21:0517(70)CA - HHS, SSA and SSA Field Operations, New York Region and AFGE -- 1986 FLRAdec CA
[ v21 p517 ]
The decision of the Authority follows:
21 FLRA No. 70 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-40326 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority on exceptions filed by the General Counsel 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 (the Union) with information it had requested pursuant to section 7114(b)(4) of the Statute. II. Background and Judge's Conclusion The basic facts in this case are not in dispute, and were stipulated to the Judge at the hearing. Based upon various "complaints" allegedly reported to it by employees of the Respondent's Downtown New York District Office, the Union requested that the Respondent furnish to the Union certain information pursuant to section 7114(b)(4) of the Statute. Basically the Union asked that it be furnished the names of all employees in the District Office who had been during the past 12 months, or were currently, under a performance improvement plan; the operative dates of the plans; and the race, sex, color, national origin, religion and age of all those identified. The Union stated only that the information requested was "necessary in connection with the processing of a possible grievance." By an exchange of letters, it became clear that the Union would accept only unsanitized information, and that the Respondent refused to furnish the requested information unless the Union supplied enough of an explanation that would allow management to make an informal judgment as to whether or to what extent the information sought was necessary for collective bargaining purposes. The Judge found that the Respondent was entitled to know why the information requested was needed by the Union, that the only reason given was insufficient, and that, in the face of the Union's refusal to clarify the request the Respondent was not obligated under the Statute to furnish the information. 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 Department of Health and Human Services, Social Security Administration and Social Security Administration, Field Operations, New York Region, 21 FLRA No. 35 (1986), the Authority basically adopted its Administrative Law Judge's findings, conclusions and recommended dismissal of the complaint. In that case, involving these same parties, the Judge noted that even assuming the information requested was presumptively relevant, since the Union was seeking unsanitized data of a personal nature, the Respondent's obligation to adhere to the Privacy Act had to be balanced against the Union'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 the case, where the necessity of the data to the Union was never conveyed to the Respondent and such necessity was not apparent from the surrounding circumstances. The Judge here cited to and adopted the analysis and reasoning of the Judge in 21 FLRA No. 35, and in the circumstances of this case recommended that the complaint be dismissed. III. Positions of the Parties The General Counsel basically argues that the information sought by the Union was necessary 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 Union's explanation that the information was "necessary in connection with the processing of a possible grievance" was sufficiently precise, i.e., the requirement of 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, the General Counsel asserts 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." The Respondent, whose arguments before the Judge were basically adopted, did not file an opposition brief with the Authority. 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 Union. 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 Union failed and refused to explain 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. Thus, under such circumstances, the Authority finds that the Respondent did not unlawfully refuse to furnish the data sought by the Union. See Department of Health and Human Services, Social Security Administration and Social Security Administration, Field Operations, New York Region, 21 FLRA No. 35 (1986); Internal Revenue Service, Buffalo District, Buffalo, New York, 7 FLRA 654 (1982). /1/ 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 Union. Accordingly, the complaint shall be dismissed. ORDER IT IS ORDERED that the complaint in Case No. 2-CA-40326 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., April 28, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 2-CA-40326 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 Cecilia McCarthy, Esq. For the Charging Party Joel Hornstein, Esq. E. A. Jones, Esq. For the General Counsel Before: SAMUEL A. CHAITOVITZ Administrative Law Judge DECISION Statement of the Case This is a proceeding arising 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., 92 Stat. 1191, (hereinafter referred to as the Statute) and the Rules and Regulations of the Federal Labor Relations Authority (FLRA), 5 C.F.R. Chapter XIV, Section 2410, et seq. The charge in this matter was filed by the American Federation of Government Employees, AFL-CIO (herein called the Charging Party or the Union) against the Department of Health and Human Services, Social Security Administration, and