) Failing or refusing to furnish in a timely manner to the American Federation of State, County and Municipal Employees, Local 2830, the exclusive representative of certain of our employees, information requested pursuant to section 7114(b)(4) of the Statute in connection with its representational functions.
(c) In any like or related manner interfering with, restraining or coercing its employees in the exercise of the rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Post at its facilities where bargaining unit employees are located, 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 Assistant Attorney General of the Office of Justice Programs, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.
(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Washington 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.
WE WILL NOT fail or refuse to inform the American Federation of State, County and Municipal Employees, Local 2830, the exclusive representative of certain of our employees, where appropriate, that information requested in connection with its representation of unit employees does not exist or is not reasonably available.
WE WILL NOT fail or refuse to furnish in a timely manner to the American Federation of State, County and Municipal Employees, Local 2830, the exclusive representative of certain of our employees, information requested pursuant to section 7114(b)(4) of the Federal Service Labor-Management Relations Statute in connection with its representational functions.
WE WILL NOT in any like or related manner, interfere with, restrain or coerce our employees in the exercise of the rights assured by the Federal Service Labor-Management Relations Statute.
(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, Washington Regional Office, Federal Labor Relations Authority, whose address is: 1111 18th Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8500.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1/ The Respondent filed an opposition to the Union's exceptions, a motion to strike portions of the Union's exceptions and cross-exceptions to the decision of the Administrative Law Judge, all of which the Respondent subsequently withdrew. Accordingly, the Authority has not considered the Respondent's filings. The Union filed an opposition to the Respondent's motion to strike; because the Respondent withdrew the motion to strike, the Authority also has not considered the Union's opposition.
2/ No exceptions were filed to the Judge's findings, conclusions and recommended Order that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to inform the Union that certain requested information concerning arrangements or contracts with non-employees or entities to conduct reviews or investigations of Respondent's employees did not exist. Accordingly, we adopt the Judge's findings, conclusions, and recommended Order in that regard.
3/ We note that the electronic message alluded to by the Union in its testimony, and described in greater detail in its exceptions, was not introduced into evidence.
4/ Because we find that the Union did not need the requested information to carry out its representational functions, we find that it is unnecessary to address the applicability, if any, of National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) insofar as that decision discusses criteria for establishing whether information is necessary within the meaning of section 7114(b)(4).
5/ No exception was filed regarding the Judge's implicit finding that the Respondent had an obligation to furnish the information regarding the former employee. Accordingly, the only issue before us is whether the Judge was correct in concluding that the delay in furnishing the information to the Union was not unreasonable.