[ v17 p685 ]
17:0685(100)CA
The decision of the Authority follows:
17 FLRA No. 100
U.S. OFFICE OF PERSONNEL MANAGEMENT
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
LOCAL 32, AFL-CIO
Charging Party
Case No. 3-CA-20383
DECISION AND ORDER
The Administrative Law Judge issued his Decision in the
above-entitled proceeding, finding that the Respondent had engaged in
the unfair labor practices alleged in the complaint and recommending
that it be ordered to cease and desist therefrom and take certain
affirmative action. Thereafter, the Respondent filed exceptions to the
Judge's Decision and a supporting brief and the General Counsel filed an
opposition thereto.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority hereby adopts the
Judge's findings, conclusions and recommended Order. Thus, the
Authority agrees that the Respondent violated section 7116(a)(1), (5)
and (8) of the Statute by refusing to furnish to the exclusive
representative of its employees data reasonably available and necessary
for the Union to perform its representational function within the
meaning of section 7114(b)(4) of the Statute. In adopting this
conclusion, the Authority rejects, for the reasons fully set forth in
Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 17
FLRA No. 92 (1985), the Respondent's contention that the release of the
data sought was prohibited by the Privacy Act of 1974, Pub. L. No.
83-579, 88 Stat. 1896 (codified as amended at 5 U.S.C. 552a (1976)).
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 U.S. Office of Personnel Management, Washington,
D.C., shall:
1. Cease and desist from:
(a) Refusing to provide to the American Federation of Government
Employees, Local 32, AFL-CIO, the employees' exclusive representative,
all requested data reasonably available and necessary for it to properly
perform its representational function in connection with the grievance
filed by employee Sally Cottam on January 6, 1982.
(b) In any like or related manner interfering with, restraining, or
coercing its 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 Federal Service Labor-Management Relations
Statute:
(a) Upon request, provide to the American Federation of Government
Employees, Local 32, AFL-CIO, the employees' exclusive representative,
all requested data reasonably available and necessary for it to properly
perform its representational function in connection with the grievance
filed by employee Sally Cottam on January 6, 1982.
(b) Post at its facilities in Washington, D.C. 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, or his designee, and shall be posted and maintained for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that such
Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, 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.
Issued, Washington, D.C., April 23, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to provide the American Federation of Government
Employees, Local 32, AFL-CIO, the employees' exclusive representative,
all requested data reasonably available and necessary for it to properly
perform its representational function in connection with the grievance
filed by employee Sally Cottam on January 6, 1982. WE WILL NOT in any
like or related manner interfere with, restrain, or coerce our employees
in the exercise of their rights assured by the Statute. WE WILL, upon
request, provide to the American Federation of Government Employees,
Local 32, AFL-CIO, the employees' exclusive representative, all
requested data reasonably available and necessary for it to properly
perform its representational function in connection with the grievance
filed by employee Sally Cottam on January 6, 1982.
(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 its provisions,
they may communicate directly with the Regional Director for the Federal
Labor Relations Authority, Region III, whose address is: P.O. Box
33758, Washington, D.C. 20033-0758 and whose telephone number is: (202)
653-8452.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 3-CA-20383
D. Randall Frye, Esq.
For the General Counsel
Eugene N. Scallan and
Stuart M. Foss, Esqs.
For the Respondent
Before: ELI NASH, JR., Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101
et seq. (hereinafter referred to as the Statute) and the Rules and
Regulations of the Federal Labor Relations Authority, 5 C.F.R.Chapter
XIV, Sec. 2410 et seq.
On July 19, 1982, the Regional Director for Region 3 of the Federal
Labor Relations Authority (hereinafter called the Authority) pursuant to
charges originally filed by the American Federation of Government
Employees, Local 32, AFL-CIO (hereinafter called the Union) issued a
Complaint and Notice of Hearing alleging that the U.S. Office of
Personnel Management (hereinafter called Respondent) engaged in unfair
labor practices within the meaning of section 7116(a)(1), (5) and (8) of
the Statute by denying a request for necessary and relevant information
to prepare an employee grievance thereby failing to comply with section
7114(b)(4)(A), (B) and (C) of the Statute and refusing to negotiate in
good faith with the Union.
