[ v51 p1391 ]
51:1391(113)CA
The decision of the Authority follows:
51 FLRA No. 113
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
U.S. DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
WASHINGTON, D.C.
and
U.S. DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
OKLAHOMA CITY DISTRICT
OKLAHOMA CITY, OKLAHOMA
(Respondents)
and
NATIONAL TREASURY EMPLOYEES UNION
(Charging Party/Union)
76-CA-10959
DECISION AND ORDER
June 20, 1996
_____
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, 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 Respondents. The General Counsel filed an opposition to the exceptions.(1)
The complaint alleges that the Respondents 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 performance appraisals for certain bargaining unit and nonbargaining unit employees requested under section 7114(b)(4) of the Statute. The Judge found that the Respondents violated the Statute by failing to furnish the requested performance appraisals, and recommended that the Respondents be directed to furnish the Union with the appraisals sanitized to delete the personal identifiers of the employees involved but annotated to indicate the gender of each employee.
Upon consideration of the Judge's decision and the entire record, we conclude that the Union has not established that the information requested is necessary within the meaning of section 7114(b)(4) of the Statute and, therefore, that the Respondents did not violate the Statute by failing to furnish the information. Accordingly, we dismiss the complaint.
II. Judge's Decision
The facts are fully set forth in the attached Judge's decision and are only briefly summarized here.
The Union filed a grievance on behalf of a unit employee, alleging that she had improperly been given a lower performance appraisal rating than in the previous year, in part because of discriminatory treatment based on sex. In connection with the processing of this grievance and another grievance which was subsequently resolved, the Union requested copies of the performance appraisals of all bargaining unit and nonbargaining unit employees of the Oklahoma City Information Systems Staff (ISS) for the 2-year period covering the grievant's prior and current appraisals. The Union's request stated that a "partial basis of this grievance is sexual discrimination and disparate treatment of the grievant[,]" and "[a]lthough the grievant is performing a different job function, it is the position of [the Union] that the aforementioned appraisals are necessary in order to support our allegations." General Counsel's Exhibit 6.
In a written response, Respondent U.S. Department of the Treasury, Internal Revenue Service, Oklahoma City District, Oklahoma City, Oklahoma (Oklahoma City District), stated that it was not clear from the request how the information would support, or otherwise relate to, the grievance. The Oklahoma City District asserted that the information was not relevant and necessary to the issue of disparate treatment because the grievant was the only Computer Assistant on the ISS Staff. According to the Oklahoma City District, to support a claim of disparate treatment, a comparison of performance appraisals of individuals who occupy like positions must be made. The Oklahoma City District further stated to the Union that "[i]f you can provide a clear connection between the information requested or if other, more appropriate information is necessary, please let [management] know." General Counsel's Exhibit 9. Subsequently, the Union and the Oklahoma City District's representatives discussed the information request on at least two occasions. The Oklahoma City District restated its view that the necessity and relevance of the information to the processing of the grievance had not been established. The Union gave no further explanation regarding the Union's need for the information sought, and the Oklahoma City District did not furnish the requested information. It was not until the hearing before the Judge that the Union responded to the request that it explain its need for the information. The Oklahoma City District denied the grievance and the Union invoked arbitration.
At the hearing before the Judge, the Union representative stated that the Union wanted to see the written narratives that accompany the scores that individual employees received in order to determine whether there had been discrimination on the basis of sex. In this regard, the representative testified that the Union wanted to compare the male and female employees' appraisals to determine if there was a pattern in the way that the narratives were written and the corresponding scores given. The representative also testified that the Union suspected that the males receive "more fluff" in their narratives. Transcript at 42. The Judge concluded that the Respondents' refusal to furnish the requested information violated the Statute because the information was necessary under section 7114(b)(4) of the Statute and met the other requirements of section 7114(b)(4).
III. Positions of the Parties (2)
A. Respondents' Exceptions
The Respondents assert that the Union has not shown that the performance appraisals of any of the employees are relevant to the grievance or that they are necessary under section 7114(b)(4). According to the Respondents, the ISS staff consists of mostly one-of-a-kind positions and, therefore, a comparison of similarly-situated employees is not possible. The Respondents maintain that the Union had an obligation, but failed, to respond to the Respondents' requests for clarification as to how the requested information was necessary to the underlying grievance. In this regard, the Respondents assert that the Union had an obligation to demonstrate the necessity of the information at the time of the information request, not for the first time at the hearing before the Judge.
