17:0685(100)CA - OPM and AFGE Local 32 -- 1985 FLRAdec CA



[ v17 p685 ]
17:0685(100)CA
The decision of the Authority follows:


 17 FLRA No. 100
 
 U.S. OFFICE OF PERSONNEL MANAGEMENT 
 Respondent
 
 and 
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES 
 LOCAL 32, AFL-CIO 
 Charging Party
 
                                            Case No. 3-CA-20383
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 the unfair labor practices alleged in the complaint and recommending
 that it be ordered to cease and desist therefrom and take certain
 affirmative action.  Thereafter, the Respondent filed exceptions to the
 Judge's Decision and a supporting brief and the General Counsel filed an
 opposition thereto.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommended Order.  Thus, the
 Authority agrees that the Respondent violated section 7116(a)(1), (5)
 and (8) of the Statute by refusing to furnish to the exclusive
 representative of its employees data reasonably available and necessary
 for the Union to perform its representational function within the
 meaning of section 7114(b)(4) of the Statute.  In adopting this
 conclusion, the Authority rejects, for the reasons fully set forth in
 Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 17
 FLRA No. 92 (1985), the Respondent's contention that the release of the
 data sought was prohibited by the Privacy Act of 1974, Pub. L. No.
 83-579, 88 Stat. 1896 (codified as amended at 5 U.S.C. 552a (1976)).
 
                                   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 U.S. Office of Personnel Management, Washington,
 D.C., shall:
 
    1.  Cease and desist from:
 
    (a) Refusing to provide to the American Federation of Government
 Employees, Local 32, AFL-CIO, the employees' exclusive representative,
 all requested data reasonably available and necessary for it to properly
 perform its representational function in connection with the grievance
 filed by employee Sally Cottam on January 6, 1982.
 
    (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, provide to the American Federation of Government
 Employees, Local 32, AFL-CIO, the employees' exclusive representative,
 all requested data reasonably available and necessary for it to properly
 perform its representational function in connection with the grievance
 filed by employee Sally Cottam on January 6, 1982.
 
    (b) Post at its facilities in Washington, D.C. copies of the attached
 Notice on forms to be furnished by the Federal Labor Relations
 Authority.  Upon receipt of such forms, they shall be signed by the
 Director, or his designee, 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 ensure 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, Region III, 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, D.C., April 23, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT refuse to provide the American Federation of Government
 Employees, Local 32, AFL-CIO, the employees' exclusive representative,
 all requested data reasonably available and necessary for it to properly
 perform its representational function in connection with the grievance
 filed by employee Sally Cottam on January 6, 1982.  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 Statute.  WE WILL, upon
 request, provide to the American Federation of Government Employees,
 Local 32, AFL-CIO, the employees' exclusive representative, all
 requested data reasonably available and necessary for it to properly
 perform its representational function in connection with the grievance
 filed by employee Sally Cottam on January 6, 1982.
                                       (Agency)
 
 Dated:  . . .  By:  (Signature) (Title) This Notice must remain posted
 for 60 consecutive days from the date of posting, and must not be
 altered, defaced, or covered by any other material.  If employees have
 any questions concerning this Notice or compliance with its provisions,
 they may communicate directly with the Regional Director for the Federal
 Labor Relations Authority, Region III, whose address is:  P.O. Box
 33758, Washington, D.C. 20033-0758 and whose telephone number is:  (202)
 653-8452.
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No.: 3-CA-20383
    D. Randall Frye, Esq.
    For the General Counsel
 
    Eugene N. Scallan and
    Stuart M. Foss, Esqs.
    For the Respondent
 
    Before:  ELI NASH, JR., Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This is a proceeding 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. (hereinafter referred to as the Statute) and the Rules and
 Regulations of the Federal Labor Relations Authority, 5 C.F.R.Chapter
 XIV, Sec. 2410 et seq.
 
    On July 19, 1982, the Regional Director for Region 3 of the Federal
 Labor Relations Authority (hereinafter called the Authority) pursuant to
 charges originally filed by the American Federation of Government
 Employees, Local 32, AFL-CIO (hereinafter called the Union) issued a
 Complaint and Notice of Hearing alleging that the U.S. Office of
 Personnel Management (hereinafter called Respondent) engaged in unfair
 labor practices within the meaning of section 7116(a)(1), (5) and (8) of
 the Statute by denying a request for necessary and relevant information
 to prepare an employee grievance thereby failing to comply with section
 7114(b)(4)(A), (B) and (C) of the Statute and refusing to negotiate in
 good faith with the Union.
 
