32:0133(19)AR - - VA Medical Center, Jackson, MS and NFFE Local 589 - - 1988 FLRAdec AR - - v32 p133
[ v32 p133 ]
The decision of the Authority follows:
32 FLRA No. 19
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
VETERANS ADMINISTRATION MEDICAL
CENTER, JACKSON, MISSISSIPPI
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 589
Case No. 0-AR-1447
I. Statement of the Case
This case is before the Authority on exceptions to the award of Arbitrator James J. Odom, Jr., filed by the Veterans Administration (the Agency) on behalf of the Veterans Administration Medical Center, Jackson, Mississippi (the Center), under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition.
The grievance arose as a result of a Union request under section 7114(b)(4) of the Statute for statistical information about current employees of the Center. The Center agreed to comply with the request in part, but declined to disclose designations of sex and race, on grounds that the disclosure of such information would violate the Privacy Act, 5 U.S.C. º 552a. The Union filed a grievance which proceeded to arbitration. The Arbitrator determined that disclosure of the information requested by the Union, with the exception of the names of the employees, was required under section 7114 of the Statute and was not prohibited by the Privacy Act. He directed the Center to comply with the request in all aspects except the disclosure of names. The Agency filed exceptions contending that the award is contrary to (1) the Privacy Act and (2) section 7114 of the Statute.
For the reasons that follow, we find that the Agency has not established that the Arbitrator's award is deficient as alleged. Therefore, we deny the exceptions.
The Union requested a list under section 7114(b)(4) of the Statute of every current employee of the Center, alphabetized by name, which provided each employee's position title, grade, sex and race. The Union asked that each employee's function be identified as supervisory or nonsupervisory, and that the service in which each employee works be designated. The Union stated that it needed the information in order to "intelligently examine" complaints and determine whether a grievance should be filed. Award at 2.
Despite the Center's assertion that the request for the information was premature since a grievance had not been filed, the Center agreed to furnish all the information the Union had requested except for designations of sex and race. The Center's position was that the information was not maintained in the usual course of business and was not "reasonably available and necessary," as required under section 7114(b)(4). Award at 2. The Center claimed that information about the race of individual employees could not be disclosed because of privacy constraints. Award at 3.
The Union then requested 24 hours of official time for each of two employees to enable them to gather the wanted information through observation of the Center's employees. The Center denied the request for official time on the grounds that it had been requested for a use prohibited by the Privacy Act. Award at 4. Thereafter, the Union clarified its reasons for requesting data on sex and race. The Union stated that it needed the information to ascertain whether "discriminatory practices in hiring, promotion, assignment, etc. have resulted in adverse impact and/or disparate treatment on protected groups (i.e. minorities and women)" based on its perception that white males appeared to be "extremely dominant" in grades GS-6 through GS-12. Award at 4-5. The Center refused to supply the requested information and the Union filed a grievance. The grievance proceeded to arbitration.
III. Arbitrator's Award
The Arbitrator determined that the issue before him was whether the Center was required to furnish the information requested by the Union. Award at 5. The Arbitrator found that the request for information was not abandoned when the Union made its official time request. Award at 5. He concluded, nevertheless, that the denial of official time was not improper, because the official time was requested for "counting of heads," which would have produced "badly distorted" results. Award at 6.
The Arbitrator next determined that the Union had not established a need for the names of employees, noting that the Union acknowledged that it would be satisfied to receive the information without names. Award at 6-7. The Arbitrator determined that the removal of names eliminated the Center's privacy argument. Award at 7. He found that categorization by service, which the Center had not furnished, was "necessary" information which the Center was obligated to provide. Award at 8. Rejecting the Center's argument, the Arbitrator ruled that section 7114 did not restrict the Union's right to request information to situations in which it had filed a grievance. Award at 9.
Although the Center argued before the Arbitrator that the information was not maintained in the format requested by the Union, the Agency acknowledged that its regulations provide that "nonstandard listings" may be requested. Award at 10-11. The Arbitrator found that the Center's obligation to furnish information under section 7114 is not limited by the format in which the information is maintained in the regular course of business. He found that the information requested by the Union was "readily accessible" to the Center in the regular course of business, was "reasonably available," and was "necessary" within the meaning of section 7114(b)(4)(B). Award at 11.