Respondent filed an Answer denying commission of any unfair labor
practices.
A hearing in this matter was conducted before the undersigned at
Washington, D.C. All parties were represented by counsel and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, to introduce evidence and to argue orally. Also all parties
filed timely briefs.
Based upon the entire record in this matter, including my observation
of the witnesses and their demeanor, and upon my evaluation of the
evidence, I make the following findings, conclusions, and
recommendations.
Findings of Fact
The facts are brief and uncontested.
Respondent and the Union are parties to a collective bargaining
agreement which became effective in May 1960, and which remained in full
force and effect at all times material herein. The aforementioned
agreement contains a full scope grievance procedure with binding
arbitration.
Sometime in 1981, pursuant to the parties collective bargaining
agreement, Steven Weisberg, a Union steward, filed a grievance on behalf
of unit employee, Sally Cottam. The grievance alleged, among other
things, contractual and regulatory violations regarding a performance
appraisal of Ms. Cottam by her supervisor, Patsy Reid. Respondent
resolved this grievance at the fourth step of the grievance procedure by
directing Ms. Reid to prepare two new appraisals. The new appraisals
were to reflect the performance of Ms. Cottam for the periods from: May
15, 1980 to December 13, 1980 and December 14, 1980 to October 14, 1981.
These appraisals were prepared by Ms. Reid during the latter part of
December 1981.
After reviewing the December 1981 appraisals with Ms. Cottam,
Weisberg filed a second grievance regarding the appraisal for the period
December 14, 1980 to October 14, 1981, as it showed that Ms. Cottam's
performance had deteriorated. This grievance also alleged contractual
and regulatory violations regarding the appraisal. At the conclusion of
the third step, the Union decided that it needed additional information
to further pursue the grievance. Accordingly, the Union, by letter
dated February 19, 1982, requested Respondent to provide it with copies
of appraisals for staffing clerks in the same work unit as Ms. Cottam.
This request involved approximately 10-12 such employees.
By letter dated February 24, 1982, Respondent denied the Union's
request stating, inter alia, "we have determined that the information
you have requested is neither relevant nor necessary as outlined in 5
U.S.C. 7114(b)(4). Consequently, we feel that we have no obligation to
provide you with the information you have requested". Respondent
provided no other reason for the denial at that time.
In making its request for the above-mentioned information, the Union
clearly indicated that such information was necessary for its
preparation of the fourth step grievance of Ms. Cottam. Further, Union
steward Weisberg's testimony revealed that the Union needed the
information for the following reasons: (1) Ms. Cottam had been promoted
at the end of her last appraisal period and the Union "considered it to
be highly unusual for an employee's performance to deteriorate markedly
after a promotion"; (2) to ensure that Ms. Cottam was not treated
differently than other employees since she had been active in the Union
and a Union steward; (3) to determine if there was a pattern of
employees' performance deteriorating after a promotion; and (5)
generally to determine if arbitration of the grievance was warranted.
After receipt of Respondent's February 24, 1982, denial of the
Union's information request, Weisberg met with Union President Karen
Boyd. Together they concluded that an "unfair labor practice charge was
in order". Thereafter, Weisberg requested an extension of time to file
the fourth step grievance. Respondent granted a one week extension and
Weisberg prepared the fourth step grievance without the requested
information. Ultimately, Respondent denied the fourth step grievance.
Without the information, the Union concluded that it could not pursue
the grievance further.
Discussion and Conclusions
The principal issue here is whether or not an exclusive bargaining
representative is entitled to be furnished information which is relevant
and necessary to processing a grievance from an employing agency. That
issue has been resolved by the Authority in several recent cases. See,
Veterans Administration Regional Office, Denver, Colorado, 7 FLRA
(1981); Veterans Regional Office, Denver, Colorado, 10 FLRA No. 78;
Veterans Administration, Iron Mountain, Michigan, 10 FLRA No. 79. The
above cited cases leave no doubt that an exclusive representative is
entitled to information which is necessary and relevant to processing a
grievance and that the exclusive representative's right to receive and
an agency's obligation to furnish such information is derived from
section 7114(b)(4) of the Statute. Refusal to supply such information
may, therefore, be violative of section 7116(a)(1), (5) and (8), if it
is established that the requested information is necessary and relevant
for the exclusive representative to perform its representational
functions. Those functions, without question, include the processing of
employee grievances.
