20:0357(37)CA - EEO Commission Washington, DC and AFGE Local 3230 -- 1985 FLRAdec NG



[ v20 p357 ]
20:0357(37)CA
The decision of the Authority follows:


 20 FLRA No. 37
 
 U.S. EQUAL EMPLOYMENT OPPORTUNITY 
 COMMISSION, WASHINGTON, D.C. 
 Respondent 
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 3230, AFL-CIO 
 Charging Party 
 
                                       Case No. 9-CA-30238
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached 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.  The Respondent filed exceptions to the Judge's
 Decision.
 
    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, as modified herein.
 
    The Judge found that the Respondent's failure to provide the American
 Federation of Government Employees, Local 3230, AFL-CIO (the Union) with
 data necessary for the processing of a grievance pursuant to a request
 under section 7114(b)(4) of the Statute constituted a refusal to bargain
 in violation of section 7116(a)(1), (5) and (8) of the Statute.  We
 agree.
 
    Under section 7114(b)(4) of the Statute, an agency has a duty to
 furnish, upon request by an exclusive representative and to the extent
 not prohibited by law, data which, among other things, is reasonably
 available and necessary for full and proper discussion, understanding,
 and negotiation of subjects within the scope of collective bargaining.
 Such data must be necessary to enable the union to fulfill its
 representational responsibilities, including the effective evaluation
 and processing of grievances.  /1/ However, a union's mere assertion
 that it needs data to process a grievance does not automatically oblige
 the agency to supply such data.  /2/ The duty to supply data under
 section 7114(b)(4) thus turns upon the nature of the request and the
 circumstances in each particular case.  /3/ Therefore, a threshold issue
 is whether the data requested by the Union is necessary for full and
 proper discussion, understanding and negotiation of subjects within the
 scope of collective bargaining.
 
    In this case, the complaint alleged that the Union requested "certain
 information including, inter alia, copies of performance appraisals and
 disciplinary actions" in order to determine whether to process a
 grievance involving the allegation that the Respondent was engaging in a
 pattern of discriminatory conduct against employee grievant Arthur
 Joyner and other similarly situated male minority employees in the Legal
 Unit.  The record shows that, following a response to the Respondent's
 request that the Union be more specific, the Respondent supplied the
 Union with some of the requested data, but denied the Union's specific
 request for data concerning performance appraisals, letters of warning,
 and all other disciplinary actions issued by the Respondent for all
 employees in the Respondent's Seattle District Office Legal Unit during
 the period January 1, 1979, to December 7, 1982.
 
    The Respondent contends, and the record reveals, that the only "issue
 raised" at the first step meeting was a request for the withdrawal of a
 letter of warning issued to the grievant, and that the issue of
 discrimination was not raised until the formal written second step.  The
 Respondent contends that only issues raised in the informal first step
 meeting of the parties' grievance procedure may be considered in
 determining whether the Union needed the requested data.  In the
 alternative, the Respondent argues that the Union did not adequately
 demonstrate why it needed the performance appraisals, or the data on
 disciplinary actions and letters of warning for other similarly situated
 employees in the Legal Unit.  The Respondent also argues that the
 provisions of the Privacy Act /4/ prohibit it from disclosing the
 requested data.
 
    In the Authority's view, some of the data requested by the Union was
 necessary, within the meaning of section 7114(b)(4) of the Statute, to
 enable the Union to determine whether to process the instant grievance.
 The theory of the grievance here was that Joyner had been issued a
 letter of warning for conduct or performance-related deficiencies for
 which no other employee similarly situated in the Legal Unit had been
 given a letter of warning in the past.  In order to proceed with the
 grievance, in our view, the Union needed to have copies of all letters
 of warning that had been issued in the past to similarly situated
 employees in the Legal Unit, and copies of performance appraisals for
 such employees to determine if similar conduct had been singled out
 previously as a performance deficiency.  However, it is also our view
 that the General Counsel has failed to establish that the Union's broad
 request for copies of "all other disciplinary action" would be necessary
 for the processing of the instant grievance involving the issuance of a
 warning letter on an allegedly discriminatory basis.  The Authority thus
 finds that the General Counsel has demonstrated that only the letters of
 warning and performance evaluations issued to other employees in the
 Legal Unit, requested by the Union but not furnished by the Respondent,
 are necessary under section 7114(b)(4) of the Statute in order for the
 Union to determine whether the Respondent had engaged in a pattern of
 discriminatory and disparate conduct against the grievant and/or
 similarly situated male minority employees.  /5/ Having made the
 determination that such data is "necessary" within the meaning of
 section 7114(b)(4) of the Statute, the Authority must decide whether
 disclosure of that data is nevertheless "prohibited by law" from
 disclosure within the meaning of section 7114(b)(4) by the Privacy Act.
 
