Federal Aviation Administration and National Air Traffic Controllers Association, MEBA/AFL-CIO and National Air Traffic Controllers Association, MEBA/AFL-CIO, Tampa Local and National Air Traffic Controllers Association, MEBA/AFL-CIO, ZJX Local and National Air Traffic Controllers Association, MEBA/AFL-CIO, Birmingham Local and National Air Traffic Controllers Association, MEBA/AFL-CIO, Mia Local and National Air Traffic Controllers Association, MEBA/AFL-CIO, Orf Local and National Air Traffic Controllers Association, MEBA/AFL-CIO, Roanoke Local and National Air Traffic Controllers Association, MEBA/ AFL-CIO, Zdc Local and National Air Traffic Controllers Association, MEBA/AFL-CIO, Salt Lake City TRACON Local and National Air Traffic Controllers Association, MEBA/AFL-CIO, Rdu Local (Authority decision, February 26, 1999)

Read the official release (flra.gov)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority finding an unfair labor practice under 5 U.S.C. § 7116. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

FAA air traffic controller locals requested employee information to administer a seniority policy under their collective bargaining agreement. The FAA supplied none of the requested information, arguing in part that disclosure duties applied only during negotiations and that the policy itself was disputed. The Authority upheld the unfair labor practice finding: 5 U.S.C. § 7114(b)(4) covers information needed for contract administration, and the union had shown a particularized need. The FAA had not raised a sufficient disclosure objection when it denied the requests. The Authority ordered the FAA to furnish the necessary information on request and post a nationwide notice.

Decision snapshot

• Authority: Information duty under 5 U.S.C. § 7114(b)(4); unfair labor practices under § 7116(a)(1), (5), (8).
• Outcome: Information withholding violation sustained; FAA ordered to provide records on request and post notice.
• Key point: The duty to furnish needed information extends to administering a labor agreement.

Full text (FLRA public release)

[ v55 p254 ]

55 FLRA No. 44

FEDERAL AVIATION ADMINISTRATION

(Respondent)

and

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, MEBA/AFL-CIO

(Charging Party)

and

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, MEBA/AFL-CIO, TAMPA LOCAL

(Charging Party)

and

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, MEBA/AFL-CIO, ZJX LOCAL

(Charging Party)

and

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, MEBA/AFL-CIO

BIRMINGHAM LOCAL

(Charging Party)

and

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, MEBA/AFL-CIO, MIA LOCAL

(Charging Party)

and

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, MEBA/AFL-CIO, ORF LOCAL

(Charging Party)

and

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, MEBA/AFL-CIO

ROANOKE LOCAL

(Charging Party)

and

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, MEBA/ AFL-CIO, ZDC LOCAL

(Charging Party)

and

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, MEBA/AFL-CIO

SALT LAKE CITY TRACON LOCAL

(Charging Party)

and

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, MEBA/AFL-CIO, RDU LOCAL

(Charging Party)

AT-CA-70058, AT-CA-70067, AT-CA-70072,

AT-CA-70164, DE-CA-70121, DE-CA-70201,

WA-CA-70064, WA-CA-70134, WA-CA-70140 and AT-CA-70043

_____

DECISION AND ORDER

February 26, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1]

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent.

The consolidated complaint alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to provide the Union with information requested to facilitate the administration of a seniority policy determined by the Union at its National Convention.

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision.

II. Background and Judge's Decision

A. Background

The facts are set forth in detail in the Judge's decision, and are briefly summarized here. Pursuant to a stipulation between the parties, the Judge made the following, uncontroverted findings of fact:

The Union is the exclusive representative for a nationwide bargaining unit of Respondent's air traffic controllers. Under the parties' collective bargaining agreement (Agreement), the Union has the right to [ v55 p255 ] determine, at the local level, the seniority policy for the entire bargaining unit. This seniority policy would be applicable for all purposes except the administration of reductions in force by the Respondent.

After the Agreement became effective, the Union established a national seniority policy at its 1996 convention. Subsequently, the Union made various requests for information from the Respondent for information that the Union claimed was needed to administer the seniority policy and carry out its duties under the Agreement. The Respondent did not provide the requested information. At some facilities, the Respondent asked Union representatives to clarify the Union's particularized need for the information. The Union responded to these requests for clarification, but the Respondent still did not produce the records. At other facilities, the Respondent denied the Union's request on various grounds. These grounds included that the purpose for which the information was sought related to internal Union business, that the seniority policy was being challenged by the Respondent in a grievance and an unfair labor practice charge, [n2] and that no representational issue existed warranting the request.

At its Salt Lake City facility, the Respondent did not deny the Union's request for information outright, but instead stated that it was unsure whether it could produce the information by the deadline specified by the Union. Nevertheless, it is undisputed that the Respondent produced no information as a result of this or any other request.

B. Judge's Decision

According to the Judge, the sole issue was whether the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to provide the Union with requested information within the meaning of section 7114(b)(4) of the Statute. The Judge rejected the Respondent's contentions that it was under no obligation to disclose the information, and that Congress intended to limit data disclosures to requests that arise during negotiations. Citing National Labor Relations Board, 38 FLRA 506, 519 (1990) (NLRB I), remanded on other grounds, National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB II), the Judge held that a union's information requests can cover the full range of representational responsibilities under the Statute, and are not confined to collective bargaining. The Judge noted that the Authority's interpretation of section 7114(b) of the Statute was affirmed in American Federation of Government Employees, AFL-CIO, Local 1345 v. FLRA, 793 F.2d 1360 (D.C. Cir. 1986) (Local 1345). The Judge also relied upon the Authority's decision in Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, New Bedford District Office, New Bedford, Massachusetts, 37 FLRA 1277, 1286 (1990), which held that section 7114(b)(4)(B) of the Statute entitles the exclusive representative to "information that is necessary to enable it to carry out its representational functions."

After rejecting the Respondent's argument that the Union, by agreeing to certain provisions in the parties' agreement, voluntarily limited its right to receive the requested information, the Judge found that the Union had demonstrated a particularized need for the information. The Judge relied upon the analytical framework set forth in Internal Revenue Service, Washington D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661 (1995) (IRS-Kansas City), which requires a union to articulate, with specificity, the reasons for the request, the uses to which the union will put the information, and the connection between the request and the Union's representational responsibilities under the Statute. Applying this analytical framework, the Judge found that "each written request stated that the information was required to determine seniority for bargaining unit employees." Judge's Decision at 11. The Judge further found that, except for the Respondent's officials in Salt Lake City, management denied the Union's requests. The Judge noted that the Union derives its authority to determine seniority from the Agreement; thus, the information would be used to administer a contractual provision. The Judge reasoned that the Union could not be expected to fulfill its obligation without receiving the information from the Respondent.

While finding that the Union had fully explained its particularized need for the requested information, the Judge also found that the Respondent had not met its burden under IRS-Kansas City to establish countervailing anti-disclosure interests that would outweigh the Union's particularized need for the information. In particular, the Judge was unpersuaded by the Respondent's contention that furnishing the requested information [ v55 p256 ] would make it jointly liable for any claims arising out of the Union's seniority policy. [n3] Absent a final determination by the Authority in NATCA, the Judge concluded that the Respondent's concerns regarding the validity of the seniority policy did not outweigh the Union's particularized need for the requested information. In reaching this conclusion, the Judge drew upon Department of the Air Force, Scott Air Force Base, Illinois, 51 FLRA 675, 686-89 (1995), petition for review denied, Department of the Air Force, Scott Air Force Base, Illinois v. FLRA, 104 F.3d 1396 (D.C. Cir. 1997), which found that an agency's doubts as to the merits of a union's grievances do not serve to defeat the union's showing of particularized need for requested information relating to that grievance. Overall, the Judge concluded that the Union's interest in obtaining the information outweighed the Respondent's countervailing interests in non-disclosure.

The Judge further found that the information requested was normally maintained by the Respondent in the course of business, was reasonably available, and was not guidance to management relating to collective bargaining.

III. Positions of the Parties

A. Respondent's Exceptions

First, the Respondent contends that the Judge erred in relying upon Authority precedent and decisions of various circuit courts of appeals permitting unions to obtain information relating to the full range of representational activity. The Respondent maintains that "what is spelled out as an agency obligation arising in the context of the duty to negotiate in good faith has, over time, been interpreted as a union right existing independently of the negotiation scenario." Exceptions at 8. The Respondent asserts that the Authority's statutory interpretation of collective bargaining for purposes of information requests "is not entitled to deference." Id.

Drawing upon the definition of collective bargaining found in section 7103(a)(12) of the Statute [n4] , the Respondent argues that an agency's duty under section 7114(b)(4) of the Statute "ends at the point the collective bargaining agreement is reached or executed in writing." Exceptions at 9. In the Respondent's view, the duty to furnish information should be limited to agencies "engaged in collective bargaining with an exclusive representative," a phrase found in section 7117(c) of the Statute. Exceptions at 11. While recognizing that NLRB II, 952 F.2d at 526, holds that an agency's duty to furnish information under section 7114(b)(4) extended to contract administration as well as negotiation, the Respondent contends that this holding is dictum, and that the Authority is "free to reject that part of the opinion." Exceptions at 13 n.1. Citing U.S. Department of Veterans Affairs v. FLRA, 1 F.3d 19, 23 (D.C. Cir. 1993) for the proposition that the existence or requirement of collective bargaining is critical to information requests, the Respondent goes one step further, arguing that "it is actually the existence or requirement of negotiations that is critical to the [Respondent's] obligation" to provide information under section 7114(b)(4) of the Statute. Exceptions at 21.

