21:0253(35)CA - HHS, SSA and SSA, Field Operations, New York Region and AFGE -- 1986 FLRAdec CA



[ v21 p253 ]
21:0253(35)CA
The decision of the Authority follows:


 21 FLRA No. 35
 
 DEPARTMENT OF HEALTH AND HUMAN 
 SERVICES, SOCIAL SECURITY 
 ADMINISTRATION AND SOCIAL SECURITY 
 ADMINISTRATION, FIELD OPERATIONS 
 NEW YORK REGION
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO
 Charging Party
 
                                            Case No. 2-CA-40303
                                                            2-CA-40304
                                                            2-CA-40343
                                                            2-CA-40350
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority because of
 exceptions filed by the General Counsel and the Charging Party to the
 attached Decision of the Administrative Law Judge.  The issue concerns
 whether the Respondent violated section 7116(a)(1), (5) and (8) of the
 Federal Service Labor-Management Relations Statute (the Statute) by
 failing and refusing to furnish the Charging Party with information it
 had requested pursuant to section 7114(b)(4) of the Statute.
 
                  II.  Background and Judge's Conclusion
 
    The instant case involves a consolidated complaint.  In each of the
 cases involved in the complaint, the record reveals that the Charging
 Party requested the following information:  (1) Case No. 2-CA-40303 --
 unsanitized copies of the official time and attendance records for all
 employees in the East New York Office for the period of October 1, 1983
 to March 13, 1984;  (2) Case No. 2-CA-40304 -- unsanitized copies of
 progress reviews and performance appraisals for all bargaining unit
 employees in the Murray Hill Office for the period of January 1, 1983 to
 March 15, 1984;  (3) Case No. 2-CA-40343 -- unsanitized copies of all
 progress reviews and performance appraisals for all Title II Claims
 Representatives in the Jamaica Office for the period of January 1, 1983
 to March 20, 1984;  and (4) Case No. 2-CA-40350 -- unsanitized copies of
 various information related to Title II Claims Representatives in the
 Downtown District Office (e.g., annual performance appraisals,
 performance improvement plans, weekly District Office Work Report (DOWR)
 statistics, interviewing time studies, etc.) for the period of January
 7, 1983 to February 29, 1984.
 
    The Judge observed that the record revealed that the Charging Party
 requested the information to use in connection with a grievance or to
 determine whether to file grievances;  however, these reasons were never
 disclosed to the Respondent.  When the Respondent sought more
 information concerning the Charging Party's requests, the Charging Party
 responded with "cryptic and conclusionary references" to certain
 provisions of the Statute.  The Judge found that the necessity of the
 requested data was never conveyed to the Respondent by the Charging
 Party and that it was not apparent from the surrounding circumstances
 why such requested data was necessary.  He therefore concluded that the
 obligation to establish the necessity of the data had not been met and
 thus the Respondent was not obligated under the Statute to furnish it.
 
    The Judge further addressed the arguments raised by the parties in
 connection with the Privacy Act, particularly, the Respondent's
 assertion that the "presumptive relevance theory" asserted by the
 General Counsel was inapplicable to the information requests because of
 Privacy Act considerations and the General Counsel's contention that the
 requirements of the Privacy Act had been met.  In addressing these
 assertions, the Judge cited the Supreme Court's decision in Detroit
 Edison Company v. NLRB, 440 U.S. 301 (1979), among other cases, and
 noted that even assuming the information requested were presumptively
 relevant, since the Charging Party was seeking unsanitized data of a
 personal nature, the Respondent's obligation to adhere to the Privacy
 Act had to be balanced against the Charging Party's need for the
 information.  Considering the Respondent's obligations under the Privacy
 Act and the Statute, he found no merit to the General Counsel's
 "presumptive relevance theory" in the circumstances of this case where
 the necessity of the data to the Charging Party was never conveyed to
 the Respondent and such necessity was not apparent from the surrounding
 circumstances.
 
    In view of the above, the Judge ordered that the consolidated
 complaint be dismissed in its entirety.
 
                      III.  Positions of the Parties
 
    The General Counsel basically argues that the information sought by
 the Charging Party was necessary and relevant to enable it to determine
 whether a grievance or EEO complaint should be filed under the parties'
 agreement or to take other appropriate action;  that the requirement for
 establishing relevancy and necessity was met because the information was
 "presumptively relevant";  and that the Judge erred by failing to find
 the violations as alleged.  Further, both the General Counsel and the
 Charging Party assert that the "routine use" exception in the Privacy
 Act permits the disclosure of the requested information.  More
 specifically, the General Counsel asserts that section 552(a)(b)(3) of
 the Privacy Act permits the disclosure of the requested information
 which is contained in a system of records maintained by the Office of
 Personnel Management (OPM) identified as OPM/GOVT-2, "Employee
 Performance File System Records." Additionally, they argue that the
 Judge erroneously concluded that the Charging Party waived its right to
 data related to the DOWR statistics in Case No. 2-CA-40350.
 
                               IV.  Analysis
 
    In agreement with the Judge, the Authority finds that the General
 Counsel has not met the burden of proving that the Respondent failed to
 comply with section 7114(b)(4) of the Statute in violation of section
 7116(a)(1), (5) and (8) of the Statute when it failed to furnish the
 requested information to the Charging Party.  In reaching this
 conclusion, the Authority rejects the General Counsel's contention that
 the information sought was presumptively relevant.  Rather, as the
 Authority has previously held, section 7114(b)(4)(B) of the Statute
 requires that the information requested be "reasonably available and
 necessary," Social Security Administration, Office of Hearings and
 Appeals, Region II, New York, New York, 19 FLRA No. 47 (1985), and that
 a union's bare assertion that it needs data to process a grievance does
 not automatically oblige the agency to supply such data, but the duty to
 supply data under section 7114(b)(4) of the Statute turns upon the
 nature of the request and the circumstances in each particular case.
 Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 17
 FLRA 624 (1985), petition for review filed sub nom. American Federation
 of Government Employees, Local 1345 v. FLRA, No. 85-1378 (D.C. Cir. June
 21, 1985).  In the instant case, the record reveals that the necessity
 for the requested information was not apparent from the circumstances
 and that the Charging Party failed to divulge the reasons why it was
 seeking the information despite management's reasonable requests for
 clarification so that it could make an informed judgment as to whether
 or to what extent the information sought was necessary for collective
 bargaining purposes.  The Charging Party failed even to state that it
 was seeking the information in connection with a grievance or to
 determine whether to file a grievance.  Thus, under such circumstances,
 the Authority finds that the Respondent did not unlawfully refuse to
 furnish the data sought by the Charging Party.  See Internal Revenue
 Service, Buffalo District, Buffalo, New York, 7 FLRA 654 (1982).  /*/
 