B. General Counsel's Opposition
The General Counsel contends that the Judge properly concluded that the performance appraisals were necessary under section 7114(b)(4). The General Counsel states that although the Judge's conclusion was based upon evidence presented at the hearing, this evidence was nothing more than a statement of what should have been "reasonably obvious" to the Respondents at the time that they were considering the request. Opposition at 6.
IV. Analysis and Conclusions
In Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661 (1995) (IRS, Kansas City) (Member Talkin concurring), the Authority set forth the analysis for determining whether information is "necessary" under section 7114(b)(4) of the Statute. The Authority held that a union making a request under that section must establish a particularized need for the requested information by articulating, with specificity, why it needs that information, including the uses to which the information will be put, and the connection between those uses and the union's representational responsibilities under the Statute. The Authority also stated that a union's need will not be satisfied merely by showing that requested information is or would be relevant or useful, but that the information is "'required in order for the union adequately to represent its members.'" IRS, Kansas City, 50 FLRA at 670 (quoting Department of Justice v. FLRA, 991 F.2d 285, 290 (5th Cir. 1993)). A union's responsibility for articulating and explaining its interests extends to more than a conclusory or bare assertion. Among other things, a request for information must be sufficient to permit an agency to make a reasoned judgment as to whether information must be disclosed under the Statute. As for the agency's responsibilities, it must assert and establish any countervailing anti-disclosure interests when it denies an information request. An agency may not satisfy its burden by making conclusory or bare assertions.
The Authority concluded that application of the above standard, which requires the parties to articulate and exchange their respective interests in disclosing information, serves several important purposes. First, it "facilitates and encourages the amicable settlements of disputes" and, thereby, effectuates the purposes and policies of the Statute. Id. (quoting 5 U.S.C. § 7101(a)(1)(C)). Second, it facilitates the exchange of information, with the result that both parties' abilities to effectively and timely discharge their collective bargaining responsibilities under the Statute are enhanced. Id. Third, it permits the parties to consider, and as appropriate, accommodate their respective interests and attempt to reach agreement on the extent to which requested information is disclosed. Id. at 670-71.
Where the parties are unable to agree on whether, or to what extent, requested information must be provided, the Authority will find an unfair labor practice if a union has established a particularized need for the information and either: (1) the agency has not established a countervailing interest; or (2) the agency has established such an interest but it does not outweigh the union's demonstration of particularized need.
Applying the analytical framework of IRS, Kansas City, we find that the Union has not satisfied its burden of establishing a particularized need for the sanitized performance appraisals. When it requested the performance appraisals, the Union stated that, "although the grievant [was] performing a different job function," it was the Union's "position" that the information was needed to show disparate treatment on the basis of sex. G.C. Exh. 6. In denying the request, the Oklahoma City District questioned how the information was relevant or necessary because the grievant occupied the position of Computer Assistant, a one-of-a-kind position. In the District's view, the performance appraisals of other employees were not necessary because the Union could prove disparate treatment only by comparing the grievant's appraisal to those of other employees who occupied the same position. The Oklahoma City District asked the Union to provide additional information that would explain why the information was necessary, i.e., why the Union needed performance appraisals of employees who occupy dissimilar positions. The District also asked the Union to notify it if "other, more appropriate information" was necessary. G.C. Exh. 9.
