38:0120(16)CA - - Commerce, NOAA, National Weather Service, Silver Spring, MD and National Weather Service Employees Organization, MEBA - - 1990 FLRAdec CA - - v38 p120

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[ v38 p120 ]
38:0120(16)CA
The decision of the Authority follows:


38 FLRA No. 16

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF COMMERCE

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

NATIONAL WEATHER SERVICE

SILVER SPRING, MARYLAND

(Respondent)

and

NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION

MEBA, AFL-CIO

(Charging Party)

9-CA-70061

DECISION AND ORDER

November 13, 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 General Counsel to the attached Decision of the Administrative Law Judge. The Respondent filed a cross-exception and opposition to the General Counsel'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 refusing to furnish the Union a list of the names and duty stations of all bargaining unit employees in the Western Region of the National Weather Service who received commendable or outstanding ratings during the 1985-1986 rating period. The Judge found that Respondent's refusal did not violate section 7116(a)(1), (5), or (8) of the Statute.

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 and find that no prejudicial error was committed. The rulings are affirmed. Upon consideration of the Judge's decision, the exceptions and the entire record, we find, contrary to the Judge, that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute.

II. Background

The Respondent, National Weather Service, is part of the Department of Commerce's National Oceanic and Atmospheric Administration (NOAA). In 1986, the Respondent's Performance Appraisal System was entitled "U.S. Department of Commerce Performance Appraisal System for the General Workforce." Joint Exhibit 1(b). This system also is referred to by the parties as the General Workforce Performance Appraisal System (GWPAS). Under this system, employees were given ratings of outstanding, commendable, fully successful, marginal, and unsuccessful. The ratings were used in making personnel decisions on training, rewarding, reassigning, promoting, reducing in grade, retaining and removing employees, and granting within-grade increases. General Counsel Exhibit 18.

The ratings are one of the items recorded on appraisal Form CD-396, the Performance Plan, Progress Review and Appraisal Record for Senior Executive Service, Performance Management and Recognition System (PMRS), and General Work Force Employees. The appraisal form has two sections with various items under each section. Section I--Performance Plan, Progress Review and Appraisal Record is the part of the appraisal where, among other things, the rating official writes a narrative evaluating the employee on the basis of his or her performance elements. In Section II--Performance Summary and Rating, the rating official, among other actions, gives the employee a final summary rating such as outstanding, commendable, fully successful, marginal, or unsatisfactory. General Counsel Exhibit 4.

On March 27, 1986, Alan Olson, the Regional Chairman of the Union's Western Region and a negotiator for the national bargaining unit, sent to James Mark Fair, the Acting Deputy Director and Chief of Meteorological Services for the Western Region, "the promised list of identifiable problem areas in the Western Region that have come to my attention as per our conversation." General Counsel Exhibit 5. The list of "problem areas" pertained to the GWPAS and included, among other items, the "[i]mproper weighting of elements[,]" and "[n]o knowledge of who is getting outstanding ratings and/or awards leaving employees with no examples/goals to strive for." General Counsel Exhibit 5.

When the appraisal problems were not addressed, Olson decided to approach the problems through a grievance which he filed on his own behalf on May 15, 1986. General Counsel Exhibit 7a. Olson's grievance was denied at the first and second steps. Arbitration was invoked in September 1986, but was withdrawn by the Union.

By separate memoranda dated July 9, 1986, Olson wrote to Mr. Harry Hassel, Acting Regional Director of the Western Region, requesting: (1) "the name of any employee in the Western Region who will receive any kind of an award in 1986, his current duty station, and the type of award[,]" and (2) "the name of any employee in the Western Region who received a final rating of commendable or outstanding for the last rating period and his current duty station." General Counsel Exhibits 12a and 12b.

On August 5, 1986, Fair requested that Olson explain the relevance and necessity of the requested data. Fair also stated, with regard to the information on ratings, that he had to balance the effect of disclosure of the information on the privacy interests of employees, under the Privacy Act, against the Union's need for the information. With regard to the information pertaining to awards, Fair said that the request was anticipatory, since calendar year 1986 had not yet ended, and, also, that the request was overly broad, because the information extended beyond the bargaining unit. General Counsel Exhibit 13.

