[ v25 p633 ]
25:0633(52)CA
The decision of the Authority follows:
25 FLRA No. 52
VETERANS ADMINISTRATION CENTRAL
OFFICE, WASHINGTON, D.C. AND
VETERANS ADMINISTRATION REGIONAL OFFICE,
DENVER, COLORADO
Respondent
and
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1557
Charging Party
Case No. 7-CA-60007
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the Respondent to the attached Decision of the Administrative
Law Judge. The General Counsel filed an opposition to the Respondent's
exceptions. 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 Conclusions
The complaint concerns a request by the Union that the Respondent
provide it with information relating to the distribution of awards to
all of those unit employees at the Respondent's Denver offices in
Lakewood, Colorado, who had received outstanding or highly satisfactory
performance ratings during the 1984-85 appraisal period. This request
was first made by letter dated August 9, 1985.
A request for similar information had been made about one year
previously in conjunction with a grievance filed by the Union which
asserted, among other things, that monetary awards were not granted in a
fair and equitable manner. In response the Respondent had provided the
Union with a list of names of unit employees, their ratings and the
types and amounts of awards given. Similar information was also
provided at the Union's request for the 1982-83 rating period. An
arbitration hearing on the Union's grievance was held in January 1985.
The Union used the information to develop its assertions, which it
pursued at the arbitration, that various employees who had received
monetary awards did not meet the agency's criteria for awards such as
recency of promotions and time in position while other similarly
situated employees were denied monetary awards based on those criteria.
Conversely it asserted that other employees who did meet the criteria
were denied monetary awards while other similary situated employees
received them. No decision had been received in this arbitration
proceeding at the time of the Union's 1985 information request.
In response to the 1985 request, the Respondent provided the Union
with a listing in which the identity of the employees appeared coded
rather than by name. The listing also included the rating received, the
type of award given, and in those instances where no monetary award had
been given, the reason as well as the date of recent promotion and/or
the date the employee had entered his/her current position. The
Respondent cited concern for the privacy of the employees involved as
the reasons for providing a sanitized listing. The Union responded
stating that it needed unsanitized information in order to determine
whether a grievance should be filed. In a further exchange with the
Respondent, the Union referred to the pending grievance over the
fairness and -quity of the Respondent's actions in making awards and
stated that it needed the information in order to determine whether the
alleged violations were continuing. The Respondent, asserting that the
Union had not satisfied its requests for proof that the names of the
employees involved in the information request were necessary and
relevant, refused to provide the names reiterating its concern for the
privacy of the employees.
The Judge found that the information requested was necessary for
discussion, understanding, and negotiation of subjects within the scope
of collective bargaining and that its release to the Union was not
prohibited by the Privacy Act. Consequently, he found that the
Respondent's failure to provide the requested information was contrary
to section 7114(b)(4) of the Statute and violated section 7116(a)(1),
(5) and (8).
In reaching his conclusion as to the necessity of the information,
the Judge noted that the Union needed the requested names in order to
make an informed judgment on whether the Respondent had followed
established criteria, contained in a circular on incentive awards which
it had issued, in making awards and on whether to file a grievance over
distribution of awards. He concluded that without the actual names the
Union would have had no means of verifying the accuracy of the data
supplied by the Respondent. As to the Privacy Act, after considering
the Union's need for the information and the privacy interests of the
employees concerned, he concluded that, on balance, disclosure of the
information did not constitute an unwarranted invasion of the employees'
privacy and did not conflict with the Privacy Act.
III. Positions of the Parties
The Respondent excepts to the Judge's reliance on Union testimony at
the hearing stating reasons why the Union needed names as opposed to the
sanitized listing because it asserts that the reasons had not been
conveyed at the time the information was requested. In support of its
contention that this was improper it argues that, where the Privacy Act
is a consideration in an information request, an agency must be in a
position to judge the union's need for the information requested against
the privacy interests of employees. It argues that the Union's failure
to fully articulate its needs at the time of the information request
deprived Respondent of the ability to make an informed judgment as to
the competing interests involved. It argues that the Judge in reaching
his conclusions as to the Union's need for the names should have limited
his consideration to the reasons specifically expressed by the Union at
the time of the request. It contends that no violation occurred because
at that time the Union failed to establish its need for names. The
Respondent also requests that the Judge's recommended order be modified
to limit posting of any remedial notice to employees to its Denver,
Colorado, Regional Office as that is where the employees involved are
located.