Second, the Respondent contends that its anti-disclosure interests outweighed the Union's particularized need to receive the information. The Respondent claims that it was trying to avoid an unfair labor practice charge for assisting the Union in implementing the underlying seniority policy. The Respondent claims that the "impropriety" of the seniority policy would render the Respondent jointly liable for the Union's possible breach of its duty of fair representation. To support its contention that it "could have been seen as cooperating with the union in its discrimination against non-dues paying members," the Respondent cites U.S. Air Force, Loring Air Force Base, Limestone, Maine, 43 FLRA 1087 (1992) (Loring). Exceptions at 24.

According to the Respondent, filing an unfair labor practice charge against the Union "was only the first step the [Respondent] was legally and contractually bound to take." Id. Had it provided the Union with the requested information when it "knew, or should have known, that the union's actions relative to its implementation of the new seniority policy violated the Statute," the Respondent reasons, "joint and several liability [ v55 p257 ] would have attached." Id. The Respondent cites Lummus Co. v. NLRB, 339 F.2d 728, 737 (D.C. Cir. 1964) for the proposition that, "[w]here a union's discriminatory acts are widespread or notorious, the employer can reasonably be charged with notice of the acts and be held liable for them." Exceptions at 25. Should the Authority uphold the Judge's decision against the Union in NATCA (See n.2, supra), the Respondent states that it could not have committed an unfair labor practice by withholding information to which the Union was not entitled. The Respondent claims that the recommended decision leaves agencies with a "Hobson's choice" that Congress could not have intended in drafting section 7114(b)(4)(B) of the Statute. Exceptions at 26.

The Respondent further argues that the requested information was not "necessary" for the proper administration of the Agreement. Since the Respondent itself was grieving the "propriety" of the underlying seniority policy, a policy it claims was "contractually barred," the Respondent reasons that it had "a legitimate, countervailing interest in ensuring that a seniority policy contrary to the express terms of the [Agreement] was not implemented by the union." Exceptions at 30. In support, the Respondent cites Internal Revenue Service National Office and National Treasury Employees Union, 21 FLRA 646, 649 n.3 (1986), for the proposition that if the substance of the information request is "not cognizable under law," an agency is relieved of its obligations under section 7114(b)(4) of the Statute. Exceptions at 30. The Respondent maintains that the Union's seniority policy was "contrary to the express terms of the collective bargaining agreement." Id. While conceding that an agency that refuses to provide information and ultimately loses the underlying grievance does so "at its own peril[,]" the Respondent asks that the Authority not compel an agency to provide information "for which the union had no valid need." Id. at 31.

Third, the Respondent argues that, in light of the decision in NATCA, the Judge's decision here requiring production of the requested information was "internally inconsistent." Exceptions at 32. The Respondent also notes the Judge's commentary that a decision by the Authority affirming the decision in the related duty of fair representation case would appear to render this case moot. [n5] The Respondent asserts that the Judge's decision "would require the [Respondent] to provide information to [the Union] which it can not use for the purpose for which it was sought." Id. Additionally, the Respondent contends that the Order "requires the [Respondent] to admit to (and post) an unfair labor practice it did not commit, an action the FLRA's affirmation of [the Judge's] recommended decision [in NATCA] will not cure." Id.

2. General Counsel's Opposition

In answer to the Respondent's exceptions, the General Counsel first contends that "[t]he duty to furnish information under section 7114(b)(4) of the Statute has been interpreted by the Federal courts to encompass information necessary to administer a collective bargaining agreement." General Counsel's Opposition at 4. The General Counsel cites Local 1345 for the proposition that an agency's duty to provide information extends to "the full range of union responsibilities in both the negotiation and the administration of a labor agreement." Id. The General Counsel also cites NLRB II, for the proposition that an agency's duties under section 7114(b)(4) of the Statute extend to contract administration as well as contract negotiations. According to the General Counsel, "the Judge's legal conclusions were supported by the record and the Respondent's exceptions provide no basis for departing from the well-established interpretation of section 7114(b)(4) of the Statute." General Counsel Opposition at 5

The General Counsel argues that the Judge "properly rejected the Respondent's countervailing anti-disclosure interests as insufficient to outweigh the Charging Parties' particularized need for the information." General Counsel's Opposition at 5. The General Counsel points out that, at the time that the Respondent denied the information requests, there had not been a determination that the Union was barred, either by operation of the Statute or the Agreement, from implementing its policy. Moreover, the General Counsel asserts that the Respondent failed to raise its concerns regarding joint and several liability at the time that it denied the Union's requests. The General Counsel contends that "an agency denying a request for information should be required to articulate its countervailing anti-disclosure interests at the time it denies the information request and not for the first time in an unfair labor practice proceeding." Id. at 7 (citing Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, Dallas, Texas, 51 FLRA 545, 551 (1995) (INS); EEOC, 51 FLRA at 258)).

The General Counsel also denies that the possibility of joint and several liability ever existed. The General Counsel asserts that the Authority's approach to [ v55 p258 ] joint and several liability, as set forth in Loring, is patterned after labor law precedent in the private sector. According to the General Counsel, the NLRB's treatment of a union-run hiring hall in Wolf Trap Foundation for the Performing Arts, 287 NLRB 1040 (1988) (Wolf Trap), supplemental decision as to other matters, 289 NLRB 760 (1988), establishes that an employer will not automatically be found jointly and severally liable for a union's unfair labor practices against bargaining unit members; instead, the facts of each case are analyzed to determine the employer's liability. The General Counsel argues that, unlike the disputed hiring practices in Wolf Trap, the Union's seniority policy here is not discriminatory on its face. Furthermore, the General Counsel notes that the consolidated complaint against the Union in the related case did not allege that the Union caused the Respondent to discriminate against employees in violation of section 7116(b)(2) of the Statute. Finally, the General Counsel maintains that the Respondent's filing of a grievance and an unfair labor practice charge against the Union for establishing the underlying seniority policy would have insulated the Respondent, at least in part, from liability.

3. Union's Opposition

The Union argues that the scope of section 7114(b)(4) of the Statute has been "firmly resolved." Union's Opposition at 7. To support its position that an agency's duty to provide information extends to the full range of representational activity, the Union cites Department of Housing and Urban Development, San Francisco, California, 40 FLRA 1116, 1121 (1991), and NLRB II, 952 F.2d at 526.

The Union contends that accepting the Respondent's rationale "would have a significant impact on settled case law in other areas of federal labor relations." Union's Opposition at 8. For example, citing Veterans Administration, Washington, D.C. and Veterans Administration Regional Office, Buffalo, New York, 28 FLRA 260 (1987), the Union notes that exclusive representatives often request information to determine whether to file a grievance. The Union asserts that under the Respondent's stricter interpretation of section 7114(b)(4), management would be relieved of its obligation to provide unions with information they need to determine whether the issue is grievable. The Union claims that under such an interpretation of the Statute, "the balance of equities between labor and management envisioned by the Statute would be weighted heavily in favor of management." Union's Opposition at 8-9.

The Union maintains that the Respondent's interpretation of section 7114(b)(4) of the Statute has been raised before, and discredited by, the Authority. Citing IRS-Kansas City and EEOC, the Union claims that the Authority "issued detailed decisions dealing with the threshold of proof that a union needs to meet in order to establish that requested information is necessary to the union's representational responsibilities,'" as opposed to "collective bargaining responsibilities.'" Union's Opposition at 9. The Union claims that a reviewing court would give deference to the Authority's reasonable interpretation of the Statute because the subject matter is within the Authority's "sphere of specialized expertise." Union's Opposition at 10-11, citing National Labor Relations Board v. FLRA, 2 F.3d 1190, 1197 (D.C. Cir. 1993).

The Union calls the Respondent's proffered reasons for failing to provide the requested information "hollow and suspicious." Union's Opposition at 12. The Union considers the Respondent's stated interest in avoiding an unfair labor practice charge to be a "smokescreen," and contends that it is more likely that the Respondent's frustration with the substance of the seniority policy motivated its actions. Id. at 12-13.

The Union also denies that the Respondent is presented with a "Hobson's choice," claiming that there is no exception to the Respondent's statutory duty to provide the requested information merely because the Respondent was challenging the validity of the underlying policy. The Union cites Defense Mapping Agency, Aerospace Center, St. Louis, Missouri, 21 FLRA 595, 606 (1986) (Defense Mapping I) in support of its position. The Union questions the Respondent's assertion that the seniority policy was contrary to the terms of the Agreement, noting that an arbitrator subsequently found that the Union's adoption of a national seniority policy did not violate the Agreement.

