[ v50 p338 ]
50:0338(55)CA
The decision of the Authority follows:
50 FLRA No. 55
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
NEW YORK TRACON
WESTBURY, NEW YORK
(Respondent)
and
NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION, MEBA/NMU (AFL-CIO)
NEW YORK TRACON LOCAL
(Charging Party/Union)
BY-CA-21180
BY-CA-21233
_____
DECISION AND ORDER
April 28, 1995
_____
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the exceptions. In addition, in response to the Authority's request, the Respondent and the General Counsel filed supplemental briefs addressing the applicability of United States Department of Defense v. FLRA, U.S. , 114 S. Ct. 1006 (1994) (Department of Defense). The General Counsel also filed a brief concerning whether the information is necessary, within the meaning of section 7114(b)(4) of the Statute, in response to a Federal Register notice, 59 Fed. Reg. 63995 (1994).
The complaint alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to furnish the Union with unsanitized copies of performance appraisals of bargaining unit and certain non-bargaining unit employees.(1) The Judge found that the Respondent violated the Statute by failing to provide the Union with unsanitized copies of the appraisals of unit employees but that the Respondent was not obligated to provide the unsanitized appraisals of non-unit employees.(2)
For the reasons set forth below, we find that the Respondent did not violate the Statute because disclosure of the requested information is prohibited by the Privacy Act, 5 U.S.C. § 552(a).(3) Therefore, we dismiss the complaint.
II. Judge's Decision
The facts are set forth fully in the attached Judge's decision and briefly summarized here. After several unit employees expressed dissatisfaction with their appraisals to various Union representatives, the Union requested that the Respondent provide unsanitized copies of all unit employees' performance appraisals, assertedly to fulfill a wide range of representational duties. The Respondent refused to provide the unsanitized information, absent the written authorization of each employee.
The Judge concluded, in a decision issued prior to Department of Defense, that the Respondent's refusal to furnish the unsanitized performance appraisals violated the Statute. The Judge determined that disclosure of the information was not prohibited by the Privacy Act and that the unsanitized performance appraisals were necessary under section 7114(b)(4) of the Statute for the Union to determine whether unit employees had been fairly appraised and to take appropriate action, if warranted.(4)
III. Positions of the Parties
A. Respondent's Exceptions and Supplemental Submission
The Respondent excepts to the Judge's findings that the requested information is not prohibited from disclosure by the Privacy Act. The Respondent maintains that disclosure of the requested information is prohibited by the Privacy Act unless the public interest served by the disclosure outweighs the strong privacy interest that employees have in their performance appraisals. Citing Department of Defense and United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989) (Reporters Committee), the Respondent asserts that the only relevant public interest is the extent to which disclosure would contribute significantly to the public's understanding of the Government's operations or activities. The Respondent argues that the disclosure of the requested information would not serve this interest. The Respondent also contends that the employees' privacy interests in their performance appraisals are significant, in part because appraisals may contain derogatory information or favorable information that may embarrass an employee or incite jealousy in his or her co-workers.
The Respondent also claims that the General Counsel failed to establish that unsanitized information is necessary under section 7114(b)(4) of the Statute.
B. General Counsel's Opposition and Supplemental Submissions
The General Counsel argues that Department of Defense was limited to the disclosure of home addresses and contends that the disclosure of home addresses involves interests that are "fundamentally different" from the interests at issue in this case. General Counsel's Supplemental Brief at 3. The General Counsel maintains that disclosure of unsanitized performance appraisals serves the public interest by revealing the operations and activities of the Government, by indicating whether an agency is treating its employees fairly and in accordance with merit systems principles, by facilitating the early resolution of potential grievances, and by contributing to the proper administration of the performance appraisal system. Noting that the Respondent's employees are engaged in rendering air traffic control services, the General Counsel argues that matters related to the administration of the Respondent's performance appraisal system have critical implications for public safety. The General Counsel claims that the public interest in the disclosure of unsanitized performance appraisal information in this case outweighs the employees' privacy interests in non-disclosure.
The General Counsel also argues that the requested information is necessary within the meaning of section 7114(b)(4) of the Statute. According to the General Counsel, the Union requested the unsanitized information for several reasons, which are supported in the record and are unrebutted by the Respondent.
IV. Analysis and Conclusions
The central question presented in this case is whether disclosure of the requested unsanitized employee performance appraisals is prohibited by law, within the meaning of section 7114(b)(4) of the Statute. In asserting that disclosure is prohibited, the Respondent relies on the Privacy Act. As noted above, the Privacy Act generally prohibits the disclosure of records concerning Federal employees without their consent unless, as relevant here, disclosure of the record would be required under the FOIA. For the following reasons, we conclude that disclosure of the requested information is not required under the FOIA and, therefore, is prohibited by the Privacy Act. Accordingly, without addressing whether the information is necessary, under section 7114(b)(4), we dismiss the complaint.
The statutory right of an exclusive representative to obtain information, which is expressed as a component of the obligation to bargain in good faith, 5 U.S.C. § 7114(b), enables a union to engage in collective bargaining and fulfill its role of representing bargaining unit employees. 5 U.S.C. § 7114(a). In creating this statutory right, it is apparent to us that Congress recognized the significance that information plays in a union's ability to pursue the full range of its representational responsibilities. See generally FLRA v. U.S. Department of the Treasury, Financial Management Service, 884 F.2d 1446, 1449 (D.C. Cir. 1989) (Financial Management Service). See also American Federation of Government Employees, AFL-CIO, Local 1345 v. FLRA, 793 F.2d 1360, 1363 (D.C. Cir. 1986) ("[t]he duty to request and supply information is part and parcel of the fundamental duty to bargain"). At the same time, however, Congress established certain constraints on the disclosure of information, including making the prohibition contained in the Privacy Act applicable to union requests for information under the Statute.
