[ v27 p48 ]
27:0048(12)CA
The decision of the Authority follows:
27 FLRA No. 12
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 Nos. 2-CA-40303
2-CA-40304
2-CA-40343
2-CA-40350
(21 FLRA No. 35)
DECISION AND ORDER REMANDING CASE
I. Statement of the Case
This consolidated case is before the Authority on remand from the
United States Court of Appeals for the Second Circuit. American
Federation of Government Employees v. FLRA, 811 F.2d 769 (2d Cir. 1987).
The question before us is whether the information sought by the
Charging Party is exempt from disclosure under the Privacy Act, 5 U.S.C.
section 552a(b).
II. Background
The case involves a consolidated complaint alleging that 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 with information it had requested
pursuant to sections 7103(a)(9) and/or 7114(b)(4) of the Statute. The
Charging Party requested the following information: (1) Case No.
2-CA-40303 -- unsanitized copies of the official time and attendance
records for all employees in the East New York Office for the period of
October 1, 1983 to March 13, 1984; (2) Case No. 2-CA-40304 --
unsanitized copies of progress reviews and performance appraisals for
all bargaining unit employees in the Murray Hill Office for the period
of January 1, 1983 to March 15, 1984; (3) Case No. 2-CA-40343 --
unsanitized copies of all progress reviews and performance appraisals
for all Title II Claims Representatives in the Jamaica Office for the
period of January 1, 1983 to March 20, 1984; and (4) Case No.
2-CA-40350 -- unsanitized copies of the following information related to
Title II Claims Representatives in the Downtown District Office for the
period of January 7, 1983 to February 29, 1984: (a) annual performance
appraisals, (b) Claims Representative desk audits, (c) Claims
Representative interview audits, (d) performance improvement plans, (e)
interviewing time studies, (f) quality review deficiency flags
(bounces), and (g) weekly DOWR statistics for each Title II breakdown.
III. Administrative Law Judge's Decision
The Judge issued a Decision and Order recommending dismissal of the
consolidated complaint. He held that the Respondent did not violate the
Statute by refusing to furnish the Charging Party with the requested
data. He found that the Charging Party was entitled to information
needed to enable it to effectively carry out its representational
responsibility, provided that the information sought was necessary and
relevant to discharging its duties. The Judge further found that the
Charging Party never disclosed the reasons for seeking the information
to the Respondent. The Judge also rejected the General Counsel's
argument that the information being sought was presumptively relevant.
The Judge also addressed the applicability of the Privacy Act to the
issue of whether the Respondent was obligated to release the information
requested by the Charging Party under the Statute. The Judge concluded
it was essential that an agency have sufficient information concerning a
union's need for the data in order for the agency to determine its
duties and obligations under the Privacy Act and the Statute.
IV. Previous Decision of the Authority
The General Counsel and the Charging Party filed exceptions to the
Administrative Law Judge's decision. The Authority dismissed the
complaint, finding that the General Counsel had not met the burden of
proving that the Respondent failed to comply with section 7114(b)(4) of
the Statute. Department of Health and Human Services, Social Security
Administration and Social Security Administration, Field Operations, New
York Region and American Federation of Government Employees, AFL-CIO, 21
FLRA No. 35 (1986). In reaching its conclusion, the Authority rejected
the contention that the information sought was presumptively relevant
and decided the case on the basis of the Charging Party's failure to
communicate the necessity for the information to the Respondent. In
view of the finding that the information sought by the Charging Party
was not shown to be necessary within the meaning of section 7114(b)(4)
of the Statute, the Authority found it unnecessary to pass either upon
the contention that the information could be released to the Charging
Party under the "routine use" exception in the Privacy Act or upon the
findings of the Administrative Law Judge concerning the Privacy Act.
V. Decision of the Court of Appeals
The Charging Party petitioned for review of the Authority's decision
in the Second Circuit. The Charging Party argued among other things
that the Authority erred because it should have required the Respondent
to furnish the information by using the "presumptive "relevance"
doctrine developed under the National Labor Relations Act. The court
rejected this argument, but went on to find that the Charging Party had
"adequately conveyed to the (Respondent) its need for the information
sought." AFGE v. FLRA, 811 F.2d at 774. While "agree(ing) with the
Authority's finding that much of the (Charging Party's) conclusory
representations to the (Respondent) . . . added little force to its
request for information," the court stated "after careful review of the
communications between the (Charging Party) and the (Respondent) in the
four cases involved here, we find that the Authority's decision was
based on too narrow an interpretation, on the record before it, of the
agency's duty to provide information under section 7114(b)(4)." Id. The
court concluded "in this case it was reasonably clear that the
information the union sought was needed to evaluate an existing or
potential grievance relating to (the information requested), and
therefore was necessary for 'full and proper discussion, understanding,
and negotiation of subjects within the scope of collective bargaining'."
Id. at 775. The court reversed the Authority's decision and, noting
that the Authority had not previously addressed whether the information
sought under section 7114(b)(4) of the Statute could be disclosed under
the Privacy Act, remanded the case to us "for a determination of whether
the information is exempt from disclosure under the Privacy Act." Id. at
775.
VI. Analysis and Conclusion
As the record in this case is currently constituted, we are unable to
determine whether the information sought by the Charging Party is exempt
from disclosure under the Privacy Act. In order to make the
determination required by the court, we need additional information.
Specifically, we need information concerning the entire period pertinent
to the complaint as well as the present, to include: (1) the notices of
the system(s) of records maintained by the Office of Personnel
Management and the Department of Health and Human Services/Social
Security Administration containing the information sought; (2) the
effective dates of these systems of records; (3) the routine use
statement(s) for each applicable system of records; and (4) any
applicable collective bargaining agreement provisions which address
release of information from a system of records to the exclusive
representative.
Accordingly, we must remand the consolidated case to the
Administrative Law Judge to reopen the record for receipt of the
information described above and any other information he deems relevant;
and to make findings as to whether the information sought by the
Charging Party is exempt from disclosure under the Privacy Act.
ORDER
The consolidated case is remanded to the Administrative Law Judge for
action consistent with the above.
Issued, Washington, D.C., May 20, 1987.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
/s/ Jean McKee
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY