American Federation of Government Employees, AFL-CIO, Local 1345 v. Federal Labor Relations Authority, AFL-CI
| Decision Date | 27 June 1986 |
| Docket Number | LOCAL,No. 85-1378,AFL-CI,85-1378 |
| Citation | 793 F.2d 1360 |
| Parties | 122 L.R.R.M. (BNA) 3043, 253 U.S.App.D.C. 374 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,1345, Petitioner, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
William J. Stone, with whom Mark D. Roth, Washington, D.C., was on brief for petitioner.
William R. Tobey, Attorney, Federal Labor Relations Authority, with whom Ruth E. Peters, Sol. and Steven H. Svartz, Deputy Sol., Federal Labor Relations Authority, Washington, D.C., were on brief for respondent. William E. Persina, Atty., Federal Labor Relations Authority, Washington, D.C., also entered an appearance for respondent.
Before MIKVA, EDWARDS and BORK, Circuit Judges.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
This is an appeal from a decision of the Federal Labor Relations Authority ("FLRA" or the "Authority") dismissing an unfair labor practice charge brought by the American Federation of Government Employees ("AFGE" or the "Union") pursuant to the Federal Service Labor-Management Relations Statute (the "Labor Statute"). 1 The FLRA concluded that the Army and Air Force Exchange Service, Fort Carson, Colorado ("AAFES" or the "Agency") did not commit an unfair labor practice by failing to provide, at the Union's request, information regarding two employees who had been dismissed from jobs within the Union's bargaining unit.
The Labor Statute requires federal agencies to furnish data "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining." 2 The FLRA concluded that, even though the Union served as the employees' exclusive bargaining representative, the information requested by the Union was not necessary for its "representational function" because "the Union did not know the identities of, and was not asked to represent, the two employees concerning their disciplinary separations." 3
The statement of the law upon which the FLRA relied is flatly wrong. In addition to pressing grievances for individual employees, AFGE represents all members of the bargaining unit who might be affected by management policies regarding terms and conditions of employment. The Union can hardly be expected to understand, evaluate or discuss management policies regarding employee discipline if management is unwilling to explain to the Union the circumstances surrounding the discharge of bargaining unit personnel. Moreover, the Union is properly concerned with its own status as the bargaining representative, which requires it to have access to information necessary to assess its responsibilities. In short, information concerning the dismissal of unit employees is clearly "necessary for full and proper discussion, understanding, and negotiation of subjects with the scope of collective bargaining" under the terms of the Labor Statute. We therefore reverse the decision of the FLRA.
There is a possibility that the Privacy Act 4 may render release of some or all of the requested information unlawful. The FLRA did not reach this issue; therefore, on remand, the Authority may determine whether disclosure of the requested information "would constitute a clearly unwarranted invasion of personal privacy." 5
AFGE is the exclusive representative for AAFES employees at the Fort Carson Exchange and Pueblo Army Depot. Following rumors that two employees had been discharged from the Exchange Food Warehouse in August 1980, AFGE made several requests for information regarding the dismissals. At the time when these requests were made, AFGE did not know the identities of the employees.
On September 8, 1980, the president of Local 1345 wrote to the Agency requesting "all written data, including but not limited to, the circumstances surrounding the firing of two unit employees at the Ft. Carson Exchange Food Warehouse in August, 1980." 6 A few days later, at a meeting with the AAFES personnel assistant, Union representatives again asked for information regarding the discharges. They were informed that release of the information would violate the Privacy Act. AFGE then filed an unfair labor practice charge and the FLRA General Counsel issued a complaint alleging that the Agency had committed an unfair labor practice by refusing to supply the requested data to the Union.
On March 3, 1981, a hearing was held before an Administrative Law Judge ("ALJ"). At the hearing, the Agency finally revealed the identities of the discharged employees. The Agency submitted documents concerning the employees' discharges to the ALJ, who examined them in camera. The Union was denied access to these documents, although it did receive copies of the termination notices sent to the employees, minus all identifying information, which indicated that AAFES had discharged them after apprehension by the Military Police for theft. 7
The ALJ concluded that the Agency's failure to furnish the requested information was not an unfair labor practice because release would have violated the Privacy Act. 8 The Privacy Act prohibits agencies from disclosing any records without the prior written consent of the person to whom the record pertains. 9 However, disclosures of information required by the Freedom of Information Act ("FOIA") 10 are excluded from the general prohibition of the Privacy Act. 11 FOIA, in turn, requires agencies to disclose records to the public unless the record falls into one of the exemptions enumerated in the statute. 12 The ALJ found the FOIA disclosure requirement inapplicable because he concluded that the requested information fell within FOIA exemption 6, which allows an agency to refuse to disclose
personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.... 13
In reaching his conclusion, the ALJ balanced the privacy interests of the employees against the public interest in providing the Union with the data. While recognizing that the Union has representational functions not only with regard to individual employees, but also with respect to the bargaining unit as a whole, the ALJ decided that those collective interests were outweighed by the individuals' privacy interests.
The FLRA General Counsel filed exceptions to the ALJ's opinion, which was then reviewed by the Authority. The FLRA dismissed the claim under the Labor Statute and did not reach the Privacy Act issues. It found that the General Counsel had not shown that the data requested by the Union was necessary for its representational function within the meaning of section 7114(b)(4) of the Labor Statute, which provides:
(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--
....
(B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.... 14
The Authority drew the conclusion that the data was not necessary to the Union "[u]nder the particular circumstances of the instant case, where the Union did not know the identities of, and was not asked to represent, the two employees concerning their disciplinary separations...." 15
The FLRA's principal explanation for upholding management's refusal to furnish information was that the Union did not know the identities of the discharged employees and had not been asked to represent them in pressing a grievance. The Authority concluded that, under these circumstances, the Union had no "representational function" to perform. We find the FLRA's decision to be wholly without basis in law, and, in addition, a somewhat extraordinary interpretation of the Labor Statute when considered in the light of the Union's legal responsibility to fairly represent all employees in the bargaining unit. It seems patently obvious, and beyond the slightest doubt, that information regarding the disciplinary dismissal of unit employees is "necessary" for a Union to fulfill its obligations as the employees' exclusive bargaining agent. We cannot comprehend the Authority's suggestion to the contrary.
Initially, we note that the FLRA's construction of section 7114 is far narrower than the terms of the statute itself. Section 7114 requires a federal employer to furnish the exclusive bargaining representative with data "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining." This statutory mandate is perfectly consistent with the well-understood principle that, in collective bargaining,
[t]he duty to request and supply information is part and parcel of the fundamental duty to bargain. The duty is not an additional negotiable subject matter of the bargaining process. The employer cannot make the subject of bargaining the submission of relevant data needed by a labor organization. 16
Furthermore, it is well-settled in both private and public sector labor law that this obligation applies not only to information needed to negotiate an agreement, but also to data relevant to its administration. 17 The relevance of the requested data is considered on a case-by-case basis; 18 however, the employer's duty to provide the information must be evaluated in the context of the full range of union responsibilities in both the negotiation and the administration of a labor agreement. These principles have clear application in the instant case.
First, the Union represents potentially aggrieved employees. It is well-settled that section 7114 creates a duty to provide information that would enable...
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