A. Privacy Act Principles Applicable Under the Statute
In refusing to provide the information requested by the Union in this case, the Respondent asserts that the Privacy Act prohibits disclosure because it is not compelled by the FOIA; in particular, the Respondent relies on the FOIA exemption that applies to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]" 5 U.S.C. § 552(b)(6) (Exemption 6). Under well-settled law, determining whether or not disclosure is required under this exemption involves a balancing of the employee privacy interests that would be jeopardized, and the public interest that would be served, by such disclosure.(5) For example, Department of the Air Force v. Rose, 425 U.S. 352, 372 (1976); Financial Management Service, 884 F.2d at 1451.
With respect to employee privacy interests, the disclosure of unsanitized performance appraisals has been the subject of considerable litigation, wherein those interests have been described and weighed under the FOIA. Some of these cases involved requests for information that were made under section 7114(b)(4) of the Statute. For example, FLRA v. United States Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 962 F.2d 1055, 1060 (D.C. Cir. 1992) (Commerce); United States Department of Veterans Affairs, Regional Office, San Diego, California, 44 FLRA 312, 314 (1992) (Department of Veterans Affairs); U.S. Department of Health and Human Services, Social Security Administration and Social Security Administration, Field Operations, Region II, 43 FLRA 164, 166 (1991) (SSA Field Operations), rev'd, No. 92-1012 (D.C. Cir. Dec. 10, 1992) (per curiam, mem.). Other cases involved requests for information that were made directly under the FOIA. For example, Ripskis v. Department of Housing and Urban Development, 746 F.2d 1, 3 (D.C. Cir. 1984) (Ripskis); Columbia Packing Co., Inc. v. United States Department of Agriculture, 563 F.2d 495, 498 (1st Cir. 1977) (Columbia Packing); Church of Scientology v. Internal Revenue Service, 816 F. Supp. 1138, 1154-56 (W.D. Tex. 1993) (Church of Scientology); Gilbey v. Department of the Interior, 1990 WL 174889 (D.D.C. 1990) (Gilbey); Celmins v. United States Department of the Treasury, Internal Revenue Service, 457 F. Supp. 13, 15 (D.D.C. 1977) (Celmins). All of these cases have recognized the personal nature of performance appraisals and the substantial interest that employees have in keeping such information private.
With respect to the public interest to be weighed, the Authority is guided by Reporters Committee and Department of Defense. In Department of Defense, the Supreme Court rejected the Authority's previous approach, which defined the public interest in terms of collective bargaining as embodied in the Statute. The Court held that the only relevant public interest to be considered in the FOIA Exemption 6 balancing analysis is the extent to which disclosure of the information would shed light on the agency's performance of its statutory duties or otherwise inform citizens as to "'what their government is up to.'" Department of Defense, 114 S. Ct. at 1013-14 (quoting Reporters Committee, 489 U.S. at 773). In addition, the Court stated that "all FOIA requestors have an equal, and equally qualified, right to information[.]" 114 S. Ct. at 1014. See also Reporters Committee, 489 U.S. at 771 ("the identity of the requesting party has no bearing on the merits of his or her FOIA request").
Although the case before the Court in Department of Defense involved only the disclosure of bargaining unit employees' home addresses, we find no basis for determining the relevance of an asserted public interest any differently in cases involving other information, including performance appraisals. We note that courts reviewing claims under Exemption 6 of the FOIA consistently have analyzed the public interest utilizing the same definition regardless of differences in the type of information sought. Compare Commerce, 962 F.2d at 1060 (names and duty stations of unit employees who received certain performance evaluations) with Horner, 879 F.2d at 879 (names and addresses of Federal annuitants). Accordingly, in balancing the interests under Exemption 6, we will in this and future cases define the public interest in disclosure of information in terms of the extent to which disclosure of the information would shed light on the agency's performance of its statutory duties or otherwise inform citizens as to what their Government "is up to." Reporters Committee, 489 U.S. at 773.(6)
We adopt this definition of public interest because we conclude that Department of Defense requires this result for all cases involving the FOIA, including those that have their genesis in a request pursuant to section 7114(b)(4) of the Statute. In so doing, however, we acknowledge that applying such a "restrictive definition of the 'public interest in disclosure,'" Department of Defense, 114 S. Ct. at 1017 (Justice Ginsburg, concurring), will often deny to Federal sector unions "information their private-sector counterparts routinely receive[,]" id. at 1018. We believe that this result does not serve the public interest in promoting Federal sector collective bargaining identified by Congress in section 7101 of the Statute. The ability to exchange information is central to the labor-management relationship. Moreover, the open sharing of information is crucial to the efforts of Federal labor organizations and management to forge constructive collaborative relationships. See National Partnership Council Report to the President, dated January 31, 1994, at 7. Therefore, we encourage labor and management, insofar as legally possible, to accommodate both the privacy interests of employees and their exclusive representatives' acknowledged need for meaningful information. In addition, we recognize that "Congress may correct the disparity [in information disclosable to private sector and Federal sector unions]." Department of Defense, 114 S. Ct. at 1016.