By separate memoranda dated August 13, 1986, Olson wrote to Fair, limiting his request to the names and duty stations of bargaining unit employees in the Western Region who received ratings of commendable or outstanding based on the GWPAS rating period of 1985-86. Olson also requested the name of any bargaining unit employee in the Western Region who was to receive an award based on the 1985-86 GWPAS rating period, the type of performance award and the employee's current duty station. Olson stated that receipt of the information would enable him to begin monitoring the Western Region's rating/award patterns. More specifically with respect to the information concerning ratings, Olson also stated that "[t]he current GWPAS leaves many questions in the minds of the bargaining unit as to the equitability, consistency and administration of the program. Many employees do not know what is truly required of them to reach or attain a higher performance rating. Knowledge of a fellow employee's achievements and attainment of such a level of performance will serve as a positive goal . . . to emulate." General Counsel Exhibit 14a.

On September 12, 1986, Fair wrote to Olson stating that Olson had not fully divulged the reason for his request and reiterated the need for clarification. General Counsel Exhibit 15. On September 29, 1986, Olson gave Fair additional reasons for the requested list of names and duty stations of bargaining unit employees in the Western Region:

Such monitoring of the program could give rise to the ability to identify and solve problems before they become subjects for grievances or other actions as well as provide the documentation necessary to spot possible abuse or discrimination in the administration of the program.

In short, the requests will be used to better represent the bargaining unit in understanding the program, succeeding in the program, measuring one's abilities by example and protecting the bargaining unit from inequities, inconsistencies and improper administration of the program.

General Counsel Exhibit 16.

By letter dated November 4, 1986, Thomas H. Grayson, the Acting Regional Director, denied the request for "the names, duty stations, and GWPAS ratings of all unit employees rated better than 'fully satisfactory' for the 1985/86 rating year." General Counsel Exhibit 17. Grayson stated that the information was not necessary and relevant to negotiations or the administration of the parties' regional collective bargaining agreement. Grayson also stated that there were no current or pending grievances necessitating the information to enable the Union to represent an employee. Grayson also indicated that he had weighed the Union's nonspecific need for information against employees' right to privacy in denying the request. As to the requested information pertaining to awards, Grayson stated that the names and duty stations of all employees receiving awards would be published and that an advance copy would be provided to the Union. Following receipt of this letter, the Union filed an unfair labor practice charge concerning the refusal to supply data concerning performance ratings.

At the unfair labor practice hearing, both Olson and Fair testified that they had informally discussed whether Olson needed the entire appraisal package, including final evaluations for the 600 bargaining unit employees represented by the Union. Fair testified that he and Olson agreed that the entire appraisal package was not needed. Transcript of Proceedings at 164, 178. Fair further testified that he would consider supplying the employee ratings in a sanitized form. Id. at 165. Olson testified that he needed the names because the sanitized version would be (1) "very unwieldy upon not only myself, but management process to follow through" and (2) "it doesn't give me all the information that I need to determine where the abuses or favoritism exists because they don't tell me if it's the same employee or different employees." Id. at 110. Olson also testified that he stated to Fair that "'theoretically I could get sanitized copies of everything[,]'" but that "we're talking about 600 Appraisals . . . maybe 10 pages an Appraisal" which would impose too great a burden on both the Respondent and the Union. Id. at 135.

III. Administrative Law Judge's Decision

The Judge recommended dismissal of the complaint. In so doing, the Judge characterized the Union's request for the names and duty stations of employees receiving a commendable or outstanding ratings as including a request for the performance appraisals. Thus, the Judge found that "the Union had represented, inter alia, that it needed the unsanitized appraisals of all employees given commendable and outstanding ratings to monitor the rating program in order to determine its fairness; to evaluate grievances; and to determine whether to file grievances." Judge's Decision at 8. The Judge found that Olson's assertion that sanitized appraisals would not provide the information he needed was not justified by the record. In fact, the Judge noted that "[i]n view of Mr. Olson's admission that sanitized appraisals would be of great value, it would appear that unsanitized appraisals, while desirable and beneficial, were not essential or critical to the Union." Id. at 9 n.4.

