37:1277(108)CA - - HHS, SSA, Baltimore, MD and SSA, New Bedford District Office, New Bedford, MA and AFGE Local 1164 - - 1990 FLRAdec CA - - v37 p1277

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[ v37 p1277 ]
37:1277(108)CA
The decision of the Authority follows:


37 FLRA No. 108

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF HEALTH AND HUMAN SERVICES

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

AND

SOCIAL SECURITY ADMINISTRATION

NEW BEDFORD DISTRICT OFFICE

NEW BEDFORD, MASSACHUSETTS

(Respondents)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1164

(Charging Party)

1-CA-90013

DECISION AND ORDER

October 29, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent Social Security Administration to the attached decision of the Administrative Law Judge.(1) The General Counsel filed an opposition to the Respondent's exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to furnish the Union with information requested under section 7114(b)(4) of the Statute. The Judge found that the Respondent violated the Statute as alleged in the complaint.

Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm those rulings. Upon consideration of the Judge's Decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order.

II. Background

On May 6, 1988, the Respondent held an employee performance awards ceremony at its Branch Office in Hyannis, Massachusetts. The District Manager of the Respondent's New Bedford District conducted the awards ceremony. The first performance award, consisting of a certificate and $750, was to be given to bargaining unit employee John Welles. When the District Manager called Welles' name, Welles "responded to the effect that [the District Manager] could keep the award but give him the money." Judge's Decision at 2.

The District Manager put Welles' award away and continued with the ceremony. After the ceremony, the District Manager asked the Branch Manager to make a written record of the incident and to send it to him. The District Manager also asked the Operations Supervisor to make and send to him a note containing a brief statement of what he observed at the awards ceremony. The District Manager told the Operations Supervisor "that he wanted the note in case something came up in the future concerning the incident." Id.

The District Manager did not request either of them to make any recommendations in their notes, but "just to report the facts as they saw them." Id. The District Manager also made a note to himself regarding the incident, in his calendar log. When the District Manager received the notes from the Branch Manager and the Operations Supervisor, he put the notes in his office credenza.

On May 23, 1988, the District Manager destroyed Welles' award certificate and returned the check to the Respondent's Assistant Regional Commissioner for Management and Budget. In the cover letter, the District Manager stated that the employee had refused to accept the award. On June 7, 1988, the Management and Budget Office forwarded the check to the U.S. Treasury as an undeliverable Treasury check.

On September 7, 1988, Welles filed a contractual grievance over his failure to receive the money. The Union's investigation of the circumstances surrounding the awards ceremony revealed that there was a dispute over whether Welles refused to accept the money. During a telephone discussion concerning the grievance, the Union representative told the District Manager that he had obtained affidavits from employees who had been present during the awards ceremony and that their statements supported the grievant's position. The District Manager told the Union representative that he had "'memory joggers' from members of management which supported the position that Welles had refused the award." Id. at 3. The District Manager denied the Welles grievance on October 3, 1988.

By memorandum dated October 6, the Union requested that the Respondent furnish the Union, under section 7114(b)(4) of the Statute, with "any and all documentation relied on to support the decision to rescind Mr. Welles' cash award, including copies of [the] 'memory joggers.'" Joint Exhibit 4. The District Manager responded to the Union's information request by memorandum dated October 11. In that memorandum, the District Manager stated that he "did not rescind Mr. Welles' award[,]" but that Mr. Welles "refused to accept the award." Joint Exhibit 5 (emphasis in original).

By memorandum to the District Director dated October 13, the Union reiterated its information request. The Union's representative stated:

In the event there was any previous misunderstanding on your part, I will reiterate the request: Please provide any and all information regarding Mr. Welles' nonreceipt of his award; the return of his award, the reasons for returning his award, and any and all information relied on to justify the return of his award, including the previously mentioned "memory joggers" made by you and other members of management, which you stated you relied on to justify the return of the award.

Joint Exhibit 6.

In his October 14 response to the Union's second request for information, the District Manager stated:

You ask for "specific data" that I relied on in making my decision . . . I made no decision. Mr. Welles refused his award and I returned the check. Mr. Welles made the decision; I just carried out his wishes.

Given the preceding facts, there are no "memory joggers" that bear on this event. We noted who was there and jotted down the fact that John refused his award, on what date, etc., but these "memory joggers" are private notes and, as you know, are not required reading for anyone except the author.

Joint Exhibit 7 (emphasis in original).

The Union has requested arbitration on the Welles grievance. The Union has not received "any data" from the Respondent. Judge's Decision at 5.

