25:0633(52)CA - VA Central Office, Washington, DC and VA Regional Office, Denver, CO and AFGE Local 1557 -- 1987 FLRAdec CA



[ v25 p633 ]
25:0633(52)CA
The decision of the Authority follows:


 25 FLRA No. 52
 
 VETERANS ADMINISTRATION CENTRAL 
 OFFICE, WASHINGTON, D.C. AND 
 VETERANS ADMINISTRATION REGIONAL OFFICE, 
 DENVER, COLORADO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF 
 GOVERNMENT EMPLOYEES, 
 AFL-CIO, LOCAL 1557
 Charging Party
 
                                            Case No. 7-CA-60007
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority on exceptions
 filed by the Respondent to the attached Decision of the Administrative
 Law Judge.  The General Counsel filed an opposition to the Respondent's
 exceptions.  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 Conclusions
 
    The complaint concerns a request by the Union that the Respondent
 provide it with information relating to the distribution of awards to
 all of those unit employees at the Respondent's Denver offices in
 Lakewood, Colorado, who had received outstanding or highly satisfactory
 performance ratings during the 1984-85 appraisal period.  This request
 was first made by letter dated August 9, 1985.
 
    A request for similar information had been made about one year
 previously in conjunction with a grievance filed by the Union which
 asserted, among other things, that monetary awards were not granted in a
 fair and equitable manner.  In response the Respondent had provided the
 Union with a list of names of unit employees, their ratings and the
 types and amounts of awards given.  Similar information was also
 provided at the Union's request for the 1982-83 rating period.  An
 arbitration hearing on the Union's grievance was held in January 1985.
 The Union used the information to develop its assertions, which it
 pursued at the arbitration, that various employees who had received
 monetary awards did not meet the agency's criteria for awards such as
 recency of promotions and time in position while other similarly
 situated employees were denied monetary awards based on those criteria.
 Conversely it asserted that other employees who did meet the criteria
 were denied monetary awards while other similary situated employees
 received them.  No decision had been received in this arbitration
 proceeding at the time of the Union's 1985 information request.
 
    In response to the 1985 request, the Respondent provided the Union
 with a listing in which the identity of the employees appeared coded
 rather than by name.  The listing also included the rating received, the
 type of award given, and in those instances where no monetary award had
 been given, the reason as well as the date of recent promotion and/or
 the date the employee had entered his/her current position.  The
 Respondent cited concern for the privacy of the employees involved as
 the reasons for providing a sanitized listing.  The Union responded
 stating that it needed unsanitized information in order to determine
 whether a grievance should be filed.  In a further exchange with the
 Respondent, the Union referred to the pending grievance over the
 fairness and -quity of the Respondent's actions in making awards and
 stated that it needed the information in order to determine whether the
 alleged violations were continuing.  The Respondent, asserting that the
 Union had not satisfied its requests for proof that the names of the
 employees involved in the information request were necessary and
 relevant, refused to provide the names reiterating its concern for the
 privacy of the employees.
 
    The Judge found that the information requested was necessary for
 discussion, understanding, and negotiation of subjects within the scope
 of collective bargaining and that its release to the Union was not
 prohibited by the Privacy Act.  Consequently, he found that the
 Respondent's failure to provide the requested information was contrary
 to section 7114(b)(4) of the Statute and violated section 7116(a)(1),
 (5) and (8).
 
    In reaching his conclusion as to the necessity of the information,
 the Judge noted that the Union needed the requested names in order to
 make an informed judgment on whether the Respondent had followed
 established criteria, contained in a circular on incentive awards which
 it had issued, in making awards and on whether to file a grievance over
 distribution of awards.  He concluded that without the actual names the
 Union would have had no means of verifying the accuracy of the data
 supplied by the Respondent.  As to the Privacy Act, after considering
 the Union's need for the information and the privacy interests of the
 employees concerned, he concluded that, on balance, disclosure of the
 information did not constitute an unwarranted invasion of the employees'
 privacy and did not conflict with the Privacy Act.
 
                      III.  Positions of the Parties
 
    The Respondent excepts to the Judge's reliance on Union testimony at
 the hearing stating reasons why the Union needed names as opposed to the
 sanitized listing because it asserts that the reasons had not been
 conveyed at the time the information was requested.  In support of its
 contention that this was improper it argues that, where the Privacy Act
 is a consideration in an information request, an agency must be in a
 position to judge the union's need for the information requested against
 the privacy interests of employees.  It argues that the Union's failure
 to fully articulate its needs at the time of the information request
 deprived Respondent of the ability to make an informed judgment as to
 the competing interests involved.  It argues that the Judge in reaching
 his conclusions as to the Union's need for the names should have limited
 his consideration to the reasons specifically expressed by the Union at
 the time of the request.  It contends that no violation occurred because
 at that time the Union failed to establish its need for names.  The
 Respondent also requests that the Judge's recommended order be modified
 to limit posting of any remedial notice to employees to its Denver,
 Colorado, Regional Office as that is where the employees involved are
 located.
 