    Additionally, the Authority finds, without passing upon the Judge's
 conclusion that the Charging Party waived its right to obtain DOWR
 statistics in Case No. 2-CA-40350, that under the circumstances the
 Respondent never refused to furnish such information.  Rather, the
 evidence reveals that the Charging Party simply refused to follow
 through on its arrangement with the Respondent under which the DOWR
 statistics were made available for photocopying by the Charging Party.
 
                              V.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge made at the hearing, finds that no prejudicial error was
 committed, and thus affirms those rulings.  The Authority has considered
 the Judge's Decision, the exceptions to that Decision, the positions of
 the parties and the entire record, and adopts the Judge's findings,
 conclusions and recommended Order except as noted in the footnote.  We
 therefore conclude that the Respondent did not fail to comply with
 section 7114(b)(4) in violation of section 7116(a)(1), (5) and (8) of
 the Statute when it refused to provide the information sought by the
 Charging Party.  Accordingly, the complaint shall be dismissed in its
 entirety.
 
                                   ORDER
 
    IT IS ORDERED that the consolidated complaint in Case Nos.
 2-CA-40303, 2-CA-40304, 2-CA-40343 and 2-CA-40350 be, and it hereby is,
 dismissed.
 
    Issued, Washington, D.C., April 14, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case Nos. 2-CA-40303, 2-CA-40304, 2-CA-40343, 2-CA-40350
 
 DEPARTMENT OF HEALTH AND HUMAN SERVICES, 
 SOCIAL SECURITY ADMINISTRATION AND SOCIAL 
 SECURITY ADMINISTRATION, FIELD 
 OPERATIONS, NEW YORK REGION
    Respondent
 
                                    and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO
    Charging Party
 
 
 
    Thomas H. Gabriel, Esq.
    For the Respondent
 
    Douglas Chauvin
    For the Charging Party
 
    Joel Hornstein, Esq. and
    E. A. Jones, Esq.
    For the General Counsel
 
    Before:  SALVATORE J. ARRIGO
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This matter arose under the Federal Service Labor-Management
 Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
 Section 7101, et seq.
 
    Upon an unfair labor practice charge filed by the American Federation
 of Government Employees, AFL-CIO (herein referred to as AFGE or the
 Union) against the Department of Health and Human Services, Social
 Security Administration and Social Security Administration, Field
 Operations, New York Region (herein referred to as Respondent), the
 General Counsel of the Authority, by the Regional Director for Region
 II, issued a Consolidated Complaint and Notice of Hearing alleging
 Respondent violated section 7116(a)(1)(5) and (8) of the Statute
 essentially by failing and refusing to furnish the Union with various
 information requested by the Union.
 
    A hearing on the Complaint was conducted in New York, New York at
 which all parties were represented and afforded full opportunity to
 adduce evidence, call, examine and cross-examine witnesses and argue
 orally.  The parties submitted a Stipulation of Facts and thereafter,
 briefs were filed by Respondent and Counsel for the General Counsel
 which have been carefully considered.
 
    Upon the entire record in this matter I make the following:
 
                           Findings of Fact /1/
 
    At all times material the Union has been the exclusive collective
 bargaining representative of various of Respondent's employees including
 employees located in Respondent's East New York Branch Office, the
 Murray Hill Branch Office, the Jamaica District Office and the Downtown
 District Office.  The unit employees in the four New York area offices
 mentioned above were, by delegation of authority, represented by AFGE
 Local 3369 (herein sometimes referred to as the Union).  At all times
 material Respondent and the Union were parties to a collective
 bargaining agreement the terms of which applied to all unit employees
 represented by Local 3369.
 
               Case No. 2-CA-40303, -- East New York Office
 
    On or about March 13, 1984 Douglas L. Chauvin, a Vice President of
 AFGE Local 3369, was contacted by the AFGE Local 3369 on-site union
 representative from Respondent's East New York Branch Office.  The local
 representative informed Chauvin that a bargaining unit employee at the
 East New York Branch Office, upon returning to work from a day of sick
 leave, had been told by her supervisor that sick leave restrictions
 might be placed upon her.  As a result of the discussion with the
 on-site representative the Union believed that a potential grievance
 existed regarding the imposition of sick leave restrictions at
 Respondent's East New York Branch Office.  /2/ Accordingly, on March 13,
 1984 Chauvin sent the following letter to Lester Gray, Manager of
 Respondent's East New York Branch Office where the Union represents 16
 bargaining unit employees out of a total compliment of 42 employees:
 
          "Pursuant to 5 U.S.C. 7103(a)(9) and 5 U.S.C. 7114, I would
       like unsanitized copies of the official time and attendance
       records for all of the employees in your office for the period
       October 1, 1983 through March 13, 1984.  This information is
       necessary and relevant so Local 3369 can fairly and adequately
       represent the interests of the employees in your office.
 
          "Please provide me with this information at the address below
       on or before March 23, 1984." /3/
 
    On March 15, 1984 Gray replied to Chauvin as follows:
 
          "In response to your letter of March 13, 1984, I am requesting
       that you provide more information concerning the need for the
       material you seek.  Before this data can be released to you, I
       must make a determination whether it is relevant and necessary."
 
    Chauvin's March 22 reply to Gray stated:
 
          "I received your letter dated March 15, 1984 in which you
       refuse to provide me with the information I requested in my letter
       dated March 13, 1984.  My letter provides the appropriate
       statutory references for you to make your determination.  You may
       also want to refer to Article 24 of the national negotiated
       agreement.
 
