[ v21 p517 ]
21:0517(70)CA
The decision of the Authority follows:
21 FLRA No. 70
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION AND SOCIAL SECURITY
ADMINISTRATION FIELD OPERATIONS
NEW YORK REGION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party
Case No. 2-CA-40326
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the General Counsel to the attached Decision of the
Administrative Law Judge. The issue concerns whether the Respondent
violated section 7116(a)(1), (5) and (8) of the Federal Service
Labor-Management Relations Statute (the Statute) by failing and refusing
to furnish the Charging Party (the Union) with information it had
requested pursuant to section 7114(b)(4) of the Statute.
II. Background and Judge's Conclusion
The basic facts in this case are not in dispute, and were stipulated
to the Judge at the hearing. Based upon various "complaints" allegedly
reported to it by employees of the Respondent's Downtown New York
District Office, the Union requested that the Respondent furnish to the
Union certain information pursuant to section 7114(b)(4) of the Statute.
Basically the Union asked that it be furnished the names of all
employees in the District Office who had been during the past 12 months,
or were currently, under a performance improvement plan; the operative
dates of the plans; and the race, sex, color, national origin, religion
and age of all those identified. The Union stated only that the
information requested was "necessary in connection with the processing
of a possible grievance." By an exchange of letters, it became clear
that the Union would accept only unsanitized information, and that the
Respondent refused to furnish the requested information unless the Union
supplied enough of an explanation that would allow management to make an
informal judgment as to whether or to what extent the information sought
was necessary for collective bargaining purposes.
The Judge found that the Respondent was entitled to know why the
information requested was needed by the Union, that the only reason
given was insufficient, and that, in the face of the Union's refusal to
clarify the request the Respondent was not obligated under the Statute
to furnish the information.
The Judge further addressed the arguments raised by the parties in
connection with the Privacy Act, particularly the Respondent's assertion
that the "presumptive relevance theory" asserted by the General Counsel
was inapplicable to the information requests because of Privacy Act
considerations and the General Counsel's contention that the
requirements of the Privacy Act had been met. In Department of Health
and Human Services, Social Security Administration and Social Security
Administration, Field Operations, New York Region, 21 FLRA No. 35
(1986), the Authority basically adopted its Administrative Law Judge's
findings, conclusions and recommended dismissal of the complaint. In
that case, involving these same parties, the Judge noted that even
assuming the information requested was presumptively relevant, since the
Union was seeking unsanitized data of a personal nature, the
Respondent's obligation to adhere to the Privacy Act had to be balanced
against the Union's need for the information. Considering the
Respondent's obligations under the Privacy Act and the Statute, he found
no merit to the General Counsel's "presumptive relevance theory" in the
circumstances of the case, where the necessity of the data to the Union
was never conveyed to the Respondent and such necessity was not apparent
from the surrounding circumstances. The Judge here cited to and adopted
the analysis and reasoning of the Judge in 21 FLRA No. 35, and in the
circumstances of this case recommended that the complaint be dismissed.
III. Positions of the Parties
The General Counsel basically argues that the information sought by
the Union was necessary to enable it to determine whether a grievance or
EEO complaint should be filed under the parties' agreement or to take
other appropriate action; that the Union's explanation that the
information was "necessary in connection with the processing of a
possible grievance" was sufficiently precise, i.e., the requirement of
establishing relevancy and necessity was met because the information was
"presumptively relevant"; and that the Judge erred by failing to find
the violations as alleged. Further, the General Counsel asserts that
the "routine use" exception in the Privacy Act permits the disclosure of
the requested information. More specifically, the General Counsel
asserts that section 552(a)(b)(3) of the Privacy Act permits the
disclosure of the requested information which is contained in a system
of records maintained by the Office of Personnel Management (OPM)
identified as OPM/GOVT-2, "Employee Performance File System Records."
The Respondent, whose arguments before the Judge were basically adopted,
did not file an opposition brief with the Authority.