    In opposition to the Respondent's exceptions, the General Counsel
 argues that the Union's need for the requested information, i.e., names,
 should have been apparent to the Respondent from the circumstances.  The
 specific circumstances which the General Counsel cites are the grievance
 regarding the distribution of awards which was pending at the time of
 its information request, the provisions of the Respondent's circular on
 incentive awards and the Union's statement to the Respondent at the time
 of its request that it wished to ascertain whether the alleged
 violations previously grieved were continuing.  Given these factors, the
 Union's need for the identity of employees who had received outstanding
 or highly satisfactory ratings should have been evident to the
 Respondent.  The General Counsel makes no specific argument in response
 to the Respondent's request that the Judge's recommended remedy be
 modified.
 
                               IV.  Analysis
 
    Section 7114(b)(4) requires an agency to furnish to an exclusive
 representative, upon request and to the extent not prohibited by law,
 data which:
 
          (A) is normally maintained by the agency in the regular course
       of business;
 
          (B) is reasonably available and necessary for full and proper
       discussion, understanding, and negotiation of subjects within the
       scope of collective bargaining;  and
 
          (C) does not constitute guidance, advice, counsel, or training
       provided for management officials or supervisors, relating to
       collective bargaining.
 
    The issue raised by the exceptions in this case is whether the data
 sought by the Union is necessary to its performance of its role as
 exclusive representative and whether the necessity of the information
 should have been obvious to the Respondent at the time of the request.
 
    In view of the nature of the Union's previous grievance regarding the
 Respondent's distribution of awards and its statement that it wished to
 ascertain whether a similar grievance was warranted, we find it
 reasonable to conclude that the Union's need for information which
 included the names of relevant employees, as opposed to sanitized
 information, should have been evident to the Respondent.  The Union's
 previous grievance which asserted that awards were not distributed in a
 fair and equitable manner was based on an allegation of disparate
 treatment of similarly situated employees.  In support of its allegation
 the Union cited instances involving specific employees.  In order to do
 so, it needed to know the identities of those employees who received
 monetary awards and those who met eligibility standards relating to
 performance ratings but did not receive monetary awards.
 
    Although the Union did not prevail in its grievance, its approach in
 pursuing it was not unreasonable.  In view of its statements that it
 wanted the requested information to determine whether a similar
 grievance was warranted, it is obvious that it needed to know the
 identities of employees in order to make such a determination.  We agree
 with the General Counsel that it is reasonable to conclude that the
 necessity of the requested names to the Union's representational
 functions was evident from the surrounding circumstances.
 
    As to the Judge's reliance on reasons stated in testimony at the
 hearing to support his conclusions that the requested information was
 necessary, we do not view the reasons stated as anything beyond what
 should have been obvious to anyone familiar with the circumstances,
 i.e., the history of the pending grievance and the Union's avowed intent
 to determine whether a similar grievance was in order.  The reasons
 expressed at the hearing were nothing more than statement of what should
 have been reasonably obvious to the Respondent at the time of the
 Union's information request.  /1/
 
    In agreement with the Judge, we conclude that, balancing the Union's
 need for the requested information against the privacy interests of the
 employees involved, disclosure of the information did not constitute an
 unwarranted invasion of the employees' privacy.  As noted above, the
 information was necessary to the Union's ability to perform its function
 as exclusive representative.  As established by the record, similar
 information had been previously disclosed to the Union with no
 indication of widespread circulation of the information or protest from
 the employees involved.  Thus we find, based on the Judge's reasoning,
 that disclosure of the requested information was not prohibited by the
 Privacy Act.
 
    Based on the circumstances present in this case we find in agreement
 with the Judge that Respondent violated section 7116(a)(1), (5) and (8)
 by refusing to provide the information sought by the Union.  Compare
 Department of Health and Human Services, Social Security Administration
 and Social Security Administration, Field Operations New York Region, 21
 FLRA No. 35 (1986), petition for review filed sub nom. American
 Federation of Government Employees, AFL-CIO v. FLRA, No. 86-4077 (2d
 Cir. June 13, 1986), in which the Authority dismissed a complaint that
 an agency had failed to provide an exclusive representative with
 necessary information.  In that case the Authority found that the
 necessity for the requested information was not apparent from the
 circumstances and the union had failed to divulge the reasons it sought
 the information despite the agency's reasonable requests for
 clarification.
 
    With regard to the posting of the remedial unfair labor practice
 notice, we find that a posting limited to the Respondent's Denever,
 Colorado, Regional Office will best effectuate the purposes and policies
 of the Statute, and we shall modify the Judge's recommended order
 accordingly.  While it is clear that the violations involved employees
 in that particular location, there is no showing that employees at the
 Respondent's Central Office in Washington, D.C., were involved.
 Moreover, we note that the General Counsel did not specifically oppose
 the Respondent's request that the recommended order be so modified.
 Consequently, we see no basis for requiring posting of the notice at the
 Central Office.
 
