21:0517(70)CA - HHS, SSA and SSA Field Operations, New York Region and AFGE -- 1986 FLRAdec CA



[ v21 p517 ]
21:0517(70)CA
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