In opposition to the Respondent's exceptions, the General Counsel
argues that the Union's need for the requested information, i.e., names,
should have been apparent to the Respondent from the circumstances. The
specific circumstances which the General Counsel cites are the grievance
regarding the distribution of awards which was pending at the time of
its information request, the provisions of the Respondent's circular on
incentive awards and the Union's statement to the Respondent at the time
of its request that it wished to ascertain whether the alleged
violations previously grieved were continuing. Given these factors, the
Union's need for the identity of employees who had received outstanding
or highly satisfactory ratings should have been evident to the
Respondent. The General Counsel makes no specific argument in response
to the Respondent's request that the Judge's recommended remedy be
modified.
IV. Analysis
Section 7114(b)(4) requires an agency to furnish to an exclusive
representative, upon request and to the extent not prohibited by law,
data which:
(A) is normally maintained by the agency in the regular course
of business;
(B) is reasonably available and necessary for full and proper
discussion, understanding, and negotiation of subjects within the
scope of collective bargaining; and
(C) does not constitute guidance, advice, counsel, or training
provided for management officials or supervisors, relating to
collective bargaining.
The issue raised by the exceptions in this case is whether the data
sought by the Union is necessary to its performance of its role as
exclusive representative and whether the necessity of the information
should have been obvious to the Respondent at the time of the request.
In view of the nature of the Union's previous grievance regarding the
Respondent's distribution of awards and its statement that it wished to
ascertain whether a similar grievance was warranted, we find it
reasonable to conclude that the Union's need for information which
included the names of relevant employees, as opposed to sanitized
information, should have been evident to the Respondent. The Union's
previous grievance which asserted that awards were not distributed in a
fair and equitable manner was based on an allegation of disparate
treatment of similarly situated employees. In support of its allegation
the Union cited instances involving specific employees. In order to do
so, it needed to know the identities of those employees who received
monetary awards and those who met eligibility standards relating to
performance ratings but did not receive monetary awards.
Although the Union did not prevail in its grievance, its approach in
pursuing it was not unreasonable. In view of its statements that it
wanted the requested information to determine whether a similar
grievance was warranted, it is obvious that it needed to know the
identities of employees in order to make such a determination. We agree
with the General Counsel that it is reasonable to conclude that the
necessity of the requested names to the Union's representational
functions was evident from the surrounding circumstances.
As to the Judge's reliance on reasons stated in testimony at the
hearing to support his conclusions that the requested information was
necessary, we do not view the reasons stated as anything beyond what
should have been obvious to anyone familiar with the circumstances,
i.e., the history of the pending grievance and the Union's avowed intent
to determine whether a similar grievance was in order. The reasons
expressed at the hearing were nothing more than statement of what should
have been reasonably obvious to the Respondent at the time of the
Union's information request. /1/
In agreement with the Judge, we conclude that, balancing the Union's
need for the requested information against the privacy interests of the
employees involved, disclosure of the information did not constitute an
unwarranted invasion of the employees' privacy. As noted above, the
information was necessary to the Union's ability to perform its function
as exclusive representative. As established by the record, similar
information had been previously disclosed to the Union with no
indication of widespread circulation of the information or protest from
the employees involved. Thus we find, based on the Judge's reasoning,
that disclosure of the requested information was not prohibited by the
Privacy Act.
Based on the circumstances present in this case we find in agreement
with the Judge that Respondent violated section 7116(a)(1), (5) and (8)
by refusing to provide the information sought by the Union. Compare
Department of Health and Human Services, Social Security Administration
and Social Security Administration, Field Operations New York Region, 21
FLRA No. 35 (1986), petition for review filed sub nom. American
Federation of Government Employees, AFL-CIO v. FLRA, No. 86-4077 (2d
Cir. June 13, 1986), in which the Authority dismissed a complaint that
an agency had failed to provide an exclusive representative with
necessary information. In that case the Authority found that the
necessity for the requested information was not apparent from the
circumstances and the union had failed to divulge the reasons it sought
the information despite the agency's reasonable requests for
clarification.
With regard to the posting of the remedial unfair labor practice
notice, we find that a posting limited to the Respondent's Denever,
Colorado, Regional Office will best effectuate the purposes and policies
of the Statute, and we shall modify the Judge's recommended order
accordingly. While it is clear that the violations involved employees
in that particular location, there is no showing that employees at the
Respondent's Central Office in Washington, D.C., were involved.
Moreover, we note that the General Counsel did not specifically oppose
the Respondent's request that the recommended order be so modified.
Consequently, we see no basis for requiring posting of the notice at the
Central Office.