IV. Analysis and Conclusions

A. The Duty to Furnish Information within the "Scope of Collective Bargaining" under Section 7114(b)(4)(B) of the Statute

The arguments presented here by the Respondent in support of this exception, as to why existing case law is not dispositive but, rather, should be reversed, are not persuasive. It is a longstanding principle that the scope of the information entitlement under section 7114(b)(4) of the Statute extends to the full range of representational activity, not just the context of pending negotiations between labor and management. See Local 1345, 793 F.2d at 1363, wherein the court held that this right to information "applies not only to information needed to negotiate an agreement, but also to data relevant to its [ v55 p259 ] administration," and that this meant the "full range of union responsibilities." (emphasis in original). In so holding, the court also held that this broad duty to provide information was "part and parcel of the fundamental duty to bargain." Id. The circuit court cited NLRB v. Acme Industrial Co., 385 U.S. 432, 435-36 (1967) and NLRB v. Truitt Manufacturing Co., 351 U.S. 149, 153 (1956). In doing so, the court acknowledged the longstanding private sector law which requires employers to give unions access to information in connection with contract administration, and not just contract negotiations.

This same broad range of union information entitlements was also true under Executive Order 11491, as amended, which preceded section 7114(b)(4). See Department of the Navy, Portsmouth Naval Shipyard and Portsmouth Federal Employees Metal Trades Council, 4 FLRA 619, 624 (1980); Department of Health Education and Welfare, Social Security Administration, Kansas City Payment Center and Social Security Local 1336, American Federation of Government Employees, AFL-CIO, A/SLMR 467, 472 (1974). Congress indicated that it expected continuity of administration from the Executive Order to the Statute, providing that policies established under the Executive Order would remain in effect "unless superceded by specific provision of this chapter or by regulations or decisions issued pursuant to this chapter." 5 U.S.C. § 7135(b). Given the Local 1345 court's statement that the duty to supply information is part and parcel of the fundamental duty to bargain, it is worth noting that the stated duty to bargain under the Executive Order and the Statute is virtually identical. Compare 5 U.S.C. § 7114(a) with Executive Order 11491, section 10(a). In interpreting the Statute, we agree with our concurring colleague, who quotes Justice Ginsberg's observation that it is doubtful that Congress would have denied "unions information their private sector counterparts routinely receive." Concurring Opinion at 24.

The breadth of the information entitlement flowing from section 7114(b)(4), and that it extends beyond just those situations involving actual negotiations, continues to be affirmed time and again. See Department of Justice, Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota v. FLRA, 144 F.3d 90, 93 (D.C. Cir. 1998) (union may request information under the Statute "by articulating a particularized need for the information in terms of fulfilling its representational duties and overseeing the administration of the collective bargaining agreement"); American Federation of Government Employees, Local 2343 v. FLRA, 144 F.3d 85, 88-89 (D.C. Cir. 1998) (AFGE Local 2343) (union must articulate connection between uses to which requested information will be put and union's representational responsibilities under the Statute). This broad interpretation of an agency's duty has been applied in a variety of contexts. In NLRB II, for example, the D.C. Circuit held that an agency's duties under section 7114(b)(4) of the Statute apply to contract administration as well as contract negotiations. 952 F.2d at 526.

We are mindful that the meaning of an individual section of a statute is determined in reference to the entire statutory scheme. Division of Military and Naval Affairs, (New York National Guard), Latham, New York, 53 FLRA 111, 118 (1997) (citing Sutherland, Statute. Const. § 46.05 5th Ed.). However, requiring the Respondent to furnish the disputed information here does not entail any deviation from the statutory definition of collective bargaining. "Collective bargaining" has the same meaning in section 7114(b)(4)(B) as that which is set forth in section 7103(a)(12). The determination of seniority policy clearly relates to a condition of employment. Thus, the matter falls within the scope of collective bargaining, as evidenced by the Agreement that the Respondent itself negotiated with the Union here.

Since the Respondent contends that the Union may only make information requests in the context of negotiations, our inquiry necessarily turns to the uses that the Union intends to make of the information it has requested. See AFGE Local 2343, 144 F.3d at 88-89. It is here that the Respondent's argument proves to be unconvincing. The plain language of section 7114(b)(4)(B) of the Statute calls upon agencies to furnish unions with data that is "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining (emphasis added)." While here, the Union is not seeking information to negotiate a collective bargaining agreement, the information sought is nevertheless necessary for "full and proper discussion [and] understanding" of subjects within the scope of collective bargaining, namely, the determination of seniority policy and the administration of the Agreement itself. Nothing in section 7114(b)(4)(B) requires that a union prove "the existence or requirement of negotiations" (Exceptions at 21), in the present tense, to obtain information within the scope of collective bargaining. The Respondent's own citation to Sutherland's Statutory Construction (at 21.14), when read more fully, discounts any attempt at arguing for a conjunctive reading of this portion of the Statute.

Furthermore, as a practical matter, accepting the Respondent's narrow construction of its duty to furnish [ v55 p260 ] information would effectively strip exclusive representatives of the ability to obtain information that they need to adequately represent their membership and discharge their responsibilities under the Statute. It would be internally inconsistent for the Statute to permit agencies to negotiate an agreement that cedes to a union the right to determine seniority policy for the bargaining unit, and then not also require agencies to furnish the union with information necessary for an understanding of the subject matter so that the union may carry out its obligations under that agreement. The Respondent's interpretation of its statutory duty would create other anomalies as well. For example, section 7121(a) of the Statute requires parties to include an arbitration provision in their negotiated agreement, yet the Respondent's construction of section 7114(b)(4) of the Statute would deprive the exclusive representative of the means to determine whether to submit a grievance to arbitration. For these reasons, we reaffirm that an agency's duties under section 7114(b)(4)(B) apply to all aspects of a union's "representational responsibilities" under the Statute.

B. The Judge Correctly Determined that the Union's Showing of Particularized Need Outweighed the Respondent's Countervailing Interests in Non-Disclosure of the Requested Information

The evidence shows that any countervailing interests presented by the Respondent are insufficient to outweigh the Union's particularized need for the information sought. As noted by the General Counsel, the Respondent did not question the validity of the Union's seniority policy at the time that it denied the information requests. An agency must articulate its interest in non-disclosure at the time that it denies a union's request for information. See U.S. Department of Justice, Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota, 51 FLRA 1467, 1473 (1996), reconsideration denied, 52 FLRA 1323 (1997), aff'd, 144 F.3d 90 (1998); IRS-Kansas City, 50 FLRA at 670. The record indicates that the Respondent failed to articulate its interests to the Union in this manner. Thus, the Respondent's expression of countervailing interests for the first time at the unfair labor practice hearing does not absolve the Respondent of its obligations under the Statute.

Moreover, even if such countervailing interests are considered, they must be rejected. Thus, the Respondent would not have been exposing itself to joint and several liability by complying with the Union's request for information. In Wolf Trap, the union's hiring hall discriminated on its face; thus, the employer's acquiescence to the hiring hall implicated the employer. Here, the charges against the Union in the related unfair labor practice case stem from the Union's decision to use a questionable forum to determine a facially neutral seniority policy. The record does not show that the Union's decision to use its convention to vote on the policy is something that the Respondent contemplated or sanctioned. Thus, the Respondent would not have been liable for providing the requested information. Nothing prevented the Respondent from complying with its duty under the Statute to provide the requested information unless and until the underlying seniority policy was invalidated. As noted in Defense Mapping I, 21 FLRA at 606, the fact that an agency and a union are engaged in an ongoing dispute that touches upon the information sought does not negate an agency's obligation to provide the requested information.

The Respondent's attempt to distinguish this case from Defense Mapping I is flawed. To be sure, there are circumstances in which the necessity of the information sought by an exclusive representative may be called into question. In IRS-National Office, for example, the Authority noted that in circumstances wherein an underlying grievance is not cognizable under law, an agency would be relieved of its duty to produce information. Id. at 649, n.3. Here, the subject matter of the Union's request (seniority) unquestionably falls within the ambit of "collective bargaining" under the Statute.

The Respondent bases its refusal to furnish the requested information not upon the nature of the information sought, but rather upon the "propriety" of the request in light of the dispute surrounding the Union's seniority policy. The Respondent's assertions that the Union's seniority policy is "contractually barred" and "contrary to the express terms of the collective bargaining agreement" ignore the fact that an arbitrator found the Union's seniority policy to be consistent with the Agreement. See n.1, supra. Indeed, the Respondent concedes that if its underlying grievance challenging the Union's seniority policy is ultimately rejected, the prior failure to provide the disputed information would constitute an unfair labor practice. Furthermore, even if the instant seniority policy were to be invalidated, the Union still possesses the right to determine seniority policy under the Agreement. Accordingly, the Union would have the same particularized need to the information in question.

Since the Respondent has not excepted to the Judge's finding that the Union has established a particularized need for the requested information, and since the Respondent has failed to demonstrate a countervailing interest that would outweigh the Union's particularized [ v55 p261 ] need, the Judge's determination on this point was proper.

C. The Case is Not Moot, and Would Not be Rendered Moot by any Disposition in NATCA

The Authority construes the Respondent's exception as challenging the validity of the Judge's decision on grounds of mootness. An unfair labor practice case becomes moot where the former exclusive representative is no longer recognized, and where no individual rights are involved. Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Louisville, Kentucky, 51 FLRA 1751, 1754-55 (1996) (Defense Mapping II) (citing United States Department of Transportation, Federal Aviation Administration, Southwest Region, 11 FLRA 36 (1983)). In determining mootness, consideration is given to whether any decision rendered by the Authority could have a practical legal effect. Defense Mapping II, 51 FLRA at 1757. However, a case does not become moot simply because a particular remedy may no longer be appropriate. Id. at 1755. When a cease and desist order and the posting of notice remain viable remedies, a case is not moot. American Federation of Government Employees, Local 3615, AFL-CIO, 53 FLRA 1374, 1375 (1998); United States Air Force Academy, Colorado Springs, Colorado, 52 FLRA 874, 878 (1997).