IV. Analysis
In agreement with the Judge, the Authority finds that the General
Counsel has not met the burden of proving that the Respondent failed to
comply with section 7114(b)(4) of the Statute in violation of section
7116(a)(1), (5) and (8) of the Statute when it failed to furnish the
requested information to the Union. In reaching this conclusion, the
Authority rejects the General Counsel's contention that the information
sought was presumptively relevant. Rather, as the Authority has
previously held, section 7114(b)(4)(B) of the Statute requires that the
information requested be "reasonably available and necessary," Social
Security Administration, Office of Hearings and Appeals, Region II, New
York, New York, 19 FLRA No. 47 (1985), and that a union's bare assertion
that it needs data to process a grievance does not automatically oblige
the agency to supply such data, but the duty to supply data under
section 7114(b)(4) of the Statute turns upon the nature of the request
and the circumstances in each particular case. Army and Air Force
Exchange Service (AAFES), Fort Carson, Colorado, 17 FLRA 624 (1985),
petition for review filed sub nom. American Federation of Government
Employees, Local 1345 v. FLRA, No. 85-1378 (D.C. Cir. June 21, 1985).
In the instant case, the record reveals that the Union failed and
refused to explain why it was seeking the information despite
management's reasonable requests for clarification so that it could make
an informed judgment as to whether or to what extent the information
sought was necessary for collective bargaining purposes. Thus, under
such circumstances, the Authority finds that the Respondent did not
unlawfully refuse to furnish the data sought by the Union. See
Department of Health and Human Services, Social Security Administration
and Social Security Administration, Field Operations, New York Region,
21 FLRA No. 35 (1986); Internal Revenue Service, Buffalo District,
Buffalo, New York, 7 FLRA 654 (1982). /1/
V. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds that no prejudicial error was
committed, and thus affirms those rulings. The Authority has considered
the Judge's Decision, the exceptions to that Decision, the positions of
the parties and the entire record, and adopts the Judge's findings,
conclusions and recommended Order except as noted in the footnote. We
therefore conclude that the Respondent did not fail to comply with
section 7114(b)(4) in violation of section 7116(a)(1), (5) and (8) of
the Statute when it refused to provide the information sought by the
Union. Accordingly, the complaint shall be dismissed.
ORDER
IT IS ORDERED that the complaint in Case No. 2-CA-40326 be, and it
hereby is, dismissed in its entirety.
Issued, Washington, D.C., April 28, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 2-CA-40326
DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY
ADMINISTRATION and SOCIAL SECURITY ADMINISTRATION FIELD
OPERATIONS, NEW
YORK REGION
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
Charging Party
Thomas H. Gabriel, Esq.
For the Respondent
Cecilia McCarthy, Esq.
For the Charging Party
Joel Hornstein, Esq.
E. A. Jones, Esq.
For the General Counsel
Before: SAMUEL A. CHAITOVITZ
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding arising under the Federal Service
Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S.
Code, 5 U.S.C. Section 7101 et seq., 92 Stat. 1191, (hereinafter
referred to as the Statute) and the Rules and Regulations of the Federal
Labor Relations Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410, et
seq.
The charge in this matter was filed by the American Federation of
Government Employees, AFL-CIO (herein called the Charging Party or the
Union) against the Department of Health and Human Services, Social
Security Administration, and Social Security Administration Field
Operations, New York Region (herein collectively called the Respondent),
on May 1, 1984. On June 20, 1984, the General Counsel of the FLRA by
the Regional Director for Region II issued a Complaint and Notice of
Hearing alleging that Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Sections 7116(a)(1), (5)
and (8) of the Statute, by failing and refusing to furnish the Union
certain necessary and relevant information relating to the issuance of
Performance Improvement Plans (PIPs) at Respondent's Downtown New York
District Office, which information was necessary and relevant in order
to determine whether a grievance should be filed under the parties'
collective bargaining agreement.
On July 17, 1984, Respondent filed an answer denying the substantive
allegations of the complaint.
A hearing was held before the undersigned in New York, New York and
the Union, Respondent and General Counsel of the FLRA were represented.
All parties had the opportunity to examine witnesses, submit documents
and other evidence. All parties entered into an extensive stipulation
of facts. Post-hearing briefs have been filed and duly considered.