    The Privacy Act regulates the disclosure of any information contained
 in an agency "record" within a "system of records" that is retrieved by
 reference to an individual's name or some other personal identifier.
 /6/ The employees' performance appraisals and letters of warning which
 the Union requested are considered records contained within the
 Respondent's system of records under the Privacy Act /7/ and are
 generally prohibited from disclosure unless one of the specific Privacy
 Act exceptions is applicable.  /8/ The exception set forth in 5 U.S.C.
 552a(b)(2) permits disclosure of Privacy Act-protected information to
 the extent that such information is "required" to be released under the
 Freedom of Information Act (FOIA).  /9/ The theory of the FOIA, in
 contrast to the Privacy Act, is that all records in the possession of
 the agencies of the Federal Government must be disclosed upon request
 unless subject to a specific FOIA exemption.  /10/ Under exemption
 (b)(6) of the FOIA, an agency is allowed to withhold personnel and
 medical files and similar files the disclosure of which would constitute
 a clearly unwarranted invasion of privacy.  In cases where requests for
 individually identifiable records such as promotion and personnel files
 are made under the FOIA, the Federal courts apply a balancing test to
 determine whether disclosure would result in a clearly unwarranted
 invasion of privacy.  /11/ For example, in American Federation of
 Government Employees, AFL-CIO, Local 1923 v. United States Dep't of
 Health and Human Services, 712 F.2d 931 (4th Cir. 1983), the union
 sought the home addresses of all unit employees pursuant to the FOIA.
 The Court of Appeals for the Fourth Circuit, in evaluating whether the
 information sought by the union should be disclosed, balanced the
 individual employee's interest in his or her right to privacy and the
 possible adverse or harmful effects on the individual which could result
 from disclosure against the public's interest in having the information
 made available.  The District Court for the District of Columbia applied
 the same balancing test in Celmins v. United States Dep't of Treasury,
 457 F.Supp. 13 (D.D.C. 1977), in determining whether the agency was
 required to disclose the promotion file and the other promotion
 documents requested under the FOIA by unsuccessful promotion applicants.
 
    The data requested by the Union here is similar to the information
 requested under the provisions of the FOIA, in a sanitized or
 non-sanitized form, after the agency or the court makes a determination
 that such disclosure would not result in a clearly unwarranted invasion
 of the individual's privacy.  Therefore, the Authority has concluded
 that disclosure of the information contained in the employees' files
 pursuant to the Union's request under section 7114(b)(4) of the Statute
 is not per se prohibited by law but is subject to the same scrutiny and
 the same balancing test which is applied by the courts in evaluating
 FOIA requests under the 5 U.S.C. 522(b)(6) exemption.
 
    The balance to be drawn under the FOIA's (b)(6) exemption is one
 between the protection of the individual's right to privacy and the
 promotion of important public interests.  In determining whether
 "necessary" data under section 7114(b)(4) of the Statute should be
 disclosed to the Union, the Authority will balance the necessity of the
 data for the Union's purposes against the degree of intrusion on the
 individual's privacy interests caused by disclosure of the data.  /12/
 