Social Security Administration Field Operations, New York Region (herein collectively called the Respondent), on May 1, 1984. On June 20, 1984, the General Counsel of the FLRA by the Regional Director for Region II issued a Complaint and Notice of Hearing alleging that Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Sections 7116(a)(1), (5) and (8) of the Statute, by failing and refusing to furnish the Union certain necessary and relevant information relating to the issuance of Performance Improvement Plans (PIPs) at Respondent's Downtown New York District Office, which information was necessary and relevant in order to determine whether a grievance should be filed under the parties' collective bargaining agreement. On July 17, 1984, Respondent filed an answer denying the substantive allegations of the complaint. A hearing was held before the undersigned in New York, New York and the Union, Respondent and General Counsel of the FLRA were represented. All parties had the opportunity to examine witnesses, submit documents and other evidence. All parties entered into an extensive stipulation of facts. Post-hearing briefs have been filed and duly considered. Based upon the entire record herein I make the following: Findings of Fact At all times material herein, the Department of Health and Human Services, Social Security Administration (herein called DHHS SSA), has been, and is now, an agency within the meaning of Section 7103(a)(3) of the Statute. Additionally, SSA Field Operations, New York Region, has been, and is now, a constituent entity within DHHS SSA and an agent acting on its behalf. The SSA Downtown New York District Office has been, and is now, a constituent entity within DHHS SSA and an agent acting on its behalf. At all times material herein, the Charging Party has been, and is now, a labor organization within the meaning of Section 7103(a)(4) of the Statute. Additionally, the Union has been, and is now, the certified exclusive collective bargaining representative for a consolidated, nationwide unit of certain employees of Respondent, including all employees employed in the District and Branch Offices of DHHS SSA in the States of New York and New Jersey, with exclusions not relevant herein. Pursuant to appropriate delegations of authority, the American Federation of Government Employees, Local 3369, AFL-CIO (AFGE Local 3369), has been recognized by Respondent as the agent of the Union for the purposes of collective bargaining at the SSA Downtown New York District Office. The parties are operating under a national collective bargaining agreement (herein called the Agreement) effective June 11, 1982. During late February and March of 1984, several unit employees from Respondent's Downtown New York District Office contacted AFGE Local 3369 President John Riordan. Riordan subsequently discussed complaints made by these employees with AFGE Local 3369's on-site representative at Respondent's Downtown New York District Office. Based on the complaints of the employees and the discussion with the on-site representative, the Union believed that potential discrimination complaints and/or grievances existed regarding Equal Employment Opportunity (herein called EEO) matters or the issuance of Performance Improvement Plans (herein called PIPs) at Respondent's Downtown New York District Office. A PIP may have serious consequences for an employee, including possible denial of a within-grade-increase, an adverse action or a reassignment. A PIP is a written plan prepared for an employee who in his or her supervisor's judgment is failing to meet one or more critical elements of his or her generic job tasks (performance standards) and/or may be denied his or her next within-grade-increase (herein called a WIGI). A PIP may result in a possible denial of a WIGI. It may also lead to an adverse action or a reassignment. For probationary employees, a PIP may lead directly to termination. PIPs last for a specific period of time, usually 60 or more days. Article 24 of the Agreement concerns grievance procedures. Under Section 9 of Article 24, an employee, or the Union on behalf of an employee or employees, can file a grievance regarding EEO matters or PIP issues. Section 10 of Article 24 permits the Charging Party to file a Union-Management grievance concerning EEO matters or PIP issues. Additionally, Article 18, Section 5 of the Agreement provides for the filing of an EEO complaint under Respondent's "agency EEO complaint procedure." Finally, Article 24, Section 8 of the Agreement provides for discussion with an EEO counselor prior to the filing of an EEO complaint. Based on the information from the employees of the Downtown District Office and the Union's belief that potential grievances or complaints existed, Riordan, by letter dated March 30, 1984, requested certain information from the District Manager of Respondent's Downtown New York District Office, Jefferson Woodcox. Pursuant to Section 7114(b) of the Statute, Riordan requested: 1. Names and positions of all employees in the Downtown district office currently under a performance improvement plan (PIP) in accordance with Article 21, Section 7, C of the National Agreement. 2. Dates that PIPs were initiated for each employee. 