Under these circumstances, it was incumbent on the Union to provide additional explanation as to why it needed the information. See U.S. Equal Employment Opportunity Commission, 51 FLRA 248, 257-58 (1995) (EEOC). That is, in view of the Oklahoma City District's unanswered questions, we find that the Union's conclusory assertion that the appraisals "are necessary in order to support our allegations" was insufficient to establish particularized need. G.C. Exh. 6. The Union should have responded by explaining how performance appraisal information concerning dissimilar positions would allow a meaningful comparison to be made in order to support a claim of disparate treatment on the basis of sex. We are not persuaded by the General Counsel's contention that the reasons offered by the Union at the ULP hearing were "nothing more than a statement of what should have been reasonably obvious to the Respondent at the time it was considering the request." Opposition at 6 (citation omitted). In this regard, the Oklahoma City District sought clarification from the Union on this exact point. Accepting the General Counsel's contention would require us to conclude that the request for clarification was either disingenuous or unreasonable, a conclusion not supported by the record. Nor are we willing to speculate that, as the General Counsel argues, it would have been "futile" for the Union to provide the Respondent further information. Id.
Even assuming, without deciding, that the explanation eventually proffered at the hearing demonstrated a particularized need for the requested information, the Oklahoma City District was not aware of the explanation at a time when it reasonably could have assessed the necessity for the information. See Social Security Administration, Dallas Region, Dallas, Texas, 51 FLRA 1219, 1224 (1996).(3) In sum, because the Union did not timely provide the clarification that was requested, the parties were effectively foreclosed from considering ways to accommodate their respective interests and could not attempt to reach agreement on the extent to which any of the requested information could be disclosed. See id. at 258; IRS, Kansas City, 50 FLRA at 670-71.
For these reasons, we conclude that the Union did not satisfy, in a timely fashion, its burden of articulating and establishing, with specificity, why it needed the information, the uses to which the information would be put, and the connection between those uses and the Union's representational responsibilities under the Statute. Therefore, we conclude that the information requested is not necessary within the meaning of section 7114(b)(4) of the Statute.(4)
V. Order
The complaint is dismissed.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
| INTERNAL REVENUE SERVICE, WASHINGTON, DC
and INTERNAL REVENUE SERVICE, OKLAHOMA CITY DISTRICT, OKLAHOMA CITY, OKLAHOMA Respondents |
|
| and
NATIONAL TREASURY EMPLOYEES UNION Charging Party |
|
Michael Salyards, Esq. and
Gary A. Anderson, Esq., on brief
For
the Respondents
Bruce E. Conant, Esq.
For the General Counsel
Quinton Bland
For the Charging Party
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
Statement of the Case
This case 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 an unfair labor practice charge having been filed by the captioned Charging Party (herein sometimes NTEU) against the captioned Respondents, the General Counsel of the Federal Labor Relations Authority (herein the Authority), by the Regional Director for the Denver Region, issued a Complaint and Notice of Hearing alleging Respondents violated the Statute by refusing to furnish the Union with copies of performance appraisals of certain employees that the Union had requested.
A hearing on the Complaint was conducted in Oklahoma City, Oklahoma, at which all parties were afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses and argue orally. Briefs were filed by Respondents and the General Counsel and have been carefully considered.(1)
Upon the entire record in this case, 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 NTEU has been the exclusive collective bargaining representative of various of Respondents' employees including certain employees working as part of Respondents' Oklahoma City's Information Systems Staff (herein ISS). NTEU Chapter 45, (herein the Union) is an agent and affiliate of NTEU.
On January 11, 1991 Union steward Christy Parrett filed a grievance on behalf of employee Clara Terranova, a Computer Systems Analyst in ISS, which stated:
The grievant received a performance appraisal with an overall rating lower than last year's appraisal. No counseling was given to the employee regarding decrease in her performance.
The grievance alleged that one of the provisions of the collective bargaining agreement violated by the employer was Article 12, Section 4C., which provides:
Performance appraisals will be made in a fair and impartial manner. They will measure actual work performance in relation to the performance requirements of the positions to which employees are assigned.
Shortly thereafter Parrett and Terranova met with Ed Reiser, Terranova's immediate supervisor, and discussed the matter. During their conversation, in addition to raising the matter contained in the grievance, Parrett and Terranova suggested that possible sexual discrimination might be the basis for Reiser lowering Terranova's appraisal. Reiser refused to discuss the matter.
Terranova and Parrett met with Reiser and Senior Labor Relations Specialist Pam Peachlyn on January 25, 1991 concerning the grievance. A memorandum of that meeting authorized by Reiser discloses that the grievance was discussed but no specific indication is given in the memorandum that sexual or any other form of discrimination was alleged or treated. Rather, the memorandum was primarily addressed to the grievant's job and Reiser's review of her work during the prior appraisal year.