    Applying the standard set forth in AAFES to this case, the Authority
 finds that it is necessary for the Union to know the gender and minority
 status of the employees to whom the appraisals and letters of warning
 were issued in order to compare them with the grievant and other
 similarly situated male minority employees, and thus to determine
 whether the Respondent has engaged in a pattern of discriminatory
 conduct.  /13/ However, the Authority notes that the names and other
 personal identifiers of the employees in the Legal Unit need not be
 included in the documents disclosed to the Union, as they would not
 significantly aid the Union in processing this grievance.  /14/ Thus the
 Authority finds that, as the names and personal identifiers of the
 employees in the Legal Unit will not be linked with their performance
 appraisals or letters of warning, it is unlikely that their identities
 will become known even if the data which the Authority has determined to
 be necessary is disclosed.  Further, the Authority notes that the
 necessary data requested would only be used by the Union to process a
 grievance and there is no indication in the record that the data would
 become generally know.  /15/ In striking the balance between the
 individual employees' privacy interests and the Union's need for the
 data found necessary in the circumstances of this case, the Authority
 has considered the limited circulation that the documents are likely to
 receive and the fact that the names and personal identifiers of the
 employees will not be disclosed.  Therefore, in view of the Union's need
 for the data found necessary in order to pursue its representational
 duties, compared to the limited intrusion on the privacy of other
 employees, the Authority finds that disclosure of that data would not
 result in a clearly unwarranted invasion of such employees' privacy.
 Further, in the circumstances of this case, the Authority finds that
 disclosure of the data serves to ensure that the government fairly
 follows its own procedures and encourages the use of nondisruptive
 grievance procedures.  /16/
 
    Therefore, the Authority concludes that the Respondent violated
 section 7116(a)(1), (5) and (8) of the Statute by failing to furnish the
 Union with necessary data.  The information found necessary should be
 furnished to the Union in a form which includes data sufficient to show
 the gender and minority status of the employees to whom the performance
 appraisals and letters of warning were issued, without revealing the
 employees' names or personal identifiers.  /17/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority hereby orders that the
 U.S. Equal Employment Opportunity Commission, Washington, D.C. shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to furnish, upon request by the American
 Federation of Government Employees, Local 3230, AFL-CIO, the exclusive
 representative of its employees, the data which the Authority has deemed
 necessary to enable the exclusive representative to perform its
 representational duties in connection with Arthur Joyner's grievance.
 
    (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 Statute:
 
    (a) Upon request, furnish the American Federation of Government
 Employees, Local 3230, AFL-CIO, the exclusive representative of its
 employees, the data which the Authority has deemed necessary to enable
 the exclusive representative to perform its representational duties in
 connection with Arthur Joyner's grievance.
 
    (b) Post at its facility at the Seattle District Office, 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, or a 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
 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 IX, 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., September 26, 1985
 
                                       (s) HENRY B. FRAZIER III
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       (s) WILLIAM J. MCGINNIS, JR.
                                       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 fail or refuse to furnish, upon request by the American
 Federation of Government Employees, Local 3230, AFL-CIO, the exclusive
 representative of our employees, the data which the Authority has deemed
 necessary to enable the exclusive representative to perform its
 representational duties in connection with Arthur Joyner's grievance.
 
    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 the American Federation of Government
 Employees, Local 3230, AFL-CIO, the exclusive representative of our
 employees, the data which the Authority has deemed necessary to enable
 the exclusive representative to perform its representational duties in
 connection with Arthur Joyner's grievance.
                                       (Activity)
 
    Dated:  By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region IX, Federal Labor Relations Authority, whose address
 is:  530 Bush Street, Room 542, San Francisco, California 94108, and
 whose telephone number is:  (415) 556-8106.
 
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No. 9-CA-30238
 
    Sandra G. Bryan
    Counsel for Respondent
 
    Arthur J. Joyner
    Counsel for Charging Party
 
    Josanna Berkow
    Counsel for the General Counsel
    Federal Labor Relations Authority
 
    Before:  ELI NASH, JR.
       Administrative Law Judge
 
 
                                 DECISION
 
                           Statement of the Case
 
    Pursuant to a Complaint and Notice of Hearing issued on June 8, 1983,
 by the Regional Director for the Federal Labor Relations Authority, San
 Francisco, California Region, a hearing was held before the undersigned
 on August 11, 1983.
 
