[ v20 p357 ]
20:0357(37)CA
The decision of the Authority follows:
20 FLRA No. 37
U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, WASHINGTON, D.C.
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 3230, AFL-CIO
Charging Party
Case No. 9-CA-30238
DECISION AND ORDER
The Administrative Law Judge issued the attached 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. The Respondent filed exceptions to the Judge's
Decision.
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, as modified herein.
The Judge found that the Respondent's failure to provide the American
Federation of Government Employees, Local 3230, AFL-CIO (the Union) with
data necessary for the processing of a grievance pursuant to a request
under section 7114(b)(4) of the Statute constituted a refusal to bargain
in violation of section 7116(a)(1), (5) and (8) of the Statute. We
agree.
Under section 7114(b)(4) of the Statute, an agency has a duty to
furnish, upon request by an exclusive representative and to the extent
not prohibited by law, data which, among other things, is reasonably
available and necessary for full and proper discussion, understanding,
and negotiation of subjects within the scope of collective bargaining.
Such data must be necessary to enable the union to fulfill its
representational responsibilities, including the effective evaluation
and processing of grievances. /1/ However, a union's mere assertion
that it needs data to process a grievance does not automatically oblige
the agency to supply such data. /2/ The duty to supply data under
section 7114(b)(4) thus turns upon the nature of the request and the
circumstances in each particular case. /3/ Therefore, a threshold issue
is whether the data requested by the Union is necessary for full and
proper discussion, understanding and negotiation of subjects within the
scope of collective bargaining.
In this case, the complaint alleged that the Union requested "certain
information including, inter alia, copies of performance appraisals and
disciplinary actions" in order to determine whether to process a
grievance involving the allegation that the Respondent was engaging in a
pattern of discriminatory conduct against employee grievant Arthur
Joyner and other similarly situated male minority employees in the Legal
Unit. The record shows that, following a response to the Respondent's
request that the Union be more specific, the Respondent supplied the
Union with some of the requested data, but denied the Union's specific
request for data concerning performance appraisals, letters of warning,
and all other disciplinary actions issued by the Respondent for all
employees in the Respondent's Seattle District Office Legal Unit during
the period January 1, 1979, to December 7, 1982.
The Respondent contends, and the record reveals, that the only "issue
raised" at the first step meeting was a request for the withdrawal of a
letter of warning issued to the grievant, and that the issue of
discrimination was not raised until the formal written second step. The
Respondent contends that only issues raised in the informal first step
meeting of the parties' grievance procedure may be considered in
determining whether the Union needed the requested data. In the
alternative, the Respondent argues that the Union did not adequately
demonstrate why it needed the performance appraisals, or the data on
disciplinary actions and letters of warning for other similarly situated
employees in the Legal Unit. The Respondent also argues that the
provisions of the Privacy Act /4/ prohibit it from disclosing the
requested data.
In the Authority's view, some of the data requested by the Union was
necessary, within the meaning of section 7114(b)(4) of the Statute, to
enable the Union to determine whether to process the instant grievance.
The theory of the grievance here was that Joyner had been issued a
letter of warning for conduct or performance-related deficiencies for
which no other employee similarly situated in the Legal Unit had been
given a letter of warning in the past. In order to proceed with the
grievance, in our view, the Union needed to have copies of all letters
of warning that had been issued in the past to similarly situated
employees in the Legal Unit, and copies of performance appraisals for
such employees to determine if similar conduct had been singled out
previously as a performance deficiency. However, it is also our view
that the General Counsel has failed to establish that the Union's broad
request for copies of "all other disciplinary action" would be necessary
for the processing of the instant grievance involving the issuance of a
warning letter on an allegedly discriminatory basis. The Authority thus
finds that the General Counsel has demonstrated that only the letters of
warning and performance evaluations issued to other employees in the
Legal Unit, requested by the Union but not furnished by the Respondent,
are necessary under section 7114(b)(4) of the Statute in order for the
Union to determine whether the Respondent had engaged in a pattern of
discriminatory and disparate conduct against the grievant and/or
similarly situated male minority employees. /5/ Having made the
determination that such data is "necessary" within the meaning of
section 7114(b)(4) of the Statute, the Authority must decide whether
disclosure of that data is nevertheless "prohibited by law" from
disclosure within the meaning of section 7114(b)(4) by the Privacy Act.
The Privacy Act regulates the disclosure of any information contained
in an agency "record" within a "system of records" that is retrieved by
reference to an individual's name or some other personal identifier.