          "Please provide me with the information I requested before the
       close of business on March 29, 1984."
 
    The parties engaged in no other communication concerning the
 requested information and Respondent has never supplied the Union with
 the information.
 
    Although its reasons were never communicated to Respondent, the Union
 requested the information to determine sick leave patterns in
 Respondent's East New York Branch Office, how unit employees were
 treated regarding excessive sick leave usage, whether such treatment
 conformed to the collective bargaining agreement and because the Union
 believed that such information would be relevant to a determination on
 whether to file a grievance or to take other appropriate action.  In the
 Union's opinion the information sought was required in unsanitized form
 in order to permit it to fully investigate and pursue a potential
 grievance.
 
    The information requested was not available to the Union from any
 other source and was normally maintained by Respondent in the regular
 course of business, was reasonably available to Respondent and did not
 constitute guidance, advice, counsel or training provided for management
 officials or supervisors relating to collective bargaining.
 
                 Case No. 2-CA-40304 -- Murray Hill Office
 
    In or around early March 1984 Local 3369 Vice President Chauvin was
 contacted by the AFGE Local 3369 on-site union representative from
 Respondent's Murray Hill Branch Office.  The local representative told
 Chauvin she had handled the first and second steps of a performance
 appraisal grievance for a bargaining unit employee but was not familiar
 with step 3 proceedings.  As a result of the discussion with the on-site
 representative, the Union believed that it would need certain
 information relevant to the processing of the grievance at the third
 step.  Accordingly, on March 15, 1984 Local 3369 sent the following
 letter to David Gold, the Manager of Respondent's Murray Hill Branch
 Office where the Union represents approximately 15 bargaining unit
 employees:
 
          "Pursuant to 5 U.S.C. 7103(a)(9) and 5 U.S.C. 7114, I would
       like unsanitized copies of progress reviews and performance
       appraisals for all of the bargaining unit employees in your office
       for the period January 1, 1983 to March 15, 1984.
 
          "I will expect your reply to this request on or before March
       22, 1984.  Please reply to the address below."
 
    On March 27, 1984 Gold replied:
 
          "This is in response to your request for information dated
       March 15, 1984, received March 20, 1984, concerning 5 U.S.C.
       7103(a)(9) and 5 U.S.C. 7114.
 
          "Your request is deficient in that it does not identify the
       issue upon which it is based, it does not explain why all job
       categories are required and it does not indicate why unsanitized
       copies are needed.
 
          "I will give your request further consideration if you clarify
       the deficiencies as stated above."
 
    On or about March 27, 1984, Vice President Chauvin and Murray Hill
 Branch Manager Gold telephonically discussed the Union's March 15, 1984
 information request.  In this conversation Gold asked Chauvin the issue
 for which the information was being requested.  He also asked Chauvin
 why he wanted unsanitized information and whether it was related to a
 grievance or grievances, Equal Employment Opportunity (EEO) complaint or
 any other matter.  Chauvin replied that the Charging Party's letter of
 March 15, 1984, supra, was explicit enough for Respondent to release the
 information sought.  He also advised Gold that he would make another
 request for the information.
 
    Chauvin, on the same date, sent Gold the following letter:
 
          "Pursuant to 5 U.S.C. 7103(a)(9) and 5 U.S.C. 7114, I am making
       this second request for unsanitized copies of progress reviews and
       performance appraisals for all of the bargaining unit employees in
       your office for the period January 1, 1983 to March 15, 1984.
       This information is relevant and necessary for Local 3369 to
       fairly and adequately represent an employee(s) in your office.
 
          "Please provide this information to me at the address below on
       or before the close of business on April 6, 1984."
 
    Gold's reply to Chauvin of April 2, 1984 stated:
 
          "Your second letter still does not identify what the issue
       involves or even if there is an issue.  Further, you have not
       attempted to explain why all job categories are needed or why it
       must be in unsanitized form.  I requested the clarification in my
       response to your first letter and in our telephone conversation of
       February 27, 1984.  In our telephone conversation you stated that
       you are entitled to this information as the employee(s)
       representative and you refused to clarify further.  I, however,
       must balance this intrusion into the personal privacy of the
       employee(s) vs your need of the information in the form requested
       by you.  Consequently, I will give your request for information
       further consideration if you advise me of the issue, the reason
       for the need of unsanitized copies etc. etc."
 
    On April 9, 1984 Chauvin sent the following letter to Gold:
 
          "I regret that I have to make this third request for
       information.  My letters to you dated March 15, 1984 and March 27,
       1984 provide sufficient reasons for you to release the information
       I requested to me.
 
          "In our phone conversation on March 27, 1984, not February 27,
       1984 as you allege in your letter to me dated April 2, 1984, I
       referred to the right of the exclusive representative to have
       access to the information I requested and I gave as one example
       the right of the exclusive representative to monitor the
       employer's compliance with a collective bargaining agreement.
 
          "The issue and the reason for the need of the information are
       clearly specified in my letters dated March 15, 1984 and March 27,
       1984.  You might also want to refer to Article 24 of the
       collective bargaining agreement.  In addition, the information is
       necessary for full and proper discussion, understanding, and
       negotiation of subjects within the scope of collective bargaining.
 
          "Unless I receive the information I requested in my letters
       dated March 14, 1983 and March 27, 1984 on or before April 16,
       1984, I will take other appropriate action with respect to my
       requests for the information."
 
    On April 16, 1984 Gold sent the following reply to Chauvin:
 
          "This is in response to your letter of April 9, 1984.  As I
       have stated previously, since you have not identified an issue (or
       even whether there is an issue), not explained why all positions
       are needed, and not explained why the information must be
       unsanitized I cannot release it to you.  If and when you comply
       with my request for clarification I will be glad to help you."
 
    Other than the six letters and the conversation referred to above,
 there were no other communications between Respondent and the Union
 regarding the information requested herein and Respondent never
 furnished the Union with the data.
 
    Although its reasons were never communicated to Respondent, the Union
 requested the information to assist it in its preparation for a third
 step grievance.  In the Union's opinion the information sought was
 required in unsanitized form to permit it to fully investigate and
 process the third step grievance.  /4/
 
    The information requested was not available to the Union from any
 other source and was normally maintained by Respondent in the regular
 course of business, was reasonably available to Respondent and did not
 constitute guidance, advice, counsel or training provided for management
 officials or supervisors relating to collective bargaining.
 