The request for information in this case involved performance
evaluations of approximately 10-12 staffing clerks located in the same
work unit as the grievant. The Union representative who requested the
information testified that it was needed for several reasons including
consideration of the highly unusual circumstance of an employee's
performance deteriorating markedly after a promotion; to insure that
the grievant was not treated differently than other employees since she
had been active in the Union and a Union steward; and to generally
determine if arbitration of the grievance was warranted. The latter
reason being highly significant, particularly since the grievance had
already gone through several stages and as part of its representational
function an exclusive representative has an affirmative obligation, in
my view, to determine whether or not a grievance it may be pursuing has
merit or warrants further action on its part. Such consideration is
essential if the exclusive representative is to function effectively in
its role.
Respondent's reply to the request for these performance evaluations
was based on its unilateral observation that "we have determined that
the information you have requested is neither relevant nor necessary as
outlined in 5 U.S.C. 7114(b)(4). Consequently, we feel that we have no
obligation to provide you with the information you have requested."
Respondent argues that the information was not relevant on a twofold
theory combining management's rights to evaluate its employees and upon
its interpretation of the Privacy Act of 1974. The Privacy Act issue
has long been resolved by the agencys administering federal
labor-management relations laws. The case law establishes that an
individual's rights to privacy of his records must be balanced against
the conflicting rights in each case. Where, as here, the right of an
exclusive representative to adequately perform its representational
functions as well as the broad public interest in having the Federal
government operate within its merit promotion system so that its
employees are given equitable treatment, while encouraging the use of
non-disruptive grievance procedures the exclusive representative's right
has been held to outweigh an employee's loss of privacy. Veterans
Administration Regional Office, Denver, Colorado, supra. See also,
Department of the Treasury, Internal Revenue Service, 8 A/SLMR 112
(1978). In this matter, Respondent has offered no reason to disturb
that balance. Furthermore, Respondent offered no cogent reason why the
privacy of individual employees could not be maintained through already
developed methods such as sanitizing those records. In such
circumstances, it is to be found that the conflicting rights established
under the Privacy Act do not, in this case, outweigh the rights of the
exclusive representative to perform its representational functions.
Accordingly, it is found that the Charging Party Union established
the relevancy and necessity of the requested information and
Respondent's denial of the information based on its determination that
the information requested was neither relevant nor necessary violated
section 7116(a)(1), (5) and (8) of the Statute.
Then Respondent contends that supplying the requested information
invades its management rights to evaluate its employees. This
contention misses the point. The record is devoid of any suggestion
that by furnishing the information requested by the Union would in any
way encroach on management's ability to evaluate its employees. In fact
the request is for performance evaluations which have already been made.
In any event, the exclusive representative here sought information
solely in connection with the processing of a particular grievance.
There is no suggestion from the record that the information was sought
to engage in any effort to change the agency's method of employee
evaluation, but merely was to compare the past evaluations with those of
the grievant in order to ascertain whether any inconsistencies existed,
and to determine whether it would pursue this particular grievance any
further. Certainly the Union's action was entirely consistent with its
legitimate function as exclusive representative and does not suggest any
attempt to infringe on a management prerogative as Respondent suggests.
In short, Respondent's argument established no connection between
furnishing this information and any infringement on its right to
evaluate employees. Without such a connection this argument must be
rejected.
Respondent also raises a question regarding application of its Notice
of Systems of Record which it claims prohibits disclosure of the
requested information unless it is relevant and necessary, is also
premised on the distinction it draws between grievances and
negotiations. Admittedly, the routine use exception /1/ cited by
Respondent provides an exception to the Privacy Act when the information
sought is "relevant and necessary to their duties as exclusive
representative". Respondent's own regulations provide an exception
allowing the exclusive representative to obtain information such as
requested here. The Authority repeatedly has held that such information
must be supplied to the exclusive representative where it is relevant
and necessary under section 7114(b). The very law upon which Respondent
relies and Authority precedent permits disclosure to an exclusive
representative of exactly the type information sought by the Union to
"resolve disputes under a negotiated grievance procedure." Thus, even
under the routine use exception the information if relevant and
necessary should be provided to the exclusive representative.