/6/ The employees' performance appraisals and letters of warning which
the Union requested are considered records contained within the
Respondent's system of records under the Privacy Act /7/ and are
generally prohibited from disclosure unless one of the specific Privacy
Act exceptions is applicable. /8/ The exception set forth in 5 U.S.C.
552a(b)(2) permits disclosure of Privacy Act-protected information to
the extent that such information is "required" to be released under the
Freedom of Information Act (FOIA). /9/ The theory of the FOIA, in
contrast to the Privacy Act, is that all records in the possession of
the agencies of the Federal Government must be disclosed upon request
unless subject to a specific FOIA exemption. /10/ Under exemption
(b)(6) of the FOIA, an agency is allowed to withhold personnel and
medical files and similar files the disclosure of which would constitute
a clearly unwarranted invasion of privacy. In cases where requests for
individually identifiable records such as promotion and personnel files
are made under the FOIA, the Federal courts apply a balancing test to
determine whether disclosure would result in a clearly unwarranted
invasion of privacy. /11/ For example, in American Federation of
Government Employees, AFL-CIO, Local 1923 v. United States Dep't of
Health and Human Services, 712 F.2d 931 (4th Cir. 1983), the union
sought the home addresses of all unit employees pursuant to the FOIA.
The Court of Appeals for the Fourth Circuit, in evaluating whether the
information sought by the union should be disclosed, balanced the
individual employee's interest in his or her right to privacy and the
possible adverse or harmful effects on the individual which could result
from disclosure against the public's interest in having the information
made available. The District Court for the District of Columbia applied
the same balancing test in Celmins v. United States Dep't of Treasury,
457 F.Supp. 13 (D.D.C. 1977), in determining whether the agency was
required to disclose the promotion file and the other promotion
documents requested under the FOIA by unsuccessful promotion applicants.
The data requested by the Union here is similar to the information
requested under the provisions of the FOIA, in a sanitized or
non-sanitized form, after the agency or the court makes a determination
that such disclosure would not result in a clearly unwarranted invasion
of the individual's privacy. Therefore, the Authority has concluded
that disclosure of the information contained in the employees' files
pursuant to the Union's request under section 7114(b)(4) of the Statute
is not per se prohibited by law but is subject to the same scrutiny and
the same balancing test which is applied by the courts in evaluating
FOIA requests under the 5 U.S.C. 522(b)(6) exemption.
The balance to be drawn under the FOIA's (b)(6) exemption is one
between the protection of the individual's right to privacy and the
promotion of important public interests. In determining whether
"necessary" data under section 7114(b)(4) of the Statute should be
disclosed to the Union, the Authority will balance the necessity of the
data for the Union's purposes against the degree of intrusion on the
individual's privacy interests caused by disclosure of the data. /12/
Applying the standard set forth in AAFES to this case, the Authority
finds that it is necessary for the Union to know the gender and minority
status of the employees to whom the appraisals and letters of warning
were issued in order to compare them with the grievant and other
similarly situated male minority employees, and thus to determine
whether the Respondent has engaged in a pattern of discriminatory
conduct. /13/ However, the Authority notes that the names and other
personal identifiers of the employees in the Legal Unit need not be
included in the documents disclosed to the Union, as they would not
significantly aid the Union in processing this grievance. /14/ Thus the
Authority finds that, as the names and personal identifiers of the
employees in the Legal Unit will not be linked with their performance
appraisals or letters of warning, it is unlikely that their identities
will become known even if the data which the Authority has determined to
be necessary is disclosed. Further, the Authority notes that the
necessary data requested would only be used by the Union to process a
grievance and there is no indication in the record that the data would
become generally know. /15/ In striking the balance between the
individual employees' privacy interests and the Union's need for the
data found necessary in the circumstances of this case, the Authority
has considered the limited circulation that the documents are likely to
receive and the fact that the names and personal identifiers of the
employees will not be disclosed. Therefore, in view of the Union's need
for the data found necessary in order to pursue its representational
duties, compared to the limited intrusion on the privacy of other
employees, the Authority finds that disclosure of that data would not
result in a clearly unwarranted invasion of such employees' privacy.