                   Case No. 2-CA-40343 -- Jamaica Office
 
    In or around October 1983 Local 3369 Vice President Chauvin was
 contacted by a bargaining unit employee who worked in Respondent's
 Jamaica District Office.  The employee told Chauvin she was dissatisfied
 with her October 1983 appraisal and she suspected another unit employee
 had received a better appraisal because of favoritism on the part of
 their mutual supervisor.  As a result of the discussion with the
 bargaining unit employee, the Union believed that, inter alia, a
 potential grievance existed regarding favoritism and on March 20, 1984
 Local 3369 President John Riordan sent the following letter to Susan
 Pike, Manager of Respondent's Jamaica District Office where the Union
 represents approximately 104 bargaining unit employees of whom 21 or 22
 are Title II Claims Representatives:
 
          "Pursuant to 5 U.S.C. 7103(a)(9) and 5 U.S.C. 7114, I would
       like unsanitized copies of all progress reviews and performance
       appraisals for all Title II Claims Representatives in your office
       for the period January 1, 1983 to March 20, 1984.  This
       information is relevant and necessary so Local 3369 can fairly and
       adequately represent the employees in your office.
 
          "Please provide the information to the address below as soon as
       possible but no later than April 6, 1984."
 
    On March 26, 1984 Pike replied to Riordan as follows:
 
          "This is in response to your request for Title II claims
       representative appraisals and progress review materials for the
       period January 1, 1983 to March 20, 1984.
 
          "This is a request for further information necessary to process
       your request and should not be construed as a denial of your
       request.
 
          "Please provide an explanation of the issue that prompted your
       request.  Your request for these materials will be given further
       appropriate and responsible consideration upon receipt of your
       reply."
 
    Riordan's reply to Pike on April 2, 1984, stated:
 
          "I received your letter dated March 26, 1984 in which you
       respond to my request for information pursuant to 5 U.S.C.
       7103(a)(9) and 5 U.S.C. 7114.  My request was dated March 20,
       1984.
 
          "In addition to the statutory references cited above and in my
       letter dated March 20, 1984, permit me to suggest that you also
       refer to Article 24 of the negotiated agreement.
 
          "The information I requested is necessary for full and proper
       discussion, understanding, and negotiation of subjects within the
       scope of collective bargaining.  Please be assured that the
       purpose of my request does not relate to internal union business.
 
          "Please provide me with the information I requested in my
       letter dated March 20, 1984 on or before the close of business on
       April 12, 1984."
 
    Pike responded to Riordan on April 5, 1984, stating:
 
          "I have received your letter dated April 2, 1984.  Regrettably,
       you have not furnished me with sufficient information to release
       in unsanitized form all 1983 progress reviews and appraisals as
       well as 1984 progress reviews.
 
          "As you know, we are required to supply the union, upon
       request, with sufficient data to enable it to bargain
       intelligently, including policing the agreement, as in grievance
       matters.  However, the union is not entitled to ask for data in
       the abstract.  Unfortunately your response did not clarify to me
       the specific issue that generated your request.
 
          "I would like to point out that timeframes for filing
       grievances, etc. on 1983 performance data have elapsed and I am
       not aware of any 1983 appraisal grievances at any level that were
       timely filed that are still pending.  Therefore, I am asking you
       to identify the live issue(s) that generated your request for both
       the 1983 as well as the 1984 documents.
 
          "As you also know records of performance documentation are
       generally sanitized to protect the privacy of the individual
       employees.  An exception may be made only if identification of
       employees is necessary and relevant to the Union's
       representational function.  Therefore please identify specifically
       why in this case you require non-sanitized documents.
 
          "Finally, should it be finally determined, based on your
       responses to my questions, that all of the 1983 and 1984 documents
       will be released, I estimate that the volume will exceed 250-300
       pages.  Much of this material is maintained in the Regional
       Personnel Office, rather than the Jamaica District Office.  I
       therefore ask that you narrow your request, perhaps to be limited
       to all Title II CR's within one unit.
 
          "Please be assured that I will act promptly upon receipt of
       your response."
 
    Riordan replied to Pike on April 16:
 
          "I received your letter dated April 5, 1984 about my request
       for information dated April 2, 1984.  My letter was a second
       request for information.  I made my initial request on March 20,
       1984.
 
          "Your "awareness" of any grievances is irrelevant to your duty
       to provide the information I requested.
 
          "Sanitized documents are virtually useless to the union in
       performing its representational functions.
 
          "I am not willing to make my request more narrow.  However, to
       ease your burden, I am willing to designate someone from the union
       to retrieve and photocopy the documents I requested."
 
    On April 23, 1984, Pike answered Riordan:
 
          "I have received your letter dated April 16, 1984.
 
          "This is to inform you that performance documentation that you
       requested on March 20, 1984 may not be released until I receive
       the information requested in my correspondence dated March 26,
       1984 and April 5, 1984."
 
    The parties engaged in no other communication concerning the
 requested data and Respondent has never furnished the information to the
 Union.
 
    Although its reasons were never communicated to Respondent, the Union
 requested the information to ascertain whether favoritism existed in
 Respondent's Jamaica District Office and because the Union believed that
 such information would be relevant to a determination on whether to file
 a grievance or to take other appropriate action.  /5/ It was the Union's
 opinion that the information sought was required in unsanitized form in
 order to permit it to fully investigate and pursue a potential
 grievance.
 
    The information requested was not available to the Union from any
 other source and was normally maintained by Respondent in the regular
 course of business, was reasonably available to Respondent and did not
 constitute guidance, advice, counsel or training provided for management
 officials or supervisors relating to collective bargaining.
 