                              V.  Conclusion
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, we have reviewed the rulings of the
 Judge made at the hearing, find that no prejudicial error was committed,
 and affirm those rulings.  We have considered the Judge's Decision, the
 exceptions to that Decision, the positions of the parties and the entire
 record, and adopt the Judge's findings, conclusions and recommended
 order except as noted above.  We therefore conclude that the Respondent
 failed 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.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118(a)(7) of the Federal Service Labor-Management Relations
 Statute, it is ordered that the Veterans Administration Central Office,
 Washington, D.C. and Veterans Administration Regional Office, Denver,
 Colorado, shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to furnish, upon request by the American
 Federation of Government Employees, AFL-CIO, Local 1557, the names of
 employees which correspond to the alphabetical designations for
 employees on the 1984-85 Rating and Award sanitized list submitted to
 the exclusive representative.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action:
 
    (a) Upon receipt, furnish to the American Federation of Government
 Employees, AFL-CIO, Local 1557, the names of the employees which
 correspond to the alphabetical designations for employees on the 1984-85
 Rating and Award sanitized list submitted to the exclusive
 representative.
 
    (b) Post at its facility, Veterans Administration Regional Office,
 Denver, Colorado, copies of the attached Notice on forms to be furnished
 by the Federal Labor Relations Authority.  Upon receipt of such forms,
 they shall be signed by the Director and shall be posted and maintained
 for 60 consecutive days thereafter, in conspicuous places, including all
 bulletin boards and other places where notices to employees are
 customarily posted.  The Director shall take reasonable steps to ensure
 that such notices are not altered, defaced or covered by any other
 material
 
    (c) Notify the Regional Director, Region VII, Federal Labor Relations
 Authority, in writing, witthin 30 days from the date of this Order, as
 to what steps have been taken to comply herewith.
 
    Issued, Washington, D.C., February 12, 1987.
 
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail and refuse to furnish, upon request by the American
 Federation of Government Employees, AFL-CIO, Local 1557, the names of
 the employees which correspond to the alphabetical designations for
 employees on the 1984-1985 Rating and Award sanitized list submitted to
 the exclusive representative.
 
    WE WILL NOT in any like or related manner, interfere with, restrain,
 or coerce employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    WE WILL, upon request, furnish the American Federation of Government
 Employees, AFL-CIO, Local 1557, the names of the employees which
 correspond to the alphabetical designations for employees which
 correspond to the alphabetical designations for employees on the
 1984-1985 Rating and Award sanitized list submitted to the exclusive
 representative.
                                       (Activity)
 
    Dated:  . . . . . .  By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced, or covered by any other
 material.
 
    If employees have any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Federal Labor Relations Authority, Region VII, whose address
 is:  535 - 16th Street, Suite 310, Denver, CO 80202, and whose telephone
 number is:  (303) 837-5224.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No.: 7-CA-60007
 
 VETERANS ADMINISTRATION CENTRAL OFFICE, 
 WASHINGTON, D.C. AND VETERANS
 ADMINISTRATION REGIONAL OFFICE, DENVER, COLORADO
    Respondent
 
                                    and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO LOCAL 1557
    Charging Party
 
    Douglas Doane, Esq.
    For Respondent
 
    Matthew Jarvinen, Esq.
    Joseph Swerdzewski, Esq.
    For General Counsel
 
    Before:  WILLIAM NAIMARK
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    Pursuant to a Complaint and Notice of Hearing issued on December 12,
 1985, by the Regional Director for the Federal Labor Relations
 Authority, Region VII, Denver, Colorado, a hearing was held before the
 undersigned on January 16, 1986.
 
    This case arose under the Federal Service Labor-Management Relations
 Statute, 5 U.S.C. Section 7101, et seq. (herein called the Statute).  It
 is based on a charge filed on October 10, 1985 by American Federation of
 Government Employees, AFL-CIO, Local 1557 (herein called the Union)
 against Veterans Administration Regional Office, Denver, Colorado
 (herein collectively called Respondent).
 
    The Complaint alleged, in substance, that the Union requested
 Respondent to furnish it with the names of unit employees, for the
 1984-85 appraisal period, who received outstanding or highly
 satisfactory ratings together with the type of award received by said
 individuals;  if no Quality Step Increase or Cash award was given to
 said employees, the reason therefor;  the length of time in position of
 the individuals;  and the promotions of such employees during said
 period.  It was further alleged Respondent did furnish all of the
 requested data except the names of the employees corresponding to the
 data which was provided.  By reason of the refusal to furnish the said
 names, it was alleged Respondent failed to comply with 7114(b)(4) of the
 Statute, /2/ and thus violated Section 7116(a)(1), (5) and (8) thereof.
 
    Respondent's Answer, dated December 31, 1985, denied that the
 information it failed to provide the Union was necessary for full and
 proper discussion, understanding and negotiation of collective
 bargaining subjects.  It also denied that the information it failed to
 provide was not prohibited by law, and alleged that the release of the
 names would violate the Privacy Act, 5 U.S.C. Section 552(a).  The
 Answer denied the commission of any unfair labor practices.
 