Based upon the entire record herein I make the following:
Findings of Fact
At all times material herein, the Department of Health and Human
Services, Social Security Administration (herein called DHHS SSA), has
been, and is now, an agency within the meaning of Section 7103(a)(3) of
the Statute. Additionally, SSA Field Operations, New York Region, has
been, and is now, a constituent entity within DHHS SSA and an agent
acting on its behalf. The SSA Downtown New York District Office has
been, and is now, a constituent entity within DHHS SSA and an agent
acting on its behalf.
At all times material herein, the Charging Party has been, and is
now, a labor organization within the meaning of Section 7103(a)(4) of
the Statute. Additionally, the Union has been, and is now, the
certified exclusive collective bargaining representative for a
consolidated, nationwide unit of certain employees of Respondent,
including all employees employed in the District and Branch Offices of
DHHS SSA in the States of New York and New Jersey, with exclusions not
relevant herein. Pursuant to appropriate delegations of authority, the
American Federation of Government Employees, Local 3369, AFL-CIO (AFGE
Local 3369), has been recognized by Respondent as the agent of the Union
for the purposes of collective bargaining at the SSA Downtown New York
District Office. The parties are operating under a national collective
bargaining agreement (herein called the Agreement) effective June 11,
1982.
During late February and March of 1984, several unit employees from
Respondent's Downtown New York District Office contacted AFGE Local 3369
President John Riordan. Riordan subsequently discussed complaints made
by these employees with AFGE Local 3369's on-site representative at
Respondent's Downtown New York District Office. Based on the complaints
of the employees and the discussion with the on-site representative, the
Union believed that potential discrimination complaints and/or
grievances existed regarding Equal Employment Opportunity (herein called
EEO) matters or the issuance of Performance Improvement Plans (herein
called PIPs) at Respondent's Downtown New York District Office. A PIP
may have serious consequences for an employee, including possible denial
of a within-grade-increase, an adverse action or a reassignment. A PIP
is a written plan prepared for an employee who in his or her
supervisor's judgment is failing to meet one or more critical elements
of his or her generic job tasks (performance standards) and/or may be
denied his or her next within-grade-increase (herein called a WIGI). A
PIP may result in a possible denial of a WIGI. It may also lead to an
adverse action or a reassignment. For probationary employees, a PIP may
lead directly to termination. PIPs last for a specific period of time,
usually 60 or more days.
Article 24 of the Agreement concerns grievance procedures. Under
Section 9 of Article 24, an employee, or the Union on behalf of an
employee or employees, can file a grievance regarding EEO matters or PIP
issues. Section 10 of Article 24 permits the Charging Party to file a
Union-Management grievance concerning EEO matters or PIP issues.
Additionally, Article 18, Section 5 of the Agreement provides for the
filing of an EEO complaint under Respondent's "agency EEO complaint
procedure." Finally, Article 24, Section 8 of the Agreement provides for
discussion with an EEO counselor prior to the filing of an EEO
complaint.
Based on the information from the employees of the Downtown District
Office and the Union's belief that potential grievances or complaints
existed, Riordan, by letter dated March 30, 1984, requested certain
information from the District Manager of Respondent's Downtown New York
District Office, Jefferson Woodcox. Pursuant to Section 7114(b) of the
Statute, Riordan requested:
1. Names and positions of all employees in the Downtown
district office currently under a performance improvement plan
(PIP) in accordance with Article 21, Section 7, C of the National
Agreement.
2. Dates that PIPs were initiated for each employee.
3. Names and positions of all employees in the Downtown
district office that were placed on a PIP in the last twelve
months but not currently on a PIP.
4. Dates that PIPs were initiated and concluded for each
employee.
5. Please provide the race, sex, color, national orgin (sic),
religion (if known) and indicate if employee is age forty or above
for all employees given PIPs in (1) and (3) above.
Additionally, the letter stated that the information requested was
"necessary in connection with the processing of a possible grievance."
This was the sole reason made known to the Respondent for the data
requested.
The information requested in the March 30, 1984 letter in numbered
paragraphs (1) through (4) and in paragraph (5) as to race, sex and age
was normally maintained by Respondent in the regular course of business
and did not constitute guidance, advice, counsel or training provided
for management officials or supervisors relating to collective
bargaining. Additionally, the information sought was not available to
the Union from any other source.
