37:1036(84)AR - - NLRB, Office of the General Counsel, Washington, DC and NLRBU - - 1990 FLRAdec AR - - v37 p1036



[ v37 p1036 ]
37:1036(84)AR
The decision of the Authority follows:


37 FLRA No. 84

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL LABOR RELATIONS BOARD

OFFICE OF THE GENERAL COUNSEL

WASHINGTON, D.C.

(Agency)

and

NATIONAL LABOR RELATIONS BOARD UNION

(Union)

0-AR-1597

DECISION

October 18, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator C. Chester Brisco filed by the Agency 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 to the Agency's exceptions.

The Union filed a grievance contesting the Agency's refusal to provide the Union with information in unit employees' performance appraisals. The information described the nature of the work performed by the employees, including specific case names and case numbers referenced in the appraisals. The Union had requested the information to determine whether employees were receiving lower appraisals under a new appraisal system adopted by the Agency.

The Arbitrator sustained the grievance. The Arbitrator found that the Agency has an obligation under section 7114(b)(4) of the Statute to provide the requested information to the Union. The Arbitrator found that the Privacy Act did not bar disclosure of the requested information to the Union.

For the reasons stated below, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

The dispute in this case arose when the Union requested copies of employee performance appraisals under the Agency Performance Management Appraisal System (PMS). The PMS is a revised appraisal system developed by the Office of Personnel Management (OPM) and adopted by the Agency in 1986. In 1987, the Union requested that the Agency provide it with copies of all up-to-date appraisals of its members because the Union "believed that the revised and 'toughened' performance standards incorporated into PMS would be applied retroactively and could have an adverse impact upon its members [by appraising employees] one grade lower under the new standards than under the prior standards." Award at 2.

The Agency's Regional Director responded by providing the Union with appraisals for six professional employees. The appraisals "were heavily sanitized, obliterating all information which could in any way aid in identifying the employees or the supervisors who performed the appraisals." Id. The Agency did not provide any appraisals of clerical employees "because only one clerical employee had been appraised by that time and the Agency claimed that the employee's identity would be revealed." Id.

Subsequently, the Union requested additional appraisals and detailed information which had been deleted from the six appraisals it received. The Union did not request employees' names or gender. The Agency provided the Union with some additional information. The Union maintained that the information in the sanitized appraisals was inadequate and, thereafter, filed a grievance.

At step 3 of the grievance procedure, the Agency granted the grievance in part and denied it in part. With respect to the Union's request for the positions and grades of employees appraised, the Agency stated:

[T]he Region provided that information . . . with respect to all appraisals except one involving an employee who was apparently the only person in the Region occupying that classification and grade level. The Director advised the Union of his concern that the release of that information for that appraisee would reveal the person's identity. While we agree that it is unfortunate that the identity of an appraisee would be revealed through this process, we also conclude that the grade level and classification of an appraisee are relevant to the analysis of an appraisal. Thus, the Director will provide the classification and grade level where it has not already been supplied.

Award at 4 (emphasis in award).

The matter was submitted to arbitration by the parties on the following issues:

A. Pursuant to Article III, Section 6, of the collective bargaining agreement, the Federal Service Labor Management Relations Act, 5 U.S.C., Section 7114(b)(4), and the Privacy Act, 5 U.S.C., Section 552a, does the Union have the right to receive, and does management have an obligation to disclose to the Union, in the circumstances here, language contained in performance appraisals of bargaining-unit employees which describes the nature of the work performed, including, but not limited to, specific case names and case numbers referenced in the appraisals?

B. Does the Privacy Act apply to the information sought by the Union as described in Paragraph A and, if so, has the Union's need for the information been properly balanced against the employee privacy interests in the circumstances here?

C. If the Arbitrator sustains the grievance, in whole or part, what should be the remedy?

Award at 7.(*)

The Arbitrator noted that under the parties' agreement, "the Union's duty of representation specifically includes a responsibility to assess the operation of PMS." Award at 15. He concluded that the Union "had a legitimate need for the appraisal information which it requested[.]" Id. The Arbitrator found that the Agency had the duty under section 7114(b)(4) of the Statute to furnish the Union with information which is normally maintained and which is reasonably available and necessary for the Union to carry out its responsibilities. The Arbitrator stated that "[i]t remains to be determined whether the information provided by the Agency in its good faith effort to meet the Union's request was adequate and, if not, whether further disclosure of information, which would inevitably identify the employee, is either prohibited by law or is not reasonably available." Id.