III. Administrative Law Judge's Decision

First, the Judge rejected the Respondent's contentions that it was not required to supply the requested information under section 7114(b)(4) of the Statute because (1) the Union's request was unclear and ambiguous and (2) the requested data did not exist. The Judge pointed out that the Union's October 13 memorandum requested "'all information regarding' the nonreceipt and return of Welles' award." Id. at 5. The Judge concluded that "[t]he Union's description of the information sought in its October 13 request was adequate to invoke the Respondent's duty to furnish [the disputed] documents if they are otherwise disclosable under section 711[4](b)(4)." Id. at 6.

Next, the Judge rejected the Respondent's contention that the notes or "memory joggers" were not normally maintained by the agency in the regular course of business because the notes: (1) were not maintained in a "system of records," as defined in the Privacy Act; and (2) "were the property of the individuals who wrote them . . . and not of the agency." Id. at 9 (footnote omitted).

At the outset, the Judge addressed the meaning of the phrase "normally maintained" in section 7114(b)(4). The Judge found that the General Counsel had met its burden of proof by establishing a prima facie case "that the agency actually maintains the requested data." Id. at 8. The Judge further found that the Respondent's arguments, which analogized "'normally maintained . . . in the regular course of business' to maintenance within a 'system of records' as defined by the Privacy Act, . . ." were without merit. Id. at 9. In the Judge's view, "the access granted to individuals under the Privacy Act serve[d] a totally different purpose from that arising under section 7114(b)(4) of the Statute." Id.

The Judge also found no merit in the Respondent's claim that the notes were the property of the individuals who wrote them, or of the District Manager. The Judge noted that the Branch Manager and Operations Supervisor prepared their notes "at the request of their superior, [the District Manager], and turned [them] over to him." Id. The Judge concluded that the notes "were written in the course of their employment and were maintained by [the District Manager] in his official capacity." Id. The Judge further concluded that the District Manager's note "was written and maintained for reasons of agency business." Id. Accordingly, the Judge found that the notes were normally maintained in the regular course of business, within the meaning of section 7114(b)(4) of the Statute.

Finally, the Judge rejected the Respondent's contention that the notes were not necessary. In reaching his conclusion that the supervisors' notes were necessary, the Judge examined the Authority's decisions in U.S. Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, 26 FLRA 19 (1987) (Army Reserve), where the Authority found that witnesses' statements obtained by the agency in preparation for an arbitration hearing were not necessary for the union's understanding of the basis for the action, for the processing of the grievance, or for the union to effectively represent the employee; and U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management, 26 FLRA 943 (1987) (DOL), where the Authority found that the tapes or transcripts of interviews conducted by the agency as a part of its investigation of alleged misconduct by the grievant were necessary to enable the union to represent the grievant adequately and to determine whether a settlement of the grievance could be negotiated. The Judge concluded that the supervisors' notes "were not obtained in preparation for arbitration within the meaning of the Army Reserve decision." Id. at 12. Rather, in the Judge's view the supervisors' notes were "more akin to documents providing background to the crucial events, which might be subject to subpoena . . . ." Id. (footnote omitted). The Judge further concluded that having the supervisors' notes would:

enable the Union "to realistically assess the strength or weakness of the employee's position[ ]" . . . [and] "to cast doubt on the credibility" . . . of these management officials if their testimony varied significantly from their contemporaneous statements.

Id.

Therefore, the Judge found that the supervisors' notes were necessary for the Union to pursue Welles' grievance. The Judge further found that the Respondent did not dispute the necessity of the May 23, June 7, and October 11 memoranda. Accordingly, the Judge concluded that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the requested information.

IV. Respondent's Exceptions

The Respondent's exceptions raise three issues.(2) First, the Respondent contends that the Judge erred in concluding that the "memory joggers" or supervisors' notes were "agency records" or "data" which was normally maintained by the agency in the regular course of business and subject to release under section 7114(b)(4) of the Statute. Respondent's Exceptions at 10. The Respondent asserts that the requested "memory joggers" are "supervisor's personal and private notes . . . ." Id. According to the Respondent, "private notes which are not within the control of an agency's recordkeeping system are the private personal property of the person or persons who developed them." Id. at 13. The Respondent contends that:

such "records" which are not under the control or maintained by the "agency" in its recordkeeping system are not and cannot be considered as "agency data" which would be subject to disclosure under either the Privacy Act or Section 7114(b)(4) of the Statute.

Id. (emphasis in original).

Second, the Respondent claims that the Judge failed to consider its contention that the "'memory jogger' or supervisors' private or personal notes are . . . prohibited from disclosure by the Privacy Act . . . ." Id. at 23.

Finally, the Respondent argues that the "memory joggers" were not necessary for the Union to process the employee's grievance because the Union "was specifically aware of the ba[s]is upon which the award had been returned . . . ." Id. at 16. The Respondent also contends that "memory joggers" were not relevant because the "'memory joggers' were not used as a basis to rescind or return the employee's award." Id. at 19.