Charging Party requested the names and positions of employees
currently on PIPs and the dates the PIPs were initiated because it would
enable the Union to determine whether management had issued a
disproportionate number of PIPs and because such information would be
relevant in determining whether to file a grievance or an EEO complaint.
The Union also sought the dates that PIPs were initiated for the
purpose of correlating the PIPs and other possible contemporaneous
actions by, against or involving the unit employees. The Union sought
the identification of employees on PIPs in the prior twelve months and
the dates of the PIPs because only a few employees might have been on
PIPs at the time of the March 30, 1984 request, but additional employees
might have been on and completed PIPs prior to that date. The
information was relevant for determining whether a disproportionate
number of employees were on PIPs and whether such PIPs were related to
other actions involving the employees. These facts would help determine
whether a grievance or complaint would be filed. Finally, the
information regarding the race, sex, color, national origin, religion
and age of the employees issued PIPs in the prior twelve months was
requested to enable the Union to determine whether to file a grievance
or an EEO complaint. The information requested was required and
requested in unsanitized form in order to permit the Union to
investigate and pursue fully any potential grievances or EEO complaints
under the negotiated grievance procedure or the agency EEO procedure.
By letter dated April 10, 1984, District Manager Woodcox refused to
furnish the information requested by Riordan in the March 30, 1984
letter. Woodcox stated that Riordan's request appeared to address the
same issue as an information request made by another official of AFGE
Local 3369. Woodcox also indicated if that were not the case, he wanted
to know the issue and whether it related to an EEO complaint. Woodcox
explained that this information would assist him in deciding whether or
not to release, in an unsanitized format, some or all of the data the
Union had requested.
By letter dated April 16, 1984, Riordan replied to Woodcox's letter
of April 10, 1984. Riordan indicated his information request did not
address the same issues as the request Woodcox had received from another
Union official. He repeated that the sole purpose for the information
was a "possible grievance." He also explained that information in a
sanitized format would not allow the Union to determine whether it
should file a grievance. Riordan acknowledged that a small part of his
request may have been duplicative of the request of the other Union
official, but he asked Woodcox to furnish to him all the information
that he had requested that was not duplicative after furnishing the
duplicative information to the other Union official.
By letter dated April 24, 1984, Woodcox again refused to furnish the
information requested by the Union in the March 30 and April 16, 1984
letters. Woodcox stated in the letter that duplication of information
was no longer a problem. Additionally, he informed Riordan that in
order to provide data in an unsanitized form, he needed to know "the
precise nature of the potential grievance" so that he could determine
whether the requested information in unsanitized form was necessary and
relevant. Woodcox further stated that unless he was informed of the
precise nature of the potential grievance, he could only provide Riordan
with a sanitized list of employees currently under a PIP. Finally,
concerning the Union's request for data on race, national origin and
religion, Woodcox stated that he could not visually ascertain these
characteristics and would not consider asking such questions of the
employees involved.
Since April 24, 1984, Respondent has failed and refused to furnish to
the Charging Party the information requested by it in numbered
paragraphs (1) through (4) and paragraph (5) as to race, sex and age of
the March 30, 1984 letter. Other than the correspondence referred to
above, no other communications between the parties regarding Charging
Party's information request have occurred. At no time has Respondent
contended that the information, requested in paragraph (1) through (4)
and paragraph (5) as to race, sex and age of the March 30, 1984
information request, is not reasonably available. /2/ Respondent never
advised the Charging Party as to the availability of the information
requested in the March 30, 1984 letter relating to the color, national
origin and religion of the employees on PIPs in the prior twelve months.
Discussion and Conclusions of Law
General Counsel of the FLRA contends that the information requested
by Charging Party regarding the PIPs was necessary and relevant to
enable Charging Party to determine whether to file a grievance or EEO
complaint under the agreement and therefore Respondent's failure to
furnish the data violated Sections 7116(a)(1), (5) and (8) of the
Statute.