The Arbitrator found that "[t]he narrative comments in the performance appraisal documents provided to the Union by the Regional Director were heavily inked . . . with the objective of deleting all conceivable references which would serve to identify the employee. The result was that many sentences in the narrative are wholly unintelligible." Award at 17. The Arbitrator determined that the information supplied by the Agency was inadequate for the Union to review the operation of PMS to determine if employees were rated in accordance with the parties' agreement. Id. at 18. He determined that disclosure of case names was necessary because "work which the employee performs is defined by the cases assigned to him, the results of the employee's work are embodied in the case files, and supervisors, in large part, evaluate employees based upon how they handle their assigned cases." Id. The Arbitrator noted the Regional Director's testimony that unless case names were disclosed, "it would be impossible for him to determine if the appraisals were done properly." Id.

The Arbitrator found that if the case names are revealed in the appraisal form, the employee's name is easily discovered even if the employee's name is sanitized from the appraisal. The Arbitrator then discussed the Privacy Act, which he found applied to the Agency's appraisal files.

The Arbitrator stated that "the Privacy Act permits disclosure to the extent that information is required to be released under FOIA." Award at 19. He noted that the FOIA provides that all records in the possession of Government agencies must be disclosed on request unless the records are subject to a specific exemption in the Privacy Act. The Arbitrator further noted that the FOIA "prohibits disclosure of personnel files which would constitute a 'clearly unwarranted invasion of personal privacy.'" Id.

The Arbitrator then quoted the following portion of the Authority's decision in U.S. Equal Employment Opportunity Commission, Washington, D.C., 20 FLRA 357, 361 (1985):

The balance to be drawn under the FOIA's (b)(6) exemption is one between the protection of the individual's right to privacy and the promotion of important public interests. In determining whether "necessary" data under section 7114(b)(4) of the Statute should be disclosed to the [u]nion, the Authority will balance the necessity of the data for the [u]nion's purposes against the degree of intrusion on the individual's privacy interests caused by disclosure of the data.

Award at 19.

The Arbitrator reviewed the appraisals and rejected the Agency's assertion that the comments of supervisors are "stigmatizing." Award at 21. He found that the facts in the employees' appraisal files would not "'subject the person to harassment, disgrace, loss of employment, or friends,' the test reaffirmed and applied to determine applicability of exemption (b)(6) in American Federation of Government Employees v. Federal Labor Relations Authority, 786 F.2d 554, 556 (2d Cir. 1986)." Award at 22.

The Arbitrator determined that the Union's "interest in receiving the appraisals in an intelligible form is manifest." Id. He noted that the appraisal documents would be disclosed only to the grievance chairman or other Union officials "who have an affirmative duty" to the appraised employees. Id. at 23. The Arbitrator also found that disclosure of appraisal documents would "encourage use of the grievance procedure rather than more disruptive alternatives" and serve the "public interest of insuring that the Government fairly follows its own merit personnel actions, such as promotions and performance awards which are dependent upon the rating record." Id.

The Arbitrator concluded that "on balance, disclosure of case names, case numbers, and other information in appraisal files necessary for the Union to perform its duty of representation does not constitute a clearly unwarranted invasion of appraisees' privacy." Id.

The Arbitrator also concluded that disclosure of the requested information falls within the "routine use" exception under 5 U.S.C.  552a(b)(3). The Arbitrator found that because disclosure of the disputed information is "necessary" within the meaning of section 7114(b)(4) of the Statute, "disclosure of the information sought falls within the routine use established by OPM and the NLRB." Award at 24.

The Arbitrator made the following award:

A. Pursuant to Article III, Section 6, of the collective bargaining agreement, the Federal Service Labor Management Relations Act, 5 U.S.C., Section 7114(b)(4), and the Privacy Act, 5 U.S.C., Section 552a, the Union does have the right to receive, and management does have an obligation to disclose to the Union, in the circumstances here, language contained in performance appraisals of bargaining-unit employees which describes the nature of the work performed, including, but not limited to, specific case names and case numbers referenced in the appraisals.

B. The Privacy Act applies to the information sought by the Union described in Paragraph A. The Union's need for information has not been properly balanced against the employee privacy interests in the circumstances here.