On February 22, 1991 the Union filed a grievance on behalf of Computer Assistant Karen Cloud, another ISS employee. This grievance alleged supervisor Reiser did not treat the grievant in a "fair and equitable manner because she is a female" and not a personal favorite of Reiser, and also that her annual performance appraisal was lowered from the previous year and she received no prior counseling regarding the matter. Part of the remedy requested was that "all sexual discrimination and personal favoritism cease."
Union steward Parrett sent a request to the Oklahoma City Personnel Branch for the performance appraisals of two male employees on March 4, 1991, stating the information was "needed and necessary for two grievances" currently active in the ISS area. Management's response of March 8 states that the Union's request was not relevant to the Cloud grievance "because she is in a different type of position" than the two male employees whose performance appraisals were requested. The response went on further to note that neither male employee was serving in the same position as grievant Terranova and informed Parrett:
We cannot establish a relevance for your request for copies of the performance appraisals for these two employees since the position descriptions and critical elements are not the same and no worthwhile comparison can be made. In addition, you did not raise the issue of disparate treatment either in the written grievance or in the Step 3 meeting, so comparison is not appropriate even if there were other employees in the same position.
On March 11, 1991 Parrett sent a letter to Agency Personnel requesting, with regard to the Terranova and Cloud grievances, all ISS employees' performance appraisals for the prior two years. The letter set forth the following under the heading, "Justification":
Clare Terranova - In order to determine that performance appraisals have been executed in a fair and objective manner, I will need copies of the abovementioned appraisals. This information will also enable me to determine by comparison how management has rated other employees.
Karen Cloud - As you know, partial basis of this grievance is sexual discrimination and disparate treatment of the grievant. Although the grievant is performing a different job function, it is the position of NTEU Chapter 45 that the aforementioned appraisals are necessary in order to support our allegations. Additionally, NTEU is only required to provide justification when requesting this information, and not it's relevance.
The Chief of the Personnel Branch for the Oklahoma City District responded with separate memorandum to Parrett on March 22, 1991. With regard to Terranova's grievance, the reply stated:
In determining whether Ms. Terranova's performance appraisal was executed in a fair and objective manner, the appropriate comparison is the completed appraisal to the elements and standards of her performance plan.
If disparate treatment had been appropriately raised as an issue, comparison of the grievant's appraisal to appraisals of employees in like positions might be appropriate. Since we can find no evidence that disparate treatment was raised as an issue at Step 1, and according to Article 41, Section 8C, ". . . new issues may not be raised by either party unless they have been raised at Step 1 of the grievance procedure . . .", such an issue may not be raised at this time.
Since it is not clear how the requested information is relevant and necessary to the subject grievance and the issues at hand, no additional information is being provided. If you have additional information to explain the necessity of the requested information, please provide as soon as possible. Otherwise, management requests that the Step 4 meeting be scheduled and held as soon as possible.
As to the request for information relative to Cloud's grievance, management replied:
It is not clear from your request how this information would support, or otherwise relate to, the subject grievance. To support the issue of disparate treatment it is appropriate to compare appraisals of employees in like positions. Since the grievant is the only Computer Assistant in ISS, I do not believe the requested information is relevant and necessary to this issue.
If you can provide a clear connection between the information requested or if other, more appropriate information is necessary, please let me know. Otherwise, management requests that the Step 1 meeting be scheduled and held as soon as possible.
Subsequently the Union informed Personnel that it was going to file an unfair labor practice charge regarding the refusal to provide the information sought and requested the grievance of Terranova and Cloud be held in abeyance. On April 28, 1991 Parrett met with Senior Labor Relations Specialist Peachlyn and discussed the matter. Peachlyn expressed management's concern that the information sought was private and considered confidential and that the Activity was concerned about releasing the date to the Union when its necessity and relevancy to the grievances had not been established. Management was of the opinion that the information requests did not relate to the grievances and it could not presume necessity and relevance of the matter sought to the grievances at hand. Parrett gave Peachlyn no additional information and Peachlyn indicated she'd look further into the matter.