                  Case No. 2-CA-40350 -- Downtown Office
 
    Shortly before February 16, 1984 Local 3369 Vice President Chauvin
 learned that a bargaining unit employee in Respondent's Downtown
 District Office (whom Chauvin was representing in an EEO complaint) had
 received a performance progress review which stated, inter alia, that
 the employee's within grade increase may be denied and termination or
 demotion may result if the employee's performance did not improve by
 August 1984.  As a result of this knowledge the Union believed that a
 potential discrimination complaint and/or grievance existed regarding
 the employee's performance progress review and any adverse action that
 might issue as a result of the performance progress review.
 Accordingly, on February 16, 1984 Chauvin sent the following letter to
 Jefferson Woodcox, Manager of Respondent's Downtown District Office
 where the Union represents approximately 75 bargaining unit employees of
 whom 11 are Title II Claims Representatives:
 
          "Pursuant to 5 USC 7114, I am requesting the following
       information so that Local 3369 can fairly and adequately represent
       an employee in your office.  Please provide in unsanitized form
       all of the information listed below for the period January 1, 1983
       through February 29, 1984 for all Title II Claims Representatives
       in the Downtown District Office:
 
          "1.  annual performance appraisals
 
          2.  Claims Representative desk audits
 
          3.  Claims Representative interview audits
 
          4.  performance improvement plans
 
          5.  interviewing time studies
 
          6.  quality review deficiency flags(bounces)
 
          7.  weekly DOWR statistics for each Title II breakdown.
 
          "I would appreciate your prompt reply to this request at the
       address below."
 
    On or about February 27, 1984, Vice President Chauvin and the
 Assistant District Manager of Respondent's Downtown District Office,
 Peggy Murphy, telephonically discussed the Union's February 16, 1984
 information request.  In this conversation Murphy asked Chauvin for
 additional information so the request could be processed.  Specifically,
 Murphy asked Chauvin to state the issue and why the Union needed the
 information in unsanitized form.  Chauvin declined to provide further
 particulars on the ground that the Union's letter of February 16, 1984
 stated sufficient information to warrant the release of the data sought.
 
    Subsequent communications between the parties on this request were as
 follows:
 
          -- February 28, 1984 -- Woodcox letter to Chauvin.
 
          "This responds to your information request dated 2/16/84,
       received February 22, 1984, involving 5 USC 7114.
 
          "Your request is deficient in that it does not identify the
       issue upon which it is based.
 
          "In the telephone conversation with Peggy Murphy on 2/27/84,
       you refused to provide any particulars as to the case or issue
       related to your request.
 
          "Should you identify an appropriate issue relevant to full &
       proper discussion, understanding, negotiation of subject within
       the scope of collective bargaining, your request will be given
       further appropriate responsive consideration."
 
          -- March 12, 1984 -- Chauvin letter to Woodcox.
 
          "I am writing this letter in response to your letter to me
       dated February 28, 1984 regarding my request for information dated
       February 16, 1984.
 
          "During the phone conversation I had with Ms. Peggy Murphy I
       patiently pointed out to her that pursuant to 5 U.S.C. 7103(a)(9)
       and Article 24 of the national negotiated agreement a grievance
       means any complaint.  Neither the statute nor the contract require
       the union to identify the employee or employees in your office who
       have a complaint.
 
          "My request dated February 16, 1984 was not deficient and
       accordingly with this letter I am making the same request again.
 
          "Unless you provide me with the information I am requesting
       before the close of business on March 22, 1984, I will take other
       appropriate action with respect to my request."
 
          -- March 15, 1984 -- Woodcox letter to Chauvin.
 
          "In response to your letter dated March 12, 1984 which was
       received by me on March 14, 1984 I wish to point out that at no
       time have I or Peggy Murphy asked you to identify the employee or
       employees in this office who have a complaint.  What you have been
       asked to provide is the specific issue upon which the complaint is
       based.  Is it a grievance involving an E.E.O. issue?
 
          "In order for me to determine whether or not I can supply the
       information you require in the format you specified I still need
       to obtain more information from you before I can proceed.
 
          "First, in deciding whether or not to release some or all of
       the information you request in an unsanitized format I must
       balance the intrusion into privacy of other employees against the
       need for the information in the form requested by you.
 
          "Secondly, the copies you requested on all of the weekly DOWR
       statistics for each title II breakdown would be too burdensome to
       supply;  however, I would consider making them available at this
       office for your inspection.
 
          "Consequently, if you will advise me whether or not the
       complaint involves an EEO issue I will give your request further
       appropriate responsive consideration."
 
          -- March 22, 1984 -- Chauvin letter to Woodcox.
 
          "I received your letter dated March 15, 1984 in which you
       refuse to provide the union with the information it requested on
       February 16, 1984 and again on March 12, 1984.
 
          "Both of my letters as well as my phone conversation with Ms.
       Peggy Murphy on February 27, 1984 provide sufficient information
       for you to make the information available to me.
 
          "With respect to the weekly DOWR statistics, I am willing to
       photocopy them myself so that neither you nor your staff will be
       burdened by my request.
 
          "Please provide me with the information I requested before the
       close of business on March 29, 1984."
 
          -- March 30, 1984 -- Woodcox letter to Chauvin.
 
          "In response to your letter dated March 22, 1984, which was
       received by me on March 26, 1984, it is apparent that you have
       misunderstood both of my previous responses to your requests for
       data.
 
          "If you will simply re-read my last response, especially the
       second and third paragraphs, you will clearly see that I did not
       refuse to provide the information you requested.  On the contrary,
       I simply asked you for specific information (whether or not the
       issue at hand was an E.E.O. complaint) so that I could come to a
       decision on whether to release the information in a sanitized or
       unsanitized format.
 
          "You still have not answered my question and without knowing
       the answer I can not make an informed judgment concerning the
       intrusion into the privacy of other employees.  Absent that
       information, I will release extant copies of the first six items
       in your letter of February 16, 1984, in a sanitized format.
 
          "As far as item 7 on your list is concerned, if you will
       contact my Operations Officer, Mrs. Sprizzo, at 264-9416, and
       advise her of the date and time you wish to review the weekly DOWR
       statistics for the Title II breakdowns, she will make those
       records and a photocopy machine available to you for that purpose.
 