3. Names and positions of all employees in the Downtown district office that were placed on a PIP in the last twelve months but not currently on a PIP. 4. Dates that PIPs were initiated and concluded for each employee. 5. Please provide the race, sex, color, national orgin (sic), religion (if known) and indicate if employee is age forty or above for all employees given PIPs in (1) and (3) above. Additionally, the letter stated that the information requested was "necessary in connection with the processing of a possible grievance." This was the sole reason made known to the Respondent for the data requested. The information requested in the March 30, 1984 letter in numbered paragraphs (1) through (4) and in paragraph (5) as to race, sex and age was normally maintained by Respondent in the regular course of business and did not constitute guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining. Additionally, the information sought was not available to the Union from any other source. Charging Party requested the names and positions of employees currently on PIPs and the dates the PIPs were initiated because it would enable the Union to determine whether management had issued a disproportionate number of PIPs and because such information would be relevant in determining whether to file a grievance or an EEO complaint. The Union also sought the dates that PIPs were initiated for the purpose of correlating the PIPs and other possible contemporaneous actions by, against or involving the unit employees. The Union sought the identification of employees on PIPs in the prior twelve months and the dates of the PIPs because only a few employees might have been on PIPs at the time of the March 30, 1984 request, but additional employees might have been on and completed PIPs prior to that date. The information was relevant for determining whether a disproportionate number of employees were on PIPs and whether such PIPs were related to other actions involving the employees. These facts would help determine whether a grievance or complaint would be filed. Finally, the information regarding the race, sex, color, national origin, religion and age of the employees issued PIPs in the prior twelve months was requested to enable the Union to determine whether to file a grievance or an EEO complaint. The information requested was required and requested in unsanitized form in order to permit the Union to investigate and pursue fully any potential grievances or EEO complaints under the negotiated grievance procedure or the agency EEO procedure. By letter dated April 10, 1984, District Manager Woodcox refused to furnish the information requested by Riordan in the March 30, 1984 letter. Woodcox stated that Riordan's request appeared to address the same issue as an information request made by another official of AFGE Local 3369. Woodcox also indicated if that were not the case, he wanted to know the issue and whether it related to an EEO complaint. Woodcox explained that this information would assist him in deciding whether or not to release, in an unsanitized format, some or all of the data the Union had requested. By letter dated April 16, 1984, Riordan replied to Woodcox's letter of April 10, 1984. Riordan indicated his information request did not address the same issues as the request Woodcox had received from another Union official. He repeated that the sole purpose for the information was a "possible grievance." He also explained that information in a sanitized format would not allow the Union to determine whether it should file a grievance. Riordan acknowledged that a small part of his request may have been duplicative of the request of the other Union official, but he asked Woodcox to furnish to him all the information that he had requested that was not duplicative after furnishing the duplicative information to the other Union official. By letter dated April 24, 1984, Woodcox again refused to furnish the information requested by the Union in the March 30 and April 16, 1984 letters. Woodcox stated in the letter that duplication of information was no longer a problem. Additionally, he informed Riordan that in order to provide data in an unsanitized form, he needed to know "the precise nature of the potential grievance" so that he could determine whether the requested information in unsanitized form was necessary and relevant. Woodcox further stated that unless he was informed of the precise nature of the potential grievance, he could only provide Riordan with a sanitized list of employees currently under a PIP. Finally, concerning the Union's request for data on race, national origin and religion, Woodcox stated that he could not visually ascertain these characteristics and would not consider asking such questions of the employees involved. Since April 24, 1984, Respondent has failed and refused to furnish to the Charging Party the information requested by it in numbered paragraphs (1) through (4) and paragraph (5) as to race, sex and age of the March 30, 1984 letter. Other than the correspondence referred to above, no other communications between the parties regarding Charging Party's information request have occurred. At no time has Respondent contended that the information, requested