    This proceeding arose under the Federal Service Labor-Management
 Relations Statute (herein called the Statute).  It resulted from a
 charge filed on March 1, 1982 and amended on May 31, 1983, by American
 Federation of Government Employees, Local 3230, AFL-CIO, (herein called
 the union) against the United States Equal Employment Opportunity
 Commission (herein called respondent).
 
    The Complaint alleges that respondent failed and refused to comply
 with the provisions of section 7114(b)(4) of the Statute, by failing to
 provide the union with data, requested in connection with the processing
 of an employee grievance, which is normally maintained by an agency in
 the regular course of business;  which is reasonably available and
 necessary for full and proper discussion of a subject within the scope
 of collective bargaining;  and which does not constitute guidance,
 advice, counsel or training concerning collective bargaining.  Such
 action was alleged to constitute a violation of section 7116(a)(1), (5)
 and (8) of the Statute.  Respondent's Answer denied the Commission of
 any unfair labor practices.
 
    All parties were represented at the hearing.  Each was afforded full
 opportunity to be heard, to adduce evidence, and to examine as well as
 cross-examine witnesses.  Thereafter, briefs were filed with the
 undersigned which have been duly considered.
 
    Upon the entire record herein, from my observations of the witnesses
 and their demeanor, and from all of the testimony and evidence adduced
 at the hearing, I make the following findings and conclusions:
 
                             Findings of Fact
 
    At all times material the union has been an agent of the National
 Council of EEOC Locals No. 216, American Federation of Government
 Employees, AFL-CIO (NCAFGE) for purposes of representing employees at
 respondent's Seattle District Office.
 
    At all times material, Arthur Joyner, a senior trial attorney in
 respondent's Seattle District Office has also served in the capacity of
 union steward in that office.
 
    Sometime around December 2, 1982, Mr. Joyner received a Letter of
 Warning from Regional Attorney, Michael Reiss.  The basis for the
 warning letter was an error in research committed by Mr. Joyner.
 Shortly thereafter, on December 7, 1982, Mr. Joyner served a document
 entitled "Request for Information Grievance 3230A820011, Joyner Warning
 Letter on Respondent's District Manager, Donald Muse."
 
    The above request sought information involving performance appraisals
 and disciplinary actions issued to the eight to ten attorneys employed
 in respondent's Seattle District Office.  According to the union, this
 information was requested in order to allow it to determine whether its
 allegations of harrassment and retaliation, race discrimination, failure
 to train and failure to evaluate were worth pursuing in a potential
 grievance.  Indeed a grievance was subsequently filed against respondent
 by the union on December 27, which contained allegations of disparate
 treatment.
 
    On December 20, between the time of the request for information on
 December 7, and the filing of the grievance on December 27, a first step
 informal meeting, as defined in Article 46 of the collective bargaining
 agreement, was held between Mr. Reiss and Willie White, another union
 steward.  The union allegedly did not file a formal grievance until
 after the first step meeting in part because Mr. Joyner was waiting to
 receive the information he had requested to determine whether he should
 include an allegation of disparate treatment in any formal grievance he
 might file.
 
    On January 4, 1983, Mr. Joyner received a memorandum dated December
 22, from the District Manager Donald Muse, in which Mr. Muse suggested a
 meeting to discuss the union's information request of December 7.  Mr.
 Muse's memorandum also stated that some of the requested items were not
 available at all and that other items were not readily available.  Mr.
 Muse's correspondence did not indicate any Privacy Act concerns in
 providing the Union the requested information at that time.
 Subsequently, Mr. Joyner responded by memorandum dated and delivered on
 January 5, 1983, requesting to meet with Mr. Muse on the information
 request.
 