The Judge then found that although the Union showed a need for the appraisals, the Union "intended to disseminate the appraisals to serve as positive goals to emulate . . . and to measure one's abilities by example . . . ." Id. at 8. The Judge concluded that the Union's "intended broad circulation" of the unsanitized appraisals would result in a clearly unwarranted invasion of privacy. Id. at 9.

The Judge concluded that as the Respondent offered to provide sanitized appraisals with only names removed, the refusal to provide unsanitized appraisals did not violate section 7116(a)(1), (5), or (8) of the Statute because disclosure would result in a clearly unwarranted invasion of employees' privacy. The Judge recommended dismissal of the complaint.

IV. Positions of the Parties

A. The General Counsel's Exceptions

The General Counsel argues that the Judge erred in finding that sanitized copies of employee appraisals would satisfy the Union's stated need for the information. The General Counsel notes that the information requested by the Union consisted of the names and duty stations of employees receiving commendable or outstanding ratings and that this information was designed to establish "a formal system of monitoring." Exceptions at 1. According to the General Counsel, "[s]ince the thrust of this monitoring system was to determine whether certain employees were receiving preferential ratings, the duty stations of employees receiving commendable or outstanding ratings alone, i.e. the sanitized information, would not satisfy the need the Union sought to fill." Id. at 3.

The General Counsel also excepts to the Judge's finding and conclusion that the Union intended to disseminate the names of employees who had received the commendable and outstanding ratings. The General Counsel notes that the Judge relied on a statement, made by Olson in his request for information, to the effect that knowledge of a fellow employee's achievements would serve as a positive goal to emulate. The General Counsel argues that it "does not follow from Olson's statement that the Union intended in any way to publicize the names of the employees . . . ." Id. at 3-4.

Finally, the General Counsel argues that release of the information would not constitute an unwarranted invasion of privacy. The General Counsel contends that "when weighed against the use for which the Union wishes the unit employees' names, the balance must be in favor of disclosure." Id. at 4.

B. The Respondent's Cross-Exception and Opposition to the General Counsel's Exceptions

The Respondent argues that the General Counsel failed to prove that the Union's request for information was supported by a showing of relevance and necessity. Respondent's Cross-Exception at 6. The Respondent argues, in this connection, that the Union's request for information was nothing more than a "vast fishing expedition." Id. at 6-7. The Respondent asserts that the facts in this case demonstrate that: (1) the Union did not intend to use the information for a grievance; (2) the parties were not bargaining about performance appraisals; (3) the Union did not define its concern about performance elements weights; and (4) the Union's proposed monitoring system was vague. The Respondent asserts that the Union has not made a showing of relevance and necessity for the requested information. Id. at 8.

The Respondent also argues that the unsanitized data that had been offered to the Union would have been sufficient for the Union's purposes and would have minimized the intrusion on employee privacy. Id. at 7. In this connection, the Respondent notes that Federal courts have recognized that disclosure of data concerning performance ratings has an impact on Privacy Act concerns and, therefore, may be protected from disclosure. The Respondent also argues that where, as here, the Union is engaged in a "fishing expedition," the "balancing of competing interests between the Union's need for data and individual privacy, must be made in favor of the latter." Id. at 8. The Respondent asserts that the Judge correctly found that the Union's need for the information, "to give employees examples to emulate[,]" was "an unwarranted invasion of privacy." Id. at 10.

In addition to the arguments raised in its cross-exception and opposition, the Respondent also had argued, in its post-hearing brief to the Judge, that the requested information is not normally maintained by the Respondent. In this connection, the Respondent states that the information is maintained by the Western Administrative Support Center of NOAA, located in Seattle, and that the request was made to the National Weather Service's office in Salt Lake City. Respondent's Post-Hearing Brief at 19-20. The Respondent states that "[t]he NWS cannot be held accountable for data maintained by a third party, absent some showing that the NWS could compel the release of the data." Id. at 20. The Respondent also notes that NOAA was not named as party to the complaint.