    Respondent filed an Answer denying commission of any unfair labor
 practices.
 
    A hearing in this matter was conducted before the undersigned at
 Washington, D.C.  All parties were represented by counsel and were
 afforded full opportunity to be heard, to examine and cross-examine
 witnesses, to introduce evidence and to argue orally.  Also all parties
 filed timely briefs.
 
    Based upon the entire record in this matter, including my observation
 of the witnesses and their demeanor, and upon my evaluation of the
 evidence, I make the following findings, conclusions, and
 recommendations.
 
                             Findings of Fact
 
    The facts are brief and uncontested.
 
    Respondent and the Union are parties to a collective bargaining
 agreement which became effective in May 1960, and which remained in full
 force and effect at all times material herein.  The aforementioned
 agreement contains a full scope grievance procedure with binding
 arbitration.
 
    Sometime in 1981, pursuant to the parties collective bargaining
 agreement, Steven Weisberg, a Union steward, filed a grievance on behalf
 of unit employee, Sally Cottam.  The grievance alleged, among other
 things, contractual and regulatory violations regarding a performance
 appraisal of Ms. Cottam by her supervisor, Patsy Reid.  Respondent
 resolved this grievance at the fourth step of the grievance procedure by
 directing Ms. Reid to prepare two new appraisals.  The new appraisals
 were to reflect the performance of Ms. Cottam for the periods from:  May
 15, 1980 to December 13, 1980 and December 14, 1980 to October 14, 1981.
  These appraisals were prepared by Ms. Reid during the latter part of
 December 1981.
 
    After reviewing the December 1981 appraisals with Ms. Cottam,
 Weisberg filed a second grievance regarding the appraisal for the period
 December 14, 1980 to October 14, 1981, as it showed that Ms. Cottam's
 performance had deteriorated.  This grievance also alleged contractual
 and regulatory violations regarding the appraisal.  At the conclusion of
 the third step, the Union decided that it needed additional information
 to further pursue the grievance.  Accordingly, the Union, by letter
 dated February 19, 1982, requested Respondent to provide it with copies
 of appraisals for staffing clerks in the same work unit as Ms. Cottam.
 This request involved approximately 10-12 such employees.
 
    By letter dated February 24, 1982, Respondent denied the Union's
 request stating, inter alia, "we have determined that the information
 you have requested is neither relevant nor necessary as outlined in 5
 U.S.C. 7114(b)(4).  Consequently, we feel that we have no obligation to
 provide you with the information you have requested".  Respondent
 provided no other reason for the denial at that time.
 
    In making its request for the above-mentioned information, the Union
 clearly indicated that such information was necessary for its
 preparation of the fourth step grievance of Ms. Cottam.  Further, Union
 steward Weisberg's testimony revealed that the Union needed the
 information for the following reasons:  (1) Ms. Cottam had been promoted
 at the end of her last appraisal period and the Union "considered it to
 be highly unusual for an employee's performance to deteriorate markedly
 after a promotion";  (2) to ensure that Ms. Cottam was not treated
 differently than other employees since she had been active in the Union
 and a Union steward;  (3) to determine if there was a pattern of
 employees' performance deteriorating after a promotion;  and (5)
 generally to determine if arbitration of the grievance was warranted.
 
    After receipt of Respondent's February 24, 1982, denial of the
 Union's information request, Weisberg met with Union President Karen
 Boyd.  Together they concluded that an "unfair labor practice charge was
 in order".  Thereafter, Weisberg requested an extension of time to file
 the fourth step grievance.  Respondent granted a one week extension and
 Weisberg prepared the fourth step grievance without the requested
 information.  Ultimately, Respondent denied the fourth step grievance.
 Without the information, the Union concluded that it could not pursue
 the grievance further.
 