B. Analytic Framework for Assessing Privacy Act Claims Under the Statute
In analyzing cases under the FOIA, it is evident that an agency asserting the Privacy Act as a bar to disclosure is in the best position to articulate the privacy interests of its employees and also to come forward with information that records sought are contained in a system of records. See, for example, Vaughn v. Rosen, 484 F.2d 820, 823-24 (D.C. Cir. 1973). This is consistent with the FOIA's requirement that an agency seeking to withhold records must sustain its action. 5 U.S.C. § 552(a)(4)(B). We find that it is appropriate to apply such a requirement to requests under the Statute. See generally Financial Management Service, 884 F.2d at 1457 (Ginsburg, R.B., concurring, noting that section 7114(b)(4) "picks up" the Privacy Act, including the FOIA, "unmodified"). Accordingly, we conclude that in cases where an agency defends a refusal to furnish requested information on the basis that disclosure is prohibited by the Privacy Act because it would result in a clearly unwarranted invasion of personal privacy within the meaning of FOIA Exemption 6, the agency bears the burden of demonstrating: (1) that the information requested is contained in a "system of records" under the Privacy Act; (2) that disclosure of the information would implicate employee privacy interests; and (3) the nature and significance of those privacy interests. If the agency makes the requisite showings, the burden shifts to the General Counsel to: (1) identify a public interest that is cognizable under the FOIA; and (2) demonstrate how disclosure of the requested information will serve that public interest.(7) Although the parties bear the burdens set forth above, we will, where appropriate, consider matters that are otherwise apparent.
Once the respective interests have been articulated, we will, as we have in the past, balance the privacy interests against the public interest. For example, Veterans Administration Medical Center, Jackson, Mississippi and National Federation of Federal Employees, Local 589, 32 FLRA 133, 138 (1988) ("We find that the balancing of interests which is required under the FOIA is appropriate under the Statute."). In striking this balance, we must be mindful that the "clearly unwarranted" language in Exemption 6 weights the scales in favor of disclosure. Ripskis, 746 F.2d at 3. At the same time, however, the strength of the privacy interests may not be diminished by a requesting party's assurance that information will not be disseminated or made publicly available because every requester must be treated the same. See Department of Defense, discussed above in section A of our analysis.(8) If the privacy interests outweigh the public interest, we will conclude that disclosure of the information would constitute a clearly unwarranted invasion of personal privacy under Exemption 6 of the FOIA and, as a result, that disclosure is prohibited by the Privacy Act. In such a case, disclosure is prohibited by law, within the meaning of section 7114(b)(4) of the Statute, and the agency is not required to furnish the information unless, of course, disclosure is permitted under another exception to the Privacy Act. On the other hand, if the public interest outweighs the privacy interests, disclosure is not prohibited by the Privacy Act under section 7114(b)(4).
C. Application of the Framework
In the case before us, the Respondent does not address whether the requested performance appraisals are contained in a system of records; nevertheless, it is apparent that they are. Section 2429.5 of the Authority's Rules and Regulations permits us to "take official notice of such matters as would be proper." 5 C.F.R. § 2429.5. The Authority has found that performance appraisals of Federal employees are contained in a system of records. See SSA Field Operations, 43 FLRA at 168-69, rev'd as to other matters, No. 92-1012 (D.C. Cir. 1992). We find that it is proper to take official notice of that fact here.
In assessing the privacy interests identified by the Respondent, we are guided by the substantial body of law that has been developed, both by the Federal courts and by the Authority. See section A of our analysis. Consistent with this precedent, it is clear that bargaining unit employees have significant privacy interests in information that reveals supervisory assessments of their work performance. As the Supreme Court has observed, "Congress' primary purpose in enacting Exemption 6 was to protect individuals from the injury and embarrassment that can result from the unnecessary disclosure of personal information." United States Department of State v. Washington Post Co., 456 U.S. 595, 599 (1982). That privacy interest may be heightened with respect to derogatory information in an appraisal, Gilbey, but it also extends to disclosure of favorable information that might embarrass an individual or incite jealousy in his or her co-workers. See, for example, Commerce, 962 F.2d at 1059; Ripskis, 746 F.2d at 3.
Specifically, unsanitized performance appraisals reveal details of supervisory assessment of individual work performance and, as such, are likely to contain information that is highly sensitive to employees, which employees may wish to keep confidential. See Stern v. Federal Bureau of Investigation, 737 F.2d 84, 91 (D.C. Cir. 1984) (addressing employee privacy interest in "diverse bits and pieces of information, both positive and negative, that the government, acting as an employer, has obtained and kept in the employee's personnel file"). We note that unsanitized performance appraisals rarely have been subject to disclosure by courts because of the strong privacy interests of the affected employees. Compare Commerce, 962 F.2d at 1060; Ripskis, 746 F.2d at 3-4; Gilbey; and Church of Scientology, 816 F. Supp. at 1156 with Columbia Packing and Celmins. Indeed, we are unaware of any judicial precedent issued subsequent to Reporters Committee in which disclosure of unsanitized employee performance appraisals was mandated under Exemption 6.