V.General Counsel's Opposition

The General Counsel argues that the Authority should reject the Respondent's contention that the "memory joggers" are not "data" normally maintained by an agency in the regular course of business because the "memory joggers" are not maintained within a "system of records," as defined by the Privacy Act. Opposition at 3. The General Counsel asserts that there is nothing in the legislative history of the Statute indicating an intent to limit the types of information which must be disclosed, under section 7114(b)(4) of the Statute, "to only those records which an agency may choose to index by individual names or other personal identifier." Id. at 5.

Further, the General Counsel contends that the Privacy Act is not applicable to this case because the information sought by the Union was not maintained by the Respondent in a "systems of records." Id. at 7. The General Counsel asserts that "the Respondent cannot have it both ways." Id. According to the General Counsel, the Respondent "cannot argue on the one hand . . . that the data which the Union requested is not part of a 'system of records' . . . and on the other hand, . . . seek to invoke the Privacy Act's prohibition against disclosure of the same data." Id. at 7-8.

VI.Analysis and Conclusions

A.The Requested Data was Normally Maintained by the Respondent in the Regular Course of Business (3)

We conclude, in agreement with the Judge, that the definition of the term "record," set forth in 5 U.S.C. § 552a(a)(4), does not pertain to and is not determinative of an agency's obligation under section 7114(b)(4) of the Statute to furnish the exclusive representative with information which is normally maintained by the agency in the regular course of business. We note that section 7114 of the Statute prescribes the rights and obligations of the parties in a collective bargaining relationship. Part of an agency's statutory duty to negotiate in good faith, as set forth in section 7114(b)(4), is to furnish to the exclusive representative "data" which is normally maintained by the agency in the regular course of business. Nothing in the Statute, or its relevant legislative history, suggests that the term "data," as used in section 7114(b)(4) of the Statute, has any connection with the term "record," as used in the Privacy Act. Therefore, we conclude that the term "record," as defined in the Privacy Act, is not synonymous with the term "data" set forth in 7114(b)(4) of the Statute.

Further, we reject the Respondent's contention that the "memory joggers" were not normally maintained by the agency because they were not maintained "in the regular course of business." (4) It is uncontested that the Respondent's District Manager made a notation on his calendar log regarding what transpired at the awards ceremony. It is also uncontested that the District Manager requested that the Branch Manager and Operations Supervisor prepare and furnish him with their written recollection of the events which occurred at the awards ceremony. Further, the Respondent acknowledges that the notes from the Branch Manager and the Operations Supervisor were maintained by the Respondent's District Manager.

Authority precedent has established that requested information is "normally maintained" by an agency, within the meaning of section 7114(b)(4) of the Statute, if the agency possesses and maintains the information. See Department of the Air Force, Air Force Logistics Command, Sacramento Air Logistics Center, McClellan Air Force Base, California, 37 FLRA No. 82 (1990) (Air Force Logistics Command); and Defense Mapping Agency Aerospace Center, St. Louis, Missouri, 19 FLRA 675 (1985), Decision on Remand, 24 FLRA 43 (1986). The record in this case establishes that the "memory joggers" exist and were maintained by the Respondent's District Manager. Therefore, we find that the "memory joggers" were normally maintained by the Respondent.

The Respondent also argues that the "memory joggers" are the "supervisors' own personal and private notes . . ." and, as such, are not disclosable under 7114(b)(4) of the Statute.(5) Respondent's Exceptions at 32. The Judge rejected the Respondent's contention that the "memory joggers" were the private and personal notes of the supervisor's and not agency records. The Judge concluded that the supervisors' notes or "memory joggers" were written by the supervisors in the course of their employment and were maintained for reasons of agency business.

We agree with the Judge's conclusion that the "memory joggers" were maintained by the Respondent. Based on the record, we conclude that the "memory joggers" were notes prepared by the supervisors, in their official capacity, for the purpose of making a contemporaneous record regarding the employee's conduct at the awards ceremony. Therefore, we find, in agreement with the Judge and based on his reasoning, that the "memory joggers" were normally maintained by the Respondent in the regular course of business within the meaning of section 7114(b)(4) of the Statute.

B.The Privacy Act Does Not Prohibit the Release of the Requested "Memory Joggers"

The Privacy Act applies to disclosure of any "record which is contained in a system of records . . . ." 5 U.S.C. § 552a(b). "Record" is defined as "any item, collection, or grouping of information about an individual that is maintained by an agency . . . ." 5 U.S.C. § 552a(a)(4). A "system of records" is defined as "a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual[.]" 5 U.S.C. § 552a(a)(5).