          "In the interest of labor relations, as well as cost
       effectiveness, I will provide you with an additional ten (10) days
       to provide the information I require.  If at the end of that time
       I have either not heard from you or you have responded in the
       negative, I will then submit items one through six in a sanitized
       format.  As that response will require my having to devote staff
       and considerable time to the task of retrieving and copying that
       data, I would not later entertain a request from you to resubmit
       the data in an unsanitized format, should you subsequently answer
       my question.
 
          "Finally, I fail to understand your reluctance to make a simple
       statement as to whether or not it is an E.E.O. issue.  By
       answering my question, you would neither reveal the employee'(s)
       identity nor the issue(s) surrounding the complaint, but would
       certainly expedite the deliverance of the data you require and
       allow both of us to get on with our responsibilities."
 
          -- April 7, 1984 -- Chauvin letter to Woodcox.
 
          "I am responding to your letter to me dated March 30, 1984.
       Your "offer" to provide me with sanitized information is
       unacceptable.
 
          "In the fifth paragraph of your letter you mention "cost
       effectiveness" as one of the reasons for arbitrarily setting a
       deadline for me to respond to your letter dated March 30, 1984.
       If you are truly interested in being cost effective you would
       provide the information to me in unsanitized form instead of
       sanitized form or you could allow me to inspect and copy the
       material I requested so you would not have to commit your staff to
       retrieving and copying the data.
 
          "My reluctance to identify individual(s) or provide you with
       enough information so that you can identify them stems from my
       knowledge of management's reprisal against individuals who
       exercise their rights.  As you know, the Federal Labor Relations
       Authority has issued several complaints against you for violating
       the rights of employees.
 
          "The employees responded to your record in labor relations by
       recently voting to have you removed from the Board of Directors of
       the HEW Federal Credit Union.  Fortunately for them, the election
       was done by secret ballot.
 
          "I will not call Ms. Sprizzo until you have provided me with
       the rest of the information I requested in unsanitized form.
 
          "Unless I receive the information I originally requested on or
       before April 17, 1984, I will take other appropriate action with
       respect to my request."
 
          -- April 18, 1984 -- Woodcox letter to Chauvin.
 
          "I am responding to your letter dated April 7, 1984, which was
       received by me upon my return from Philadelphia, PA. on April 16,
       1984.
 
          "Based on your statements, "Your 'offer' to provide me with
       sanitized information is unacceptable" and "I will not call Mrs.
       Sprizzo . . . ", I am not going to forward the data to you in a
       sanitized format.
 
          "This should not be construed as a denial to provide
       information, because if you subsequently advise me whether or not
       the issue concerns an E.E.O. matter, I will then be be able to
       make an informed decision consistent with the provisions of the
       Privacy Act and send you the data requested in the appropriate
       format.
 
          Finally, I take exception to your distorted, malicious and
       erroneous statements concerning Federal Labor Relations authority
       actions that have never occurred and the Federal Credit Union
       elections.  Those issues have been referred to my personal
       attorney for appropriate legal remedies."
 
    The parties engaged in no other communication concerning the
 requested data and Respondent has never furnished the information to the
 Union.
 
    Although its reasons were never communicated to Respondent, the Union
 requested the information to compare the performance of the potential
 grievant with that of other employees in Respondent's Downdown District
 Office and because the Union believed that such information would be
 relevant to a determination on whether to file a grievance or complaint
 or to take other appropriate action.  /6/ It was the Union's opinion
 that the information sought was required in unsanitized form in order to
 permit it to fully investigate and pursue a potential grievance and/or
 complaint.
 
    The information requested was not available to the Union from any
 other source and was normally maintained by Respondent in the regular
 course of business, was reasonably available to Respondent and did not
 constitute guidance, advice, counsel or training provided for management
 officials or supervisors relating to collective bargaining.
 
                        Discussion and Conclusions
 
    The basic issue to be resolved herein is whether under section
 7114(b)(4)(B) of the Statute Respondent was required to furnish the
 Union with the information is requested from the four locations herein.
 Counsel for the General Counsel essentially contends that since the data
 was sought either for use in processing an existing grievance or to
 determine whether to file a grievance, Respondent's refusal violated the
 Statute.  Respondent essentially contends that the Union was obligated
 to state the relevance and necessity of obtaining the information in an
 unsanitized format and the Union's failure to do so privileged
 Respondent's refusal to furnish the data.  Counsel for the General
 Counsel argues the information sought was of such a nature as to be
 presumptively relevant and necessary and therefore, the Union was not
 required to provide Respondent with any specific showing of relevance
 and necessity.  Respondent argues that the presumptive relevance theory
 is inapplicable to the requests herein, especially since the
 requirements of the Privacy Act of 1974 /7/ must be considered.  Counsel
 for the General Counsel counters by contending that the circumstances of
 the requests support a conclusion that the requirements of the Privacy
 Act have been met.
 
    The Authority, in United States Environmental Protection Agency,
 Health Effects Research Laboratory, Cincinnato, Ohio, 16 FLRA No. 16
 (1984) addressed the general status of the law under the Statute in this
 area by stating:
 
          "The Authority has previously held that section 7114(b)(4) of
       the Statute requires management to furnish an exclusive
       representative with information which would enable the union to
       effectively carry out its representational obligation in
       connection with the processing of an employee grievance or the
       determination whether to file a grievance, and that management
       violates the Statute if it refuses to do so.  See, e.g., 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). However, the information sought
       must be necessary and relevant to assist the exclusive
       representative in discharging its responsibilities under the
       Statute, and therefore the Authority has dismissed complaints
       where this requirement has not been established.  See, e.g.,
       Internal Revenue Service, Buffalo District, Buffalo, New York, 7
       FLRA 654 (1982);  Director of Administration, Headquarters, U.S.
       Air Force, 6 FLRA 110 (1981)."
 
    Thus, while management is clearly obligated to furnish a union with
 information in connection with the processing of a grievance or
 determining whether to file a grievance, it must be established that the
 information is necessary and relevant to the matter.
 