V. Conclusion
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, we have reviewed the rulings of the
Judge made at the hearing, find that no prejudicial error was committed,
and affirm those rulings. We have considered the Judge's Decision, the
exceptions to that Decision, the positions of the parties and the entire
record, and adopt the Judge's findings, conclusions and recommended
order except as noted above. We therefore conclude that the Respondent
failed 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.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118(a)(7) of the Federal Service Labor-Management Relations
Statute, it is ordered that the Veterans Administration Central Office,
Washington, D.C. and Veterans Administration Regional Office, Denver,
Colorado, shall:
1. Cease and desist from:
(a) Failing and refusing to furnish, upon request by the American
Federation of Government Employees, AFL-CIO, Local 1557, the names of
employees which correspond to the alphabetical designations for
employees on the 1984-85 Rating and Award sanitized list submitted to
the exclusive representative.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action:
(a) Upon receipt, furnish to the American Federation of Government
Employees, AFL-CIO, Local 1557, the names of the employees which
correspond to the alphabetical designations for employees on the 1984-85
Rating and Award sanitized list submitted to the exclusive
representative.
(b) Post at its facility, Veterans Administration Regional Office,
Denver, Colorado, 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
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 ensure
that such notices are not altered, defaced or covered by any other
material
(c) Notify the Regional Director, Region VII, Federal Labor Relations
Authority, in writing, witthin 30 days from the date of this Order, as
to what steps have been taken to comply herewith.
Issued, Washington, D.C., February 12, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, 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 and refuse to furnish, upon request by the American
Federation of Government Employees, AFL-CIO, Local 1557, the names of
the employees which correspond to the alphabetical designations for
employees on the 1984-1985 Rating and Award sanitized list submitted to
the exclusive representative.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce 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, AFL-CIO, Local 1557, the names of the employees which
correspond to the alphabetical designations for employees which
correspond to the alphabetical designations for employees on the
1984-1985 Rating and Award sanitized list submitted to the exclusive
representative.
(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, Federal Labor Relations Authority, Region VII, whose address
is: 535 - 16th Street, Suite 310, Denver, CO 80202, and whose telephone
number is: (303) 837-5224.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 7-CA-60007
VETERANS ADMINISTRATION CENTRAL OFFICE,
WASHINGTON, D.C. AND VETERANS
ADMINISTRATION REGIONAL OFFICE, DENVER, COLORADO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO LOCAL 1557
Charging Party
Douglas Doane, Esq.
For Respondent
Matthew Jarvinen, Esq.
Joseph Swerdzewski, Esq.
For General Counsel
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on December 12,
1985, by the Regional Director for the Federal Labor Relations
Authority, Region VII, Denver, Colorado, a hearing was held before the
undersigned on January 16, 1986.
This case arose under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. Section 7101, et seq. (herein called the Statute). It
is based on a charge filed on October 10, 1985 by American Federation of
Government Employees, AFL-CIO, Local 1557 (herein called the Union)
against Veterans Administration Regional Office, Denver, Colorado
(herein collectively called Respondent).
The Complaint alleged, in substance, that the Union requested
Respondent to furnish it with the names of unit employees, for the
1984-85 appraisal period, who received outstanding or highly
satisfactory ratings together with the type of award received by said
individuals; if no Quality Step Increase or Cash award was given to
said employees, the reason therefor; the length of time in position of
the individuals; and the promotions of such employees during said
period. It was further alleged Respondent did furnish all of the
requested data except the names of the employees corresponding to the
data which was provided. By reason of the refusal to furnish the said
names, it was alleged Respondent failed to comply with 7114(b)(4) of the
Statute, /2/ and thus violated Section 7116(a)(1), (5) and (8) thereof.
Respondent's Answer, dated December 31, 1985, denied that the
information it failed to provide the Union was necessary for full and
proper discussion, understanding and negotiation of collective
bargaining subjects. It also denied that the information it failed to
provide was not prohibited by law, and alleged that the release of the
names would violate the Privacy Act, 5 U.S.C. Section 552(a). The
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 which have been
duly considered. /3/
Upon the entire record herein, from my observation 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
1. At all times material herein American Federation of Government
Employees, AFL-CIO, has been the certified exclusive representative of
nationwide consolidated units of Respondent's professional and
non-professional employees with specified exclusions.
2. At all times material herein the Union has been, and still is,
the agent of American Federation of Government Employees, AFL-CIO for
the purpose of exclusively representing the bargaining unit employees
who are employed in Respondent's Denver offices in Lakewood, Colorado.
/4/
3. Respondent and American Federation of Government Employees,
AFL-CIO are parties to a national collective bargaining agreement, in
existence at all times material herein, covering unit employees who are
employed at Respondent's Denver offices in Lakewood, Colorado.