Peachlyn and Parrett met early in June 1991 and discussed the release of the information sought. Peachlyn explained that copies of other employees' appraisals could not be supplied to the Union because, in management's view, the necessity and relevance of the information to the processing of the Terranova and Cloud grievance had not been established. Peachlyn further stated that if management was convinced in a situation that an issue of disparate treatment had been raised then management could, in certain situations, provide limited information including sanitized copies of employees' appraisals if the employees had the same position description as the grievant.(2) Parrett gave no further explanation regarding the Union's need or use of the information sought other than responding that the Union needed the appraisals to compare with that of the grievant.
The parties met again to discuss the grievances on June 13, 1991. Again management refused to provide the Union with the requested appraisals since it felt the conditions surrounding the issues of the grievances did not warrant their release, with the exception of one appraisal relating to the Terranova grievance. However, that grievance was settled at this meeting without providing that appraisal. With regard to the Cloud grievance, the subject of the grievance remained essentially the same as when first filed, management refused to supply the information sought by the Union, and the grievance was denied.(3)
The ISS work unit under supervisor Reiser consisted of approximately 14 employees, including nine members of the collective bargaining unit. Most of the ISS employees were assigned to one-of-a-kind positions. All non-unit employees were women and only three of the nine unit employees, including Terranova and Cloud, were women. Union steward Parrett testified she suspected a review and comparison of the narrative portions of all ISS employees' appraisals might have shown a pattern of favoritism towards men and against women, regardless of technical expertise required by the particular job, which would be used to support the grievances.(4) The information obtained would, of course, have to be evaluated as to usefulness after being produced. Parrett also testified that access to the information would be limited to Union officers and counsel and be locked in the Union office.
Discussion and Conclusions
Counsel for the General Counsel contends the Union's March 11, 1991 request for the ISS employees' performance appraisals fully met the requirements of section 7114(b)(4) of the Statute and Respondents' refusal to provide the information therefore violated section 7116(a)(1), (5) and (8) of the Statute. Under section 7114(b)(4), an agency is required:
. . . to furnish to the exclusive representative involved, or its authorized 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 reasonable 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 Respondents' contends that it was not obligated to provide the Union with the requested appraisals since the data was not necessary and relevant to the processing of the grievances which had been filed and the Agency was also prohibited by law from releasing the appraisals to the Union.
The Authority has long held that an agency must provide information to enable a union to effectively carry out its representational functions and responsibilities. See U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 38 FLRA 120, 130-131 (1990); Internal Revenue Service, Washington, DC and Internal Revenue Service, Wichita District, Wichita, Kansas, 32 FLRA 920, 924-926 (1988); and Internal Revenue Service, Washington, DC and Internal Revenue Service, Omaha District, Omaha, Nebraska, 25 FLRA 181 (1987). While something more than a request for information is normally required to support a contention that information sought by a union is "necessary" within the meaning of section 7114(b)(4) of the Statute, such determination will be made in the particular circumstances of each case. See Defense Mapping Agency Aerospace Center, St. Louis, Missouri, 21 FLRA 595 (1986). The "necessity" of the information sought to the Union may, in some cases, be evident from the surrounding circumstances and obvious to the agency at the time of the request, therefore not requiring a detailed explanation by the union as to why the data is "necessary". See Veterans Administration Central Office, Washington, D.C., and Veterans Administration Regional Office, Denver, Colorado, 25 FLRA 633 (1987).(5)
As to employee Terranova, the Union sought the performance appraisals of all ISS employees for a two year period for the purpose of determining whether Terranova's appraisals were executed in a fair and impartial manner as required by the collective bargaining agreement. Such purpose was clearly conveyed to Respondents. While comparing Terranova's appraisal to elements and standards of her employment plan as the employer suggests is a step useful to ascertain whether the appraisal was fair and objective, it is not the only test which might be applied. Thus, the fairness and objectivity of the appraisal might also validly be compared to the appraisals of the employees, especially the narrative statements used by the appraiser, to determine whether the same standards are being applied of if some bias is evident. Disclosure of such bias against one employee in favor of other employees might well be discerned by evaluating all appraisals made by the same supervisor. If narrative comments by supervisor Reiser revealed hostility against Terranova because of her sex or for other non-appropriate reasons or favoritism for other employees when the language used by Reiser was compared, then an argument could be made to an arbitrator that Terranova's appraisal was not fair and objective as required by the contract. But it was necessary for the Union to have those appraisals before such a comparison could be made. Although not specifically articulated by the Union when requesting the information sought herein, in my view, the utility and indeed necessity for the Union to possess the appraisals sought was, or should have been, evident to Respondents from the surrounding circumstances. As such need was, or should have been, obvious to management I find and conclude the Union was not required to give management a more detailed explanation of the necessity of the appraisals sought in processing Terranova's grievance.