    Thereafter, on January 6, 1983, Mr. Joyner received a telephone call
 from Ms. Ethel Rocco, respondent's Administrative Officer, Seattle
 District Office.  Ms. Rocco stated that Mr. Muse had designated her to
 meet with Mr. Joyner on the information request.  Mr. Joyner responded
 that he saw no point in meeting with Ms. Rocco since he had not received
 any written response from respondent on his information request in the
 month it had been pending and because he did not believe that Ms. Rocco
 had the authority to resolve any questions regarding the disclosure of
 the requested information.  Indeed, Ms. Rocco testified on
 cross-examination that she had no authority to make decisions as to what
 information, if any, would be provided to the union.  Ms. Rocco had
 concerns for things such as might be generated by the request such as
 medical records which are not supplied.  She also testified that her
 understanding is that disciplinary actions such as those requested
 herein, under OPM and Privacy Act requests could not be released unless
 there was a legitimate grievance.  Furthermore, Ms. Rocco testified that
 such a request would require exposing an entire file.  However, there is
 no indication that the union ever sought or expected any underlying
 data.
 
    About January 10, 1983, Mr. Joyner received a memorandum from Ms.
 Rocco which summarized her recollection of the aforementioned telephone
 conversation.  Ms. Rocco made no mention of the Privacy Act in her phone
 conversation with Mr. Joyner, or in her subsequent memorandum.
 Furthermore, did she at any time offer to provide the union with
 sanitized copies of the requested information.  On January 11, 1983, Mr.
 Joyner responded to Ms. Rocco summarizing his version of the telephone
 conversation and again requesting a written statement from management
 regarding any objections to providing the requested information to the
 union.
 
    Later, on January 24, 1983, Mr. Joyner received another memorandum
 from Mr. Muse regarding the information request.  Mr. Muse provided some
 information regarding delegation delegation of authority and training,
 but denied the union's request for the performance appraisals and
 disciplinary actions of like employees in the Seattle District Office.
 Mr. Muse stated for the first time that the requested disciplinary
 actions and performance appraisals were not disclosable under the
 Privacy Act and that their relevance to Joyner's Letter of Warning was
 questionable.
 
    Mr. Joyner responded by memorandum dated January 27, 1983,
 reiterating the union's request for the outstanding information and
 asserting its relevance to the allegations of the grievance concerning
 disparate treatment.  Mr. Joyner further claimed special status under
 the Privacy Act as a labor organization.  By memorandum dated February
 4, 1983, Mr. Muse again stated his refusal to provide the union with the
 requested performance appraisal and disciplinary actions reiterating
 that the relevance of the information had not been established and that
 the union's right to the information did not outweigh the employee's
 right to privacy.  At no time did Mr. Muse raise any specific privacy
 disclosure problems with the union nor did he offer the union any
 sanitized copies of the requested information.
 
    Mr. Muse testified that in his District, he is the sole determiner of
 what is relevant or necessary.  Further, he testified that the next
 determiner of relevancy was the Agency's Chairman.  I do not credit
 Muse's testimony with regard to determining relevancy in grievance
 matters.  Curiously Mr. Muse testified on cross-examination that he
 never contended the information sought was not relevant but stated only
 that the union had to justify relevancy.
 
    At the date of the hearing, the union had not received the
 performance appraisals and disciplinary actions requested on December 7.
  A grievance is currently pending arbitration.
 
    The requested performance appraisals and disciplinary actions were
 regularly maintained by respondent in its Seattle District Office.
 Performance appraisals are maintained indefinitely by respondent in
 employees' personnel files.  Disciplinary records are similarly
 maintained by respondent in the Seattle District Office.
 
                                  Issues
 
    1.  Whether the information requested by the union on December 7,
 1982, was necessary and relevant information within the meaning of
 Section 7114(b)(4) of the Statute.
 
    2.  Whether Respondent's Privacy Act contentions justify its refusal
 to provide the requested information.
 
                                Discussion
 
    This is a case where an exclusive representative requested
 information which it deemed necessary and relevant to enable it to
 effectively carry out its representational obligation during the
 processing of an employee grievance.  Section 7114(b)(4) of the Statute
 requires management to furnish a union information which enables it to
 perform those representational obligations and a respondent violates
 section 7116(a)(1) and (5) of the Statute if it refuses to do so.  See
 U.S. Customs Service, Region VII, Los Angeles California, 10 FLRA
 251(1982);  Veterans Administration Regional Office, Denver, Colorado, 7
 FLRA 629, 1982;  Department of the Navy, Portsmouth Naval Shipyard, 4
 FLRA 619(1980).
 