Further, in the circumstances of this case, the Authority finds that
disclosure of the data serves to ensure that the government fairly
follows its own procedures and encourages the use of nondisruptive
grievance procedures. /16/
Therefore, the Authority concludes that the Respondent violated
section 7116(a)(1), (5) and (8) of the Statute by failing to furnish the
Union with necessary data. The information found necessary should be
furnished to the Union in a form which includes data sufficient to show
the gender and minority status of the employees to whom the performance
appraisals and letters of warning were issued, without revealing the
employees' names or personal identifiers. /17/
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority hereby orders that the
U.S. Equal Employment Opportunity Commission, Washington, D.C. shall:
1. Cease and desist from:
(a) Failing and refusing to furnish, upon request by the American
Federation of Government Employees, Local 3230, AFL-CIO, the exclusive
representative of its employees, the data which the Authority has deemed
necessary to enable the exclusive representative to perform its
representational duties in connection with Arthur Joyner's grievance.
(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 Statute:
(a) Upon request, furnish the American Federation of Government
Employees, Local 3230, AFL-CIO, the exclusive representative of its
employees, the data which the Authority has deemed necessary to enable
the exclusive representative to perform its representational duties in
connection with Arthur Joyner's grievance.
(b) Post at its facility at the Seattle District Office, 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 District Director, or a 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
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 IX, 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., September 26, 1985
(s) HENRY B. FRAZIER III
Henry B. Frazier III, Acting
Chairman
(s) WILLIAM J. MCGINNIS, JR.
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 fail or refuse to furnish, upon request by the American
Federation of Government Employees, Local 3230, AFL-CIO, the exclusive
representative of our employees, the data which the Authority has deemed
necessary to enable the exclusive representative to perform its
representational duties in connection with Arthur Joyner's grievance.
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
Federal Service Labor-Management Relations Statute.
WE WILL, upon request, furnish the American Federation of Government
Employees, Local 3230, AFL-CIO, the exclusive representative of our
employees, the data which the Authority has deemed necessary to enable
the exclusive representative to perform its representational duties in
connection with Arthur Joyner's grievance.
(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, Region IX, Federal Labor Relations Authority, whose address
is: 530 Bush Street, Room 542, San Francisco, California 94108, and
whose telephone number is: (415) 556-8106.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 9-CA-30238
Sandra G. Bryan
Counsel for Respondent
Arthur J. Joyner
Counsel for Charging Party
Josanna Berkow
Counsel for the General Counsel
Federal Labor Relations Authority
Before: ELI NASH, JR.
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on June 8, 1983,
by the Regional Director for the Federal Labor Relations Authority, San
Francisco, California Region, a hearing was held before the undersigned
on August 11, 1983.
This proceeding arose under the Federal Service Labor-Management
Relations Statute (herein called the Statute). It resulted from a
charge filed on March 1, 1982 and amended on May 31, 1983, by American
Federation of Government Employees, Local 3230, AFL-CIO, (herein called
the union) against the United States Equal Employment Opportunity
Commission (herein called respondent).
The Complaint alleges that respondent failed and refused to comply
with the provisions of section 7114(b)(4) of the Statute, by failing to
provide the union with data, requested in connection with the processing
of an employee grievance, which is normally maintained by an agency in
the regular course of business; which is reasonably available and
necessary for full and proper discussion of a subject within the scope
of collective bargaining; and which does not constitute guidance,
advice, counsel or training concerning collective bargaining. Such
action was alleged to constitute a violation of section 7116(a)(1), (5)
and (8) of the Statute. Respondent's Answer denied the Commission of
any unfair labor practices.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter, briefs were filed with the
undersigned which have been duly considered.
Upon the entire record herein, from my observations of the witnesses
and their demeanor, and from all of the testimony and evidence adduced
at the hearing, I make the following findings and conclusions:
Findings of Fact
At all times material the union has been an agent of the National
Council of EEOC Locals No. 216, American Federation of Government
Employees, AFL-CIO (NCAFGE) for purposes of representing employees at
respondent's Seattle District Office.
At all times material, Arthur Joyner, a senior trial attorney in
respondent's Seattle District Office has also served in the capacity of
union steward in that office.
Sometime around December 2, 1982, Mr. Joyner received a Letter of
Warning from Regional Attorney, Michael Reiss. The basis for the
warning letter was an error in research committed by Mr. Joyner.
Shortly thereafter, on December 7, 1982, Mr. Joyner served a document
entitled "Request for Information Grievance 3230A820011, Joyner Warning
Letter on Respondent's District Manager, Donald Muse."