in paragraph (1) through (4) and paragraph (5) as to race, sex and age of the March 30, 1984 information request, is not reasonably available. /2/ Respondent never advised the Charging Party as to the availability of the information requested in the March 30, 1984 letter relating to the color, national origin and religion of the employees on PIPs in the prior twelve months. Discussion and Conclusions of Law General Counsel of the FLRA contends that the information requested by Charging Party regarding the PIPs was necessary and relevant to enable Charging Party to determine whether to file a grievance or EEO complaint under the agreement and therefore Respondent's failure to furnish the data violated Sections 7116(a)(1), (5) and (8) of the Statute. Section 7114(b)(4) of the Statute sets forth the duty of Respondent to furnish data, upon request, to the Charging Party, the exclusive collective representative or its authorized agent, AFGE Local 3369. The obligation to provide data encompasses information that: (A) is normally maintained by the agency in the regular course of business; (B) is reasonably available; (C) is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining; (D) does not constitute guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining; and (E) is not prohibited from disclosure by law. The record is clear in this case that the Union requested the names and positions of all employees currently on PIPs and the dates such PIPs were initiated; the names and positions of all employees on PIPs in the prior twelve months and the dates of such PIPs; and the race, sex, color, national origin, religion and age of the above employees. Further, the record clearly demonstrates that all of the information, with the exception of the data regarding color, national origin and religion, was normally maintained by Respondent in the regular course of business. Equally clear from the record is the fact that the information, with the same exceptions mentioned above, does not constitute guidance, advice, counsel or training provided to management officials or supervisors relating to collective bargaining. Finally, it appears from the record that the requested information, with the same exceptions noted above, was reasonably available to Respondent. Respondent has not claimed otherwise and it is reasonable to assume that the information, relating as it does to the identity and work performance of unit employees, would be reasonably available to the supervisors of those employees, including District Manager Woodcox. Respondent essentially contends that the Union was obligated to advise Respondent at the time of the request of the relevancy and necessity of obtaining the information in an unsanitized form and the Union's failure to do so, when so requested, privileged Respondent's refusal to furnish the data. General Counsel of the FLRA 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 relevancy and necessity. Respondent argues that the presumptive relevance theory is inapplicable to the requests herein, especially in view of the requirements of the Privacy Act of 1974, 5 U.S.C. Section 552a. In Department of Health and Human Services, Social Security Administration, and Social Security Administration Field Operations, New York Region, OALJ 85-56 (1985), Administrative Law Judge Salvatore J. Arrigo analyzed in detail the state of the law with respect to the Section 7114(b)(4) rights of labor organizations to information, Respondent's rights to know why the information is needed and the area of presumptive relevancy. Judge Arrigo discussed, in detail, both the cases under the Statute and in the private sector. I adopt his analyses, reasoning and conclusions in this regard, especially when he states at page 23 of his decision: "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." In light of the foregoing conclusion, in the subject case Respondent had a legitimate Privacy Act concern as to whether to provide the Union with the unsanitized PIPs and the requested information concerning race, sex, age, etc. of the employees involved. Respondent was therefore entitled to know why the Union needed the requested information so Respondent could balance the Privacy Act considerations with those of the Statute. The Union's mere statement that the information was "necessary in connection with the processing of a possible grievance" was not sufficiently precise to have permitted Respondent to balance its various duties and obligations under the Privacy Act and the Statute. Thus Respondent had no obligation to produce the requested information until advised of the precise reason the unsanitized information was needed. Accordingly, I conclude the Respondent did not violate the Statute when it refused to furnish the Union with the requested data and I recommend the Authority issue the following: ORDER IT IS HEREBY ORDERED that the Complaint in Case No. 2-CA-40326 be and hereby is dismissed. /s/ SAMUEL A. CHAITOVITZ Administrative Law Judge Dated: March 28, 1985 Washington, DC FOOTNOTES$ ----------- (1) In view of the finding that the information sought by the Union 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. (2) In fact, information was maintained as to race, sex and age.