With respect to the public interest asserted by the General Counsel, we similarly are guided by precedent recognizing that the public is served if the Respondent carries out its personnel functions fairly, equitably, and in accordance with laws, rules and regulations,(9) Commerce, 962 F.2d at 1060; Ripskis, 746 F.2d at 3; Core v. United States Postal Service, 730 F.2d 946, 948 (4th Cir. 1984) (Core), and otherwise fulfills its statutory and regulatory obligations. The Respondent is engaged in air traffic control activities, which clearly affect aviation safety for the general public. Disclosure of unsanitized performance appraisals would shed light on the ability of employees to perform their air traffic control duties and on the manner in which those duties are performed, which furthers the public interest in knowing how "public servants" are carrying out their Government functions. NLRB v. Robbins Tire and Rubber Co., 437 U.S. 214, 242 (1978) (a basic purpose of the FOIA is to ensure an informed citizenry needed to "hold the governors accountable to the governed").
However, we find, contrary to some of our previous decisions, that the early resolution of grievances is not an appropriate consideration in defining the public interest under FOIA Exemption 6. We reach this result because, pursuant to the principles established in Department of Defense, the early resolution of grievances does not, in and of itself, shed light on an agency's performance of its statutory duties or otherwise inform citizens as to what their Government is up to. Rather, the potential for early grievance resolution arises out of the collective bargaining relationship under the Statute, which, consistent with Department of Defense, is not relevant for purposes of defining the public interest under Exemption 6 of the FOIA. Thus, in Commerce, the court concluded that "[b]y crediting early resolution of potential union grievances, . . . the Authority improperly loaded the public interest side of the exemption 6 balance with collective bargaining values." 962 F.2d at 1060. Moreover, as the identity of the requester is irrelevant for purposes of analysis under the FOIA, the fact that the Union might use the appraisals to foster the resolution of grievances is of no consequence if it cannot be shown that public access to such information would have a similar result. Accordingly, to the extent that our prior decisions found that the early resolution of grievances is a public interest within the meaning of FOIA Exemption 6, we will no longer follow such precedent.(10) For example, Department of Veterans Affairs, 44 FLRA at 317; SSA Field Operations, 43 FLRA at 168.(11)
Further, our review of the record leads us to conclude that the public interest articulated by the General Counsel and cognizable under Exemption 6 of the FOIA would not be enhanced by the disclosure of appraisals that include names and other identifiers. See Ripskis, 746 F.2d at 3-4. Cf. United States Department of State v. Ray, U.S. , 112 S. Ct. 541, 549 (1991) (public interest found to have been adequately served by disclosure of redacted documents); Norwood v. Federal Aviation Administration, 993 F.2d 570 (6th Cir. 1993) (disclosure of documents pertaining to settlement offers of reinstatement to fired air traffic controllers, redacted of identifiers, found to serve the public interest). We note, in this connection, the Respondent's assertion that it had offered to provide sanitized appraisals to the Union. Respondent's Supplemental Brief at 7. Although disclosure of the unsanitized appraisals might assist the Union in performing its representational functions, it is clear, as discussed above, that this interest is specific to the Union and, as such, may not be considered in assessing the public interest under Exemption 6. The General Counsel has not established that the disclosure of employees' names, the precise part of the requested information that implicates employee privacy interests, enhances the public interest in performance appraisals that has been established.
Finally, it appears that disclosure of the requested unsanitized performance appraisals may have adverse consequences. For example, disclosure might "spur unhealthy comparisons" among employees and, thereby, "breed discord in the workplace." Ripskis, 746 F.2d at 3. In addition, disclosure could "chill candor in the evaluation process . . . ." Id. That is, supervisors might withhold comments, both positive and negative, from inclusion in appraisals if they were aware that their comments could become known. See Gilbey, 1990 WL 174889, slip op. at 2 ("Evaluators who know that their comments may be viewed by members of the general public or become the subject of workplace gossip will, consciously or subconsciously, assess more guardedly and less frankly."). Appraisals that are not forthright provide less guidance to employees in terms of job performance and, as a result, provide less helpful feedback to employees who wish to maintain or improve their levels of performance.
Based on the foregoing, and in view of the substantial judicial precedent holding that similar documents are not mandatorily disclosable, we conclude that, on balance, the public interest that would be served by disclosing the requested unsanitized performance appraisals in this case is outweighed by the substantial invasion of employee privacy that would result.(12) Accordingly, we find that disclosure of the unsanitized appraisals would constitute a clearly unwarranted invasion of personal privacy within the meaning of FOIA Exemption 6. See, for example, Commerce, 962 F.2d at 1060; Ripskis, 746 F.2d at 3-4; Core, 730 F.2d at 948-49.
As no other exceptions to the Privacy Act are alleged to apply to this case, we find that disclosure of the requested information is prohibited by law. Therefore, the Respondent is not obligated to provide the Union with the requested information under section 7114(b)(4) of the Statute and its failure to do so is not a violation of the Statute.
V. Order
The complaint is dismissed.
OFFICE OF ADMINISTRATIVE LAW JUDGES
FEDERAL AVIATION ADMINISTRATION,
NEW YORK TRACON, WESTBURY,
NEW YORK
Respondent
and
NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION, MEBA/NMU (AFL-CIO),
NEW YORK TRACON LOCAL
Charging Party
Case Nos. BY-CA-21180
BY-CA-21233
Joseph C. Winkler, Esq.
For the Respondent
Daniel F. Sutton, Esq. and
Carol Walter Pope, Esq.
For the General Counsel
Joseph S. Fruscella
For the Charging Party
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
Statement of the Case
This matter arose under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. § 7101, et seq. (herein the Statute).