4. Articel 13 of the aforesaid agreement provides a grievance
procedure for the resolution of complaints, as specified, initiated by
employees, the Union, or management. Under Section 2B(6) of this
Article decisions on incentive awards are not grievable. /5/
5. Article 32 of the said agreement sets forth a "Performance
Appraisal System" applicable to bargaining unit employees. Section 6(A)
thereof, "Awards and Other Actions," provides, in substance, that when
an employee is rated Highly Satisfactory in the annual performance
evaluation, the appropriate supervisor will review the rating to
determine if the employee should be recommended for a monetary award
under the Incentive Awards program. Section 6(B) thereof provides that
when an employee is rated Outstanding, he will be automatically
considered for a monetary award under the program. Section 6(C) thereof
provides "Awards for performance will be distributed in a fair and
equitable manner." (underscoring supplied).
6. Under date of August 7, 1984 Respondent issued Circular No.
25-84-35 (Joint Exhibit 6) which deals with Incentive Awards applicable
to the Denver, Colorado regional office. This circular established the
policy of said office, as well as the responsibilities and procedures,
in respect to granting such awards.
7(a). Paragrah 2(c)(2) of the Circular provides that awards will be
granted equitably on a merit basis; "and that information is made
available concerning persons who have received awards and the reasons
why the awards were granted."
(b). Paragraph 2(c)(4) of the Circular provides for distributing
awards for performance in a fair and equitable manner.
(c). Paragraph 6(a)(3) of the Circular provides, in part, that "an
employee must have a highly satisfactory or outstanding rating to be
considered for a superior performance award."
(d) Paragraph 7, entitled "Quality Step Increase," /6/ provides for
such award, instead of a cash award, for sustained superior performance.
Under this paragraph an employee must have a highly satisfactory or
outstanding rating to be considered for QSI; employment is required to
be one year in the same type of position and at the same grade level;
and if the QSI is being based on a highly satisfactory rating, over 50%
of key responsibilities and 100% of those designated as critical
elements must be evaluated as "far exceed." /7/
8. In a letter dated August 17, 1984 Union president Carroll
O'Brien-Mergler submitted to the Director of the Respondent's Denver
regional office a grievance /8/ pursuant to Article 13, Section 7, NOTE
6 of the collective bargaining agreement. The Union grieved over the
complaint that monetary awards were not granted in a fair and equitable
manner. Further, the grievance stated the procedures to determine who
should get incentive awards was not negotiated with the Union.
9. Management replied to the aforesaid grievance in a letter dated
August 24, 1984 which Director Alverson wrote to the Union President.
The grievance was denied based on the determination that decisions on
incentive awards under the contract were not grievable, and that all
other issues raised were not negotiable.
10. In a letter dated September 10, 1984 the Union President wrote
Personnel Office Norman Frickey and, based on 7114(b)(4) of the Statute,
requested the following information to meet its representational
functions:
"Copies of all Quality Step Increase awards given to bargaining
unit employees; and copies of each bargaining unit employees'
performance appraisals (Section C - overall ratings)."
11. Management responded by sending the Union a list of named unit
employees, their ratings with the types and amounts of awards received
by the employees.
12. Thereafter, under date of November 20, 1984 the Union wrote
Frickey and requested copies of awards given to all unit employees, the
amounts awarded, and the names of all employees receiving awards for the
rating period 1982-1983. /9/ On December 4, 1984 Frickey sent the Union
a named listing of unit employees, together with the rating, auard, and
amount given to each employee for 1983.
13. The arbitration hearing was held on January 9, 1985. The 1983
and 1984 data furnished by management was utilized by the Union at the
hearing to argue unfair distribution of awards by Respondent.
14. The arbitrator's decision issued on December 18, 1985. He
concluded that the grievance, which alleged unfair and inequitable
distribution of incentive awards, was a proper grievance under Article
13 of the bargaining agreement; that the focus of the grievance was not
on the decision as to whether individual employees were entitled to the
awards, but on the procedures followed in their distribution; and,
further, that the evidence did not support a conclusion that the
distribution was unfair and inequitable. The arbitrator sustained the
grievance insofar as it alleged the employer adopted new criteria for
the 1984 awards without notifying the Union and affording it an
opportunity to bargain re impact and implementation.
15. Based on its receiving complaints from employees that some
workers were being given awards which were undeserved or not earned, the
Union made a request for information for the 1984-1985 appraisal period.
By letter dated August 9, 1985 O'Brien-Mergler requested the following
data to fulfill its representational duties:
(a) A list of all unit employees receiving an outstanding or
highly satisfactory rating; type of award given.
(b) If any of the employees did not receive a Quality Step
Increase or Cash award, the reason therefor.
(c) Length of time in position for the above employees.
(d) All promotions made during 1984-1985 appraisal period.
