|NEBRASKA PUBLIC EMPLOYEES, LOCAL|||||CASE NO. 711|
|NO. 251, AMERICAN FEDERATION OF||||
|STATE COUNTY AND MUNICIPAL||||
|v.|||||DECISION AND ORDER|
|THE CITY OF OMAHA, NEBRASKA,||||
For the Petitioner: Thomas F. Dowd
Dowd, Fahey, Dinsmore & Hasiak
1905 Harney St., Suite 710
Omaha, Nebraska 68102
For the Respondent: Kent N. Whinnery
Deputy City Attorney
804 Omaha/Douglas Civic Center
Omaha, Nebraska 68183
Before: Judges Kratz, Orr, and Peetz
This case is submitted on a joint stipulation of facts and simultaneous briefs. The stipulated facts show that the Petitioner, on February 4, 1988, mailed a written request to Respondent asking for "all transfer lists and all testing results of any classification in (the) bargaining unit." By letter dated February 17, 1988, Respondent replied to Petitioner's request and refused to furnish the transfer lists or the testing results. Respondent's denial of the requested information "is based on a need to maintain confidentiality." Respondent cites Chapter 23 - Personnel as the basis for its confidentiality denial, but admits this provision refers only to the test results and not the transfer lists.
At the time of the afore-described correspondence, the Petitioner and Respondent were parties to a collective bargaining agreement. That agreement is not a part of the evidence, but Exhibit C contains pages 12, 13, 14, 15, 22, 23, 24, 25, 44, and 45 from it. Pages 23 and 24 include Article 11, entitled "Transfers."
Petitioner argues that it is entitled to the requested information because the employer is required to furnish to the Union all relevant information necessary for the Union to properly represent bargaining unit employees in the administration of the collective bargaining agreement. The requested information is relevant, according to Petitioner,because it is directly related to the Union's function as bargaining representative and is reasonably necessary for the performance of that function.
In behalf of these legal propositions, Petitioner cites various court and NLRB rulings and contends those decisions are applicable here because the Nebraska Supreme Court has held that decisions under the National Labor Relations Act are "helpful" in interpreting the provisions of the Commission of Industrial Relations Act. City of Grand Island v. AFSCME , 186 Neb. 711. We have, of course, previously applied NLRB and Court interpretations of the National Labor Relations Act to similar language in the Court of Industrial Relations Act and we agree that those interpretations should be applied in the instant case on the issue
of good faith bargaining.1
Citing Article 11 (transfers), Article 24 (discrimination), and Article 6 (grievance clause) as its basis, Petitioner argues that in order to properly administer the collective bargaining agreement it is necessary for it to receive the transfer lists and the test results. Respondent argues that the requested information does not constitute "terms and conditions of employment," and claims there should be additional bargaining before the Petitioner can ask "for an order compelling the Respondent to provide transfer lists and test results." While the refusal to further discuss disputed items may constitute a refusal to bargain in the negotiation of a new agreement, it is not necessarily a prerequisite to a claim of refusal to bargain over the administration of an existing agreement.
Respondent further argues that the Union's petition is premature inasmuch as there has not been a "refusal" to negotiate.2 - - - - - - - - -- - - - - - - - - - -
Its February 17 letter, in response to the request for information, concludes with the following comment: "if you can provide me with reasons that will allow me to furnish information without violating established policies or ordinances, please advise." Respondent says there should have been a response to this inquiry before the Petition was filed. In this regard, Respondent also says "the Petitioner has not, in any evidentiary sense, demonstrated to the Commission how the requested information affects the employees working conditions."
We agree that the Petitioner's request for information is somewhat vague and incomplete. It doesn't explain the purpose of the request. In the case of Shell Oil Co. v. NLRB (CA-9; 1971) 65 LC 11,679, 441 F. 2d 880, the United States Court of Appeals for the 9th Circuit Court held that the mere fact that information sought from an employer is relevant to the Union's bargaining needs does not make the employer's failure to provide the information unlawful. According to the 9th Circuit Court, the Union must specify the uses for which the information will be put, particularly where the employer has put forth bona fide objections to the form in which the information is requested and offers to meet with the Union to work out a mutually acceptable form. And the NLRB has held that although an employer is contractually required to furnish the Union with the safety and health records of its employees, it is not unlawful for the employer to refuse to do so if the union fails to inform the employer of its purpose in requesting the information. Hanlon and Wilson Co. , 267 NLRB 1264 (1983). Also, in Avco Mfg. Corp. , 111 NLRB 729 (1955), the NLRB said that in the processing of grievances, as contrasted with contract negotiations, the Union is not entitled to information which is not pertinent to grievances.
The limited record provided herein does not explain why the Union wants the information it has requested. If it pertains to grievances, the possibility of grievances, or pertains in some other way to the proper administration of the collective bargaining agreement, then the transfer lists should be provided.
We would conclude, however, that on the basis of the record herein, where the Union says only that it is "requesting the names of all employees on all transfer lists and all testing results of any classification in our bargaining unit," the request for information is not adequate to require the furnishing of that information. Thus, Respondent's argument that the information needn't be provided because the Petitioner has not demonstrated the purpose of the requested information is valid.
That defect, however, is easily cured and if we dismiss this case at this point on this ground, the parties will likely be right back. Therefore, we offer the following opinions of this Commission on the issues raised herein: (1) If the Union shows that the transfer lists are needed because of a possible employee grievance, or for some other reason connected to its responsibility to represent the Petitioner's employees in the administration of the collective bargaining agreement, then they must be provided. (2) We cannot foresee any type of grievance, or any dispute involving the administration of the contract, which would require the employer to furnish the test results.