                        Discussion and Conclusions
 
    The principal issue here is whether or not an exclusive bargaining
 representative is entitled to be furnished information which is relevant
 and necessary to processing a grievance from an employing agency.  That
 issue has been resolved by the Authority in several recent cases.  See,
 Veterans Administration Regional Office, Denver, Colorado, 7 FLRA
 (1981);  Veterans Regional Office, Denver, Colorado, 10 FLRA No. 78;
 Veterans Administration, Iron Mountain, Michigan, 10 FLRA No. 79.  The
 above cited cases leave no doubt that an exclusive representative is
 entitled to information which is necessary and relevant to processing a
 grievance and that the exclusive representative's right to receive and
 an agency's obligation to furnish such information is derived from
 section 7114(b)(4) of the Statute.  Refusal to supply such information
 may, therefore, be violative of section 7116(a)(1), (5) and (8), if it
 is established that the requested information is necessary and relevant
 for the exclusive representative to perform its representational
 functions.  Those functions, without question, include the processing of
 employee grievances.
 
    The request for information in this case involved performance
 evaluations of approximately 10-12 staffing clerks located in the same
 work unit as the grievant.  The Union representative who requested the
 information testified that it was needed for several reasons including
 consideration of the highly unusual circumstance of an employee's
 performance deteriorating markedly after a promotion;  to insure that
 the grievant was not treated differently than other employees since she
 had been active in the Union and a Union steward;  and to generally
 determine if arbitration of the grievance was warranted.  The latter
 reason being highly significant, particularly since the grievance had
 already gone through several stages and as part of its representational
 function an exclusive representative has an affirmative obligation, in
 my view, to determine whether or not a grievance it may be pursuing has
 merit or warrants further action on its part.  Such consideration is
 essential if the exclusive representative is to function effectively in
 its role.
 
    Respondent's reply to the request for these performance evaluations
 was based on its unilateral observation that "we have determined that
 the information you have requested is neither relevant nor necessary as
 outlined in 5 U.S.C. 7114(b)(4).  Consequently, we feel that we have no
 obligation to provide you with the information you have requested."
 
    Respondent argues that the information was not relevant on a twofold
 theory combining management's rights to evaluate its employees and upon
 its interpretation of the Privacy Act of 1974.  The Privacy Act issue
 has long been resolved by the agencys administering federal
 labor-management relations laws.  The case law establishes that an
 individual's rights to privacy of his records must be balanced against
 the conflicting rights in each case.  Where, as here, the right of an
 exclusive representative to adequately perform its representational
 functions as well as the broad public interest in having the Federal
 government operate within its merit promotion system so that its
 employees are given equitable treatment, while encouraging the use of
 non-disruptive grievance procedures the exclusive representative's right
 has been held to outweigh an employee's loss of privacy.  Veterans
 Administration Regional Office, Denver, Colorado, supra.  See also,
 Department of the Treasury, Internal Revenue Service, 8 A/SLMR 112
 (1978).  In this matter, Respondent has offered no reason to disturb
 that balance.  Furthermore, Respondent offered no cogent reason why the
 privacy of individual employees could not be maintained through already
 developed methods such as sanitizing those records.  In such
 circumstances, it is to be found that the conflicting rights established
 under the Privacy Act do not, in this case, outweigh the rights of the
 exclusive representative to perform its representational functions.
 
    Accordingly, it is found that the Charging Party Union established
 the relevancy and necessity of the requested information and
 Respondent's denial of the information based on its determination that
 the information requested was neither relevant nor necessary violated
 section 7116(a)(1), (5) and (8) of the Statute.
 
    Then Respondent contends that supplying the requested information
 invades its management rights to evaluate its employees.  This
 contention misses the point.  The record is devoid of any suggestion
 that by furnishing the information requested by the Union would in any
 way encroach on management's ability to evaluate its employees.  In fact
 the request is for performance evaluations which have already been made.
  In any event, the exclusive representative here sought information
 solely in connection with the processing of a particular grievance.
 There is no suggestion from the record that the information was sought
 to engage in any effort to change the agency's method of employee
 evaluation, but merely was to compare the past evaluations with those of
 the grievant in order to ascertain whether any inconsistencies existed,
 and to determine whether it would pursue this particular grievance any
 further.  Certainly the Union's action was entirely consistent with its
 legitimate function as exclusive representative and does not suggest any
 attempt to infringe on a management prerogative as Respondent suggests.
 In short, Respondent's argument established no connection between
 furnishing this information and any infringement on its right to
 evaluate employees.  Without such a connection this argument must be
 rejected.
 