16. Record testimony reflects the Union President did not know, at
the time of the 1985 request, whether a grievance would be filed; that
the information was needed to determine if such would be done; that the
basis for such determination rested on considering Article 32, Section
6(C) of the national agreement and paragraphs 2c(2), 6a(3) and 7 of
Circular No. 25-84-35.
17. Under date of September 3, 1985, Frickey sent the Union a 1984
rating and award list for 116 bargaining unit employees. No names of
employees were given. The list was sanitized to show the rating for
each unit employee who was coded and unnamed, the rating for the
unidentified employee, and the type of award he received. The data also
listed coded and unnamed employees who did not receive a QSI or Cash
award and the reason therefor, and the length of time in position for
such employees. Further, it set forth the promotions during 1984-1985
for employees who did not receive a QSI or Cash award. /10/
18. In sending the aforesaid data Frickey stated in an attached
letter that he did not send an unsanitized list of employees since it
might be an invasion of the employee's privacy. He also stated that the
information could be provided if the Union submitted a "written release
information from an employee"; or if it could be shown that names are
necessary and relevant to represent unit employees, the names could be
released.
19. O'Brien-Mergler wrote Frickey on September 5, 1985 and advised
the Personnel Officer that the sanitized roster is of no use in
determining if grievance should be filed by the Union.
20. In a reply to the foregoing letter Frickey repeated his refusal
to furnish the names of the employees on the 1985 rating and awards
list. He stated that, as he understood the law, there was no obligation
to submit such information unless it was shown to be necessary and
relevant, and then only to the extent not prohibited by law. Frickey
again referred to the privacy of the employees and indicated the Union
had two options: (a) provide proof the data is necessary or relevant,
or (b) provide release from the affected employees.
21. In a letter dated September 17, 1985 O'Brien-Mergler mentioned
the grievance filed in 1984 re awards not being granted in a fair and
equitable manner. She further wrote that to assure this has not
occurred in 1985 the Union needed unsanitized copies of the information
sought in her letter of August 9, 1985.
22. Frickey's response, dated September 30, 1985, stated that while
he might have to furnish the unsanitized information if a grievance or
unfair labor practice charge were filed, to provide it for a seemingly
"fishing expedition" was neither appropriate nor consistent under the
law. He repeated his concern about privacy considerations as well as
the conditions under which the data would be released.
23. Record testimony by O'Brien-Mergler indicates she was unable to
verify the data as to the individual employees without their names;
that she needed the dates in positions to determine whether employees
who received a QSI award were in position for a full year as required by
the Circular. She testified that if the name of the employee had been
furnished who received a QSI, a check could be made to determine if the
individual had been promoted during the year. A promotion then would
have disqualified the employee for QSI consideration. In such event,
O'Brien-Mergler stated, the Union could have used the information to
decide whether to file a grievance where the awards were not in
conformity with the requirements set forth in the master agreement or
the Circular. Further, the Union official testifed the Union did not
have to grieve a decision by management concerning granting or denying
awards to an employee; that a grievance could be filed re the granting
of an award incorrectly where the employee did not meet the criteria
laid down in Article 32 of the agreement dealing with the Performance
Appraisal System; that a grievance, in such instance, challenged the
fair and equitable manner in which awards were made.
24. Record facts show management had not encountered any previous
problems with the Union releasing sensitive information to persons
outside the Union; that the Union never had problems re disclosure of
personal data furnished to it by Respondents management.
Conclusions
There are two principal issues for determination herein: (1) whether
the data sought by the Union herein was necessary for discussion,
understanding and negotiation of collective bargaining within the
meaning of Section 7114(b)(4)(B) of the Statute; (2) whether a
disclosure by Respondent of the names of the employees on the sanitized
list furnished to the Union would be prohibited under the Privacy Act.
(1) Respondent concedes that the Union was entitled to file a
grievance as to whether there was fair and equitable distribution of the
awards. It takes the position, however, that since no grievance had
been pending or proposed, the names of the employees rated outstanding
or highly satisfactory was not necessary for the Union to perform its
functions. If a grieved employee had been named, it is urged, then the
Union might be entitled to the names of those employees similarly
situated. Further, Respondent contends that the unprovided data would
not enable the Union to show unfair and inequitable distribution,
especially since a supervisor's recommendation concerning awards forms
part of the decision in granting or denying them.