Upon unfair labor practice charges having been filed by the captioned Charging Party (herein the Union) against the captioned Respondent, the General Counsel of the Federal Labor Relations Authority (herein the Authority), by the Regional Director for the Boston Regional Office, issued a Complaint and Notice of Hearing alleging Respondent violated the Statute by refusing to furnish the Union with unsanitized copies of the requested performance appraisals of bargaining unit employees and certain non-unit employees. A hearing on the Complaint was conducted in New York, New York at which all parties were afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by Respondent and the General Counsel and have been carefully considered.
Upon the entire record in this matter, my observation of the witnesses and their demeanor and from my evaluation of the evidence, I make the following:
Findings of Fact
At all times material the National Air Traffic Controllers Association (NATCA) has been the exclusive collective bargaining representative of a nationwide consolidated unit of air traffic controllers and the Union has been the agent of NATCA for representing unit employees at Respondent's New York TRACON facility in Westbury, New York. The annual appraisal period for the approximately 200 bargaining unit employees at the New York TRACON facility extends from April 1 to the following March 31. After the appraisal period ended on March 31, 1992, approximately 15 to 20 unit employees expressed dissatisfaction to various Union representatives regarding their appraisals. Some employees complained they felt a number of supervisors discriminated against those employees who filed grievances and some employees complained they were not treated fairly because some supervisors favored employees with whom they had personal friendships or associated with during social or sporting functions. Various awards were related to the performance appraisals employees received.
Three of the complaints made by employees were resolved using an informal procedure established under the parties' collective bargaining agreement. The Union proceeded with investigating the remaining complaints and on May 4, 1992 Union President Joseph Fruscella sent Respondent the following letter:
I am requesting that the following information be delivered to me within seven (7) calendar days as it is necessary for the full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining, and is normally maintained and reasonably available by the Agency, in the regular course of business. This request is made in accordance with 5 U.S.C. chapter 71 of the Federal Service Labor-Management Relations Statute, Title 5, Subchapter II, 7114, b, (4), (A), (B), (C).
1. An unsanitized copy of all bargaining unit members' performance appraisals for the rating period of April 1, 1991 through March 31, 1992.
Please be advised that NATCA reserves the right to grieve this matter upon review of the requested information. . .
On May 15, 1992 Respondent replied to the Union:
This is in response to the subject request.
Copies of employee performance appraisals are protected from disclosure by Order 1280.1, Protecting Privacy of Information About Individuals. The release of this information requires the prior written request of the individuals to whom the records pertain.
Additionally, I request that you provide sufficient information to clarify the purpose of your request. The necessity for and the relevancy of the information must be established prior to its release.
The Union responded on June 15, 1992 specifying it was seeking unsanitized copies of performance appraisals for New York TRACON bargaining unit employees and listed the following reasons for its prior request:
1. To insure that all supervisors apply the performance standards to all employees in the same manner.
2. To insure that there are no predetermined levels of performance (i.e. bell-shaped curve reflecting fully successful, exceptional and outstanding ratings).
3. To insure that those employees who do not perform On-the-Job Training under CJE #3 have an equal chance of being rated above fully successful as those employees who do perform OJT.
4. To insure that flight assists, letters of appreciation and commendation, and OJT are reflected equitably on all PER's.
5. To insure that tape talks are not included in PER's.
6. To insure that union officials are not being given disparate treatment because of union activity.
7. To insure that bargaining unit members are not being given disparate treatment because of exercising their rights under the law.
8. To insure that procedural aspects of the performance appraisal process are being adhered to (i.e. beginning of appraisal discussion, midterm discussion, etc. . .).
On June 17, 1992, after acknowledging that the Union's June 15 letter was responsive to its request that it clarify why it required unsanitized appraisals of bargaining unit employees, Respondent nevertheless refused to furnish the data, contending that ". . . the employees' right to control the release of information relative to performance is paramount. The release of this information must be contingent upon the written authorization of each employee included in this request."
On June 24, 1992 the Union sent Respondent a request similar to its May 4 correspondence, this time requesting unsanitized copies of the performance appraisals for the same period of all Traffic Management Unit employees' who were under the same Performance Management System as the unit employees. Approximately 11 non-unit employees are employed as traffic management coordinators assigned to the Traffic Management Unit at the New York TRACON. Traffic management coordinators are non-supervisory employees who work in the same GS-2152 position series as bargaining unit employees. These employees control the flow of traffic in and out of the New York metropolitan area and coordinate with the traffic centers adjacent to the New York TRACON. Full performance level traffic management coordinators and full performance level air traffic controllers work at the GS-14 grade level. Traffic management coordinators work approximately 16 hours per month performing similar air traffic control functions as bargaining unit employees to maintain position proficiency. From a review of their performance appraisal forms, traffic management coordinators and air traffic controllers have substantially different performance standards as to two of the three job elements on which they are appraised. As to the third job element, "Training", the performance standards are essentially identical. However, Training is given a 25 percent weight for controllers and 20 percent for traffic management coordinators.
The Union followed-up its June 24 request with a letter clarifying the reasons why it wished the performance appraisals for non-unit employees as follows:
1. To ensure that the performance appraisals of bargaining unit employees and non-bargaining unit employees are done in an objective manner with objective documentation and in accordance with FAA procedures.