The above request sought information involving performance appraisals
and disciplinary actions issued to the eight to ten attorneys employed
in respondent's Seattle District Office. According to the union, this
information was requested in order to allow it to determine whether its
allegations of harrassment and retaliation, race discrimination, failure
to train and failure to evaluate were worth pursuing in a potential
grievance. Indeed a grievance was subsequently filed against respondent
by the union on December 27, which contained allegations of disparate
treatment.
On December 20, between the time of the request for information on
December 7, and the filing of the grievance on December 27, a first step
informal meeting, as defined in Article 46 of the collective bargaining
agreement, was held between Mr. Reiss and Willie White, another union
steward. The union allegedly did not file a formal grievance until
after the first step meeting in part because Mr. Joyner was waiting to
receive the information he had requested to determine whether he should
include an allegation of disparate treatment in any formal grievance he
might file.
On January 4, 1983, Mr. Joyner received a memorandum dated December
22, from the District Manager Donald Muse, in which Mr. Muse suggested a
meeting to discuss the union's information request of December 7. Mr.
Muse's memorandum also stated that some of the requested items were not
available at all and that other items were not readily available. Mr.
Muse's correspondence did not indicate any Privacy Act concerns in
providing the Union the requested information at that time.
Subsequently, Mr. Joyner responded by memorandum dated and delivered on
January 5, 1983, requesting to meet with Mr. Muse on the information
request.
Thereafter, on January 6, 1983, Mr. Joyner received a telephone call
from Ms. Ethel Rocco, respondent's Administrative Officer, Seattle
District Office. Ms. Rocco stated that Mr. Muse had designated her to
meet with Mr. Joyner on the information request. Mr. Joyner responded
that he saw no point in meeting with Ms. Rocco since he had not received
any written response from respondent on his information request in the
month it had been pending and because he did not believe that Ms. Rocco
had the authority to resolve any questions regarding the disclosure of
the requested information. Indeed, Ms. Rocco testified on
cross-examination that she had no authority to make decisions as to what
information, if any, would be provided to the union. Ms. Rocco had
concerns for things such as might be generated by the request such as
medical records which are not supplied. She also testified that her
understanding is that disciplinary actions such as those requested
herein, under OPM and Privacy Act requests could not be released unless
there was a legitimate grievance. Furthermore, Ms. Rocco testified that
such a request would require exposing an entire file. However, there is
no indication that the union ever sought or expected any underlying
data.
About January 10, 1983, Mr. Joyner received a memorandum from Ms.
Rocco which summarized her recollection of the aforementioned telephone
conversation. Ms. Rocco made no mention of the Privacy Act in her phone
conversation with Mr. Joyner, or in her subsequent memorandum.
Furthermore, did she at any time offer to provide the union with
sanitized copies of the requested information. On January 11, 1983, Mr.
Joyner responded to Ms. Rocco summarizing his version of the telephone
conversation and again requesting a written statement from management
regarding any objections to providing the requested information to the
union.
Later, on January 24, 1983, Mr. Joyner received another memorandum
from Mr. Muse regarding the information request. Mr. Muse provided some
information regarding delegation delegation of authority and training,
but denied the union's request for the performance appraisals and
disciplinary actions of like employees in the Seattle District Office.
Mr. Muse stated for the first time that the requested disciplinary
actions and performance appraisals were not disclosable under the
Privacy Act and that their relevance to Joyner's Letter of Warning was
questionable.
Mr. Joyner responded by memorandum dated January 27, 1983,
reiterating the union's request for the outstanding information and
asserting its relevance to the allegations of the grievance concerning
disparate treatment. Mr. Joyner further claimed special status under
the Privacy Act as a labor organization. By memorandum dated February
4, 1983, Mr. Muse again stated his refusal to provide the union with the
requested performance appraisal and disciplinary actions reiterating
that the relevance of the information had not been established and that
the union's right to the information did not outweigh the employee's
right to privacy. At no time did Mr. Muse raise any specific privacy
disclosure problems with the union nor did he offer the union any
sanitized copies of the requested information.
Mr. Muse testified that in his District, he is the sole determiner of
what is relevant or necessary. Further, he testified that the next
determiner of relevancy was the Agency's Chairman. I do not credit
Muse's testimony with regard to determining relevancy in grievance
matters. Curiously Mr. Muse testified on cross-examination that he
never contended the information sought was not relevant but stated only
that the union had to justify relevancy.
At the date of the hearing, the union had not received the
performance appraisals and disciplinary actions requested on December 7.