By the Respondent's own admission the "'memory joggers' in question . . . were not kept by the employee's name nor were they kept in any sort of personnel file . . . ." Respondent's Exceptions at 25. Therefore, it is clear, and we hold, that the requested information was not maintained by the Respondent in a "system of records," as defined by the Privacy Act and, therefore, the Privacy Act does not apply to the disclosure at issue in this case. Moreover, we note that, even if the Privacy Act applied here, the Respondent has not shown that the Privacy Act would bar disclosure of the requested information.

C.The Requested Data Was Necessary for the Union to Fulfill Its Representational Responsibilities

It is well established that under section 7114(b)(4) of the Statute the exclusive representative is entitled to information that is necessary to enable it to carry out effectively its representational functions and responsibilities. A union is entitled to data which will assist it in the investigation, evaluation, and processing of a grievance. See generally, U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990) (Portsmouth), application for enforcement filed sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st Cir. Oct. 1990). See also, for example, Air Force Logistics Command, 37 FLRA No. 82, slip op. at 9; Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 34 FLRA 461, 462 (1990); U.S Department of Defense, Defense Logistics Agency, Defense Contract Administration Services Region (Boston, Massachusetts), 31 FLRA 800, 801 (1988); DOL, 26 FLRA at 948-950.

In this case, the "memory joggers" were requested by the Union in connection with the processing of the grievance filed by Welles over the Respondent's failure to pay him the award money. During the processing of the grievance, the Union representative called the District Manager to "obtain management's viewpoint of what happened and explore whether or not there was any room for the grievance to be settled without formal processing." Transcript at 29. The Union representative informed the District Manager that the Union had obtained affidavits from several employees, who were present at the awards ceremony, which indicated that Welles did not refuse the award money. The Union representative asked the District Manager what management's position was concerning the events which occurred at the awards ceremony. The District Manager replied that he had "memory joggers" from managers who were present at the awards ceremony which substantiated the fact that Welles refused the award check. Transcript at 107.

In these circumstances, we find that the "memory joggers" were necessary for the Union to know the factual basis underlying the Respondent's position on the grievance and to determine the most appropriate representational course of action to take in the matter. Therefore, we find, in agreement with the Judge, that the "memory joggers" were necessary, within the meaning of section 7114(b)(4) of the Statute, for the Union to fulfill its representational responsibilities.

VII.Summary

We conclude, in agreement with the Judge, that the information requested by the Union was normally maintained by the agency in the regular course of business, was reasonably available and necessary for the Union to effectively process a grievance, and met all of the other requirements in section 7114(b)(4). Therefore, we find that the Respondent was required to supply the requested information to the Union and its failure to do so violated section 7116(a)(1), (5), and (8) of the Statute. Accordingly, we will direct the Respondent to cease and desist from its violation of the Statute and to supply the requested information.

VIII.Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, New Bedford District Office, New Bedford, Massachusetts, shall:

1.Cease and desist from:

(a) Failing and refusing to furnish the American Federation of Government Employees, Local 1164, AFL-CIO, the exclusive representative of its employees, with information requested by the exclusive representative in connection with the processing of a grievance, to which it is entitled under the Statute.

(b) In any like or related manner, interfering with, restraining, or coercing their employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2.Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Furnish the American Federation of Government Employees, Local 1164, AFL-CIO, with the information requested.

(b) Post at its New Bedford, Massachusetts, District Office, 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 District Manager, and shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other places where notices to their respective employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region I, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to furnish the American Federation of Government Employees, Local 1164, AFL-CIO, the exclusive representative of our employees, with information requested by the exclusive representative in connection with the processing of a grievance, to which it is entitled under the Federal Service Labor-Management Relations Statute.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL furnish the American Federation of Government Employees, Local 1164, AFL-CIO, with the information it requested.

_____________________________
(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, Region I, Federal Labor Relations Authority, whose address is: 10 Causeway Street, Room 1017, Boston, Massachusetts 02222-1046, and whose telephone number is: (617) 565-7280.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. As the two Respondents are referred to in the singular by the parties and the Judge, we will do so also.

2. We note the General Counsel's argument that the Respondent has "limited its exceptions to . . . two specific matters . . . ." General Counsel's Opposition at 2 (emphasis in original). We find, however, that the Respondent raises three issues in its exceptions.

3. As no exceptions were filed to the Judge's finding that the May 23, June 7, and October 11 memoranda were normally maintained by the agency in the regular course of business, we adopt that finding.

4. The Respondent does not dispute that the requested data is reasonably available. Accordingly, we find that the requested data is reasonably available within the meaning of section 7114(b)(4) of the Statute.

5. The Respondent did not except to the Judge's finding that the "memory joggers" did not constitute "guidance, advice, counsel, or training" as defined in section 7114(b)(4)(C) of the Statute. Accordingly, we adopt the Judge's finding the "memory joggers" are not exempt from disclosure under section 7114(b)(4)(C).