The same analysis applies to necessity of other ISS employees' appraisals for comparison with Cloud's appraisal. However the conclusion that the appraisals sought by the Union were "necessary" within the meaning of section 7114(b)(4)(B) of the Statute is even more compelling in Cloud's case. Her grievance was that her supervisor did not treat her in a fair and equitable manner (Article 12, Section 4C was referenced in the grievance) because she was a woman and not a personal favorite of her supervisor. Thus, from the very nature of the grievance it is readily apparent that a comparison between what supervisor Reiser said in his narrative comments regarding her performance and the performance of others he appraised would be extremely relevant and necessary to test or support the grievance. While the Union might have had other evidence of Reiser not treating Cloud in a fair and equitable manner and his alleged antipathy towards Cloud because she was a woman and also not a "personal favorite", an analysis of what and how Reiser wrote about his other subordinates and comparing that to his choice of words in his narrative in Cloud's appraisal would be an obvious area of inquiry. Indeed, it is one of the few places support for the allegations of the grievance might expect to be found. Accordingly, I conclude the data the Union sought in its March 11, 1991 request was "necessary" within the meaning of section 7114(b)(4)(B) of the Statute.
With regard to Respondents' defense that it was prohibited by law from supplying the Union with the documents it sought, Respondents contend 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. Further, section (b)(3) of the Privacy Act permits disclosure of an employee record "for a routine use", which is defined in 5 U.S.C. § 552(a)(7) as "the use of such record for a purpose which is compatible with the purpose for which it was collected."
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 is "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 (1990), 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 proceed with employees' grievances. Id. at 530-531. In addition, disclosure of the information would further the public interest in assuring that the Agency administer 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).
On the other hand, employees clearly have significant privacy interests in information contained in their performance appraisals. Indeed, Respondents' witnesses testified that the small ISS staff was rife with dissension and divisiveness and employees were inordinately sensitive to the disclosure of personal information to other employees.
Balancing the employees' significant privacy interests in their performance appraisals against the Union's strong public interests, and noting that the use and access to the information obtained would be limited, and that information sanitized to protect the specific identity of the individuals is acceptable to the Union, and in all the circumstances herein, I conclude that the public interest in disclosure of the data sought outweighs the personal privacy interests of ISS employees. Accordingly I conclude such disclosure does not constitute a clearly unwarranted invasion of employees' personal privacy and release of the requested documents is not prohibited by the Privacy Act. See U.S. Department of the Interior, Bureau of Indian Affairs, Billings Area Office, Billings, Montana, 39 FLRA 238, 252-254 (1991) (Bureau of Indian Affairs).
I further conclude that release of the performance appraisals sought is permissible under the "routine use" exemption to the Privacy Act. Clearly the Union is a routine user of the employee personnel records sought herein. However, according to the Office of Personnel Management (OPM) regulations found in FPM Letter 711-164, dated September 17, 1992, which I will assume is binding on the parties herein(6), the information sought to be disclosed must be "relevant" and "necessary" as defined by the OPM.(7) Thus, FPM Letter 711-164 provides, in relevant part:
Under OPM's routine uses, a recognized union's access to information from Privacy Act systems of records is not unconditional. The requestor representing the union must demonstrate to the system manager that the information requested is both "relevant" to the express purpose for which it is sought, and "necessary" for that purpose. By "relevant" OPM means that the nature of the information bears a traceable, logical, and significant connection to the purpose to be served. "Necessary" means that there are no adequate alternative means or sources for satisfying the union's information needs. This "adequate alternative" test must be applied on a case-by-case basis. There are, however, two types of broad guidelines that apply, depending on whether the union is seeking home addresses or other types of information about individuals.