    In the case herein, the record reveals that the Union requested
 information for use in a grievance in process or to determine whether to
 file grievances.  However, these reasons were never disclosed to
 Respondent.  Accordingly, with regard to the various requests,
 Respondent sought:  (1) more information concerning the need for the
 material sought from the East New York Office;  /8/ (2) the identity of
 the issue involved, why information on all job categories was required
 and why unsanitized data was needed from the Murray Hill Office;  (3)
 the "live" issue that generated the request and why unsanitized
 documents were required at the Jamaica Office;  and (4) the case or
 issue related to the request for unsanitized information from the
 Downtown Office.  /9/ Essentially, Respondent was seeking to obtain
 sufficient facts whereby it could make an informed judgment as to
 whether the data sought was necessary and relevant for any legitimate
 collective bargaining purpose, especially since the Union was seeking
 unsanitized information.  However,the Union replied merely by giving one
 or more cryptic and conclusionary references to the Statutory sections
 relating to the definitions of a grievance and the rights and duties of
 labor organizations and agencies under the Statute;  the duty of an
 agency to provide information "necessary for full and proper discussion,
 understanding and negotiation of subjects within the scope of collective
 bargaining";  /10/ the necessity and relevance of information to "fairly
 and adequately represent the interests of employees," the negotiated
 grievance procedure;  and monitoring the parties negotiated agreement.
 
    In my view under United States Environmental Protection Agency,
 supra, and cases cited therein, the Union was obligated to sufficiently
 establish with Respondent how the information sought was necessary and
 relevant to it carrying out its representational obligations.  Obviously
 what is required to fulfill this obligation will vary depending upon the
 circumstances of the case.  Indeed, in certain situations the relevance
 and necessity might be apparent and no specific showing of relevance and
 necessity would be required, for example where the request is made when
 contract negotiations are imminent or actually in progress or where the
 request is made during a discussion of a specific grievance.  But in the
 case herein the relevance and necessity of the requested data was never
 conveyed to Respondent nor apparent from the surrounding circumstances.
 Accordingly, I conclude the obligation to establish the relevance and
 necessity of the data was not met and Respondent was not obligated under
 the Statute to furnish the data sought.  /11/
 
    Counsel for the General Counsel argues that the requirement of
 establishing relevancy and necessity was met in this case, contending
 that the information sought was by its very nature "presumptively
 relevant." Counsel for the General Counsel suggests that the approach
 used in similar situations by the National Labor Relations Board (the
 Board) with court approval in cases arising under the National Labor
 Relations Act (the Act) should be applied to the case herein.  The Board
 summarized its approach in a recent decision, Bohemia, Inc., 272 NLRB
 No. 178 (1984), as follows:
 
          " . . . It is well established that an employer must provide a
       union with requested information "if there is a probability that
       such data is relevant and will be of use to the union in
       fulfilling its statutory duties and responsibilities as the
       employees' exclusive bargaining representative." Associated
       General Contractors of California, 242 NLRB 891, 893 (1979), enfd.
       633 F.2d 766 (9th Cir. 1980);  NLRB v. Acme Industrial Co., 385
       U.S. 432 (1967).  The Board uses a liberal, discovery-type
       standard to determine whether information is relevant, or
       potentially relevant, to require its production.  NLRB v. Truitt
       Mfg. Co., 351 U.S. 149 (1956).  Information about terms and
       conditions of employment of employees actually represented by a
       union is presumptively relevant and necessary and is required to
       be produced.  Ohio Power Co., 216 NLRB 987 (1975), enfd. 531 F.2d
       1381 (6th Cir. 1976).  Information necessary for processing
       grievances under a collective-bargaining agreement, including that
       necessary to decide whether to proceed with a grievance or
       arbitration, must be provided as it falls within the ambit of the
       parties' duty to bargain.  NLRB v. Acme Industrial, supra;
       Bickerstaff Clay Products, 266 NLRB 983 (1983).
 
          "However, when a union's request for information concerns data
       about employees or operations other than those represented by the
       union, or data on financial, sales, and other information, there
       is no presumption that the information is necessary and relevant
       to the union's representation of employees.  Rather, the union is
       under the burden to establish the relevance of such information.
       Ohio Power, supra . . . "
 
    Indeed, under the Act it has been long held that wage or related
 information, since it concerns the core of the employer-employee
 relationship, is presumptively relevant and a union is not required to
 show the precise relevance of it unless effective employer rebuttal
 comes forth.  See Curtiss-Wright Corp., Wright Aero Division v. NLRB,
 347 F.2d 61, at 69 (3d Cir. 1965).
 
    The logic behind the Board's approach was expressed by Board Chairman
 Gray Farmer, with majority agreement, earlier in Whitin Machine Works,
 108 NLRB 1537 at 1541 (1954), enf'd, NLRB v. Whitin Machine Works, 217
 F. 2d 593 (4th Cir. 1954), cert. denied, 349 U.S. 905 (1955).  In that
 case Chairman Farmer stated:
 
          "I would not require that the union show the precise relevancy
       of the requested information to particular current bargaining
       issues.  It is enough for me that the information relate to the
       wages or fringe benefits of the employees.  Such information is
       obviously related to the bargaining process, and the union is
       therefore entitled to ask and receive it.
 
          "My interpretation of the employer's obligation under Section
       8(a)(5) in this respect, of course, also presupposes that the
       bargaining agent, in this area as in all others, will seek the
       wage-rate information as a good-faith act in the discharge of its
       duty as the representative of the employees.  I would, therefore,
       hold that, short of evidence that union requests for wage data are
       used as an harassing tactic and not in good-faith effort to secure
       pertinent bargaining information, the employer has a continuing
       obligation to submit such data upon request to the bargaining
       agent of his employees.  This does not, of course, preclude the
       employer from requiring the union to enter into reasonable
       arrangements for the compilation of the requested data including
       provisions for bearing the additional cost to the employer of
       furnishing the requested information.  I am convinced, after
       careful consideration of the import of the problem on the
       collective bargaining process, that this broad rule is necessary
       to avoid the disruptive effort of the endless bickering and
       jockeying which has theretofore been characteristic of union
       demands and employer reaction to requests by unions for wage and
       related information.  The unusually large number of cases coming
       before the Board involving this issue demonstrates the disturbing
       effect upon collective bargaining of the disagreements which arise
       as to whether particular wage information sought by the bargaining
       agent is sufficiently relevant to particular bargaining issues.  I
       conceive the proper rule to be that wage and related information
       pertaining to employees in the bargaining unit should, upon
       request, be made available to the bargaining agent without regard
       to its immediate relationship to the negotiation or administration
       of the collective-bargaining agreement."
 