A grievance is currently pending arbitration.
The requested performance appraisals and disciplinary actions were
regularly maintained by respondent in its Seattle District Office.
Performance appraisals are maintained indefinitely by respondent in
employees' personnel files. Disciplinary records are similarly
maintained by respondent in the Seattle District Office.
Issues
1. Whether the information requested by the union on December 7,
1982, was necessary and relevant information within the meaning of
Section 7114(b)(4) of the Statute.
2. Whether Respondent's Privacy Act contentions justify its refusal
to provide the requested information.
Discussion
This is a case where an exclusive representative requested
information which it deemed necessary and relevant to enable it to
effectively carry out its representational obligation during the
processing of an employee grievance. Section 7114(b)(4) of the Statute
requires management to furnish a union information which enables it to
perform those representational obligations and a respondent violates
section 7116(a)(1) and (5) of the Statute if it refuses to do so. See
U.S. Customs Service, Region VII, Los Angeles California, 10 FLRA
251(1982); Veterans Administration Regional Office, Denver, Colorado, 7
FLRA 629, 1982; Department of the Navy, Portsmouth Naval Shipyard, 4
FLRA 619(1980).
In this matter, respondent refused to furnish the union with
necessary and relevant information concerning employee Joyner's
grievance involving a reprimand because initially respondent questioned
the relevancy of some of the information sought, and thereafter because
of what it asserts were Privacy Act considerations.
Section 7114(b)(4) of the Statute requires management to furnish the
exclusive representative with requested information, "to the extent not
prohibited by law, . . . which is reasonably available and necessary for
full and proper discussion, understanding and negotiation of subjects
within the scope of collective bargaining," and it appears to the
undersigned that the information requested by the union herein fully met
the requirements as stated. Therefore, respondent's contention that it
did not have a duty to furnish the requested information because it was
not relevant must be, and is, rejected.
The Privacy Act issue raised by respondent has long been resolved by
the agencies administering federal labor-management relations laws.
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 all given equitable
treatment, while encouraging the use of nondisruptive grievance
procedures, is balanced against an employee's right to privacy. The
exclusive representative's right has consistently been held to outweigh
an employee's loss of privacy. See, Veterans Administration Regional
Office, Denver, Colorado, supra; Veterans Administration Regional
Office, Denver, Colorado, 10 FLRA 453(1982); Veterans Administration,
Iron Mountain, Michigan, 10 FLRA 468(1982). Here, respondent presented
no reason to disturb that balance. In this regard, I find no merit in
respondent's contention that the documents requested were sensitive and
contained potentially damaging contents. Strange as it may seem, these
same documents had been made available to Mr. Joyner prior to his
request in this matter. Such evidence seemingly negates the Privacy Act
arguments raised by respondent. In short, the record suggests reasons
other than Privacy Act considerations for not supplying these documents
to the exclusive representative. Furthermore, respondent although
granted the opportunity showed no reason why the privacy of individual
employees could not be maintained through already existing methods, such
as sanitizing the records. In all the circumstances, it is found that
the conflicting rights established under the Privacy Act, do not, in the
instant matter, outweigh the rights of the exclusive representative to
perform its representational functions.
Based on the foregoing, it is concluded that respondent's 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. /18/ 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 Equal Opportunity Commission,
Washington, D.C., shall:
1. Cease and desist from:
(a) Failing and refusing to provide, American Federation of
Government Employees, Local 3230, AFL-CIO, the employees exclusive
representative, requested information which is necessary and
relevant to enable it 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) Provide, upon request to the American Federation of
Government Employees, Local 3230, AFL-CIO, the employees exclusive
representative requested information which is necessary and
relevant to enable it to perform its representational duties in
connection with an employee grievance.
(b) Post at its Seattle District Office copies of the attached
Notice marked "Appendix A" on forms to be furnished by the
Authority. Upon receipt of such forms, they shall be signed by
the District 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 District 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 IX, 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.
(s) ELI NASH, JR.
ELI NASH, JR.
Administrative Law Judge
Dated: June 18, 1984
Washington, D.C.
APPENDIX A
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 furnish, upon request by the American
Federation of Government Employees, Local 3230, AFL-CIO, all information
necessary and relevant to enable it to perform its representational
duties in connection with an employees' grievance.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce employees in the exercise of rights assured by the Federal
Service Labor-Management Statute.