The "broad guidelines" given by OPM to agencies applicable to information about individuals, other than home addresses, are set forth as follows:
Unions will often cite a generalized need for information about agency actions with respect to individual employees. For example, the union may ask for lists of employees who have been counseled or disciplined within a specific timeframe, stating that it needs the information in order to consider whether or not to file a grievance. Agencies must apply a two-step analysis in determining whether the requested information is releasable. First, the union must show that the information is "relevant" to carrying out its representational obligations. For example, a dispute may not be grievable under the parties' collective bargaining agreement and, if that is the case, information pertaining to it is not "relevant."
Second, if the agency determines that the information is "relevant," it must also determine that the information is in fact "necessary." The union must show that it has a particularized need for the information in a form that identifies specific individuals, and that its information needs cannot be satisfied through less intrusive means, such as by releasing records with personally-identifying information deleted.
In my view the facts herein indicate the Union has shown the appraisals sought were both necessary and relevant as defined by FPM Letter 711-164. Thus the appraisals were relevant since, as stated above while dealing with the "necessary" requirement under section 7114(b)(4) of the Statute, it was obvious from the nature of the grievances that the appraisals of all employees in ISS were needed for comparison with the grievants to see that they were given in a fair, equitable and impartial manner as required by the collective bargaining agreement. In the case of Cloud it was even more apparent, and indeed explicit in the grievance, that she was unfairly and inequitably treated because of her sex and because she was not a personal favorite of supervisor Reiser.
Similarly, the necessity of the information under the FPM letter should have been readily apparent to management from the nature of the information sought. The "particularized need" for the appraisals was to obtain data in a form where the narrative comments of supervisor Reiser concerning each ISS employee could be compared with that of the grievants to see if there was any substance to the grievants' allegations. Sanitized documents, if gender was identified would have been acceptable, and that also should have been obvious to management. Alternative means to make such comparisons were not available and indeed no alternative means to obtain the information existed. It is simply not realistic to require that the Union request the information from ISS employees and expect the employees will willingly provide it, given the private nature of the data sought and, as testified to by Respondents' witnesses, the attitude and sensitivity of ISS employees regarding one another and their appraisals. In all the circumstances therefore I conclude release of the requested information is permissible under the Privacy Act. See Bureau of Indian Affairs, at 252-254.
Accordingly, in view of the entire foregoing and the record herein I conclude Respondents' refusal to furnish the Union with the performance appraisals of ISS employees it requested on March 11, 1991 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 Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, the Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Oklahoma City District, Oklahoma City, Oklahoma shall:
1. Cease and desist from:
(a) Refusing to furnish, upon request by the National Treasury Employees Union, Chapter 45, the designated agent of the exclusive representative of a unit of its employees, requested information that is reasonably available and necessary for the agent to effectively represent unit employees in grievance proceedings.
(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Upon request, furnish the National Treasury Employees Union, Chapter 45, with the performance appraisals it requested in its letter of March 11, 1991, which may be modified to delete the personal identifiers of the employees involved but annotated to identify the sex of each employee, if so modified.
(b) Post at its facilities in its Oklahoma City District, Oklahoma City, Oklahoma, where bargaining unit employees represented by the National Treasury Employees Union, Chapter 45 are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the District Director, 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 for the Denver Region, 1244 Speer Boulevard, Suite 100, Denver, CO 80204, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
Issued, Washington, DC, August 2, 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 refuse to furnish, upon request by the National Treasury Employees Union, Chapter 45, the designated agent of the exclusive representative of a unit of our employees, requested information that is reasonably available and necessary for the agent to effectively represent unit employees in grievance proceedings.
WE WILL upon request, furnish the National Treasury Employees Union, Chapter 45, with the performance appraisals it requested in its letter of March 11, 1991, which may be modified to delete the personal identifiers of the employees involved but annotated to identify the sex of each employee, if so modified.
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.