The Arbitrator directed the Center to provide the Union with a list of all persons employed full-time by the Center, with the statistics broken down by position title, race, sex, grade and service. Award at 12.
IV. Positions of the Parties
A. Agency's Exceptions
The Agency contends that the award is deficient on two grounds: (1) the award is contrary to the Privacy Act because it directs the release of information from a Privacy Act system of records; and (2) the award is contrary to section 7114(b)(4) of the Statute because it directs the release of information concerning nonbargaining unit employees. Exceptions at 2, 6.
In support of its first contention, the Agency argues that the information the Arbitrator directed to be released is part of the Agency's Personnel Accounting Integrated Data (PAID) system, which is a Privacy Act system of records. Further, the Agency maintains that there are no "routine uses" for this information under the PAID system which allow disclosure. Exceptions at 2-3. Therefore, the Agency argues that under subsection (b) of the Privacy Act, the information in the PAID system cannot be disclosed unless it falls within one of the exemptions specified in the Act. Exceptions at 3. The Agency argues that the Arbitrator's finding that release of the requested information without names eliminated Privacy Act objections is incorrect. The Agency argues that disclosure of information concerning the position title, race and service of employees who encumber unique positions would be an unwarranted invasion of those employees' privacy because they would be readily identifiable. According to the Agency, this ready identification could result in embarrassment to the employees and lead to discrimination against them if their race were not obvious. Exceptions at 3, 4. Therefore, the Agency contends the information is not subject to disclosure under the Privacy Act.
The Agency recognizes that the Authority has held that records requested by Unions which fall under the (b)(6) exemption to the Freedom of Information Act (FOIA) must be disclosed if, after balancing the individual's right to privacy and the public interest in the union's need for the information, disclosure would not constitute an unwarranted invasion of the individual's privacy. Exceptions at 4-5. The Agency disagrees with this balancing test and contends that the (b)(6) exemption cannot be applied when a request for information is made under section 7114(b)(4) of the Statute rather than under the FOIA. In this case, the Union did not request the information under the FOIA. Therefore, the Agency maintains that it cannot lawfully release the information ordered released by the Arbitrator. Exceptions at 5.
In support of its second contention, the Agency argues that section 7114(b)(4)(B) only requires the Agency to furnish information to the Union which is "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining." Exceptions at 6. The Agency argues that the information concerning nonbargaining unit employees is not necessary within the meaning of section 7114(b)(4)(B). Because the Arbitrator did not limit the information to be disclosed to information concerning bargaining unit employees, the Agency contends that the award requires the release of information beyond that which is necessary for the Union to fulfill its representational duties. The award is, therefore, contrary to section 7114(b)(4)(B) of the Statute, according to the Agency.
B. Union's Opposition
The Union contends that the Arbitrator's award is supported by the "emerging body of case law" which holds that (1) section 7114 entitles unions to information to the extent the information would be available under the FOIA; (2) the FOIA exemption for personnel records applies; and (3) the privacy interests of individual employees must be balanced against the needs of the exclusive representative. Opposition at 1. The Union argues that the Arbitrator correctly determined that any "potential Privacy Act violation was obviated by the deletion of the names" from the requested information. Opposition at 2. The Union further argues that the information the Arbitrator directed to be released is not a disclosure within the meaning of the Privacy Act because the "information being retrieved does not constitute a record nor does the process of obtaining it involve a system of records." Opposition at 3.
The Union claims that disclosure of the requested information regarding nonbargaining unit employees is "reasonably necessary" under section 7114(b)(4)(B) because the information is relevant to the Union's determination of the existence of a statistical pattern of impermissible discrimination. Opposition at 1, 7.
V. Analysis and Conclusions
We find that the Agency has failed to establish that the award is deficient. We conclude that disclosure to the Union of the requested information is not barred by the Privacy Act or section 7114(b)(4)(B) of the Statute and that the release of the information is, therefore, not prohibited by law.