    Notwithstanding the Board and court cases and principles stated
 above, the Supreme Court in Detroit Edison Company v. NLRB, 440 U.S. 301
 (1979), 99 S.Ct. 1123 at 1131 stated:
 
          "A union's bare assertion that it needs information to process
       a grievance does not automatically oblige the employer to supply
       all the information in the manner requested.  The duty to supply
       information under Section 8(a)(5) turns upon "the circumstances of
       the particular case," NLRB v. Truitt Mfg. Co., 351 U.S., at 153,
       76 S.Ct., at 756, and much the same may be said for the type of
       disclosure that will satisfy that duty.  See e.g., American
       Cyanamid Co., 129 N.L.R.B. 683, 684 (1960)."
 
    In Detroit Edison a union sought certain information about employee
 aptitude tests to prepare for arbitration of a grievance.  The Court,
 after noting that no absolute rule has ever been established wherein a
 union's interests in arguably relevant information must always
 predominate over all other interests, however legitimate, id at 1132,
 1133, went on to balance the conflicting interests of the parties to
 resolve the matter.  Thus, it is apparent that where a request for
 "arguably relevant" information is at issue, all the circumstances of
 the request must be considered in balancing conflicting interests.  It
 follows that similar consideration should be accorded a request for
 "presumptively relevant" data.
 
    The Authority used this approach in Veterans Administration Regional
 Office, Denver, Colorado, 7 FLRA 29 (1982).  In that case the union,
 while investigating an employee's grievance alleging preselection in a
 promotion, sought the names of other candidates so it could match known
 ratings of a rating panel with particular employees.  Veterans
 Administration, Denver, relying on prior similar cases which arose under
 Executive Order 11491, /12/ balanced privacy rights against the union's
 Statutory right for information and found the union's right and need for
 data to substantially outweigh the employee's right to privacy in the
 circumstances therein.  /13/
 
    In the case herein, the Union made broad requests for unsanitized
 information in situations wherein the necessity to the Union was not
 immediately apparent nor in such circumstances that Respondent could be
 expected to have known the relevance and necessity of the information to
 a particular concern of the Union.  Thus, unsanitized time and
 attendance records for all employees, which would obviously include
 non-unit employees at the East New York Office, were sought.  At the
 other offices the Union sought unsanitized appraisal information and
 other data of a particular personal nature at a time when no
 negotiations were planned or in progress, no particular dispute was
 occurring and no indication was given to management the data sought was
 necessary for a grievance in progress or being considered.  /14/
 
    In evaluating the request herein, even assuming arguendo that the
 requested information was generally presumptively relevant to collective
 bargaining, since the Union was seeking unsanitized data of a personal
 nature, I conclude Respondent's obligation to adhere to the
 proscriptions of the Privacy Act must be balanced against the Union's
 need for such information.  Respondent is placed in a situation of being
 required to follow the dictates of two statutes, one requiring the
 production of information and one limiting production.  It is obvious
 that in such situations an employer must have some information relative
 to why the Union needs the data in order to balance the necessity and
 relevance of the data against the obligations imposed by the Privacy
 Act.  Indeed, section 7114(b)(4) of the Statute only requires the
 production of data " . . . to the extent not prohibited by law" and the
 Privacy Act permits the disclosure to a union of otherwise personal
 employee information where that data is "relevant and necessary" for the
 union to perform its proper representational functions.  But how can an
 employer decide if particular information is relevant and necessary
 unless it has some idea of why the union needs the information?
 
    In my view there is no merit to the claim that a "presumptive
 relevance" theory would satisfy the requirement of the Privacy Act and
 the section 7114(b)(4)(B) of the Statute in a situation as herein.
 Veterans Administration Regional Office, Denver, supra, and Detroit
 Edison Company, supra.  Rather, I conclude that under the Statute when
 unsanitized personal information is sought wherein Privacy Act
 considerations are legitimately raised, sufficient facts demonstrating a
 union's need must be available to an agency so the employer can balance
 the union's need for the information against the employer's duties and
 obligations under the Privacy Act and the Statute.  /15/
 
    Accordingly, in view of the entire foregoing and under the particular
 circumstances herein I conclude that no violation of the Statute
 occurred by Respondent's refusal to furnish the Union with the requested
 data and I recommend the Authority issue the following:
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the Consolidated Complaint in Case Nos.
 2-CA-40303, 2-CA-40304, 2-CA-40343 and 2-CA-40350 be, and hereby is,
 dismissed.
                                       /s/ SALVATORE J. ARRIGO
                                       Administrative Law Judge
 
    Dated:  March 8, 1985
 
    Washington, D.C.
 
 
 
 
                   --------- FOOTNOTES$ -----------
 
    (*) In view of the finding that the information sought by the
 Charging Party was not shown to be necessary within the meaning of
 section 7114(b)(4)(B) of the Statute, the Authority finds it unnecessary
 to pass upon the Judge's findings pertaining to his consideration of the
 Privacy Act or the contention that the "routine use" exception in the
 Privacy Act permits the disclosure of the requested information.
 
    (1) The record in this case consists solely of stipulated facts and
 documentary exhibits submitted in connection therewith.
 
    (2) Article 24 of the parties' collective bargaining agreement
 contains a grievance procedure under which an employee, or the Union on
 behalf of an employee or employees, may file a grievance regarding
 matters concerning sick leave.
 
    (3) Section 7103(a)(9) of the Statute sets forth the following
 definition:
 
          "(9) 'grievance' means any complaint --
 
          "(A) by any employee concerning any matter relating to the
       employment of the employee;
 
          "(B) by any labor organization concerning any matter relating
       to the employment of any employee;  or
 
          "(C) by any employee, labor organization, or agency concerning
       --
 
          "(i) the effect or interpretation, or a claim of breach, of a
       collective bargaining agreement;  or
 
          "(ii) any claimed violation, misinterpretation, or
       misapplication of any law, rule, or regulation affecting
       conditions of empl