Under Section 7114(b) of the Statute an obligation is imposed upon an
agency to furnish data to the bargaining representative, not prohibited
by law, "which is reasonably available and necessary for full and proper
discussion, understanding, and negotation of subjects within the scope
of collective bargaining." Such must be necessary to enable a union to
fulfill its representational functions, including the effective
evaluation and processing of grievances. U.S. Equal Opportunity
Commission, Washington, D.C., 20 FLRA No. 37; U.S. Customs Service,
Region VII, Los Angeles, California, 10 FLRA 251, 253. This duty is not
absolute, and mere assertion that data is needed to process a grievance
does not automatically require that it be supplied. An agency's
obligation in this regard will depend upon the request and the
circumstances in each case. See Department of the Treasury, United
States Customs Service, Region IV, Miami, Florida, 10 FLRA No. 53; Army
and Air Force Exchange Service (AAFES), 17 FLRA No. 92.
Turning to the case at bar I am persudaded that the data requested by
the Union was necessary to carry out its representation functions. Both
Article 32, Section 6(C) of the Master Agreement, and Paragraph 2(c)(4)
of the Circular, provide that awards will be distributed in a fair and
equitable manner. Based upon communications from employees, the Union
was concerned that the 1985 awards were not distributed in such a
manner, and it sought data to verify the matter. It seems quite
apparent that the sanitized list of awards and ratings would not afford
the Union a method of such verification. Withou the names of the unit
employees the Union could not verify the dates when employees were in a
position and when employees were promoted. It was not possible for the
Union to check the requirement in paragraph 7 of the Circular that those
who receive a QSI be in the same position and grade level for one year.
Further, unless it obtained the names, it was unable to talk to those
who received a QSI based a highly satisfactory rating and be satisfied
such employees were rated "far exceed" in respect to 50% of key
responsibilities and 100% of those designed as critical elements.
Respondents' contention that since no grievance was pending, the
Union should not be entitled to all the names of those on the list is
rejected. Case law does not require that an actual grievance be filed
before information may be requested. In truth, an examination of the
data may convince the representative that no grievance is warranted --
that the distribution of awards and ratings was fair and equitable.
Neither do I accept the argument that Respondent should be called upon
to furnish only the names of employees situated similarly to one who is
a grievant and thus named by the Union. Such a view begs the question.
The Union may not be in a position to name a particular grievant until
it verifies the information and it may find that difficult without the
names corresponding to the data.
It is also insisted by Respondent that inasmuch as the decision re
awards and ratings rests, in part, on the supervisor's recommendation,
the names of employees would not aid the Union since it was not able to
grieve the reasons underlying such recommendation. However, the fact
that the representative is not entitled to grieve an individual decision
of an award does not foreclose its right to challenge the manner in
which awards were distributed. Assuming arguendo the data reveals that
certain named employees were not in grade for a requisite period, or did
not meet the criteria in the Circular, the Union may want to discuss
with management the failure to abide by the procedure set forth for
granting awards. It may well grieve management's failure to distribute
the latter in a fair and equitable manner without grieving decisions re
individual awards.
Due consideration had been given by the undersigned to the
Authority's decision in Bureau of Alcohol, Tobacco and Firearms,
National Office, Washington, D.C., 18 FLRA No. 74. In the cited case a
grievance was filed by an employee re his non-selection for a posted
position. In order to process the grievance, information was requested
by the union involving the promotion package utilized by the agency,
including relevant data pertaining to the manner in which a panel
arrived at scores for each applicant for the position. Management
furnished a sanitized promotion package containing evaluations and
rankings for applicants on the requisite rating lists. It deleted the
names of the applicants and personal identifiers. The Authority
concluded that certain data deleted by the agency had to be furnished,
i.e. prior employment records of the unsuccessful applicants, names of
institutions they attended, and weight assigned to each factor evaluated
by the Raters. However, the Authority determined the General Counsel
failed to demonstrate the necessity for unsuccessful applicant's names,
personal identifiers, language skills, references, salary histories,
identity of forms supervisors and names of Rater and selecting
officials. It was concluded that such data was not shown to be
necessary under 7114(b)(4) for the union to determine if the selection
process was fair.
Several factors which are present in the case at bar warrant the
conclusion that the present controversy is distinguishable from the
cited case. The Authority concluded in the Bureau of Alcohol, Tobacco
and Firearms case, supra, that lacking the names and personal
identifiers of unsuccessful candidates for the position with the
SF-171's and their evaluation forms would not aid the union in
processing the grievance. The union argued, and the Authority agreed,
that it needed to know and compare the reputation of the institutions
attended by other applicants, as well as the size and reputation of
previous places of employment and such applicant's length of service
thereat. As to the names of the other applicant, no sufficient reason
was given that they were needed to process the grievance.