Here, the Union is still the exclusive representative. Regardless of the ultimate disposition of NATCA, the Authority's Order here still has practical legal effect. The Respondent has been found to have committed an unfair labor practice by failing to provide the Union with information necessary for the administration of a portion of the Agreement. Judge's Decision at 12. Even if the underlying seniority policy were to be ruled invalid, the Union still has a right to determine seniority policy and can still articulate a particularized need for the information to formulate and administer that policy. For these reasons, we deny the Respondent's exception and find that the instant case is not moot.

V. Order

Pursuant to section 2423.41 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Federal Aviation Administration shall:

1. Cease and desist from:

(a) Failing and refusing to furnish the National Air Traffic Controllers Association, MEBA/AFL-CIO; Tampa Local; ZJX Local; Birmingham Local; MIA Local; ORF Local; Roanoke Local; ZDC Local; Salt Lake City TRACON Local; and Raleigh-Durham Local, the exclusive representative of bargaining unit employees, information which is necessary for it to determine seniority under the parties' collective bargaining agreement.

(b) In any like or related manner interfering with, restraining, or coercing bargaining unit 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, furnish the National Air Traffic Controllers Association, MEBA/AFL-CIO; Tampa Local; ZJX Local; Birmingham Local; MIA Local; ORF Local; Roanoke Local; ZDC Local; Salt Lake City TRACON Local; and Raleigh-Durham Local information which is necessary for the exclusive representative to determine seniority under the parties' collective bargaining agreement.

(b) Post at all its facilities nationwide where employees in the bargaining unit exclusively represented by the National Air Traffic Controllers Association 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 Director of Air Traffic and shall be posted and maintained for sixty 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 2423.41(e) of the Authority's Regulations, notify the Regional Director, Washington, D.C. 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 herewith. [ v55 p262 ]

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Federal Aviation Administration has violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify bargaining unit employees that:

WE WILL NOT fail and refuse to furnish the National Air Traffic Controllers Association, MEBA/AFL-CIO; Tampa Local; ZJX Local; Birmingham Local; MIA Local; ORF Local; Roanoke Local; ZDC Local; Salt Lake City TRACON Local; and Raleigh-Durham Local information which is necessary for the exclusive representative to determine seniority under the parties' collective bargaining agreement.

WE WILL NOT, in any like or related manner, interfere with, restrain or coerce bargaining unit employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL upon request, furnish the National Air Traffic Controllers Association, MEBA/AFL-CIO; Tampa Local; ZJX Local; Birmingham Local; MIA Local; ORF Local; Roanoke Local; ZDC Local; Salt Lake City TRACON Local; and Raleigh-Durham Local information which is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.

____

(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: Tech World Plaza, 800 K Street, NW, Suite 910, Washington, D.C. 20001, and whose telephone number is: 202- 482-6700.

File 1: Authority's Decision in 55 FLRA No.
44

File 2: Opinion of Chair Segal

File 3: ALJ's Decision

Footnote # 1 for
55 FLRA No. 44

• Authority's Decision

Chair Segal's concurring opinion appears at the end of this Decision.

Footnote # 2 for
55 FLRA No. 44

• Authority's Decision

The grievance alleged that the Union had breached the Agreement by formulating a seniority policy at the national, rather than local, level. Although the record indicates that the grievance was pending at the time that the parties entered into the stipulation referenced above, an arbitrator has since found that the Union had not violated the Agreement. See Union's Opposition at 4-5, Attachment 1 at 13 and 14. The arbitrator declined to make a finding as to whether the Union had breached its duty of fair representation to nonunion members when it formulated the seniority policy at the Union's National 1996 Convention.

Footnote # 3 for
55 FLRA No. 44

• Authority's Decision

In National Air Traffic Controllers Association, MEBA, AFL-CIO, Case No. AT-CO-70017 (NATCA), a judge found that the Union violated its duty of fair representation under sections 7114(a)(1) and 7116(b)(1) and (8) of the Statute when it adopted the underlying seniority policy at issue here at its 1996 National Convention without the full and consistent input of nonunion members. The Union's exceptions to the Judge's Decision are pending before the Authority.

Footnote # 4 for
55 FLRA No. 44

• Authority's Decision

Section 7103(a)(12) of the Statute provides:

(12) "collective bargaining" means the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in the appropriate unit of the agency to meet at reasonable times and consult and bargain in a good faith effort to reach agreement with respect to the conditions of employment affecting such employees and to execute, if requested by either party, a written document incorporating any collective bargaining agreement, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession.

Footnote # 5 for
55 FLRA No. 44

• Authority's Decision

Neither the General Counsel nor the Union addressed the question of whether the Authority's affirmation of the recommended decision in NATCA would render the instant matter moot.

[ v55 p262 ]

Phyllis N. Segal, Chair, concurring:

I write separately to explain why I reject the Respondent's contention that the Authority should reverse its precedent, which has been affirmed on judicial review, holding that an agency's statutory obligation to provide information to a union extends to the entire collective bargaining process, including the administration of agreements.

Section 7114(b)(4) of the Statute requires that an agency furnish an exclusive representative with "data . . . necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining." In its most explicit analysis of the scope of this section, the United States Court of Appeals for the District of Columbia Circuit held that it is "perfectly consistent with the well-understood principle that . . . [t]he duty to request and supply information is part and parcel of the fundamental duty to bargain." American Federation of Government Employees, Local 1345, AFL-CIO v. FLRA, 793 F.2d 1360, 1363 (D.C. Cir. 1986) (Local 1345) (citations omitted). The court held also that "this obligation applies not only to information needed to negotiate an agreement, but also to data relevant to its administration." Id. (citing National Labor Relations Board v. Acme Industrial Co., 385 U.S. 432, 435-36 (1967); NLRB v. Truitt Manufacturing Co., 351 U.S. 149, 153 (1956); additional citations omitted). Stating that a union's right to information applies to the "full range of union responsibilities[,]" the court interpreted information rights under the Statute as being similar in scope to such rights as they exist in the private and non-federal public sectors. Id. at 1364 (emphasis in original).

Union information rights encompassed the full range of a union's representational responsibilities under Executive Order 11491, as amended, which provided the framework for labor-management relations in the federal sector prior to the enactment of the Statute in 1978. See Department of the Navy, Portsmouth Naval Shipyard, 4 FLRA 619, 624 (1980); Department of Health, Education and Welfare, Social Security Administration, Kansas City Payment Center, Bureau of Retirement and Survivors Insurance, A/SLMR No. 411, 4 A/SLMR 467, 472 (1974). As with the private and non-federal public sector rights discussed by the court in Local 1345, the information rights recognized under the Executive Order were construed as a necessary component of a union's right to act for, and negotiate agreements covering, all employees in the bargaining unit for which it is certified as exclusive representative. Id. (citing Executive Order 11491, section 10(e)). [ v55 p263 ]

The Respondent asserts that section 7114(b)(4) of the Statute limits a union's right to information to the "context of the duty to negotiate in good faith . . . ." Exceptions at 8. The Respondent reads the phrase "discussion, understanding, and negotiation of subjects within the scope of collective bargaining" in section 7114(b)(4) as referring only to contract negotiations. Thus, in the Respondent's view, section 7114(b)(4) effectively eliminated the union's right under the Executive Order to information for other aspects of the collective bargaining relationship, such as contract administration.

Specifically, the Respondent asserts that the structure and text of section 7114(b)(4) demonstrate that the right to information is limited to contract negotiations. At the heart of this argument is Respondent's contention that the terms "discussion, understanding, and negotiation" are used in the "conjunctive." Exceptions at 15. Citing 1A Sutherland's Statutory Construction, § 21.14 (5th ed. 1993), Respondent argues that the use of "and" indicates that "all [of these] requirements" must be present for information to be disclosed and that "as written, it is clear that there must be a showing that the information is necessary for discussion and understanding and negotiation of a subject . . . before the agency is obligated to provide it." [n1] Exceptions at 15 (emphasis added).

The Respondent's invocation of the rules of statutory construction fails to fully state the principle it cites: the same paragraph in Sutherland relied on by the Respondent explains that "[t]here has been . . . so great laxity in the use of these terms that courts have generally said that the words ["or" and "and"] are interchangeable and that one may be substituted for the other, if consistent with the legislative intent." Id. The Respondent's focus on the term "and" ignores the intent suggested by the context in which the term appears. A careful reading of section 7114(b)(4), in context, indicates that the Respondent's construction of "discussion, understanding, and negotiation" is not warranted.