The Respondent also argued that the General Counsel failed to prove that the information was reasonably available. Id. at 21. The Respondent notes that its "silence on this point provides no proof as to whether the data was reasonably available . . . [,]" and that it was not necessary for the Respondent to address this point in view of the Respondent's position that the information was not necessary and did not overcome privacy considerations. Id.

V. Analysis and Conclusions

We disagree with the Judge's finding that the Union's request for information included performance appraisals. First, the Union's request for information was clearly limited to the names and duty stations of those bargaining unit employees in the Western Region who had received commendable or outstanding ratings in the 1985-86 rating period. At no time did the Union amend its request to include the actual performance appraisals. Although the parties testified at the hearing that there had been discussions in which the Respondent offered to provide the Union with sanitized information, including the actual appraisals, the Union rejected the offer. As the Respondent acknowledged in its post-hearing brief to the Judge, "Mr. Olson did not request the specific evaluations for each applicable employee[.]" Respondent's Post-Hearing Brief at 17.

Second, the unfair labor practice complaint in the case alleged a violation of the Statute by the Respondent for failing and refusing to provide to the Union "the names and duty stations of any bargaining unit employee in the Western Region who received a rating of commendable or outstanding based upon the 1985-1986 GWPAS rating period." General Counsel Exhibit 1(e) at 2. There was no amendment to the complaint to include an alleged violation for failure to provide the appraisals.

Consequently, there is no basis on which to conclude that the Union requested anything other than the names and duty stations of bargaining unit employees who had received commendable or outstanding ratings during the specified time period. Our analysis, therefore, goes to the release of that information only.

Section 7114(b)(4) of the Statute requires an agency to furnish data to an exclusive representative, upon request and, to the extent not prohibited by law: (1) which is normally maintained by the agency in the regular course of business; (2) which is reasonably available and necessary for 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 to supervisors or management officials relating to collective bargaining. See, for example, Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 32 FLRA 222, 231-32 (1988). Consistent with the requirements of section 7114(b)(4), we must determine (1) whether the names and duty stations of bargaining unit employees in the Western Region of the National Weather Service who received commendable or outstanding ratings during the 1985-1986 rating period are normally maintained by the Respondent in the regular course of business within the meaning of section 7114(b)(4)(A); and (2) whether employees' ratings are reasonably available and necessary within the meaning of section 7114(b)(4)(B). We need not consider whether the data constitutes guidance, advice, counsel, or training inasmuch as the Respondent agreed that the data does not fall within that category. Transcript of Proceedings at 17. We must also determine whether disclosure of the requested information is prohibited by the Privacy Act, 5 U.S.C. § 552a. These issues will be addressed in turn.

A. The Information Requested Is Normally Maintained by the Respondent

The Respondent argues that the requested information is not normally maintained by the Respondent but, rather, is maintained by NOAA. Consequently, the Respondent argues that it was not obligated to provide the requested information. We disagree.

The record reveals, in this connection, that all of Respondent's records, including performance appraisals, are maintained at NOAA's Western Administrative Service Center (WASC) in Seattle, Washington. The WASC provides personnel services to the Respondent's Western Region, as well as to other components of the Department of Commerce. Although the appraisals are maintained at the WASC, the record reflects that they can be requested when needed. Id. at 176.

In determining whether requested information is normally maintained within the meaning of section 7114(b)(4), the Authority has examined whether the information is within the control of an agency. For example, in U.S. Food and Drug Administration and U.S. Food and Drug Administration, Region VII, Kansas City, Missouri, 19 FLRA 555, 557-58 (1985), the Authority found that reports that were maintained by a contractor and were not furnished to the respondent were not maintained by the respondent in the regular course of business. In contrast, the Authority found a union proposal negotiable which required local management to provide the union with a listing of "Cooperative Agreement employees" notwithstanding the agency's argument that local management did not maintain such information. American Federation of Government Employees, AFL-CIO, Local 3748 and U.S. Department of Agriculture, Agriculture Research Service, Northern States Area, 23 FLRA 160, 162-63 (1986).