A. The Award Does Not Violate the Privacy Act
In the Decision and Order on Remand in Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 25 FLRA 1060 (1987), the Authority discussed whether the Privacy Act precluded disclosure of information requested by a union under section 7114(b)(4) of the Statute. The Privacy Act generally prohibits the disclosure of personal information about Federal employees without their consent. However, section (b)(2) of the Privacy Act provides that the prohibition against disclosure is not applicable if disclosure of the information is required under the FOIA. Exemption (b)(6) of the FOIA provides that information contained in personnel files may be withheld if disclosure of the information would constitute a "clearly unwarranted invasion of personal privacy." 5 U.S.C. º 552(b)(6). In order to determine whether the requested information falls within the (b)(6) exemption, a balance must be struck between an individual's right to privacy and the public interest in having the information disclosed. See Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788 (1986), enforced in part and remanded sub nom. U.S. Department of Agriculture and Farmers Home Administration Finance Office, St. Louis, Missouri v. FLRA, 836 F.2d 1139 (8th Cir. 1988).(*)
We decline to overturn the line of precedent which establishes the Union's right to receive information through a request under section 7114 of the Statute without first filing a FOIA request. We find that the balancing of interests which is required under the FOIA is appropriate under the Statute.
In this case, we find that the balance of interests favors the disclosure sought by the Union. We conclude that the information requested by the Union is necessary and relevant to its representational functions under the Statute. We note the Union's expressed intent in requesting the information was to "make judgments concerning the filing of a grievance," Opposition at 1, and to determine "whether there is a statistical pattern of discrimination on a basis prohibited by the Civil Rights Act of 1964." Opposition at 7. In order to perform these functions, the Union must know the position title, race, sex, grade and service of the Center's employees. The exclusive representative has the right to identify the minority status of individual employees in order to pursue its representational duties under the Statute. See U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 22 FLRA 667, 669 (1986). The Union has requested the information in order to perform its representational functions as an exclusive representative. These functions are in the public interest and also safeguard the public interest.
The Agency has not established that disclosure of the position title, race and service concerning employees who encumber unique positions constitutes a clearly unwarranted invasion of privacy. The Agency submitted no support for its claim that there are any employees in such positions whose race is not obvious. Even if such evidence had been submitted, however, the Agency's argument that the disclosure of information concerning the position title, race, sex, grade and service of that employee would cause embarrassment and discrimination is speculative. Such speculative harm to a hypothetical employee is outweighed by the Union's need for the information to determine whether an impermissible pattern of discrimination against minorities exists within the Center.
In sum, we conclude that the public interest in disclosure of the information sought by the Union outweighs the invasion of privacy resulting from the disclosure. The invasion of privacy is not clearly unwarranted within the meaning of exemption (b)(6) of FOIA, and disclosure is not prohibited by the Privacy Act.
B. Information on Nonbargaining Unit Employees is Necessary to Enable the Union to Perform its Representational Functions
Under section 7114(b)(4) of the Statute, an agency is required to furnish the exclusive representative, upon request and to the extent not prohibited by law, information necessary to enable the union to fulfill its representational responsibilities. Department of Defense Dependents Schools, Washington, D.C. and Department of Defense Dependents Schools, Germany Region, 28 FLRA 202, 205 (1987). As we have previously determined, disclosure of the information requested by the Union in this case is not prohibited by law -- the Privacy Act.
The Union sought the information concerning the position title, race, sex, grade and service of the Center's employees to "make judgments concerning the filing of a grievance" and to determine whether "discriminatory practices in hiring, promotion, assignment, etc. have resulted in adverse impact and/or disparate treatment on protected groups (i.e. minorities and women)" based on its perception that white males appeared to be "extremely dominant" in grades GS-6 through GS-12. See Award at 4-5, Opposition at 1. The Union is seeking information regarding bargaining unit employees and nonbargaining unit employees in order to determine whether a pattern of unlawful discriminatory treatment exists at the Center and whether to file a grievance over the alleged discrimination. The information requested by the Union is necessary for the Union to ascertain if "there is a statistical pattern of discrimination on a basis prohibited by the Civil Rights Act of 1964" and to make a decision whether to file a grievance, clearly part of its representational responsibilities. See Opposition at 1, 7. We note that in our decision on remand in Department of Defense Dependents Schools, 28 FLRA 202, we held that the union was entitled to information concerning the discipline of supervisors in order to determine whether a unit employee disciplined for a similar offense had been the victim of disparate treatment.
We, therefore, conclude that the information requested by the Union was necessary within the meaning of section 7114(b)(4) of the Statute for the Union to effectively fulfill its representational responsibilities. The Arbitrator's award directing the Agency to supply the Union with data on all Center employees, therefore, did not violate section 7114(b)(4)(B) of the Statute.