I begin with the premise that the terms "discussion," "understanding," and "negotiation" describe distinct activities in connection with which information must be furnished. See United States v. Menasche, 348 U.S. 528, 538-39 (1955) ("It is our duty `to give effect, if possible, to every clause and word of a statute[.]'") (citations omitted). Reading the terms in the conjunctive posits that at the time information is requested, the information must be necessary for each and every one of the three activities. The Respondent emphasizes that "negotiation" must always be present. However, the same interpretation would require that "discussion" and "understanding," as analytically distinct concepts, also be present to obligate an agency to furnish information to a requesting union. That is, the Respondent's interpretation would require us to find that "negotiation" does not inherently encompass "discussion" and "understanding." Yet, it is difficult to discern how information could be necessary for "negotiation" but not necessary for "understanding." Perhaps negotiation where both parties fully understand the subject at hand would fall into this category. In that situation, however, it is unclear how information would be "necessary," within the meaning of section 7114(b)(4). Similarly, while "discussion" surely can take place without "negotiation," the opposite is not true: it is difficult to discern how "negotiation" can take place without "discussion."

In short, Respondent posits a construction of section 7114(b)(4) that either requires the Authority to read the terms "understanding" and "discussion" in ways contrary to their common meaning, or runs afoul of the principle that a statute should be construed so that no part will be "inoperative or superfluous." American Federation of Government Employees, Local 2419, 53 FLRA 835, 842 n.10 (1997) (quoting 2A Sutherland, § 46.06 (rev. 5th ed. 1992)). Both of these difficulties are avoided by construing "discussion, understanding and negotiation" to mean that each term describes a separate activity for which access to information is appropriate. This is, in my view, the more natural reading of what Congress has written.

The Respondent also argues that the Authority has improperly interpreted the reference in section 7114(b)(4) to "subjects within the scope of collective bargaining." The Authority has held that this phrase embraces the entire collective bargaining process, which includes the administration of contracts. National Labor Relations Board, 38 FLRA 506, 519-20 (1990). According to the Respondent, the Authority's interpretation ignores the statutory definition of the term "collective bargaining," in section 7103(a)(12) of the Statute, which, the Respondent argues, refers only to the negotiation of a collective bargaining agreement.

There are several defects in the Respondent's interpretation of this statutory wording. In singling out the term "collective bargaining," the Respondent ignores the fact that the phrase "scope of collective bargaining" does not stand alone; the phrase serves, in the [ v55 p264 ] context in which it appears, to describe the term "subjects." Section 7114(b)(4) states that information must be provided for "negotiation of subjects within the scope of collective bargaining." The section does not state that information must be provided for the "negotiation of a collective bargaining agreement." By way of contrast, when Congress wished to refer to the activity of negotiating a collective bargaining agreement, it did so clearly. See, e.g., section 7114(a)(1) ("negotiate collective bargaining agreements"); section 7114(a)(4) ("negotiate in good faith for the purpose of arriving at a collective bargaining agreement"). Respondent's contention that section 7114(b)(4) should be construed to include only the negotiation of collective bargaining agreements effectively reads the term "subjects" out of the provision entirely. As explained above, this is contrary to basic rules of statutory construction.

Finally, Respondent's reliance on the definition of collective bargaining in section 7103(a)(12) ignores the judicial and administrative interpretations, cited above, that found broad information rights to be derived from a union's right and obligation to represent employees: the "fundamental duty to bargain." Local 1345, 793 F.2d at 1364 (citing private and non-federal public sector precedent). The duty to bargain is stated in virtually identical terms in the Executive Order and the Statute. Compare 5 U.S.C. 7114(a) with Executive Order 11491, sec. 10(a). In enacting the Statute, Congress is presumed to have been aware of the wording of the Executive Order and existing interpretations of that wording. See U.S. Department of Justice, 52 FLRA 1093, 1099 (1997); Department of the Air Force, Headquarters Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 24 FLRA 187, 190 (1986). Further, in enacting the Statute, Congress indicated that it expected continuity of administration from the Executive Order to the Statute, providing that policies established under the Executive Order would remain in effect "unless superseded by specific provisions of this chapter or by regulations or decisions issued pursuant to this chapter." 5 U.S.C. 7135(b).

I am not persuaded by the Respondent's arguments that Congress, in including section 7114(b)(4) in the Statute, intended to modify the then-longstanding principle of broad information rights so as to drastically restrict the information available to federal unions compared to the information available under the Executive Order and in the private and non-federal public sectors. Instead, an examination of the Executive Order and the Statute show that, without altering the wording of the provisions that had been found under the Executive Order to imply a broad right to information, Congress merely added a specific reference to union information rights in section 7114(b)(4).

In this regard, as the Respondent notes, the legislative history of section 7114(b)(4) is "sparse." Exceptions at 17. The Respondent argues that inclusion of the term "negotiation," in the few legislative history references to this section, reflects Congressional intent that the obligation to provide information arises only in the context of negotiating a collective bargaining agreement. Id. A close reading of these references, however, makes apparent that they do not shed particular light on whether information can be necessary for "discussion" or "understanding" in the absence of contract negotiations. Specifically, they provide no insight into Congress' intent in including the terms "discussion" and "understanding" in section 7114(b)(4).

Resolving Respondent's arguments requires interpreting the Statute only, because there is no assertion that any other laws have an effect on Respondent's obligations. Compare United States Department of Defense v. FLRA, 510 U.S. 487, 495, 503 (1994) (DOD) (the application of a "somewhat convoluted path of statutory cross-references" to other federal information statutes resulted in more limited information rights for federal employee unions than those in the private sector). In interpreting the Statute, I am guided by Justice Ginsburg's observation in DOD that, in enacting the Statute, "Congress unquestionably intended to strengthen the position of federal unions" and thus "[i]t is surely doubtful that, in the very statute bolstering federal-sector unions, Congress aimed to deny those unions information their private-sector counterparts routinely receive." Id. at 506 (Ginsburg, J. concurring) (citations omitted).

In sum, for the reasons described above, I reject the Respondent's arguments that the Authority and the courts have misconstrued section 7114(b)(4) as applying to matters other than the negotiation of collective bargaining agreements.

File 1: Authority's Decision in 55 FLRA No. 44

File 2: Opinion of Chair Segal

File 3: ALJ's Decision

Footnote # 1 for
55 FLRA No. 44

• Opinion of Chair Segal

Although the Respondent explains why it believes that "negotiation" is essential under section 7114(b)(4), it offers no support for interpreting the term as referring only to contract negotiations, and excluding negotiations that take place in other contexts, such as the resolution of grievances.

[ v55 p265
]

Office of Administrative Law Judges

FEDERAL AVIATION ADMINISTRATION

Respondent

and

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, MEBA/AFL-CIO

Charging Party

and

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, MEBA/AFL-CIO, TAMPA LOCAL

Charging Party

and

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, MEBA/AFL-CIO, ZJX LOCAL

Charging Party

and

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, MEBA/AFL-CIO

BIRMINGHAM LOCAL

Charging Party

and

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, MEBA/AFL-CIO, MIA LOCAL

Charging Party

and

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, MEBA/AFL-CIO, ORF LOCAL

Charging Party

and

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, MEBA/AFL-CIO

ROANOKE LOCAL

Charging Party

and

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, MEBA/AFL-CIO, ZDC LOCAL

Charging Party

and

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, MEBA/AFL-CIO

SALT LAKE CITY TRACON LOCAL

Charging Party

and

NATIONAL AIR TRAFFIC CONTROLLERS

ASSOCIATION, MEBA/AFL-CIO, RDU LOCAL

Charging Party

Case Numbers

AT-CA-70058, AT-CA-70067, AT-CA-70072, AT-CA-70164, DE-CA-70121, DE-CA-70201,

WA-CA-70064, WA-CA-70134, WA-CA-70140 and AT-CA-70043

Stewart T. Speck, Agency Representative

For the Respondent

Michelle Ledina, Esq.

For the General Counsel

William W. Osborne, Jr., Esq.

Marguerite L. Graf, Esq.

For the Charging Party

Before: ELI NASH, JR.

Administrative Law Judge

Statement of the Case

On July 9, 1997, the General Counsel, the Federal Aviation Administration (hereinafter called Respondent or Respondents) and the National Air Traffic Controllers Association, MEBA/AFL-CIO (herein called NATCA) the National Air Traffic Controllers Association, MEBA/AFL-CIO, Tampa Local, Traffic Control Tower, ZJX Local, Tampa, Florida; the National Air Traffic Controllers Association, MEBA/AFL-CIO, Birmingham Local, Birmingham, Alabama, MIA, the National Air Traffic Controllers Association, MEBA/AFL-CIO, ORF Local, Roanoke, Virginia, the National Air Traffic Controllers Association, MEBA/AFL-CIO, ZDC Local, Salt Lake City TRACON Local Salt Lake City, Utah, the National Air Traffic Controllers Association, MEBA/AFL-CIO, RDU Local, Raleigh, North Carolina (herein called the Charging Parties, Locals or the Unions) filed a Joint Motion to Transfer Case to the Chief Administrative Law Judge on July 9, 1997, waiving a hearing before an administrative law judge and requesting a decision based on the stipulation and exhibits which the parties agreed constitute the entire record. The parties also agreed that no oral testimony was necessary and that no material issue of fact exists. The Chief Administrative Law Judge thereafter, assigned the matter to the undersigned. The instant matter arose [ v55 p266 ] from unfair labor practice charges filed on October 25, 1996, October 29, 1996, October 30, 1996, November 26, 1996, November 21, 1996, November 6, 1996, December 18, 1996, December 16, 1996, January 6, 19976, October 18, 1996, respectively. The charges in the above-matters were thereafter, transferred to the Regional Director of the Washington Regional Office of the Federal Labor Relations Authority (herein the Authority) between October 31, 1996 and April 29, 1997, respectively.