In this case, there was an arrangement between the Respondent and the NOAA whereby the WASC would provide personnel services to the Respondent's Western Region. Consistent with testimony at the hearing, the Respondent could obtain appraisals from the WASC when such information was needed. Thus, the Respondent could have requested that it be provided with the appraisals in order to transcribe the names and duty stations of those bargaining unit employees who had received commendable or outstanding ratings during the 1985-86 rating period in order that it could provide the requested information to the Union. Alternatively, the Respondent could have requested NOAA to perform this service. In either event, we conclude that the requested information was normally maintained by the agency within the meaning of section 7114(b)(4). The fact that personnel records were not physically housed by the Respondent does not compel a contrary finding.

B. The Information Requested Is Reasonably Available and Necessary

We also find, contrary to the Respondent's assertions, that the requested information is reasonably available and necessary within the meaning of section 7114(b)(4)(B) of the Statute.

In Department of Health and Human Services, Social Security Administration, 36 FLRA 943 (1990), we defined what is meant by the phrase "reasonably available." We found that "available" referred to information which is accessible or obtainable, while "reasonable" referred to means that are not extreme or excessive. Id. at 950. Here, as noted above, the information requested by the Union is maintained in NOAA's WASC and can be retrieved at Respondent's request when needed. Transcript of Proceeding at 176. There is no showing that the information is not accessible or that it could only be retrieved through the use of extreme or excessive methods. Therefore, we conclude that the information requested by the Union was reasonably available. See also U.S. Department of the Air Force, Air Force Logistics Command, Sacramento Air Logistics Center, McClellan Air Force Base, California, 37 FLRA No. 82 (1990).

We also conclude that the information requested by the Union was "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining" within the meaning of section 7114(b)(4)(B).

Section 7114(b)(4) requires that an agency furnish an exclusive representative of its employees information that is necessary for the union to carry out effectively its representational functions and responsibilities. In American Federation of Government Employees, Local 1345 v. FLRA, 793 F.2d 1360 (D.C. Cir. 1986), the United States Court of Appeals for the District of Columbia Circuit stated that a union's information request must be evaluated "in the context of the full range of union responsibilities in both the negotiation and the administration of a labor agreement." Id. at 1364 (emphasis in original). The court noted that a union represents all members of the bargaining unit. The court noted that this obligation creates a duty for an agency to provide information to enable a union to understand the application of policies affecting members of the bargaining unit.

The Authority has held consistently that an agency must release information which will enable a union to carry out effectively its representational functions and responsibilities. Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Wichita District, Wichita, Kansas, 32 FLRA 920, 925-26 (1988) (requiring release of information, including performance appraisals, to permit union to assess its representational responsibilities); Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 30 FLRA 127, 142 (1987) (requiring release of certain supervisory memoranda to enable union to determine whether to file an unfair labor practice charge on behalf of an employee); Internal Revenue Service, Washington, D.C., and Internal Revenue Service, Omaha District, Omaha, Nebraska, 25 FLRA 181, 182 (1987) (IRS, Washington, D.C.) (finding a union entitled to performance appraisal documents to determine whether selection process was fair and in accordance with established procedures).

The record shows that the Union received numerous inquiries and complaints regarding the equity and fairness of the performance appraisal system. Transcript of Proceedings at 71-72. In response, the Union asserted its intent to use the information requested to establish a system to monitor the Respondent's performance appraisal system. The Union explained in its memorandum of September 29, 1986, that it sought a method to identify and solve problems before they became grievances. In addition, the Union asserted that the information would enable the Union to represent the bargaining unit by monitoring the Respondent's administration of the system.

Based on the record, we find that the Union established that the requested information was necessary under section 7114(b)(4)(B) to meet its responsibility to represent bargaining unit employees.(*)

C. The Information Requested May Be Disclosed under the Privacy Act

For the following reasons, we find that disclosure of the requested information does not violate the Privacy Act, 5 U.S.C. § 552a (1988).