    All parties were represented at the hearing.  Each was afforded full
 opportunity to be heard, to adduce evidence, and to examine as well as
 cross-examine witnesses.  Thereafter, briefs were filed which have been
 duly considered.  /3/
 
    Upon the entire record herein, from my observation of the witnesses
 and their demeanor, and from all of the testimony and evidence adduced
 at the hearing, I make the following findings and conclusions:
 
                             Findings of Fact
 
    1.  At all times material herein American Federation of Government
 Employees, AFL-CIO, has been the certified exclusive representative of
 nationwide consolidated units of Respondent's professional and
 non-professional employees with specified exclusions.
 
    2.  At all times material herein the Union has been, and still is,
 the agent of American Federation of Government Employees, AFL-CIO for
 the purpose of exclusively representing the bargaining unit employees
 who are employed in Respondent's Denver offices in Lakewood, Colorado.
 /4/
 
    3.  Respondent and American Federation of Government Employees,
 AFL-CIO are parties to a national collective bargaining agreement, in
 existence at all times material herein, covering unit employees who are
 employed at Respondent's Denver offices in Lakewood, Colorado.
 
    4.  Articel 13 of the aforesaid agreement provides a grievance
 procedure for the resolution of complaints, as specified, initiated by
 employees, the Union, or management.  Under Section 2B(6) of this
 Article decisions on incentive awards are not grievable.  /5/
 
    5.  Article 32 of the said agreement sets forth a "Performance
 Appraisal System" applicable to bargaining unit employees.  Section 6(A)
 thereof, "Awards and Other Actions," provides, in substance, that when
 an employee is rated Highly Satisfactory in the annual performance
 evaluation, the appropriate supervisor will review the rating to
 determine if the employee should be recommended for a monetary award
 under the Incentive Awards program.  Section 6(B) thereof provides that
 when an employee is rated Outstanding, he will be automatically
 considered for a monetary award under the program.  Section 6(C) thereof
 provides "Awards for performance will be distributed in a fair and
 equitable manner." (underscoring supplied).
 
    6.  Under date of August 7, 1984 Respondent issued Circular No.
 25-84-35 (Joint Exhibit 6) which deals with Incentive Awards applicable
 to the Denver, Colorado regional office.  This circular established the
 policy of said office, as well as the responsibilities and procedures,
 in respect to granting such awards.
 
    7(a).  Paragrah 2(c)(2) of the Circular provides that awards will be
 granted equitably on a merit basis;  "and that information is made
 available concerning persons who have received awards and the reasons
 why the awards were granted."
 
    (b).  Paragraph 2(c)(4) of the Circular provides for distributing
 awards for performance in a fair and equitable manner.
 
    (c).  Paragraph 6(a)(3) of the Circular provides, in part, that "an
 employee must have a highly satisfactory or outstanding rating to be
 considered for a superior performance award."
 
    (d) Paragraph 7, entitled "Quality Step Increase," /6/ provides for
 such award, instead of a cash award, for sustained superior performance.
  Under this paragraph an employee must have a highly satisfactory or
 outstanding rating to be considered for QSI;  employment is required to
 be one year in the same type of position and at the same grade level;
 and if the QSI is being based on a highly satisfactory rating, over 50%
 of key responsibilities and 100% of those designated as critical
 elements must be evaluated as "far exceed." /7/
 
    8.  In a letter dated August 17, 1984 Union president Carroll
 O'Brien-Mergler submitted to the Director of the Respondent's Denver
 regional office a grievance /8/ pursuant to Article 13, Section 7, NOTE
 6 of the collective bargaining agreement.  The Union grieved over the
 complaint that monetary awards were not granted in a fair and equitable
 manner.  Further, the grievance stated the procedures to determine who
 should get incentive awards was not negotiated with the Union.
 
    9.  Management replied to the aforesaid grievance in a letter dated
 August 24, 1984 which Director Alverson wrote to the Union President.
 The grievance was denied based on the determination that decisions on
 incentive awards under the contract were not grievable, and that all
 other issues raised were not negotiable.
 
    10.  In a letter dated September 10, 1984 the Union President wrote
 Personnel Office Norman Frickey and, based on 7114(b)(4) of the Statute,
 requested the following information to meet its representational
 functions:
 
          "Copies of all Quality Step Increase awards given to bargaining
       unit employees;  and copies of each bargaining unit employees'
       performance appraisals (Section C - overall ratings)."
 
    11.  Management responded by sending the Union a list of named unit
 employees, their ratings with the types and amounts of awards received
 by the employees.
 
    12.  Thereafter, under date of November 20, 1984 the Union wrote
 Frickey and requested copies of awards given to all unit employees, the
 amounts awarded, and the names of all employees receiving awards for the
 rating period 1982-1983.  /9/ On December 4, 1984 Frickey sent the Union
 a named listing of unit employees, together with the rating, auard, and
 amount given to each employee for 1983.
 
    13.  The arbitration hearing was held on January 9, 1985.  The 1983
 and 1984 data furnished by management was utilized by the Union at the
 hearing to argue unfair distribution of awards by Respondent.
 