2. To investigate a grievance into disparate treatment of bargaining unit and non-bargaining unit employees.
3. To determine if bargaining unit employees and non-bargaining unit employees are given the same treatment with respect to operational errors, flight assists, on the job training, controller in charge duties, and letters of commendation.
4. To ensure that tape talks which are not supposed to be included on the performance appraisals are handled in the same manner for both group of employees.
5. To determine how employees whose jobs have moved in and out of the bargaining unit are treated.
6. To ensure that the Traffic Management Coordinators who perform air traffic work are evaluated as are the others who perform air traffic work.
7. To see how developmentals are being handled.
8. To provide input to an FAA committee mentioned in Article 20, Section 5 of the FAA/NATCA agreement which makes recommendations concerning performance standards.
Respondent replied to the Union's request for non-unit employees' performance appraisals on July 7, 1992 by informing the Union that agency policy was consistent with the Privacy Act and all requests for unsanitized performance appraisals would be denied.
Respondent never provided the Union with any of the information it had requested.
Additional Findings, Discussion and Conclusions
Under section 7114(b)(4) of the Statute an agency must furnish the exclusive representative, upon request and to the extent not prohibited by law, data:
"(A) which is normally maintained by the agency in the regular course of business;
"(B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and
"(C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining . . ."
Counsel for the General Counsel contends the Union's request for unsanitized performance appraisals of both unit and non-unit employees, above, fully met the requirements of section 7114(b)(4) of the Statute and accordingly, Respondent's refusal to furnish the information violated section 7116(a)(1), (5) and (8) of the Statute.
Counsel for Respondent acknowledges the requested data is normally maintained by the Agency, is reasonably available within the meaning of section 7114(b)(4)(B) of the Statute, and does not constitute guidance, advice, etc., within the meaning of section 7114(b)(4)(C). However, Respondent in its brief takes the position that the data requested by the Union was not necessary within the meaning of the Statute, (1) and further that under Exemption 6 of the Freedom of Information Act (FOIA), 5 U.S.C. § 552, Respondent was privileged to withhold the information requested.
The Authority has long held that an agency must provide information to a union which would enable it to carry out the full range of its representational functions and responsibilities, including furnishing information necessary for a union to process a grievance or monitor the performance appraisal system. Federal Aviation Administration, Aviation Standards National Field Office, Mike Monroney Aeronautical Center, Oklahoma City, Oklahoma, 43 FLRA 1221, 1226-1227 (1992) and cases cited therein including U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, (National Weather Service), 38 FLRA 120, 130-131 (1990), enforcement denied sub nom. FLRA v. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 962 F.2d 1055 (D.C. Cir. 1992). The Authority has specifically required that unsanitized performance appraisals of bargaining unit employees be provided the exclusive representative since such information requested was found to be necessary for the full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining. U.S. Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, Region II, 43 FLRA 164 (1991) (Social Security and Field Operations Region II), rev'd. U.S. Department of Health and Human Services, Social Security Administration Field Operations, Region II v. FLRA, No. 92-1012 (D.C. Cir. Dec. 10, 1992). Information concerning non-bargaining unit employees may also be required to be provided a union where necessary under section 7114(b)(4) of the Statute to fulfill its representational responsibilities such as investigating whether grounds for a grievance exist. Department of Health and Human Services, Social Security Administration, Region X, Seattle, Washington, 39 FLRA 298, 307-309 (1991). Indeed, the information concerning non-bargaining unit employees may be required to be provided, in certain circumstances, in an unsanitized form. See U.S. Department of Justice and Immigration and Naturalization Service, 37 FLRA 1346, 1360-1366 (1990).
In the case herein the Union was seeking unsanitized performance appraisals for bargaining unit employees and a limited number of non-unit employees whose duties were closely related to unit employees and who had some functions the same as unit employees. The Union clearly explicated its need for the information and delineated precisely how it would be used, as fully set forth above. Further, Union President Fruscella testified he was informed through rumors, which were later confirmed by the Division Manager, that Supervisors were instructed appraisals should be given in such a way as to result in 10 percent of the employees receiving outstanding ratings, 30 percent receiving exceptional ratings and the remaining employees falling into the fully successful level, thus the distribution of appraisals statistically being reflected as a "bell shaped curve." (2) Fruscella also testified he had been "notified" that all Traffic Management employees received an exceptional or outstanding appraisal leading to a monetary award, while only 56 percent of the unit employees received a monetary award. In addition, Fruscella testified controller trainees are frequently told by supervisors that following Agency policy, they would have received a higher appraisal except that they were in trainee status, regardless of their actual proficiency, but such "policy" is not applied to Traffic Management employees. With regard to why it was necessary to receive the requested information in unsanitized form, Fruscella testified he needed each unit employee's appraisal identified in order to compare grievants' appraisals with those who did not previously file grievances to ascertain whether grievants were receiving disparate treatment; to ascertain that letters of appreciation and commendation issued by management to an employee, copies of which the Union receives, are reflected equitably on all applicable appraisals; and to independently verify that the procedural aspects of the performance appraisal process, as it applies to each unit employee, were being followed.
It is clear from the foregoing that the information requested by the Union was for the purposes set forth above and essentially to determine whether unit employees were fairly appraised and obviously take appropriate grievance action if necessary. The information sought in an unsanitized form was directly related to this objective. In these circumstances I conclude the unsanitized information sought for unit employees was necessary, within the meaning of section 7114(b)(4), for the Union to carry out its responsibilities under the Statute.