    In this matter, respondent refused to furnish the union with
 necessary and relevant information concerning employee Joyner's
 grievance involving a reprimand because initially respondent questioned
 the relevancy of some of the information sought, and thereafter because
 of what it asserts were Privacy Act considerations.
 
    Section 7114(b)(4) of the Statute requires management to furnish the
 exclusive representative with requested information, "to the extent not
 prohibited by law, . . . which is reasonably available and necessary for
 full and proper discussion, understanding and negotiation of subjects
 within the scope of collective bargaining," and it appears to the
 undersigned that the information requested by the union herein fully met
 the requirements as stated.  Therefore, respondent's contention that it
 did not have a duty to furnish the requested information because it was
 not relevant must be, and is, rejected.
 
    The Privacy Act issue raised by respondent has long been resolved by
 the agencies administering federal labor-management relations laws.
 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 all given equitable
 treatment, while encouraging the use of nondisruptive grievance
 procedures, is balanced against an employee's right to privacy.  The
 exclusive representative's right has consistently been held to outweigh
 an employee's loss of privacy.  See, Veterans Administration Regional
 Office, Denver, Colorado, supra;  Veterans Administration Regional
 Office, Denver, Colorado, 10 FLRA 453(1982);  Veterans Administration,
 Iron Mountain, Michigan, 10 FLRA 468(1982).  Here, respondent presented
 no reason to disturb that balance.  In this regard, I find no merit in
 respondent's contention that the documents requested were sensitive and
 contained potentially damaging contents.  Strange as it may seem, these
 same documents had been made available to Mr. Joyner prior to his
 request in this matter.  Such evidence seemingly negates the Privacy Act
 arguments raised by respondent.  In short, the record suggests reasons
 other than Privacy Act considerations for not supplying these documents
 to the exclusive representative.  Furthermore, respondent although
 granted the opportunity showed no reason why the privacy of individual
 employees could not be maintained through already existing methods, such
 as sanitizing the records.  In all the circumstances, it is found that
 the conflicting rights established under the Privacy Act, do not, in the
 instant matter, outweigh the rights of the exclusive representative to
 perform its representational functions.
 
    Based on the foregoing, it is concluded that respondent's 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.  /18/ 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 Equal Opportunity Commission,
 Washington, D.C., shall:
 
          1.  Cease and desist from:
 
          (a) Failing and refusing to provide, American Federation of
       Government Employees, Local 3230, AFL-CIO, the employees exclusive
       representative, requested information which is necessary and
       relevant to enable it 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) Provide, upon request to the American Federation of
       Government Employees, Local 3230, AFL-CIO, the employees exclusive
       representative requested information which is necessary and
       relevant to enable it to perform its representational duties in
       connection with an employee grievance.
 
          (b) Post at its Seattle District Office copies of the attached
       Notice marked "Appendix A" on forms to be furnished by the
       Authority.  Upon receipt of such forms, they shall be signed by
       the District 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 District 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 IX, 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.
 
                                       (s) ELI NASH, JR.
                                       ELI NASH, JR.
                                       Administrative Law Judge
 
    Dated:  June 18, 1984
    Washington, D.C.
 
 
                                APPENDIX A
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail or refuse to furnish, upon request by the American
 Federation of Government Employees, Local 3230, AFL-CIO, all information
 necessary and relevant to enable it to perform its representational
 duties in connection with an employees' grievance.
 
    WE WILL NOT in any like or related manner interfere with, restrain or
 coerce employees in the exercise of rights assured by the Federal
 Service Labor-Management Statute.
 
    WE WILL, upon request, make available to Local 3230 all information
 which is necessary and relevant to enable it to perform its
 representational duties in connection with an employees' grievance.
                                       (Agency or Activity)
 
    Dated:  By:  (Signature)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting and must not be altered, defaced or covered by any other
 material.
 