WE WILL, upon request, make available to Local 3230 all information
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 of compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region IX,
whose address is: 530 Bush Street, Suite 542, San Francisco, California
94108 and telephone number is: (415) 556-8106.
--------------- FOOTNOTES$ ---------------
/1/ U.S. Customs Service, Region VII, Los Angeles, California, 10
FLRA 251, 253(1982); Veterans Administration Regional Office, Denver,
Colorado, 7 FLRA 629(1982).
/2/ See, e.g., United States Environmental Protection Agency, Health
Effects Research Laboratory, Cincinnati, Ohio, 16 FLRA No. 16(1984);
Internal Revenue Service, Buffalo District, Buffalo, New York, 7 FLRA
654(1982).
/3/ See Department of the Treasury, United States Customs Service,
Region IV, Miami, Florida, 18 FLRA No. 53(1985); Army and Air Force
Exchange Service (AAFES), Fort Carson, Colorado, 17 FLRA No. 92(1985)
(hereinafter AAFES), petition for review filed sub nom. American
Federation of Government Employees, Local 1345 v. FLRA, No. 85-1378
(D.C. Cir. June 21, 1985); United States Environmental Protection
Agency, Health Effects Research Laboratory, Cincinnati, Ohio, 16 FLRA
No. 16(1984).
/4/ Privacy Act of 1974, Pub. L. No. 83-579, 88 Stat. 1896 (codified
as amended at 5 U.S.C. 552a(1982)).
/5/ In so concluding, the Authority does not pass upon the merits of
the Respondent's contention that the issue of alleged discrimination
against the grievant was precluded by the parties' agreement on the
basis that the matter had not been raised at the first step of the
negotiated grievance procedure. As the Authority has previously noted,
the resolution of such grievability questions cognizable under law is
for an arbitrator under the parties' agreement unless they mutually
agree otherwise, and the existence of such a threshold question herein
would not in and of itself relieve the Respondent of its obligation to
furnish otherwise necessary information pursuant to section 7114(b)(4)
of the Statute. See, e.g., U.S. Customs Service, Region VII, Los
Angeles, California, 10 FLRA 251, 253-54(1982). But see Director of
Administration, Headquarters, U.S. Air Force, 17 FLRA No. 58(1985),
wherein the Authority held that if the underlying matter is not
cognizable under law (e.g., the filing of a grievance concerning a
probationary employee's termination), then the question may not go to an
arbitrator. It follows that in the latter circumstances, unlike here,
there would be no section 7114(b)(4) obligation to furnish such data for
the purpose that the exclusive representative was seeking it.
/6/ 5 U.S.C. 522a(a)(4)-(5)(1982).
/7/ OPM/GOVT-1, 47 Fed.Reg. 16467, 16490(k)(1982).
/8/ 5 U.S.C. 522a(b)(1)-(12)(1982).
/9/ Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 256
(codified as amended at 5 U.S.C. 522(1982)).
/10/ 5 U.S.C. 522(a)-(b)(1982).
/11/ See, e.g., American Federation of Government Employees, AFL-CIO,
Local 1923 v. United States Dep't of Health and Human Services, 712 F.2d
931 (4th Cir. 1983); Celmins v. United States Dep't of Treasury, 457
F.Supp. 13 (D.D.C. 1977). See also Department of the Air Force v. Rose,
425 U.S. 433(1976), wherein the Court stated that the (b)(6) exemption
of the FOIA involves a balancing of the interests of the individuals in
their privacy against the interests of the public in being informed.
/12/ See AAFES, supra. See also Bureau of Alcohol, Tobacco and
Firearms, National Office, Washington, D.C., 18 FLRA No. 74(1985).
/13/ See Celmins v. United States Dep't of Treasury, 457 F.Supp. 13
(D.D.C. 1977).
/14/ See Celmins v. United States Dep't of Treasury, supra, 457
F.Supp. at 17; Bureau of Alcohol, Tobacco and Firearms, National
Office, Washington, D.C., supra.
/15/ Should the information become widely circulated, the Authority
would necessarily take this experience into account in future similar
cases.
/16/ See AAFES, supra note 3 at p. 629, citing Celmins, supra note
11.
/17/ In view of our finding that the Union's need for the requested
data outweighs the limited intrusion on the employees' privacy, the
Authority finds it unnecessary to pass upon and specifically does not
adopt the Judge's further findings with regard to the sensitivity of the
data.
/18/ The General Counsel's unopposed Motion To Correct Transcript is
granted.