On April 1, 1997, the Regional Director of the Washington Regional Office and the Regional Director of the Atlanta Regional Office issued a Consolidated Complaint and Notice of hearing in Cases Nos. AT-CA-70058, AT-CA-70072, AT-CA-70164, DE-CA-70121, DE-CA-70201, WA-CA-70064, WA-CA-70134 and WA-CA-70140. A Complaint and Notice of hearing issued in Case No. AT-CA-70043 on April 10, 1997. Subsequently, on May 27, 1997 a Consolidated Complaint was issued which combined AT-CA-10043 with the other matters to effectuate the purposes of section 7101-7135 of the Statute. The Consolidated Complaint herein alleges that Respondents violated section 7116(a)(1), (5) and (8) of the Statute by refusing to furnish certain information necessary to determine seniority under the collective bargaining agreement.

Pursuant to an Order issued on July 10, 1997, all parties filed timely briefs in the matter. The briefs, stipulations and exhibits have been duly considered in reaching a recommended decision herein finding that Respondent violated section 7116(a)(1)(5) and (8) of the Statute.

Findings of Fact

The stipulated facts are as follows:

At all times material, the Union has been a labor organization within the meaning of section 7103(a)(4) of the Statute. At all times material, Respondent has been an agency within the meaning of section 7103(a)(3) of the Statute.

The Union is the exclusive representative of a nation- wide unit of all GS-2152 air traffic control specialists located at terminal and center facilities of the Respondent, whose primary duty is the separation of air traffic. [n1]

The Union and Respondent are parties to a collective bargaining agreement, which became effective on August 1, 1993, and was in effect at all times material to this case. Article 83, section 1 of the agreement, provides that "[e]xcept as provided in Article 47 [Reduction-in-force], seniority will be determined by the Union at the local level." At least four different areas of the contract use seniority as a criterion to determine conditions of employment of unit employees. Those areas are as follows: watch schedules and shift assignments (Article 32, section 3), holiday leave (Article 28), temporary assignments (Article 44, section 1), and reassignments of unit employees to fill vacant positions (Article 46, section 6).

Sometime in September 1996, the Union held its Sixth Biennial National Convention in Pittsburgh, Pennsylvania. During its convention, the Union adopted Resolution 96014, which provided for a national seniority policy and Resolution 96015, which established the substance of the national seniority policy. [n2]

After Resolution 96015 was passed, the Union's agents at the facility level requested certain information from Respondent. All of the Union's information requests were received by the Respondent's supervisors at the facility level.

On September 24, 1996, NATCA Tampa Local Facility Representative, Joseph Formoso, requested Respondent to furnish the dates that each bargaining unit member was assigned to a bargaining unit position and the dates of each break in service by a bargaining unit member. On October 16, 1996, the Tampa Air Traffic Manager (ATM), John T. Stewart, denied the request for information because the determination of seniority was considered internal union business. [ v55 p267 ]

On September 30, 1996, NATCA ZJX Local Facility Representative, Joseph M. Trainor, requested Respondent to furnish the Record of Employment History for bargaining unit members depicted on the Integrated Personnel and Payroll System (IPPS) and the service computation date for each bargaining unit member at the Jacksonville ARTCC. On October 16, 1996, the Jacksonville ARTCC Supervisory Personnel Management Specialist, Mary C. Vanzant, denied the request for information because the determination of seniority was considered internal union business.

On October 17, 1996, NATCA Birmingham Local Facility Representative, James D. Crane, requested Respondent to furnish the Record of Employment History for bargaining unit members depicted on the IPPS and the service computation date for each bargaining unit member at the Birmingham facility. In a memorandum dated October 21, 1996, the Birmingham ATM, Douglas M. Whitson, denied the request for information because the determination of seniority was considered internal union business.

On September 27, 1996, NATCA MIA Local Facility Representative, Andrew J. Cantwell, requested the Respondent to furnish the Record of Employment History for bargaining unit members at the Miami facility as depicted on the IPPS and the service computation date for each bargaining unit member at the Miami facility. In a memorandum dated October 30, 1996, the Miami ATM, Jimmy C. Mills, denied the request for information because the determination of seniority was considered internal union business, was not normally maintained by the facility, no grievance or representational issue existed, and the necessity and relevance of the information had to be determined before the request would be considered.

On October 2, 1996, NATCA Central Region Vice President, Michael Putzier, requested the Respondent to furnish the Record of Employment History for bargaining unit members in the Central Region as depicted on the IPPS and the service computation date for each bargaining unit member in the Central Region. In a letter dated October 22, 1996, Respondent's Director of Air Traffic, Ronald E. Morgan, denied the request for information and asked for the subject within the scope of collective bargaining for which the information is necessary and the relationship between the particularized need for the information and the subject of collective bargaining.

On October 5, 1996, NATCA ORF Local Facility Representative, Steve Hylinski, requested the Respondent to furnish the Record of Employment History for bargaining unit members as depicted on the IPPS and the date each bargaining unit member reported to their first FAA facility to begin on the job training. Thereafter, on October 22, 1996, the Norfolk ATM, Carl Zimmerman, denied the request for information because the Respondent filed a grievance and an unfair labor practice charge concerning the legality of the seniority system for which the information was requested.

On October 6, 1996, NATCA Roanoke Local Facility Representative, Keith Schwallenberg, requested Respondent to furnish the Record of Employment History for bargaining unit members and those employees expressing a desire to return to the bargaining unit by October 27, 1996, as depicted on the IPPS and the service computation date for each bargaining unit member and those employees that have expressed a desire to return to the bargaining unit by October 27, 1996. Around October 23, 1996, the Roanoke ATM, John D. Hinkle, denied the request for information because the Respondent filed a grievance and an unfair labor practice charge concerning the legality of the seniority system for which the information was requested.

On September 26, 1996, NATCA ZDC Local President, James R. Kidd II, requested Respondent to furnish the bargaining unit entry and exit dates for all bargaining unit employees assigned to the Washington ARTCC for the entirety of their careers, including any and all such time employees would have been eligible by the definition on the enclosed policy; the entrance on duty [ v55 p268 ] (EOD) FAA dates for all bargaining unit employees assigned to the Washington ARTCC; the service computation dates for all bargaining unit employees assigned to the Washington ARTCC; and the dates of all non-voluntary non-bargaining unit times for any employee in such a position currently. Sometime around October 24, 1996, Washington ARTCC Acting ATM, Heather J. Biblow, denied the request for information by providing a copy of Morgan's letter to the NATCA president which requested clarification of the Union's particularized need for the requested information.

On October 14, 1996, NATCA Salt Lake City TRACON Local Facility Representative, Brian Johnson, requested the Respondent to furnish the date of entry (and exit/re-entry dates, if applicable) into the bargaining unit (as defined in the FLRA designation of the NATCA bargaining unit) for each controller assigned to Salt Lake City TRACON; the EOD/FAA date for each controller assigned to Salt Lake City TRACON; the service computation date for each controller assigned to Salt Lake City TRACON; and the EOD to S56 for each controller at Salt Lake City TRACON. On October 30, 1996, Salt Lake City TRACON ATM, Susan Cornell, did not deny the request for information but stated that she was not certain the specified deadline for furnishing the information could be met.

On October 7, 1996, NATCA Local RDU Facility Representative, Michael J. Verderamo requested the Respondent to furnish the Record of Employment History for bargaining unit members at the Raleigh-Durham facility as depicted on the IPPS and the service computation date for each bargaining unit member at the Raleigh-Durham facility. An October 11, 1996 memorandum from Raleigh-Durham ATM's, Tom Adams, denied the request for information because the determination of seniority was considered internal union business.

Respondent did not provide any of the requested information, despite follow-up requests clarifying the Union's particularized need for this information sent by Formoso, Tampa Facility Representative; Trainor, Jacksonville Facility Representative; Crane, Birmingham Facility Representative; Putzier, Central Region Vice President; Kidd, Washington Center Facility Representative; Johnson, Salt Lake City Facility Representative; and Verderamo, Raleigh Facility Representative.

Analysis and Conclusions

The sole issue in these matters is whether the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by failing to furnish requested information which was necessary within the meaning of section 7114(b)(4) of the Statute.

Section 7114(b)(4) of the Statute provides that the duty of an agency to bargain in good faith requires that the agency furnish to the exclusive representative involved or its authorized agent, upon request, and to the extent not prohibited by law, data which is normally maintained by the agency in the regular course of business; which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining.