Section 7114(b)(4) of the Statute sets forth the duty of Respondent
to furnish data, upon request, to the Charging Party, the exclusive
collective representative or its authorized agent, AFGE Local 3369. The
obligation to provide data encompasses information that: (A) is
normally maintained by the agency in the regular course of business;
(B) is reasonably available; (C) is necessary for full and proper
discussion, understanding and negotiation of subjects within the scope
of collective bargaining; (D) does not constitute guidance, advice,
counsel or training provided for management officials or supervisors
relating to collective bargaining; and (E) is not prohibited from
disclosure by law. The record is clear in this case that the Union
requested the names and positions of all employees currently on PIPs and
the dates such PIPs were initiated; the names and positions of all
employees on PIPs in the prior twelve months and the dates of such PIPs;
and the race, sex, color, national origin, religion and age of the
above employees. Further, the record clearly demonstrates that all of
the information, with the exception of the data regarding color,
national origin and religion, was normally maintained by Respondent in
the regular course of business. Equally clear from the record is the
fact that the information, with the same exceptions mentioned above,
does not constitute guidance, advice, counsel or training provided to
management officials or supervisors relating to collective bargaining.
Finally, it appears from the record that the requested information, with
the same exceptions noted above, was reasonably available to Respondent.
Respondent has not claimed otherwise and it is reasonable to assume
that the information, relating as it does to the identity and work
performance of unit employees, would be reasonably available to the
supervisors of those employees, including District Manager Woodcox.
Respondent essentially contends that the Union was obligated to
advise Respondent at the time of the request of the relevancy and
necessity of obtaining the information in an unsanitized form and the
Union's failure to do so, when so requested, privileged Respondent's
refusal to furnish the data. General Counsel of the FLRA argues the
information sought was of such a nature as to be presumptively relevant
and necessary and therefore, the Union was not required to provide
Respondent with any specific showing of relevancy and necessity.
Respondent argues that the presumptive relevance theory is inapplicable
to the requests herein, especially in view of the requirements of the
Privacy Act of 1974, 5 U.S.C. Section 552a. In Department of Health and
Human Services, Social Security Administration, and Social Security
Administration Field Operations, New York Region, OALJ 85-56 (1985),
Administrative Law Judge Salvatore J. Arrigo analyzed in detail the
state of the law with respect to the Section 7114(b)(4) rights of labor
organizations to information, Respondent's rights to know why the
information is needed and the area of presumptive relevancy. Judge
Arrigo discussed, in detail, both the cases under the Statute and in the
private sector. I adopt his analyses, reasoning and conclusions in this
regard, especially when he states at page 23 of his decision:
"Rather I conclude that under the Statute when unsanitized
personal information is sought wherein Privacy Act considerations
are legitimately raised, sufficient facts demonstrating a union's
need must be available to an agency so the employer can balance
the union's need for the information against the employer's duties
and obligations under the Privacy Act and the Statute."
In light of the foregoing conclusion, in the subject case Respondent
had a legitimate Privacy Act concern as to whether to provide the Union
with the unsanitized PIPs and the requested information concerning race,
sex, age, etc. of the employees involved. Respondent was therefore
entitled to know why the Union needed the requested information so
Respondent could balance the Privacy Act considerations with those of
the Statute. The Union's mere statement that the information was
"necessary in connection with the processing of a possible grievance"
was not sufficiently precise to have permitted Respondent to balance its
various duties and obligations under the Privacy Act and the Statute.
Thus Respondent had no obligation to produce the requested information
until advised of the precise reason the unsanitized information was
needed.
Accordingly, I conclude the Respondent did not violate the Statute
when it refused to furnish the Union with the requested data and I
recommend the Authority issue the following:
ORDER
IT IS HEREBY ORDERED that the Complaint in Case No. 2-CA-40326 be and
hereby is dismissed.
/s/ SAMUEL A. CHAITOVITZ
Administrative Law Judge
Dated: March 28, 1985
Washington, DC
FOOTNOTES$ -----------
(1) In view of the finding that the information sought by the Union
was not shown to be necessary within the meaning of section
7114(b)(4)(B) of the Statute, the Authority finds it unnecessary to pass
upon the Judge's findings pertaining to his consideration of the Privacy
Act or the contention that the "routine use" exception in the Privacy
Act permits the disclosure of the requested information.
(2) In fact, information was maintained as to race, sex and age.