Contrariwise, in the case at bar, the Union has stated it required
the names of the employees to verify and check certain basic facts which
could be determinative as to whether the awards were distributed fairly
and equitably. Thus, the Union wanted to contact employees who received
a QSI and check whether they were in the same type of position and at
the same grade level for a year, as required by the Circular. The Union
also needed the names to contact employees receiving a QSI based on a
highly satisfactory rating and verify the "far exceed" evaluation which
the Circular required as to critical elements and responsibilities. In
addition, the Union asserted it desired to ascertain from employees who
received a QSI whether, in fact, they were promoted during the year
where so indicated on the sanitized list. This became important since,
if so promoted, those individuals could not receive a QSI under the
Circular.
While management may characterize the request for the names of the
employees as a "fishing" expedition, record facts do support the
conclusion that a sound bases existed for the information. Thus, it is
noted that the Union did receive complaints from employees that awards
were being given to individuals which were undeserved. In order to
fulfill its function as the representative of unit employees, the Union
could scarcely determine whether awards were so granted to individuals
without having the names of those persons so as to verify information
provided it by management. It is difficult to understand how the Union
could decide if the awards were made in a fair and equitable manner, and
ultimately decide whether to grieve if not so distributed, unless it
obtained the names of those receiving awards as well as the other and
check the data as to each employee in the list.
(2) It is also argued by Respondent that, assuming arguendo the data
requested by the Union is "necessary" within 7114(b)(4) of the
Statutute, the disclosure thereof is prohibited by the Privacy Act.
/11/
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.
/12/ The list of employees with ratings and awards they received, in
addition to length of time in position for said employees, as well as
promotions of all unit employees, are considered records contained
within the Respondent's systems of records under the Privacy Act, /13/
and so conceded by Respondent. They are generally prohibited from
disclosure unless one of the specific Privacy Act exceptions under 5
U.S.C. 552a(b)(1)-(12) (1982) is applicable. An 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). /14/
The theory of FOIA is that all records in the possession of Federal
Government agencies must be disclosed upon request under subject to a
specific FOIA exemption. /15/ There is however, an exemption - (b)(6)
of the FOIA - which allows an agency to withhold personnel and medical
files as well as 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 FOIA, the Federal Courts
apply a balancing test to determine whether disclosure would result in a
clearly unwarranted invasion of privacy. In American Federation of
Government Employees, AFL-CIO, Local 1923 v. United States Department 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 balanced the individual's interest in the right to
privacy and the possible harmful effects from disclosure against the
public's interest in making the information available. The same
balancing test was applied in Celmius v. United States Department of
Treasury, 457 F. Supp. 13 (D.D.C. 1977) in determining whether the
agency was required to disclose the promotion file and other promotion
documents requested under FOIA by unsuccessful promotion applicants.
The data requested herein by the Union is similar to information
requested in the cases heretofore cited. It calls for individually
identifiable records of named employees, which may be disclosed under
FOIA when it is determined that there is no clear invasion of an
individual's privacy. The Authority has concluded that disclosure of
such information in employee's files pursuant to a union's request under
7114(b)(4) of the Statute is not per se prohibited by law. It is
subject to the same scrutiny and balancing test applied by the Courts in
evaluating FOIA requests under the 5 U.S.C. 552(b)(6) exemption. The
Authority, in deciding whether "necessary, data under 7114(b)(4) should
be disclosed, will balance the necessity for the union's purposes
against the degree of intrusion on the individual's privacy interests
caused by disclosure of the data. See U.S. Equal Employment Opportunity
Commission, Washington, D.C., 20 FLRA No. 37, AAFES, supra.
Applying the standards set forth in the foregoing cases I am
persuaded that disclosing the names of the unit employees corresponding
to the awards data furnished the Union would not constitute an
unwarranted invasion of their privacy. Several factors compel this
conclusion. Thus, it is noted that the Respondent previously sent the
Union, upon request, the names of unit employees and awards given for
the 1983-1984 period as well as for the 1982-1983 appraisal period.
This data was furnished to the Union for its use in preparing for the
arbitration hearing held on January 9, 1985. The record does not
reflect that any widespread circulation was made of this information.
/16/ Neither does it appears that any protests or repercusions resulted
from Respondent's having supplied the Union with the names of those
receiving awards and their ratings. Moreover, furnishing the names and
corresponding data is in conformity with the policy of the Incentive
Awards program as established in the Circular. Paragraph 2c(2) thereof
(Joint Exhibit 6), which acknowledges that awards be granted equitably
on the basis of merit, significantly provides . . . "that information is
made available concerning persons who have received awards and the
reason(s) why the awards were granted." (underscoring supplied).
Respondent asserts, as one justification for a refusal to furnish the
data requested, that until the Union comes forward and shows a named
employee who claims to be treated unfairly no showing has been made that
the Union's need is greater than the privacy interest of its members.