    14.  The arbitrator's decision issued on December 18, 1985.  He
 concluded that the grievance, which alleged unfair and inequitable
 distribution of incentive awards, was a proper grievance under Article
 13 of the bargaining agreement;  that the focus of the grievance was not
 on the decision as to whether individual employees were entitled to the
 awards, but on the procedures followed in their distribution;  and,
 further, that the evidence did not support a conclusion that the
 distribution was unfair and inequitable.  The arbitrator sustained the
 grievance insofar as it alleged the employer adopted new criteria for
 the 1984 awards without notifying the Union and affording it an
 opportunity to bargain re impact and implementation.
 
    15.  Based on its receiving complaints from employees that some
 workers were being given awards which were undeserved or not earned, the
 Union made a request for information for the 1984-1985 appraisal period.
  By letter dated August 9, 1985 O'Brien-Mergler requested the following
 data to fulfill its representational duties:
 
          (a) A list of all unit employees receiving an outstanding or
       highly satisfactory rating;  type of award given.
 
          (b) If any of the employees did not receive a Quality Step
       Increase or Cash award, the reason therefor.
 
          (c) Length of time in position for the above employees.
 
          (d) All promotions made during 1984-1985 appraisal period.
 
    16.  Record testimony reflects the Union President did not know, at
 the time of the 1985 request, whether a grievance would be filed;  that
 the information was needed to determine if such would be done;  that the
 basis for such determination rested on considering Article 32, Section
 6(C) of the national agreement and paragraphs 2c(2), 6a(3) and 7 of
 Circular No. 25-84-35.
 
    17.  Under date of September 3, 1985, Frickey sent the Union a 1984
 rating and award list for 116 bargaining unit employees.  No names of
 employees were given.  The list was sanitized to show the rating for
 each unit employee who was coded and unnamed, the rating for the
 unidentified employee, and the type of award he received.  The data also
 listed coded and unnamed employees who did not receive a QSI or Cash
 award and the reason therefor, and the length of time in position for
 such employees.  Further, it set forth the promotions during 1984-1985
 for employees who did not receive a QSI or Cash award.  /10/
 
    18.  In sending the aforesaid data Frickey stated in an attached
 letter that he did not send an unsanitized list of employees since it
 might be an invasion of the employee's privacy.  He also stated that the
 information could be provided if the Union submitted a "written release
 information from an employee";  or if it could be shown that names are
 necessary and relevant to represent unit employees, the names could be
 released.
 
    19.  O'Brien-Mergler wrote Frickey on September 5, 1985 and advised
 the Personnel Officer that the sanitized roster is of no use in
 determining if grievance should be filed by the Union.
 
    20.  In a reply to the foregoing letter Frickey repeated his refusal
 to furnish the names of the employees on the 1985 rating and awards
 list.  He stated that, as he understood the law, there was no obligation
 to submit such information unless it was shown to be necessary and
 relevant, and then only to the extent not prohibited by law.  Frickey
 again referred to the privacy of the employees and indicated the Union
 had two options:  (a) provide proof the data is necessary or relevant,
 or (b) provide release from the affected employees.
 
    21.  In a letter dated September 17, 1985 O'Brien-Mergler mentioned
 the grievance filed in 1984 re awards not being granted in a fair and
 equitable manner.  She further wrote that to assure this has not
 occurred in 1985 the Union needed unsanitized copies of the information
 sought in her letter of August 9, 1985.
 
    22.  Frickey's response, dated September 30, 1985, stated that while
 he might have to furnish the unsanitized information if a grievance or
 unfair labor practice charge were filed, to provide it for a seemingly
 "fishing expedition" was neither appropriate nor consistent under the
 law.  He repeated his concern about privacy considerations as well as
 the conditions under which the data would be released.
 
    23.  Record testimony by O'Brien-Mergler indicates she was unable to
 verify the data as to the individual employees without their names;
 that she needed the dates in positions to determine whether employees
 who received a QSI award were in position for a full year as required by
 the Circular.  She testified that if the name of the employee had been
 furnished who received a QSI, a check could be made to determine if the
 individual had been promoted during the year.  A promotion then would
 have disqualified the employee for QSI consideration.  In such event,
 O'Brien-Mergler stated, the Union could have used the information to
 decide whether to file a grievance where the awards were not in
 conformity with the requirements set forth in the master agreement or
 the Circular.  Further, the Union official testifed the Union did not
 have to grieve a decision by management concerning granting or denying
 awards to an employee;  that a grievance could be filed re the granting
 of an award incorrectly where the employee did not meet the criteria
 laid down in Article 32 of the agreement dealing with the Performance
 Appraisal System;  that a grievance, in such instance, challenged the
 fair and equitable manner in which awards were made.
 
    24.  Record facts show management had not encountered any previous
 problems with the Union releasing sensitive information to persons
 outside the Union;  that the Union never had problems re disclosure of
 personal data furnished to it by Respondents management.
 