Respondent approaches the case from several different directions. First, it contends that there was no obligation to furnish information in the instant matters since it inter-prets the sense of Congress was to limit "data disclosures to requests arising in the context of negotiations . . . " In this regard it asserts that inasmuch as no negotiations were contemplated when the Union made its information requests herein there was no obligation to supply the requested information. This argument rests on its assumption that both the Authority and the D.C. Circuit incorrectly interpreted section 7114(b)(4)(B) of the Statute as obligating an agency to provide information to an exclusive representative that is "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of the collective bargaining process." [n3] The NLRB case cited by Respondent makes it evident that Respondent's interpretation of the Statute related to furnishing information is simply too narrow. In that case, it was determined that section 7114(b)(4)(B) encompasses information needed by the exclusive representative to perform "the full range of its representational responsi-bilities under the Statute and not simply related to collec-tive bargaining." The case also noted, that in reviewing the wording of section 7114(b)(4) of the Statute, the D.C. Circuit [n4] made it clear that not only is it a well-understood principle that, in collective bargaining, `[the] duty to request and supply information is part and parcel of the funda- [ v55 p269 ] mental duty to bargain. . . ." The Court further stated that an agency's obligation to furnish data "must be evaluated in the context of the full range of union responsibilities in both the negotiation and administration of a labor agreement." Thus, the arguments that Respondent presents have already been rejected by both the Authority and the Court. While Respondent offered case precedent and legislative history in support of its position it failed to establish, in my opinion, that Congressional intent favored only its interpretation of section 7114(b)(4)(B) of the Statute. In considering the above holdings, the undersigned is obliged to find that Respondent's arguments concerning the statutory construction of 7114(b)(4)(B) lack merit. Accordingly, Respondent's position that section 7114(b)(4)(B) should be narrowly interpreted to mean that it is applicable only when the parties are engaged in "negotiations leading to a collective bargaining agreement," is rejected.

Second, Respondent urges that the underlying seniority system established by the Union was illegal and that Respondent saw a "distinct possibility" that it could have been held jointly liable for the Union's failure to represent employees herein. [n5] Section 7114(b)(4) requires that data be furnished to the exclusive representative "to the extent not prohibited by law . . . " It does not allow that there is a possibility that the data would be prohibited or that an agency can unilaterally determine that it might be jointly liable. In the circumstances, it appears to the undersigned that Respondent was not relieved of the responsibility to furnish necessary information simply because it felt that the seniority system was suspicious in nature.

Respondent's waiver argument is also rejected. Case law still requires that the waiver of a Statutory right must be clear and unmistakable. U.S. Department of the Treasury, 38 FLRA 770, 784 (1990). The collective bargaining agreement does not free Respondent from its obligation under the Statute simply because it does not include the requested data among the bargained for topics by the parties. Thus, a Statutory right is not lightly waived and absent some evidence that the Union specifically relinquished its right to the requested information, the undersigned denies Respondent's argument.

Respondent disputed but, the record establishes that the Union sufficiently articulated and established a par-ticularized need for the information requested from the various locations.

In this case, there is no dispute that the information requested by the Union, through its agents at the facility level, is normally maintained by the Respondent in the regular course of business; is reasonably available; does not consti-tute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining; and can be sanitized to omit social security numbers so as not to be prohibited from disclosure by law. Under section 7114(b)(4) a union making a request for data has to establish a particularized need for the information. Thus, the union must articulate, with specificity, the reasons why it needs the information, including the uses to which the information will be put, and the connection between those uses and the union's representational responsibilities under the Statute. Under present case law, in order for a union to meet its burden to establish a particularized need for the information, exclusive representatives must show that the information is required in order to permit an agency to make a reasoned judgment as to whether the information must be disclosed under the Statute. Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661 (1995) (Internal Revenue Service).

An agency denying such an information request must assert and establish any countervailing anti-disclosure interests and will not satisfy its burden by making unsupported or bare assertions, as was done in this case. The Authority will find an unfair labor practice if a union has established a particu-larized need for the information and either: (1) the agency has not established a countervailing interest; or (2) the agency has established such an interest but it does not outweigh the union's demonstration of particularized need.

Applying the Authority's analytical framework to this case, the Union, by its local agents, established a particularized need for the requested information, and the Respondent did not establish any countervailing interests against disclosure of the information which outweighs the Union's particularized need.

Each of the Union's local agents explained why it needed the information. In this regard, each written request stated that the information was required to determine seniority for bargaining unit employees. Essentially, the information sought by the Union consisted of certain dates recorded in unit employees' personnel records to which the Union would apply the seniority [ v55 p270 ] policy outlined in Resolution 96015 to establish a seniority roster at each of the Respondent's facilities. The seniority rosters determine the order in which employees select their shift assignments, holiday and annual leave, among other things.

Respondent's local agents, with the exception of the Respondent's agent at the Salt Lake City TRACON, [n6] denied each of the information requests for various reasons. Respondents' agents at its Tampa, Jacksonville, Birmingham, and Raleigh facilities denied the information requests because they considered the determination of seniority to be internal union business. Respondents' agents at these facilities did not ask the Union's representatives to clarify their particularized need for the requested information. However, the Union's agents at the Respondent's Tampa, Jacksonville, Birmingham, and Raleigh facilities submitted additional letters further explaining the uses for the requested information and the connection between those uses and the Union's representational purposes, even though such clarification was not solicited by the Respondent's agents. These letters stated that the Union had exclusive authority under Article 83 of the parties' agreement to determine seniority; that under the agreement, seniorities, as determined by the Union, established watch schedules and shift assignments (Article 32, section 3), holiday leave (Article 28), temporary assignments (Article 44, section 1), and reassignments of unit employees to fill vacant positions (Article 46, section 6); and that the Union needed the information for the proper administration of these provisions of the parties' agreement.

At its Norfolk and Roanoke facilities Respondent's agents denied the Union's information requests because the Respondent filed a grievance and an unfair labor practice charge regarding the validity of the seniority policy for which the information was requested. Respondents' agents at these facilities did not ask the Union's representatives to clarify their particularized need for the requested information. As later explained, Respondent's doubts as to the merits of the Union's seniority policy do not relieve it of the duty to furnish the information requested under section 7114(b)(4) of the Statute.

Agents of Respondent at its Miami, Central Region, and Washington Center facilities denied the Union's requests for information, and specifically asked the Union to clarify its particularized need for the requested information. In response, the Union's agents in the Central Region and Washington Center submitted letters which detailed the uses for the information and the connection between those uses and the Union's representational responsibilities under the Statute. Again it is noted that the Union's letters stated that Article 83 of the parties' collective bargaining agree-ment provided it with the exclusive authority to determine seniority; that under the agreement, seniority, as determined by the Union, is used to establish watch schedules and shift assignments, temporary assignments, and reassignments of unit employees to fill vacant positions and that the Union needed the information for the proper administration of these provisions of the parties' agreement.

Accordingly, the Union appears to have fully explained its particularized need for the information at the time that the requests for information were made and satisfied its burden for making a valid information request under the framework established by the Authority in Internal Revenue Service.

Respondent however, did not satisfy its burden under the Internal Revenue Service framework to establish any countervailing anti-disclosure interests which outweigh the Union's particularized need for the information. Respondent has asserted several reasons for denying the information requests, none of which, even if established, relieves Respondent of its duty to furnish the information under section 7114(b)(4) of the Statute.

In this regard, Respondent insists that the determination of seniority is internal union business. It is true that the contract gives the Union the exclusive authority to determine the type of seniority which will be used. However, the Union clearly explained that the requested information would be used to administer the provisions of the parties' contract that relies on a seniority calculation for their operation. The administration of certain contract provisions depends on the ability of the Union to make accurate seniority calculations, which it cannot do without information maintained by the Respondent in its Consolidated Personnel Management Information System (CPMIS). [n7] Therefore, the Union's need for the information is broader than its internal decision to determine the type of seniority used. Rather, it affects the proper administration of several provisions of the parties' agreement, which the Respondent delegated to the [ v55 p271 ] Union through the negotiation of Article 83 of the parties' agreement.

Respondent now maintains that the Union had not articulated a particularized need for the requested information. The record reveals however, the Union provided a very detailed explanation of its particularized need for the information.

As earlier noted, Respondent also maintains that the underlying seniority policy adopted by the Union at its national convention was not valid because the policy violated the parties' agreement and the Statute and, therefore, the Respondent had no obligation to furnish the information. Respondent filed a grievance under the parties' agreement alleging that the seniority policy contained in Resolution 96015 violated Article 83 of the agreement and an unfair labor practice charge alleging that the seniority policy also violated section 7116(b)(1) and (8) of the Statute. However, at the time the Union made the information requests, there was no final and binding determination of the validity of the seniority policy. Thus, Respondent's grievance and unfair labor practice charge are not relevant to the determination of whether the Union established a particularized need for the information at the time the requests were made. The mere assertion that the underlying seniority policy is invalid or illegal does not disprove the Union's particularized need for the requested information. Until an arbitrator rules on the grievance or the Authority rules on the unfair labor practice charge, Respondent is obligated to furnish information where the Union's request meets the requirements of section 7114(b)(4) of the Statute.

It is a well-settled principle of private sector labor law that the standard for providing information under the National Labor Relations Act decides nothing about the merits of contractual claims. [n8] Accordingly, the Authority held that an agency's doubts as to the merits of the underlying grievance will not constitute a sufficient countervailing interest against the disclosure of information that outweighs a union's particularized need for information under section 7114(b)(4) of the Statute.