However, Respondent contends that it has retained authority under the
Privacy Act to make reviews of initial agency determinations regarding
access to and amendments to records in those systems under 5 C.F.R.
297.101(a)(3). Thus, Respondent urges that it alone must make the
determination of what is relevant and necessary. Seemingly, this would
be so, even where it is engaged in administering a system involving a
grievance with its own employees. Such a theory, if adopted, would
deprive the exclusive representative of its statutory right to have such
information furnished and indeed disrupts the balance of rights. Under
such an approach Respondent need not take into consideration criteria
which the Authority might use in deciding whether or not the particular
information sought is relevant and necessary. Respondent's argument
notwithstanding the balance of individual rights versus those of the
exclusive representative must be weighed. A review of the legislative
history of the Statute and the Statute itself reveals no restrictions
such as proposed by Respondent on the Authority in making its
determinations. It is, therefore, found that the routine use
exceptions, particularly where employees of the administering agency are
involved infringes on the Authority's duty to determine relevancy and
necessity of requested information in unfair labor practice situations.
To the extent that it conflicts with the Authority's rules and
regulations, I find the routine use exception in applicable. In sum, it
is found that the routine use exception not only does not bar disclosure
of the information requested here, but it supports the exclusive
representative's assertion that it is entitled to be provided
information which it is necessary and relevant for the purpose of
processing a grievance.
Based on the foregoing, it is concluded that Respondents refusal to
furnish the exclusive representative herein with information which was
necessary and relevant to processing a grievance violated section
7116(a)(1), (5) and (8) of the Statute. Accordingly, it is recommended
that the Authority adopt the following:
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations of section 7118 of the Statute, it is
hereby ordered that the United States Office of Personnel Management,
Washington, D.C., shall:
1. Cease and desist from:
(a) Failing and refusing to provide, American Federation of
Government Employees, Local 32, AFL-CIO, the employees' exclusive
representative, requested data which is necessary and relevant to
enable such exclusive representative to perform its
representational duties in connection with an employee's
grievance.
(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 Federal Service Labor-Management Relations
Statute:
(a) We will provide, upon request to the American Federation of
Government Employees, Local 32, AFL-CIO, the employees exclusive
representative requested data which is necessary and relevant to
enable it to perform its representational duties in connection
with an employees grievance.
(b) Post at its facilities in Washington, D.C., 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, and shall be posted and maintained by him
for 60 consecutive days thereafter, in conspicuous places,
including all bulletin boards and other places where notices to
employees are customarily posted. The Director shall take
reasonable steps to insure that such Notices are not altered,
defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, 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.
ELI NASH, JR.
Administrative Law Judge
Dated: February 23, 1983
Washington, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to provide the American Federation of
Government Employees, Local 32, AFL-CIO, the employees' exclusive
representative, requested data which is necessary and relevant to enable
such exclusive representative to perform its representational duties in
connection with an employee's grievance. WE WILL NOT in any like or
related manner interfere with, restrain, or coerce employees in the
exercise of their rights assured by the Statute. WE WILL provide upon
request to the American Federation of Government Employees, Local 32,
AFL-CIO, the employees' representative requested data which is necessary
and relevant to enable it to perform its representational duties in
connection with an employees' grievance.
(Agency or Activity)
Dated: . . . By: (Signature) 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 of
the Federal Labor Relations Authority, Region III, whose address is:
1111 - 18th Street, N.W., Suite 700, Washington, D.C., 20033-0758, and
whose telephone number is: (202) 653-8507.
--------------- FOOTNOTES$ ---------------
/1/ 47 F.R. 3234, January 22, 1982, and compilation at 47 F.R.
1649.3, April 16, 1982:
(e) To disclose information to an arbitration to resolve
disputes under a negotiated grievance procedure or to officials of
labor organizations recognized under 5 U.S.C.Chapter 71 when
relevant and necessary to their duties of exclusive
representation.