_____________________________
(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 of the Federal Labor Relations Authority, Denver Region, 1244 Speer Boulevard, Suite 100, Denver, CO 80204, and whose telephone number is: (303) 844-5224.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
Authority's Footnotes Follow:
1. In addition to the Respondents' exceptions and the General Counsel's opposition, the Respondents, the General Counsel, and the Union filed supplemental submissions in response to Authority Orders requesting additional information and argument.
2. Because it was unclear from the face of the ULP complaint and from the parties' pleadings in this case whether the Union sought unsanitized or sanitized information, the Authority issued an order directing the parties to state whether the Respondents were afforded a full and fair opportunity to litigate the specific issue of whether sanitized information should have been furnished the Union. See U.S. Department of Labor, Washington, D.C., 51 FLRA 462 (1995). All parties agree that the Respondents were afforded such an opportunity.
3. We note that this case is distinguishable from our recent decision in U.S. Department of Transportation, Federal Aviation Administration, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Connecticut, 51 FLRA 1054 (1996) (FAA). Among other things, in FAA, the union requested name-identified performance award information in order to prepare for an annual labor-management meeting, which would include discussions of the agency's recognition and awards program, and to determine whether unit employees had been treated differently under the program. Id. at 1067. The agency in FAA neither responded to the union's request nor sought to have the union clarify its request as did Respondents in this case. Because it was clear on the face of the request why the union in FAA needed the information, we found that the union established the requisite particularized need. We considered the hearing testimony in FAA because it merely "further explained the Union's previously stated reasons" for needing the information. Id. Here, however, the Oklahoma City District immediately sought clarification of the request, and the Union did not respond. A union cannot establish a particularized need for information based on an explanation offered for the first time at the hearing before the Judge. See Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, Dallas, Texas, 51 FLRA 545, 551 (1995); EEOC, 51 FLRA at 258.
4. In view of this determination, we do not address the other requirements of section 7114(b)(4) of the Statute.
ALJ's Footnotes Follow:
1. In his post-hearing brief, counsel for Respondents cites and attached FPM Letter 711-164 (September 17, 1992) to support a contention regarding "routine use" of documents. Counsel also states that the guidance published by the Office of Personnel Management in this FPM letter has been adopted by Respondents "because of the overlap in custody of personnel records", citing as support for this statement a telephone interview someone had with a legal official in the Agency which was not made part of the record prior to close of hearing. Counsel for the General Counsel moved to strike both inclusion of the FPM letter and the reference to the above legal interpretation. Counsel for Respondents filed an opposition to the General Counsel's Motion to Strike.
I find it appropriate to take official notice of the FPM letter attached to Respondents' brief and accordingly counsel for the General Counsel's Motion to Strike in this regard is denied. See U.S. Department of the Treasury, Customs Service, Washington, D.C., 38 FLRA 875 (1990). However, counsel for Respondents' reference to the off-the-record telephone conversation is nothing more than a hearsay statement never properly submitted for evidence during the course of these proceedings. Accordingly, counsel for the General Counsel's Motion to Strike this reference is granted.
2. I find Peachlyn never made a clear and unambiguous offer of providing the Union with sanitized copies of the appraisals. However, Parrett testified the Union would accept sanitized appraisals as long as each specific appraisal indicated whether it was for a male or female.
3. Arbitration of the Cloud grievance has been invoked but postponed. If provided with the appraisals sought, Parrett testified that Union officials would review the documents and evaluate their possible usefulness before proceeding with the arbitration.
4. Parrett testified she had information that supervisor Reiser had previously acted and spoken derogatorily towards women employees in the past. However, she never made this known to management nor was a "pattern" of discrimination against women employees alleged by Parrett.
5. Similarly, in my view, the circumstances may be such that, where required, a "particularized need" would also be so evident as to not require a special showing or detailed explanation.
6. See National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, DC, 46 FLRA 234, 243 (1992).
7. The Letter also provides:
The purpose of this FPM letter is to provide guidance to agencies on the application of the Privacy Act to information requested by certified unions and contained in systems of records administered by OPM, but maintained by, and in the possession of, employing agencies. This guidance confirms longstanding policy guidance and interpretations.