However, neither Fruscella's testimony nor the record provide support as to why information regarding non-unit employees would not have been satisfactory for the Union's purposes if supplied, at least at first, with personal identifiers deleted. In my view, if a review of a particular appraisal gave rise to a question relevant to the Union's performing its representational role, the identity of the individual appraised could then be sought. Accordingly, as to the request for unsanitized performance appraisals of non-unit employees, I conclude the record does not support a finding that such data was necessary within the meaning of section 7114(b)(4) of the Statute.
With regard to Respondent's defense that it was prohibited by law from supplying the Union with the documents it sought, Respondent contends disclosure of the documents is prohibited by the Privacy Act, 5 U.S.C. § 552a, recognizing that Privacy Act application is affected by the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The Privacy Act generally prohibits disclosure of personal information about Federal Employees without their consent. However, the Privacy Act is not applicable if disclosure is required by the FOIA, which requires the disclosure of information unless it falls within one of its enumerated exceptions. Exemption (b)(6) of the FOIA provides that information concerning an employee contained in personnel files may be withheld from disclosure if disclosure would constitute a "clearly unwarranted invasion of personal privacy." Determining whether such an invasion of personal privacy would occur requires balancing the employees' right to privacy against the public interest in disclosure. See U.S. Department of Labor, Washington, D.C., 39 FLRA 531, 539 (1991) and cases cited therein. The Statutory public interest in disclosure to a union has been held by the Authority to be "the facilitation of the collective bargaining process in the federal sector." U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515, 531 (1991), enforcement denied sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 941 F.2d 49 (1st Cir. 1991).
The public interest in disclosure of the requested appraisals herein was, as discussed above, to facilitate the Union's performance of its Statutory representational duty by obtaining information, necessary within the meaning of section 7114(b)(4) of the Statute, to take appropriate action if unfair or disparate treatment of unit employees was disclosed. See id. at 530-531. In addition, disclosure of the information would further the public interest in assuring that the Agency administered its evaluation program in a fair and consistent manner. See Patent Office Professional Association and Department of Commerce, Patent and Trademark Office, 39 FLRA 783, 816 (1991). (3)
On the other hand, employees clearly have significant privacy interests in information contained in their performance appraisals. See Social Security and Field Operations Region II, at 167 and cases cited therein. However, there is no indication that the Union herein will use or make available the information sought for purposes other than that for which it was requested, id., or that the information might be used to embarrass employees. Id. and see United States Department of Veterans Affairs Regional Office, San Diego, California, 44 FLRA 312, 316.
Balancing the employees' significant privacy interests in their performance appraisals against the public interest inherent in the Union's discharge of its obligations under the Statute to monitor and administer the collective bargaining agreement, including the grievance/arbitration provision of that agreement, I conclude the Union's public interest outweighs unit employees' personal privacy interests against disclosure of their performance appraisals to the Union. Id. Accordingly, in view of the entire foregoing and the record herein I conclude Respondent's refusal to furnish the Union with the unsanitized performance appraisals of controllers it requested, supra, violated section 7116(a)(1), (5) and (8) of the Statute and I recommend the Authority issue the following:
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Federal Aviation Administration, New York TRACON, Westbury, New York shall:
1. Cease and desist from:
(a) Failing and refusing to furnish unsanitized copies of performance appraisals of bargaining unit employees as requested in letters dated May 4, 1992 and June 15, 1992 by the National Air Traffic Controllers Association, MEBA/NMU (AFL-CIO), New York TRACON Local, the agent of the exclusive representative of certain of its employees.
(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Upon request, furnish unsanitized copies of performance appraisals of bargaining unit employees as requested in letters dated May 4, 1992 and June 15, 1992 by the National Air Traffic Controllers Association, MEBA/NMU (AFL-CIO), New York TRACON Local, the agent of the exclusive representative of certain of its employees.
(b) Post at its facilities in the New York TRACON, Westbury, New York 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 Division Manager, New York TRACON 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 of the Boston Regional Office, 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, DC, September 23, 1993
______________________________
SALVATORE J. ARRIGO
Administrative Law Judge
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to furnish unsanitized copies of performance appraisals of bargaining unit employees as requested in letters dated May 4, 1992 and June 15, 1992 by the National Air Traffic Controllers Association, MEBA/NMU (AFL-CIO), New York TRACON Local, the agent of the exclusive representative of certain of our employees.
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 unsanitized copies of performance appraisals of bargaining unit employees as requested in letters dated May 4, 1992 and June 15, 1992 by the National Air Traffic Controllers Association, MEBA/NMU (AFL-CIO), New York TRACON Local, the agent of the exclusive representative of certain of our employees.
(Activity)
Date: 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 any of its provisions, they may communicate directly with the Regional Director, Boston Region, Federal Labor Relations Authority, and whose address is: 99 Summer Street, Suite 1500, Boston, MA 02110-1200 and whose telephone number is: (617) 424-5730.
AUTHORITY FOOTNOTES:
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have footnotes.)
1. The unit employees are air traffic controllers; the non-unit employees are nonsupervisory traffic management coordinators who work in the same position classification series as the unit employees.
2. There was no exception to the Judge's findings and conclusions regarding the performance appraisals of non-unit employees. Accordingly, we will not address that issue.