5 U.S.C. § 552a(b)(2) permits disclosure of information which would be available under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Under the FOIA, requested information must be disclosed unless it falls within one of the enumerated exemptions. The exemption pertinent to this case is that found at 5 U.S.C. § 552(b)(6). 5 U.S.C. § 552(b)(6) authorizes withholding information in "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]"

In making a determination as to whether requested information falls within the (b)(6) exemption, it is necessary to balance the competing interests of employees' privacy against the public interest in disclosure. Moreover, the public interest to be examined when applying the balancing test required by exemption (b)(6), is that embodied in the Statute. See generally U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990) (Portsmouth Naval Shipyard), 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. 1, 1990). We now consider the nature of the employees' privacy interests and the public interest in this case.

As stated above, the Union sought the information for the purpose of instituting a monitoring system of the Respondent's performance appraisal system. More specifically, the Union wanted to identify and solve problems before they escalated to grievances and, generally, to ensure that bargaining unit employees were treated fairly. Insofar as the Union sought the information for these purposes, we find that there were important public interests to be served by disclosure of the information. Thus, the early resolution of potential grievances and the proper administration of agency performance appraisal systems are the type of public interests which disclosure of information is intended to further.

Having found that disclosure of the requested information serves important public interests, we need to balance the competing privacy interests of employees in order to determine whether disclosure would result in a clearly unwarranted invasion of the employees' personal privacy.

The Judge found that the Union's request encompassed the furnishing of performance appraisals. The Judge further found that the Union intended broad circulation of the information, and that such broad circulation would result in a clearly unwarranted invasion of the employees' personal privacy.

We previously rejected the Judge's finding that the Union's request encompassed performance appraisals, however. Rather, based on the record herein, it is clear that the information requested was limited to the names and duty stations of bargaining unit employees who had received commendable or outstanding on their performance ratings for the 1985-86 rating period. Consequently, we do not address the Judge's finding that disclosure of the information would result in a clearly unwarranted invasion of employees' personal privacy because that conclusion was premised on the release of performance appraisals. Instead, we must independently determine whether disclosure of the information would result in a clearly unwarranted invasion of bargaining unit employees' personal privacy.

The information requested here is similar to information requested in Veterans Administration Central Office, Washington, D.C. and Veterans Administration Regional Office, Denver, Colorado, 25 FLRA 633 (1987) (VA Central Office) and Department of Defense, Office of Dependents Schools and Overseas Education Association, 28 FLRA 871, 881-82 (1987) (Overseas Education Association). In VA Central Office, the Authority found that the union had demonstrated a need for the names of employees who had received outstanding or highly satisfactory performance ratings, and the type of award received, in order to permit the union to verify whether employees had satisfied awards requirements and whether awards had been distributed in a fair manner. The Authority concluded that, on balance, disclosure of the information did not constitute an unwarranted invasion of employees' privacy.

In Overseas Education Association, the Authority reached a like result with regard to the disclosure of name-identified incentive awards. The Authority found that the need of the union for such information to perform the full range of its representational responsibilities outweighed any interests in withholding the information and, further, that the invasion of privacy that would be caused by the release of the names was not clearly unwarranted. The Authority further noted the absence of any argument that the release of name-identified incentive awards was likely to be stigmatizing and, in fact, noted that the opposite was likely to be true. Id. at 882.

Although there is no assertion here that release of the requested information would be stigmatizing, we wish to note our recent decision in National Labor Relations Board, Office of the General Counsel, Washington, D.C. and National Labor Relations Board Union, 37 FLRA No. 84 (1990) (NLRB). In NLRB, we addressed an arbitrator's finding that information in unit employees' performance appraisals was not stigmatizing because it would not "'subject the person to harassment, disgrace, loss of employment, or friends[.]'" NLRB, slip op. at 9 (quoting American Federation of Government Employees, Local 1760 v. FLRA, 786 F.2d 554, 556 (2d Cir. 1986)). We noted that a finding that information is not stigmatizing is not determinative in balancing competing interests insofar as "[e]mployees' privacy interests extend to 'non-stigmatizing' comments in their appraisals." Id.

Here, the Union's stated need for the information was to commence a monitoring system of the Respondent's performance appraisal system. This, in turn, was designed to ensure compliance with the Respondent's administration of its system and to encourage the early resolution of grievances pertaining to the administration of the system. As noted above, these purposes serve important public interests.