C. The remedy shall be that the Agency shall disclose to the Union appraisal files which contain descriptions of the work performed, including, but not limited to, specific case names and case numbers, without obliterating this information. The disclosure shall be made solely to Union Officials who shall retain custody of the files only for so long as is necessary for a prompt and thorough evaluation for the purpose of submitting comments and assessment of the Performance Appraisal System annually to management under Article 9 of the collective bargaining agreement or for the purpose of processing any grievance in which appraisal files are relevant.

Award at 24-25.

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the Arbitrator erred in finding that: (1) the Union had a need for the disputed information; (2) appraisal comments are not stigmatizing; (3) the Union's need for the information outweighed the employees' privacy interests in maintaining the confidentiality of the appraisal documents; (4) "such unsanitized disclosure was within a 'routine use' for the information"; and (5) the disputed information should be disclosed. Exceptions at 1-2. The Agency contends that these findings are contrary to the Privacy Act and section 7114(b)(4) of the Statute. The Agency also asserts that "the result in this arbitration award is the same as that set aside by the Authority in Department of Defense, Office of Dependents Schools [and Overseas Education Association], 28 FLRA 871, 882 (1987)." Exceptions at 3.

B. Union's Opposition

The Union contends that the award is not contrary to law. The Union asserts that the Arbitrator applied the correct legal standard--"the balancing test articulated in such cases as U.S. Equal Employment Opportunity Commission, 20 FLRA 357 (1985)"--to the evidence before him. Opposition at 7. The Union states that "the Agency does not argue that the Arbitrator applied the wrong law to the facts." Id. at 6 (footnote omitted). According to the Union, "where, as here, the dispositive issue involves a weighing of the evidence and a balancing of competing interests, an arbitrator's award is not deficient merely because the Authority might rule differently if it heard the case de novo." Id. at 5. The Union argues that the Arbitrator's award does not require the Agency to violate applicable law.

The Union contends that the Agency's exceptions are simply an attempt to relitigate this case before the Authority. The Union argues that "the Arbitrator weighed the evidence in accord with the balancing test defined by the courts and the Authority [and having] done so, the Award directing the Agency to provide the disputed information to the Union is not contrary to law." Id. at 8.

IV. Analysis and Conclusions

The Arbitrator directed the Agency to disclose the requested information solely to Union officials "who shall retain custody of the files only for so long as is necessary for a prompt and thorough evaluation for the purpose of submitting comments and assessment of the Performance Appraisal System annually to management under Article 9 of the collective bargaining agreement or for the purpose of processing any grievance in which appraisal files are relevant." Award at 24-25. For the following reasons, we reject the Agency's contention that the disclosure ordered by the Arbitrator is contrary to section 7114(b)(4) of the Statute and the Privacy Act.

The Arbitrator found that the Union "had a legitimate need for the appraisal information" under section 7114(b)(4) of the Statute. Award at 15. The Arbitrator determined that the appraisal information requested was necessary for the Union to carry out its responsibility under the parties' agreement to assess the operation of the PMS.

We agree with the Arbitrator, for the reasons stated by the Arbitrator, that the information was necessary within the meaning of section 7114(b)(4) of the Statute. We reject, therefore, the Agency's assertion to the contrary. See Veterans Administration Medical Center, Jackson, Mississippi and National Federation of Federal Employees, Local 589, 32 FLRA 133, 138 (1988) (VAMC, Jackson, Mississippi) (union needed requested information to make judgments concerning the filing of a grievance and to determine whether there is a statistical pattern of illegal discrimination); and Internal Revenue Service, Washington, D.C., and Internal Revenue Service, Omaha District, Omaha, Nebraska, 25 FLRA 181, 184 (1987) (IRS, Omaha District) (union needed requested documents, including an employee's performance appraisal, in connection with the processing of a grievance to determine whether a promotion selection process was fair and in accordance with established procedures).

We also find that the award is consistent with the Privacy Act. 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. The FOIA provides that records must be disclosed on request unless the records are subject to a specific exemption. 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.  552(b)(6).

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. VAMC, Jackson, Mississippi, 32 FLRA at 139-40. In applying the balancing test, we look to the public interest embodied in both sections 7101 and 7114(b)(4) of the Statute. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515, 530-31 (1990) (Portsmouth Naval Shipyard). See also U.S. Equal Employment Opportunity Commission, 20 FLRA at 361 ("In determining whether 'necessary' data under section 7114(b)(4) of the Statute should be disclosed to the [u]nion, the Authority will balance the necessity of the data for the [u]nion's purposes against the degree of intrusion on the individual's privacy interests caused by disclosure of the data."). We now consider the nature of the employees' privacy interests and the public interest in disclosure in this case.