    If employees have any questions concerning this Notice of compliance
 with any of its provisions, they may communicate directly with the
 Regional Director of the Federal Labor Relations Authority, Region IX,
 whose address is:  530 Bush Street, Suite 542, San Francisco, California
 94108 and telephone number is:  (415) 556-8106.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ U.S. Customs Service, Region VII, Los Angeles, California, 10
 FLRA 251, 253(1982);  Veterans Administration Regional Office, Denver,
 Colorado, 7 FLRA 629(1982).
 
 
    /2/ See, e.g., United States Environmental Protection Agency, Health
 Effects Research Laboratory, Cincinnati, Ohio, 16 FLRA No. 16(1984);
 Internal Revenue Service, Buffalo District, Buffalo, New York, 7 FLRA
 654(1982).
 
 
    /3/ See Department of the Treasury, United States Customs Service,
 Region IV, Miami, Florida, 18 FLRA No. 53(1985);  Army and Air Force
 Exchange Service (AAFES), Fort Carson, Colorado, 17 FLRA No. 92(1985)
 (hereinafter AAFES), petition for review filed sub nom.  American
 Federation of Government Employees, Local 1345 v. FLRA, No. 85-1378
 (D.C. Cir. June 21, 1985);  United States Environmental Protection
 Agency, Health Effects Research Laboratory, Cincinnati, Ohio, 16 FLRA
 No. 16(1984).
 
 
    /4/ Privacy Act of 1974, Pub. L. No. 83-579, 88 Stat. 1896 (codified
 as amended at 5 U.S.C. 552a(1982)).
 
 
    /5/ In so concluding, the Authority does not pass upon the merits of
 the Respondent's contention that the issue of alleged discrimination
 against the grievant was precluded by the parties' agreement on the
 basis that the matter had not been raised at the first step of the
 negotiated grievance procedure.  As the Authority has previously noted,
 the resolution of such grievability questions cognizable under law is
 for an arbitrator under the parties' agreement unless they mutually
 agree otherwise, and the existence of such a threshold question herein
 would not in and of itself relieve the Respondent of its obligation to
 furnish otherwise necessary information pursuant to section 7114(b)(4)
 of the Statute.  See, e.g., U.S. Customs Service, Region VII, Los
 Angeles, California, 10 FLRA 251, 253-54(1982).  But see Director of
 Administration, Headquarters, U.S. Air Force, 17 FLRA No. 58(1985),
 wherein the Authority held that if the underlying matter is not
 cognizable under law (e.g., the filing of a grievance concerning a
 probationary employee's termination), then the question may not go to an
 arbitrator.  It follows that in the latter circumstances, unlike here,
 there would be no section 7114(b)(4) obligation to furnish such data for
 the purpose that the exclusive representative was seeking it.
 
 
    /6/ 5 U.S.C. 522a(a)(4)-(5)(1982).
 
 
    /7/ OPM/GOVT-1, 47 Fed.Reg. 16467, 16490(k)(1982).
 
 
    /8/ 5 U.S.C. 522a(b)(1)-(12)(1982).
 
 
    /9/ Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 256
 (codified as amended at 5 U.S.C. 522(1982)).
 
 
    /10/ 5 U.S.C. 522(a)-(b)(1982).
 
 
    /11/ See, e.g., American Federation of Government Employees, AFL-CIO,
 Local 1923 v. United States Dep't of Health and Human Services, 712 F.2d
 931 (4th Cir. 1983);  Celmins v. United States Dep't of Treasury, 457
 F.Supp. 13 (D.D.C. 1977).  See also Department of the Air Force v. Rose,
 425 U.S. 433(1976), wherein the Court stated that the (b)(6) exemption
 of the FOIA involves a balancing of the interests of the individuals in
 their privacy against the interests of the public in being informed.
 
 
    /12/ See AAFES, supra.  See also Bureau of Alcohol, Tobacco and
 Firearms, National Office, Washington, D.C., 18 FLRA No. 74(1985).
 
 
    /13/ See Celmins v. United States Dep't of Treasury, 457 F.Supp. 13
 (D.D.C. 1977).
 
 
    /14/ See Celmins v. United States Dep't of Treasury, supra, 457
 F.Supp. at 17;  Bureau of Alcohol, Tobacco and Firearms, National