Moreover, the Union indicated that without the names of the employees who had received commendable or outstanding ratings, the Union would not have the type of information needed "to determine where the abuses or favoritism exist[] . . . ." Transcript of Proceedings at 110. Consistent with the Union's statement, it is reasonable to conclude that the names of employees, as well as their duty stations, were necessary for the Union to monitor the Respondent's performance appraisal system. When balancing the Union's need for the information, therefore, against the privacy interests of the employees in this case, we conclude that the public interest in disclosure of the requested information to the Union outweighs the privacy interests of the employees. Compare Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, 37 FLRA No. 110 (1990) (as union conceded that names or personal identifiers attached to performance appraisals and other requested documents were not necessary, Authority directed disclosure of santitized information).

Finally, we find no evidence in the record that the Union intended to disseminate the names and duty stations of all employees who had received commendable or outstanding performance ratings during the 1985-86 rating period. Although the Union indicated, in a letter to the Respondent accompanying its request for information, that "[k]nowledge of a fellow employee's achievements and attainment of such a level of performance will serve as a positive goal and as an employee to emulate[,]" there is no evidence that this statement must be interpreted as signifying the Union's intent to broadly disseminate all the information provided to it.

Moreover, in balancing employee privacy interests against public interests in disclosure, the Authority has not held that information may not be disseminated at all. See, for example, VA Central Office, 25 FLRA at 637 (no indication of "widespread circulation" of previously provided information) and IRS, Washington, D.C., 25 FLRA 181, 185 (1987) (no indication contents of documents would become "generally known"). Rather, the dissemination of information is simply a factor to be taken into account in weighing the privacy interests of employees affected by the disclosure of information. Here, there is no evidence that employees have more than a limited interest in dissemination of the information and no evidence that the Union intends broad dissemination of the requested information. See also Portsmouth Naval Shipyard, 37 FLRA 515 (disclosure of names and home addresses to union outweighs privacy interests).

On balance, therefore, we conclude that the public interest in disclosure to the Union in this case outweighs the personal privacy interests of the employees here and, consequently, that such disclosure does not constitute a clearly unwarranted invasion of employees' personal privacy.

VI. Summary

We conclude that the information requested by the Union is reasonably available and necessary for the Union's representational responsibilities under section 7114(b)(4) of the Statute. Disclosure of the information would not constitute a clearly unwarranted invasion of employees' personal privacy under the Privacy Act and its disclosure satisfies the other requirements of the Statute. Accordingly, the Respondent's refusal to furnish the names and duty stations of all bargaining unit employees rated as commendable or outstanding during the 1985-1986 rating period constitutes a failure to comply with section 7114(b)(4) in violation of section 7116(a)(1), (5), and (8) of the Statute.

VII. 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 Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the National Weather Service Employees Organization, MEBA, AFL-CIO, the exclusive representative of certain of its employees, a list of the names and duty stations of all bargaining unit employees in the Western Region of the National Weather Service who received commendable or outstanding ratings during the 1985-1986 rating period.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights assured them by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) On request of the National Weather Service Employees Organization, MEBA, AFL-CIO, the exclusive representative of certain of its employees, furnish it with a list of the names and duty stations of all bargaining unit employees in the Western Region of the National Weather Service who received commendable or outstanding ratings during the 1985-1986 rating period.

(b) Post at the National Weather Service Offices where bargaining unit employees represented by the National Weather Service Employees Organization, MEBA, AFL-CIO, are located, 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 Administrator of the National Weather Services and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted, and shall be maintained for 60 consecutive days thereafter. 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 IX, 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 refuse to furnish, upon request of the National Weather Service Employees Organization, MEBA, AFL-CIO, the exclusive representative of certain of our employees, a list of the names and duty stations of all bargaining unit employees in the Western Region of the National Weather Service who received commendable or outstanding ratings during the 1985-1986 rating period.

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 on request of the National Weather Service Employees Organization, MEBA, AFL-CIO, the exclusive representative of certain of our employees, furnish it with a list of the names and duty stations of all bargaining unit employees in the Western Region of the National Weather Service who received commendable or outstanding ratings during the 1985-1986 rating period.

______________________________
(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 IX, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415) 744-4000.




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

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