The Arbitrator found that the comments in the employees' appraisal files were not "stigmatizing" because they would not "'subject the person to harassment, disgrace, loss of employment, or friends[.]'" Award at 22, quoting American Federation of Government Employees, Local 1760 v. FLRA, 786 F.2d 554, 556 (2d Cir. 1986). On the basis of the record before us, we find no error in the Arbitrator's conclusion that the comments in the employees' appraisal files are not stigmatizing. We, therefore, reject the Agency's assertion to the contrary.

However, our agreement with the Arbitrator's finding that the requested information is not stigmatizing does not end our inquiry. Employees' privacy interests extend to "non-stigmatizing" comments in their appraisals. See, for example, Ripskis v. Department of Housing and Urban Development, 746 F.2d 1, 3 (D.C. Cir. 1984) ("disclosure of even favorable information may well embarrass an individual or incite jealousy in his or her co-workers"); Celmins v. United States Department of the Treasury, 457 F. Supp. 13, 15 (D.D.C. 1977) ("the evaluation of an individual's work performance, even if favorable, is personal information and its release is an invasion of privacy"). The issue in this case is whether balancing the employees' privacy interests against the Union's need for the requested information results in a finding that disclosure would constitute a "clearly unwarranted" invasion of personal privacy.

The release of information which is necessary for a union to perform its statutory representational functions promotes important public interests. Department of Defense, Office of Dependents Schools, 28 FLRA at 882. The Arbitrator found that without disclosure of the case names in the appraisals, the Union would be unable to determine whether unit employees were being appraised in a manner consistent with the parties' agreement. Moreover, as the Arbitrator noted, disclosure of the information "will encourage use of the grievance procedure rather than more disruptive alternatives" and "serves the companion public interest of insuring that the Government fairly follows its own merit personnel actions, such as promotions and performance awards which are dependent upon the rating record." Award at 23, citing IRS, Omaha District, 25 FLRA at 186. Finally, the appraisal documents are to be disclosed only to Union officials. "There is no indication or reason to believe that the contents of the documents would become generally known." IRS, Omaha District, 25 FLRA at 185.

On balance, we conclude that the public interest in disclosure to the Union as the exclusive representative outweighs the personal privacy interests of unit employees. See Portsmouth Naval Shipyard, 37 FLRA at 531 (requiring disclosure to union of name and home addresses of unit employees because public interest in facilitation of collective bargaining in the Federal sector outweighs relatively minor privacy interest). Accordingly, we find that the limited disclosure of the disputed information directed by the Arbitrator does not constitute a clearly unwarranted invasion of employee privacy. Because the disclosure of the disputed information does not constitute a clearly unwarranted invasion of personal privacy, the disclosure is required by the FOIA. Inasmuch as disclosure is required by the FOIA, the disclosure of the information is not prohibited by the Privacy Act.

The Agency's reliance on Department of Defense, Office of Dependents Schools is misplaced. In that case, the Authority held that a provision imposed in an interest arbitration proceeding which allowed "blanket disclosure of performance ratings granted unit employees [was] deficient because it makes no allowances for instances where disclosure is contrary to the Privacy Act." Id. at 883. The Arbitrator in this case examined the requested information and found that the disclosure of the specific appraisal information requested by the Union would not violate the Privacy Act. We find that the Arbitrator's determination complies with the Privacy Act and, thus, his award is not contrary to law.

Based on our finding that the Arbitrator's application of the balancing test does not violate the Privacy Act, we find it unnecessary to rule on the Arbitrator's finding that disclosure of the requested information falls within the "routine use" exception of the Privacy Act.

V. Decision

The Agency's exceptions are denied.

APPENDIX

Article 3, Precedence of Law and Regulation and Management Rights and Obligations, provides in relevant part:

Section 6. (a) Upon request, the General counsel will furnish the NLRBU, to the extent not prohibited by law, data:

(1) which is normally maintained by the Agency in the regular course of business;

(2) which is reasonably available and necessary for a full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining; and

(3) which does not constitute guidance, advice, counsel or training provided for management officials or supervisors, relating to collective bargaining.

. . . . . . .

The Freedom of Information Act states:

552. Public information; agency rules, opinions, orders, records, and proceedings

. . . . . . .

(b) This section [requiring agency disclosure of information] does not apply to matters that are--

. . . . . . .

(6) personnel and medical files and simi