3. The Privacy Act regulates the disclosure of any information contained in an agency "record" within a "system of records," as those terms are defined in the Privacy Act, that is retrieved by reference to an individual's name or some other personal identifier. 5 U.S.C. § 552a(a)(4), (5). With certain enumerated exceptions, the Privacy Act prohibits the disclosure of personal information about Federal employees without their consent. Section (b)(2) of the Privacy Act provides that the prohibition against disclosure is not applicable if disclosure of the requested information would be required under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA). Exemption (b)(6) of the FOIA provides, in turn, that information contained in "personnel and medical files and similar files" may be withheld if disclosure of the information would result in a "clearly unwarranted invasion of personal privacy[.]" 5 U.S.C. § 552(b)(6). If such an invasion would result, then disclosure is not required by the FOIA. In addition to the exception relating to the FOIA, other exceptions to the Privacy Act may permit disclosure of requested information. However, no other exceptions are asserted to apply in this case.
4. The Judge noted that the Respondent did not dispute the General Counsel's assertion that the information is normally maintained by the Respondent, is reasonably available, and does not constitute guidance, advice, counsel, or training for management officials within the meaning of section 7114(b)(4)(C) of the Statute.
5. Of course, if it is determined that disclosure would implicate no privacy interests, the Privacy Act would not apply and no further analysis under that statute would be necessary. For example, National Association of Retired Federal Employees v. Horner, 879 F.2d 873, 874 (D.C. Cir. 1989), cert. denied, 494 U.S. 1078 (1990) (Horner).
6. As a result, we will no longer follow the analysis in prior Authority decisions that defined the public interest to be weighed under the FOIA in terms of collective bargaining as embodied in the Statute. For example, U.S. Department of Transportation, Washington, D.C., 47 FLRA 110, 126 (1993) (Department of Transportation); U.S. Department of Transportation, Federal Aviation Administration, 46 FLRA 1475, 1485-86 (1993); National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Louisville, Kentucky, 45 FLRA 1346, 1352 (1992) (Defense Mapping Agency); Department of Veterans Affairs, 44 FLRA at 314-15; U.S. Department of Transportation, Federal Aviation Administration, National Aviation Support Facility, Atlantic City Airport, New Jersey, 43 FLRA 191, 201-02 (1991) (National Aviation Support Facility).
7. Of course, the General Counsel bears the overall burden of proving a violation of the Statute; as relevant here, the General Counsel must establish that all of the requirements of section 7114(b)(4) have been satisfied.
8. Therefore, a union's commitment that it will not disclose information will no longer enter into our balancing of privacy and public interests and we will no longer follow our precedent that so holds. For example, Merit Systems Protection Board Professional Association and Merit Systems Protection Board, Washington, D.C., 30 FLRA 852, 858 (1988); Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 25 FLRA 1060, 1063 (1987).
9. With respect to an agency's substantial responsibilities in developing and implementing employee performance appraisal systems, see generally 5 U.S.C. §§ 4301-4305 and 5 C.F.R. Part 430.
10. For the same reasons, the proper administration of a collective bargaining agreement would not be a public interest cognizable under FOIA Exemption 6, unless it can be shown that public access would permit assessment of an agency's contract administration, and we will no longer adhere to our precedent that holds to the contrary. For example, Department of Transportation, 47 FLRA at 126-27; Defense Mapping Agency, 45 FLRA at 1354; National Aviation Support Facility, 43 FLRA at 202.
11. Our decisions in these cases applied Reporters Committee as an alternative analysis supporting the disclosure of unsanitized performance appraisals. Once the interests that arise purely out of a union's status as exclusive representative under the Statute are eliminated, however, the privacy interests of employees take on more significance relative to whatever public interest remains. Thus, the "substantial" employee privacy interests that were found to exist in SSA Field Operations would, when properly balanced against the public interest cognizable under the FOIA, tip in favor of nondisclosure. 43 FLRA at 166. Similarly, the "limited" privacy interests in Department of Veterans Affairs, would, on balance, outweigh the even more limited public interest that is cognizable under the FOIA. 44 FLRA at 318. Cf. Halloran v. Veterans Administration, 874 F.2d 315, 322 (5th Cir. 1989) ("even a small and potentially uncertain invasion of privacy engendered by the release of identifying information may nonetheless be 'unwarranted' if there are no public interests supporting disclosure of the particular information").
12. Although, as noted above, we are not aware of any post-Reporters Committee judicial precedent holding that unsanitized employee performance appraisals are mandatorily disclosable under Exemption 6 of the FOIA, we do not preclude the possibility that particular circumstances may exist in which disclosure of such information would be mandatory.
ADMINISTRATIVE LAW JUDGES FOOTNOTES:
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have footnotes.)
1. At the hearing, Counsel for Respondent stated that he did not think "necessity" under section 7114(b)(4)(B) of the Statute would be an issue in this case.
2. Article 20 of the parties' collective bargaining agreement entitled "Performance Standards and Evaluation", provides, in relevant part:
SECTION 7. Appraisals made pursuant to this Article shall not be required to conform to any pre-established distributions of expected levels of performance that interfere with appraisal of actual performance against standards . . .
3. I am aware that the U.S. Court of Appeals for the D.C. Circuit has held in National Weather Service and Social Security and Field Operations Region II that such matters may not be considered when balancing the competing interests of a collective bargaining representative with employees' privacy interests under the Privacy Act. However, I am constrained to follow the law as enunciated by the Authority until changed by the Authority or otherwise ultimately resolved.