                                Conclusions
 
    There are two principal issues for determination herein:  (1) whether
 the data sought by the Union herein was necessary for discussion,
 understanding and negotiation of collective bargaining within the
 meaning of Section 7114(b)(4)(B) of the Statute;  (2) whether a
 disclosure by Respondent of the names of the employees on the sanitized
 list furnished to the Union would be prohibited under the Privacy Act.
 
    (1) Respondent concedes that the Union was entitled to file a
 grievance as to whether there was fair and equitable distribution of the
 awards.  It takes the position, however, that since no grievance had
 been pending or proposed, the names of the employees rated outstanding
 or highly satisfactory was not necessary for the Union to perform its
 functions.  If a grieved employee had been named, it is urged, then the
 Union might be entitled to the names of those employees similarly
 situated.  Further, Respondent contends that the unprovided data would
 not enable the Union to show unfair and inequitable distribution,
 especially since a supervisor's recommendation concerning awards forms
 part of the decision in granting or denying them.
 
    Under Section 7114(b) of the Statute an obligation is imposed upon an
 agency to furnish data to the bargaining representative, not prohibited
 by law, "which is reasonably available and necessary for full and proper
 discussion, understanding, and negotation of subjects within the scope
 of collective bargaining." Such must be necessary to enable a union to
 fulfill its representational functions, including the effective
 evaluation and processing of grievances.  U.S. Equal Opportunity
 Commission, Washington, D.C., 20 FLRA No. 37;  U.S. Customs Service,
 Region VII, Los Angeles, California, 10 FLRA 251, 253.  This duty is not
 absolute, and mere assertion that data is needed to process a grievance
 does not automatically require that it be supplied.  An agency's
 obligation in this regard will depend upon the request and the
 circumstances in each case.  See Department of the Treasury, United
 States Customs Service, Region IV, Miami, Florida, 10 FLRA No. 53;  Army
 and Air Force Exchange Service (AAFES), 17 FLRA No. 92.
 
    Turning to the case at bar I am persudaded that the data requested by
 the Union was necessary to carry out its representation functions.  Both
 Article 32, Section 6(C) of the Master Agreement, and Paragraph 2(c)(4)
 of the Circular, provide that awards will be distributed in a fair and
 equitable manner.  Based upon communications from employees, the Union
 was concerned that the 1985 awards were not distributed in such a
 manner, and it sought data to verify the matter.  It seems quite
 apparent that the sanitized list of awards and ratings would not afford
 the Union a method of such verification.  Withou the names of the unit
 employees the Union could not verify the dates when employees were in a
 position and when employees were promoted.  It was not possible for the
 Union to check the requirement in paragraph 7 of the Circular that those
 who receive a QSI be in the same position and grade level for one year.
 Further, unless it obtained the names, it was unable to talk to those
 who received a QSI based a highly satisfactory rating and be satisfied
 such employees were rated "far exceed" in respect to 50% of key
 responsibilities and 100% of those designed as critical elements.
 
    Respondents' contention that since no grievance was pending, the
 Union should not be entitled to all the names of those on the list is
 rejected.  Case law does not require that an actual grievance be filed
 before information may be requested.  In truth, an examination of the
 data may convince the representative that no grievance is warranted --
 that the distribution of awards and ratings was fair and equitable.
 Neither do I accept the argument that Respondent should be called upon
 to furnish only the names of employees situated similarly to one who is
 a grievant and thus named by the Union.  Such a view begs the question.
 The Union may not be in a position to name a particular grievant until
 it verifies the information and it may find that difficult without the
 names corresponding to the data.
 
    It is also insisted by Respondent that inasmuch as the decision re
 awards and ratings rests, in part, on the supervisor's recommendation,
 the names of employees would not aid the Union since it was not able to
 grieve the reasons underlying such recommendation.  However, the fact
 that the representative is not entitled to grieve an individual decision
 of an award does not foreclose its right to challenge the manner in
 which awards were distributed.  Assuming arguendo the data reveals that
 certain named employees were not in grade for a requisite period, or did
 not meet the criteria in the Circular, the Union may want to discuss
 with management the failure to abide by the procedure set forth for
 granting awards.  It may well grieve management's failure to distribute
 the latter in a fair and equitable manner without grieving decisions re
 individual awards.
 
    Due consideration had been given by the undersigned to the
 Authority's decision in Bureau of Alcohol, Tobacco and Firearms,
 National Office, Washington, D.C., 18 FLRA No. 74.  In the cited case a
 grievance was filed by an employee re his non-selection for a posted
 position.  In order to process the grievance, information was requested
 by the union involving the promotion package utilized by the agency,
 including relevant data pertaining to the manner in which a panel
 arrived at scores for each applicant for the position.  Management
 furnished a sanitized promotion package containing evaluations and
 rankings for applicants on the requisite rating lists.  It deleted the
 names of the applicants and personal identifiers.  The Authority
 concluded that certain data deleted by the agency had to be furnished,
 i.e. prior employment records of the unsuccessful applicants, names of
 institutions they attended, and weight assigned to each factor evaluated
 by the Raters.  However, the Authority determined the General Counsel
 failed to demonstrate the necessity for unsuccessful applicant's names,
 personal identifiers, language skills, references, salary histories,
 identity of forms supervisors and names of Rater and selecting
 officials.  It was concluded that such data was not shown to be
 necessary under 7114(b)(4) for the union to determine if the selection
 process was fair.
 