This contention begs the issue at hand. The Union may scarcely be in a
position to discern whether the distribution of awards was equitable
before it obtains the information requested. It's request is made in
order to determine if there is any merit to complaints received from
employees re the granting of awards. In performing it representational
functions a union should be equally concerned that a grievance not be
filed which is meritless, and it may well decide that no grievance is
justified.
In sum, I conclude that General Counsel has established herein that
the names of the employees, corresponding to the data furnished the
Union by Respondent on September 3, 1985, were necessary for proper
representation of unit employees under 7114(b)(4) of the Statute; that
the Privacy Act does not justify Respondent's refusal to provide such
names as such disclosure would not be a clear and unwarranted invasion
of the employees' right of privacy; and that the refusal to furnish the
names of the employees on the sanitized list sent to the Union was
violative of Section 7116(a)(1), (5) and (8) of the Statute.
Having concluded that Respondents' refusal to furnish the exclusive
representative with information necessary to perform its
representational functions in violation of the Statute, it is
recommended that the Authority adopt the following:
ORDER
Pursuant to Section 7118(a)(7) of the Federal Service
Labor-Management Relations Statute, and Section 2423.29 of the Rules and
Regulations, it is hereby ordered that Veterans Administration Central
Office, Washington, D.C. and Veterans Administration Regional Office,
Denver, Colorado, shall:
1. Cease and desist from:
(a) Failing and refusing to furnish, upon request by the
American Federation of Government Employees, AFL-CIO, Local 1557,
the names of the employees which correspond to the aplhabetical
designations for employees on the 1984-1985 Rating and Award
sanitized list submitted to the exclusive representative.
(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:
(a) Upon request, furnish to the American Federation of
Government Employees, AFL-CIO, Local 1557, the names of the
employees which correspond to the alphabetical designations for
employees on the 1984-1985 Rating and Award sanitized list
submitted to the exclusive representative.
(b) Post at its facility at the Veterans Administration Central
Office, Washington, D.C. and Veterans Administration Regional
Office, Denver, Colorado, 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) Notify the Regional Director, Region VII, 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.
WILLIAM NAIMARK
Administrative Law Judge
Dated: June 30, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) While we find that the reasons given at the hearing should have
been obvious to the Respondent at the time of the request, it would have
been better practice on the part of the Union to have articulated them
more fully at that time in response to the Agency's request for proof
that a named list was necessary and relevant.
(2) The Complaint also recited that the data requested met to the
requirements set forth in this section of the Statute.
(3) Subsequent to the hearing General Counsel filed a Motion to
Correct the Transcript. No objections having been interposed, and it
appearing that the proposed corrections are proper, the Motion is
granted as requested.
(4) There are approximately 200 employees in the unit.
(5) Respondent concedes that, under the collective bargaining
agreement, the question of whether awards for performance are
distributed in a fair and equitable manner is grievable.
(6) Hereinafter referred to as QSI.
(7) Paragraph 7(c) sets forth certain restriction as to the granting
of a QSI to employees. Paragraph 7(d) provides for submitting
recommendations to the Incentive Awards offices and for the information
to be attached thereto.
(8) The grievance stated that eight named employees were refused such
an award, and that one named employee was paid at the wrong rate.
(9) This information, Carroll O'Brien-Mergler testified, was sought
to compare it with the 1984 data which was requested to prepare for the
arbitration hearing.
(10) The list comprised 116 unidentified employees.
(11) Privacy Act of 1974, Pub. L. No. 83-579, 88 Stat. 1896 (codified
as amended at 5 U.S.C. 522a (1982).
(12) 5 U.S.C. 522a(4)-(5) (1982).
(13) OPM/GOVT-1, 2.
(14) Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 256
(codified as amended at 5 U.S.C. 522 (1982).
(15) 5 U.S.C. 522(a)-(b) (1982).
(16) In the AAFES case, supra, the Authority noted that since the
documents were requested for a possible grievance it indicated the
documents were likely to receive only a limited circulation. The same
conclusion seems warranted in the case at bar since the information was
sought herein for a possible grievance in respect to the distribution of
awards.
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, AFL-CIO, Local 1557, the names of
the employees which correspond to the alphabetical designations for
employees on the 1984-1985 Rating and Award sanitized list submitted to
the exclusive representative.
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 to American Federation of Government
Employees, AFL-CIO, Local 1557, the names of the employees which
correspond to the alphabetical designations for employees on the
1984-1985 Rating and Award sanitized list submitted to the exclusive
representative.
(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 VII,
whose address is: 535 - 16th Street, Suite 310, Denver, CO 80202, and
whose telephone number is: (303) 837-5224.