There is a substantial difference between the two requested items. The collective bargaining agreement makes specific reference to transfers. Article 11 says transfers shall be based on seniority, there shall be a written evaluation of the job performance of the transferred employees, the City can reject a requested transfer, the employee can't transfer more than once in any 12-month period, and the transfer or retransfer shall not be
arbitrarily applied. There is much in this article that needs to be administered by the labor organization that represents the transferring employees. Grievances can arise. Therefore, if the Union, for the purpose of administering the collective bargaining agreement, or discovering or filing a grievance, requests a copy of the transfer list, it must be furnished. In its function of policing the collective bargaining agreement, the union has the right to information which enables it to determine whether the contract is being fairly and impartially administered. Hastings & Sons Publishing Co. , (1953) 102 NLRB 708.
Respondent claims both the transfer lists and test results constitute confidential information and therefore needn't be provided to the Union. This argument is valid with regard to the test results, but not the transfer lists. If there is some need for confideniality with the transfer lists, it does not outweigh the Union's right to receive certain information in order to properly and fairly administer its collective bargaining agreement. LaGuardia Hospital , 260 NLRB 1455 (1981). An employer cannot withhold information on the ground that it is confidential in the absence of any showing of any particular need for confidentiality. Weber Veneer & Plywood Co. , 161 NLRB 1054 (1967). There is nothing in the stipulation of facts in this case that illustrates any particular need for confidentiality with regard to transfer lists. Exhibit B from the stipulation of facts says the transfer lists are not a part of Chapter 23 - Personnel, which requires confidentiality in the test results. Respondent's brief says that employees on the transfer lists don't want other employees to know they are on the transfer list. This claimed fact, however, is not included in the stipulation of facts and even if it were, we would not consider it sufficient to outweigh the union's right to this information.
Subparagraph 2 of Section 1 of Article 11 says that transfers will be "based on seniority" and the Board has held that an employer cannot refuse to furnish its seniority list of unit employees to the union, when requested. Kelly-Springfield Tire Co. , 223 NLRB 878. Also, the United States Court of Appeals for the Fifth Circuit has held that where the collective bargaining agreement between the parties makes seniority a significant factor with respect to employees rights, the Union is entitled to the seniority list in order to enable it to administer the contract properly. NLRB v. Gulf Atlantic Warehouse Co. , (CA-5; 1961) 42 LC 17,003, 291 F. 2d 475.
The request for "testing results" is significantly different. While the collective bargaining agreement delineates procedures for transfer, it says nothing about test results. The Petitioner says it needs these test results in order to prevent employer discrimination. The discrimination clause in the collective bargaining agreement prohibits discrimination because of "race, color, creed, sex, age, UNION affiliation, religious or political affiliations." While it may be that test results play a part in job assignments, there is nothing in the collective bargaining agreement that requires this. The Union's duty to represent properly and impartially the employees in the bargaining unit must relate to the requirements of the collective bargaining agreement.
Furthermore, the confidentiality argument, while often discarded by the Board on the ground that the need for confidentiality is outweighed by the Union's fair representation obligation, and discarded by us on this ground with regard to the transfer lists, is valid with regard to the test results. In the case of Detroit Edison Co. v. NLRB , (U.S.; 1979) S. Ct. 85 LC 11,129, the United States Supreme Court held that the "Board abused its discretion in ordering the company to turn over (psychological) test battery and answer sheets directly to the Union." The employer, according to the Supreme Court, had demonstrated that its interest in maintaining test secrecy might not be adequately protected by the Union. In this case, the Union requested the test scores in connection with its processing of an employee grievance. The company refused the request on the ground of confidentiality and the Supreme Court said "the company's interest in preserving employee confidence in the testing program is well founded."
The Supreme Court also made the following significant comment:
The Board's position appears to rest on the proposition that union interests in arguably relevant information must always predominate over all other interests, however legitimate. But such an absolute rule has never been established, and we decline to adopt such a rule here.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. If the Petitioner shows that it wants the transfer lists because of a grievance, the possibility of a grievance,3 or for any other bona fide reason relating to its obligation to represent the bargaining unit employees in the administration of the collective bargaining agreement, the lists should be provided.
2. Even if the request is based on a claimed grievance, Respondent needn't furnish the test results to the union.4
All judges assigned to the panel in this case join in the entry of this Decision and Order.
Entered June 29, 1988.
1The definition of good faith bargaining in the Commission of Industrial Relations Act (Sec. 48-816(1)) was taken almost verbatim from the National Labor Relations Act definition of good faith bargaining (29 U.S.C. 158 (a)).
2Good faith bargaining does not necessarily require face to face negotiations in this type of dispute inasmuch as we are not dealing with the negotiation of a new collective bargaining agreement, but simply a request for information based on the Union's right to administer the existing collective bargaining agreement.
3A discovery type standard is applied to determine the potential relevance of information requested from an employer by the union representing its employees, NLRB v. Acme Industrial Co. , 385 U.S. 432 (1967), and relevant information is not limited to the investigation of previously-filed grievances, but also includes evaluation of the merits of possible grievances. Westinghouse Electric Corporation , 237 NLRB 106 (1978). Safeway Stores, Inc. , 252 NLRB 1323 (1980).
4In Detroit Edison , the United States Supreme Court said "the sensitivity of any human being to disclosure of information that may be taken to bear on his or her basic competence is sufficiently well known to be an appropriate subject of judicial notice."