    Several factors which are present in the case at bar warrant the
 conclusion that the present controversy is distinguishable from the
 cited case.  The Authority concluded in the Bureau of Alcohol, Tobacco
 and Firearms case, supra, that lacking the names and personal
 identifiers of unsuccessful candidates for the position with the
 SF-171's and their evaluation forms would not aid the union in
 processing the grievance.  The union argued, and the Authority agreed,
 that it needed to know and compare the reputation of the institutions
 attended by other applicants, as well as the size and reputation of
 previous places of employment and such applicant's length of service
 thereat.  As to the names of the other applicant, no sufficient reason
 was given that they were needed to process the grievance.
 
    Contrariwise, in the case at bar, the Union has stated it required
 the names of the employees to verify and check certain basic facts which
 could be determinative as to whether the awards were distributed fairly
 and equitably.  Thus, the Union wanted to contact employees who received
 a QSI and check whether they were in the same type of position and at
 the same grade level for a year, as required by the Circular.  The Union
 also needed the names to contact employees receiving a QSI based on a
 highly satisfactory rating and verify the "far exceed" evaluation which
 the Circular required as to critical elements and responsibilities. In
 addition, the Union asserted it desired to ascertain from employees who
 received a QSI whether, in fact, they were promoted during the year
 where so indicated on the sanitized list.  This became important since,
 if so promoted, those individuals could not receive a QSI under the
 Circular.
 
    While management may characterize the request for the names of the
 employees as a "fishing" expedition, record facts do support the
 conclusion that a sound bases existed for the information.  Thus, it is
 noted that the Union did receive complaints from employees that awards
 were being given to individuals which were undeserved.  In order to
 fulfill its function as the representative of unit employees, the Union
 could scarcely determine whether awards were so granted to individuals
 without having the names of those persons so as to verify information
 provided it by management.  It is difficult to understand how the Union
 could decide if the awards were made in a fair and equitable manner, and
 ultimately decide whether to grieve if not so distributed, unless it
 obtained the names of those receiving awards as well as the other and
 check the data as to each employee in the list.
 
    (2) It is also argued by Respondent that, assuming arguendo the data
 requested by the Union is "necessary" within 7114(b)(4) of the
 Statutute, the disclosure thereof is prohibited by the Privacy Act.
 /11/
 
    The Privacy Act regulates the disclosure of any information contained
 in an agency "record" within a "system of records" that is retrieved by
 reference to an individual's name or some other personal identifier.
 /12/ The list of employees with ratings and awards they received, in
 addition to length of time in position for said employees, as well as
 promotions of all unit employees, are considered records contained
 within the Respondent's systems of records under the Privacy Act, /13/
 and so conceded by Respondent.  They are generally prohibited from
 disclosure unless one of the specific Privacy Act exceptions under 5
 U.S.C. 552a(b)(1)-(12) (1982) is applicable.  An exception set forth in
 5 U.S.C. 552a(b)(2) permits disclosure of Privacy Act -- protected
 information to the extent that such information is required to be
 released under the Freedom of Information Act (FOIA).  /14/
 
    The theory of FOIA is that all records in the possession of Federal
 Government agencies must be disclosed upon request under subject to a
 specific FOIA exemption.  /15/ There is however, an exemption - (b)(6)
 of the FOIA - which allows an agency to withhold personnel and medical
 files as well as similar files, the disclosure of which would constitute
 a clearly unwarranted invasion of privacy.
 
    In cases where requests for individually identifiable records such as
 promotion and personnel files are made under FOIA, the Federal Courts
 apply a balancing test to determine whether disclosure would result in a
 clearly unwarranted invasion of privacy.  In American Federation of
 Government Employees, AFL-CIO, Local 1923 v. United States Department of
 Health and Human Services, 712 F.2d. 931 (4th Cir. 1983) the union
 sought the home addresses of all unit employees pursuant to the FOIA.
 The Court of Appeals balanced the individual's interest in the right to
 privacy and the possible harmful effects from disclosure against the
 public's interest in making the information available.  The same
 balancing test was applied in Celmius v. United States Department of
 Treasury, 457 F. Supp. 13 (D.D.C. 1977) in determining whether the
 agency was required to disclose the promotion file and other promotion
 documents requested under FOIA by unsuccessful promotion applicants.
 