Applying the Authority's rationale to Respondent's defense in this case, it is clear that the Respondent's doubt as to the validity of the Union's seniority policy is not sufficient to outweigh the Union's particularized need for the requested information. The instant record demonstrates a valid need for the information to administer various provisions of the parties' agreement which rely on the Union's authority and ability to make seniority calculations. Without the information, it would not be possible for the Union to establish valid seniority rosters upon which work schedules, leave, and other matters can be determined. Further, the disclosure of the information would have no impact on an arbitrator's determination of whether the Union's adoption of the underlying seniority policy breached Article 83 of the parties' agreement or on a Authority's decision of whether the Union's adoption of the underlying seniority policy violated the duty of fair representation under the Statute. Furthermore, disclosure of the requested information would not affect the power of an arbitrator or the Authority to fashion a remedy addressing conduct they might find improper.

When the particularized need for the information demonstrated by the Union is weighed against the Respondent's asserted countervailing interests, the record established, in my view, that the Union's interests should prevail. As already explained, the Union has a substantial interest in obtaining the information to establish valid seniority rosters on which several contract provisions depend for proper admin-istration. In contrast, Respondent's anti-disclosure interests are not as strong. In this regard, it is clear that the information was sought to administer the parties' agree-ment, of which determining the type of seniority was only a part, and therefore, not solely internal union business. Finally, Respondent can hardly argue that its duty to furnish information is relieved by doubts as to the merits of the Union's adoption of the underlying seniority policy. Especially since no determination has been made by an arbitrator or the Authority in that respect. Thus, the Union's particularized need for the information outweighs the countervailing interests identified by the Respondent. Therefore, the information is necessary within the meaning of section 7114(b)(4) of the Statute and Respondent's failure to furnish the information constituted unfair labor practices within the meaning of section 7116(a)(1), (5) and (8) of the Statute.

In these matters, Respondent has not asserted any anti-disclosure interests and the other statutory requirements of section 7114(b)(4) have been met. Accordingly, it is found that by its conduct in failing to furnish the Union with the data requested in these consolidated matters, Respondent refused to comply with section 7114(b)(4) of the Statute in violation of section 7116(a)(1), (5) and (8) of the Statute, as alleged.

Based on the above findings and conclusions, it is recommended that the Authority issue the following: [ v55 p272 ]

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Federal Aviation Administration, Washington, D.C. shall:

1. Cease and desist from:

(a) Failing and refusing to furnish the National Air Traffic Controllers Association, MEBA/AFL-CIO; Tampa Local; ZJX Local: Birmingham Local; MIA Local; ORF Local; Roanoke Local; ZDC Local; Salt Lake City TRACON Local; Raleigh-Durham Local information which is necessary for it to determine seniority under the collective bargaining agreement.

(b) In any like or related manner interfering with, restraining, or coercing 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, furnish the National Air Traffic Controllers Association, MEBA/AFL-CIO; Tampa Local; ZJX Local; Birmingham Local; MIA Local; ORF Local; Roanoke Local; ZDC Local; Salt Lake City TRACON Local; Raleigh-Durham Local, National Air Traffic Controllers Association, MEBA/AFL-CIO data which is necessary for it to determine seniority under the collective bargaining agreement.

(b) Post at all its facilities nationwide where members of the National Air Traffic Controllers Association, MEBA/AFL-CIO bargaining unit 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 Director of Air Traffic 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 to the Authority's Rules and Regulations, notify the Regional Director, Washington D. C. Regional Office, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

Issued, Washington, DC, August 29, 1997.

____

ELI NASH, JR.

Aministrative Law Judge

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Federal Aviation Administration has violated the Federal Labor Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify bargaining unit employees that:

WE WILL NOT fail and refuse to furnish the National Air Traffic Controllers Association, MEBA/AFL-CIO; Tampa Local; ZJX Local; Birmingham Local; MIA Local; ORF Local; Roanoke Local; ZDC Local; Salt Lake City TRACON Local; Raleigh-Durham Local information which is necessary for it to determine seniority under the collective bargaining agreement.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL upon request, furnish the National Air Traffic Controllers Association, MEBA/AFL-CIO; Tampa Local; ZJX Local; Birmingham Local; MIA Local; ORF Local; Roanoke Local; ZDC Local; Salt Lake City TRACON Local; Raleigh-Durham Local, National Air Traffic Controllers Association, MEBA/AFL-CIO data which is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.

______

(Agency)

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 any of its provisions, they may communicate directly with the Regional Director, Washington Regional Office, Federal Labor Relations Authority, whose address is: 1255 22nd Street, NW, Suite 400, Washington, D.C. 20037-1206, and whose telephone number is: 202- 653-8500.

File 1: Authority's Decision in 55 FLRA No. 44

File 2: Opinion of Chair Segal

File 3: ALJ's Decision

Footnote # 1 for
55 FLRA No. 44

• ALJ's Decision

NATCA Tampa Local is an agent of NATCA for purposes of representing unit employees at the Respondent's Air Traffic Control Tower, Tampa, Florida. NATCA ZJX Local is an agent of NATCA for purposes of representing unit employees at the Respondent's Air Route Traffic Control Center, Jacksonville, Florida. NATCA Birmingham Local is an agent of NATCA for purposes of representing unit employees at the Respondent's Air Traffic Control Tower, Birmingham, Alabama. NATCA MIA Local is an agent of NATCA for purposes of representing unit employees at the Respondent's Air Traffic Control Tower, Miami, Florida. NATCA ORF Local is an agent of NATCA for purposes of representing unit employees at the Respondent's Air Traffic Control Tower, Norfolk, Virginia. NATCA Roanoke Local is an agent of NATCA for purposes of representing unit employees at the Respondent's Air Traffic Control Tower, Roanoke, Virginia. NATCA ZDC Local is an agent of NATCA for purposes of representing unit employees at the Respondent's Washington Air Route Traffic Control Center, Leesburg, Virginia. NATCA Salt Lake City TRACON Local is an agent of NATCA for purposes of representing employees at the Respondent's Terminal Radar Approach Control, Salt Lake City, Utah. NATCA RDU Local is an agent of NATCA for purposes of representing employees at the Respondent's Air Traffic Control Tower, Raleigh, North Carolina.

Footnote # 2 for
55 FLRA No. 44

• ALJ's Decision

As adopted in final form, Resolution 96015 provided:

The following system shall be used to determine seniority for the National Air Traffic Controllers Association:

NATCA Bargaining Unit Time

First Tie Breaker EOD/FAA time

Second Tie Breaker Service Computation Date

Third Tie Breaker Lottery

Any bargaining unit member that voluntarily leaves the bargaining unit shall be, for the purpose of seniority under the provisions of Article 83 of the NATCA/FAA Agreement, assigned a NATCA Bargaining Unit date that coincides with the date that the individual returns to the bargaining unit. Individuals outside the NATCA bargaining unit shall have 45 days to return to the bargaining unit. Those individuals that have occupied a position outside of the NATCA bargaining unit prior to the passage of this resolution will not be adversely impacted with these provisions.

For the purposes of Facility Release Policies, seniority will be determined by Facility Time only as a bargaining unit member at that present facility.

NATCA Bargaining Unit Time is defined as that time an individual was or is employed as an air traffic control specialist in either the terminal or center option and in an assigned position as described in the FLRA designation of the NATCA Bargaining Unit.

Footnote # 3 for
55 FLRA No. 44

• ALJ's Decision

National Labor Relations Board and and National Labor Relations Board Union Local 6, 38 FLRA 506, 519 (1990).

Footnote # 4 for
55 FLRA No. 44

• ALJ's Decision

AFGE, Local 1345, 793 F.2d 1360 (D.C. 1986). While Respondent claims that the Court's language in the AFGE case is dicta, it does not dispute the Authority's use of that language in such cases as SSA, New Bedford District Office, 37 FLRA 1277, 1286 (1990) where it was held that section 7114(b)(4)(B) of the Statute entitles the exclusive representative to ". . . information that is necessary to enable it to carry out effectively its representational functions."

Footnote # 5 for
55 FLRA No. 44

• ALJ's Decision

It is noted that, Administrative Law Judge William B. Devaney issued a decision on July 17, 1997, in which the Respondent's unfair labor practice charge was consolidated, finding that the Union did commit an unfair labor practice when it adopted the underlying seniority policy at issue here. At this writing, the Authority has not adopted that recom-mended decision. If that decision is upheld by the Authority, it would appear to make this matter moot.

Footnote # 6 for
55 FLRA No. 44

• ALJ's Decision

Respondent's agent at the Salt Lake City TRACON never denied the Union's information request but merely responded that the Respondent could not meet the Union's time frame for providing the requested information. There is no dispute that the Respondent did not furnish the information to the Union representative at the Salt Lake City TRACON.

Footnote # 7 for
55 FLRA No. 44

• ALJ's Decision

Although some of the Union's facility representatives requested the information from the IPPS, the Respondent stipulated that the information is available from the CPMIS.

Footnote # 8 for
55 FLRA No. 44

• ALJ's Decision

NLRB v. Acme Industrial Co., 385 U.S. 432, 436 (1967) (NLRB's requirement that the employer furnish certain information did not preclude an arbitrator from finding that the union's grievance, in which connection the information was sought, was without merit). The Authority followed the advice of the Supreme Court in Department of the Air Force, Scott Air Force Base, Illinois, 51 FLRA 675, 686-89 (1995)(grievability of the union's grievance was not a sufficient countervailing anti-disclosure interest which outweighed the union's particularized need for information).