    Respondent also raises a question regarding application of its Notice
 of Systems of Record which it claims prohibits disclosure of the
 requested information unless it is relevant and necessary, is also
 premised on the distinction it draws between grievances and
 negotiations.  Admittedly, the routine use exception /1/ cited by
 Respondent provides an exception to the Privacy Act when the information
 sought is "relevant and necessary to their duties as exclusive
 representative".  Respondent's own regulations provide an exception
 allowing the exclusive representative to obtain information such as
 requested here.  The Authority repeatedly has held that such information
 must be supplied to the exclusive representative where it is relevant
 and necessary under section 7114(b).  The very law upon which Respondent
 relies and Authority precedent permits disclosure to an exclusive
 representative of exactly the type information sought by the Union to
 "resolve disputes under a negotiated grievance procedure." Thus, even
 under the routine use exception the information if relevant and
 necessary should be provided to the exclusive representative.
 
    However, Respondent contends that it has retained authority under the
 Privacy Act to make reviews of initial agency determinations regarding
 access to and amendments to records in those systems under 5 C.F.R.
 297.101(a)(3).  Thus, Respondent urges that it alone must make the
 determination of what is relevant and necessary.  Seemingly, this would
 be so, even where it is engaged in administering a system involving a
 grievance with its own employees.  Such a theory, if adopted, would
 deprive the exclusive representative of its statutory right to have such
 information furnished and indeed disrupts the balance of rights.  Under
 such an approach Respondent need not take into consideration criteria
 which the Authority might use in deciding whether or not the particular
 information sought is relevant and necessary.  Respondent's argument
 notwithstanding the balance of individual rights versus those of the
 exclusive representative must be weighed.  A review of the legislative
 history of the Statute and the Statute itself reveals no restrictions
 such as proposed by Respondent on the Authority in making its
 determinations.  It is, therefore, found that the routine use
 exceptions, particularly where employees of the administering agency are
 involved infringes on the Authority's duty to determine relevancy and
 necessity of requested information in unfair labor practice situations.
 To the extent that it conflicts with the Authority's rules and
 regulations, I find the routine use exception in applicable.  In sum, it
 is found that the routine use exception not only does not bar disclosure
 of the information requested here, but it supports the exclusive
 representative's assertion that it is entitled to be provided
 information which it is necessary and relevant for the purpose of
 processing a grievance.
 
    Based on the foregoing, it is concluded that Respondents refusal to
 furnish the exclusive representative herein with information which was
 necessary and relevant to processing a grievance violated section
 7116(a)(1), (5) and (8) of the Statute.  Accordingly, it is recommended
 that the Authority adopt the following:
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations of section 7118 of the Statute, it is
 hereby ordered that the United States Office of Personnel Management,
 Washington, D.C., shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to provide, American Federation of
       Government Employees, Local 32, AFL-CIO, the employees' exclusive
       representative, requested data which is necessary and relevant to
       enable such exclusive representative to perform its
       representational duties in connection with an employee's
       grievance.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing 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) We will provide, upon request to the American Federation of
       Government Employees, Local 32, AFL-CIO, the employees exclusive
       representative requested data which is necessary and relevant to
       enable it to perform its representational duties in connection
       with an employees grievance.
 
          (b) Post at its facilities in Washington, D.C., copies of the
       attached Notice on forms to be furnished by the Federal Labor
       Relations Authority.  Upon receipt of such forms they shall be
       signed by the Director, and shall be posted and maintained by him
       for 60 consecutive days thereafter, in conspicuous places,
       including all bulletin boards and other places where notices to
       employees are customarily posted.  The Director shall take
       reasonable steps to insure that such Notices are not altered,
       defaced, or covered by any other material.
 
          (c) Pursuant to section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director, Region III, 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.
 
                                       ELI NASH, JR.
                                       Administrative Law Judge
 
 Dated:  February 23, 1983 
          Washington, D.C.
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT fail or refuse to provide the American Federation of
 Government Employees, Local 32, AFL-CIO, the employees' exclusive
 representative, requested data which is necessary and relevant to enable
 such exclusive representative to perform its representational duties in
 connection with an employee's grievance.  WE WILL NOT in any like or
 related manner interfere with, restrain, or coerce employees in the
 exercise of their rights assured by the Statute.  WE WILL provide upon
 request to the American Federation of Government Employees, Local 32,
 AFL-CIO, the employees' representative requested data which is necessary
 and relevant to enable it to perform its representational duties in
 connection with an employees' grievance.