    The data requested herein by the Union is similar to information
 requested in the cases heretofore cited.  It calls for individually
 identifiable records of named employees, which may be disclosed under
 FOIA when it is determined that there is no clear invasion of an
 individual's privacy.  The Authority has concluded that disclosure of
 such information in employee's files pursuant to a union's request under
 7114(b)(4) of the Statute is not per se prohibited by law.  It is
 subject to the same scrutiny and balancing test applied by the Courts in
 evaluating FOIA requests under the 5 U.S.C. 552(b)(6) exemption.  The
 Authority, in deciding whether "necessary, data under 7114(b)(4) should
 be disclosed, will balance the necessity for the union's purposes
 against the degree of intrusion on the individual's privacy interests
 caused by disclosure of the data.  See U.S. Equal Employment Opportunity
 Commission, Washington, D.C., 20 FLRA No. 37, AAFES, supra.
 
    Applying the standards set forth in the foregoing cases I am
 persuaded that disclosing the names of the unit employees corresponding
 to the awards data furnished the Union would not constitute an
 unwarranted invasion of their privacy.  Several factors compel this
 conclusion.  Thus, it is noted that the Respondent previously sent the
 Union, upon request, the names of unit employees and awards given for
 the 1983-1984 period as well as for the 1982-1983 appraisal period.
 This data was furnished to the Union for its use in preparing for the
 arbitration hearing held on January 9, 1985.  The record does not
 reflect that any widespread circulation was made of this information.
 /16/ Neither does it appears that any protests or repercusions resulted
 from Respondent's having supplied the Union with the names of those
 receiving awards and their ratings.  Moreover, furnishing the names and
 corresponding data is in conformity with the policy of the Incentive
 Awards program as established in the Circular.  Paragraph 2c(2) thereof
 (Joint Exhibit 6), which acknowledges that awards be granted equitably
 on the basis of merit, significantly provides . . . "that information is
 made available concerning persons who have received awards and the
 reason(s) why the awards were granted." (underscoring supplied).
 
    Respondent asserts, as one justification for a refusal to furnish the
 data requested, that until the Union comes forward and shows a named
 employee who claims to be treated unfairly no showing has been made that
 the Union's need is greater than the privacy interest of its members.
 This contention begs the issue at hand.  The Union may scarcely be in a
 position to discern whether the distribution of awards was equitable
 before it obtains the information requested.  It's request is made in
 order to determine if there is any merit to complaints received from
 employees re the granting of awards.  In performing it representational
 functions a union should be equally concerned that a grievance not be
 filed which is meritless, and it may well decide that no grievance is
 justified.
 
    In sum, I conclude that General Counsel has established herein that
 the names of the employees, corresponding to the data furnished the
 Union by Respondent on September 3, 1985, were necessary for proper
 representation of unit employees under 7114(b)(4) of the Statute;  that
 the Privacy Act does not justify Respondent's refusal to provide such
 names as such disclosure would not be a clear and unwarranted invasion
 of the employees' right of privacy;  and that the refusal to furnish the
 names of the employees on the sanitized list sent to the Union was
 violative of Section 7116(a)(1), (5) and (8) of the Statute.
 
    Having concluded that Respondents' refusal to furnish the exclusive
 representative with information necessary to perform its
 representational functions in violation of the Statute, it is
 recommended that the Authority adopt the following:
 
                                   ORDER
 
    Pursuant to Section 7118(a)(7) of the Federal Service
 Labor-Management Relations Statute, and Section 2423.29 of the Rules and
 Regulations, it is hereby ordered that Veterans Administration Central
 Office, Washington, D.C. and Veterans Administration Regional Office,
 Denver, Colorado, shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to furnish, upon request by the
       American Federation of Government Employees, AFL-CIO, Local 1557,
       the names of the employees which correspond to the aplhabetical
       designations for employees on the 1984-1985 Rating and Award
       sanitized list submitted to the exclusive representative.
 
          (b) In any like or related manner interfering with, restraining
       or coercing its employees in the exercise of their rights assured
       by the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action:
 
          (a) Upon request, furnish to the American Federation of
       Government Employees, AFL-CIO, Local 1557, the names of the
       employees which correspond to the alphabetical designations for
       employees on the 1984-1985 Rating and Award sanitized list
       submitted to the exclusive representative.
 
          (b) Post at its facility at the Veterans Administration Central
       Office, Washington, D.C. and Veterans Administration Regional
       Office, Denver, Colorado, copies of the attached Notice on forms
       to be furnished by the Federal Labor Relations Authority.  Upon
       receipt of such forms, they shall be signed by the Director and
       shall be posted and maintained by him for 60 consecutive days
       thereafter, in conspicuous places, including all bulletin boards
       and other places where notices to employees are customarily
       posted.  The Director shall take reasonable steps to insure that
       such notices are not altered, defaced or covered by any other
       material.
 
          (c) Notify the Regional Director, Region VII, Federal Labor
       Relations Authority, in writing, within 30 days from the date of
       this Order, as to what steps have been taken to comply herewith.
 
                                       WILLIAM NAIMARK
                                       Administrative Law Judge
 
 
    Dated:  June 30, 1986
    Washington, D.C.
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) While we find that the reasons given at the hearing should have
 been obvious to the Respondent at the time of the request, it would have
 been better practice on the part of the Union to have articulated them
 more fully at th