38:1623(129)CA - - Transportation, FAA, New England Region, Burlington, MA and National Association of Air Traffic Specialists - - 1991 FLRAdec CA - - v38 p1623

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[ v38 p1623 ]
38:1623(129)CA
The decision of the Authority follows:


38 FLRA No. 129

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

NEW ENGLAND REGION

BURLINGTON, MASSACHUSETTS

(Respondent)

and

NATIONAL ASSOCIATION OF AIR TRAFFIC SPECIALISTS

(Charging Party/Union)

1-CA-70368

DECISION AND ORDER

January 18, 1991

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 to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the exceptions.

The complaint alleged that the Respondent violated sections 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to provide the Union with documentation concerning disciplinary action taken against several supervisors for falsification of travel vouchers. The Judge found that the Union was entitled under section 7114(b)(4) of the Statute to the information requested and that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to provide the information.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm the rulings. For the reasons stated below, we agree with the Judge that the Union was entitled to the information requested. Accordingly, we find that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the requested information.

II. Background and Judge's Decision

In l985 the Respondent conducted an investigation of possible travel voucher falsification committed by employees who had been transferred from other facilities to their current duty stations. Judge's Decision at 2. Based on the administrative investigation, eight bargaining unit members received notice of proposed 45-day suspensions and five supervisors/managers received notice of proposed 60-day suspensions. Id. The regional Union representative responded to the notices on behalf of the unit employees. The Respondent eventually issued letters suspending the eight bargaining unit members for 30 days and four of the supervisors for 35 days. One supervisor received a 12-day suspension. Id. at 2-3.

In response, the Union filed grievances on behalf of the eight unit employees. The grievances, which sought rescission of the suspensions, were based on provisions of the collective bargaining agreement. The grievances were still pending at the time of the hearing before the Judge. Id. at 3. In preparation for arbitration, the Union submitted to the Respondent a written request for documents. The requested documents included copies of proposal letters, responses, decision letters, and complete investigative files for all employees disciplined for alleged voucher fraud. Id.

In response to the Union's submission, the Respondent requested an explanation regarding the specific purpose for the documents. Id. The Union representative informed the Respondent that the information was needed to prepare cross examination, to evaluate possible disparate treatment, and to determine whether there was a need to call any management personnel as witnesses. Id. at 3-4. The Union also informed the Respondent that it wanted the information in an unsanitized form.

The Respondent released the requested information pertaining to the bargaining unit employees. Transcript at 23-24. However, it denied the Union's request for unsanitized data concerning the management officials on the grounds that the information was unnecessary and that providing the data would invade the privacy of management personnel. Judge's Decision at 4. The Union then notified the Respondent that it would accept the documents in a sanitized form. Id. The Respondent still refused to release the documents, stating that even in a sanitized form the managers would be identifiable. In addition, the Respondent maintained its position that the documents were not necessary for the Union to fulfill its obligations. Subsequently, the Respondent released the requested documents relating to the one supervisor who received only a 12-day suspension because that supervisor had received a lesser penalty than any of the bargaining unit employees and Respondent determined that a potential disparate treatment argument could be made in that case. Id. at 5.

The Judge first noted that, under section 7114(b) of the Statute, an agency is obligated to furnish information to the exclusive representative if the information enables the union to effectively carry out its representation functions and does not conflict with law. Id. at 6. The Judge found that the Authority's ruling in Department of Defense Dependents Schools, Washington, D.C. and Department of Defense Dependents Schools, Germany Region, 28 FLRA 202 (1987) (DODDS) was dispositive of the issue in the current case. The Judge stated that the Authority in the DODDS case found that the union's request for information concerning the discipline of managers for making false statements was necessary for the union to effectively develop and present arguments in disciplinary proceedings involving unit employees. The Judge noted that there was no allegation in that case that providing the information in a sanitized form was prohibited by the Privacy Act. Id.

With respect to the current case, the Judge found that the information was necessary within the meaning of section 7114(b) of the Statute. Judge's Decision at 7. The Judge first noted that the Respondent had recognized the Union's right to the information by releasing the documents relating to one supervisor. Id. The Judge rejected the Respondent's contention that it properly withheld the requested information relating to the other supervisors because, as more severe penalties had been imposed on those supervisors than on bargaining unit employees, disparate treatment could not be established with regard to those suspensions. The Judge found that it was not the Respondent's role to make the final determination as to what constitutes disparate treatment. The Judge found that the Union was entitled to the information in order to properly prepare a case to present at arbitration. Id. at 7-8.

The Judge rejected the Respondent's contention that the Union was not entitled to the information because it had not raised the issue of disparate treatment until the case reached arbitration. The Judge found that the information was necessary in this case for the Union to effectively prepare for arbitration. The Judge found that because the information was necessary for preparation of the Union's case for arbitration, it was irrelevant at what point in the grievance proceedings the Union made its information request.

Finally, the Judge found that release of the information in sanitized form would not violate provisions of the Privacy Act. In striking the balance required under the Privacy Act, the Judge found that the Union's need for the information outweighed the privacy interests of the management officials involved. In reaching this conclusion the Judge noted that reasonable steps had been taken to protect the identity of the individuals, that the identity of the individuals was widely known due to the small size of the facility, that there was no evidence the information would be widely disseminated, and that the Union had agreed to accept the information in sanitized form.

Accordingly, the Judge found that the Union was entitled to the information requested and that the Respondent had violated sections 7116(a)(1), (5), and (8) of the Statute by refusing to release the information.

III. Positions of the Parties

A. Respondent

The Respondent first argues that the Judge erred in finding that it was required to release the information in order for the Union to prepare for arbitration. The Respondent maintains that the Authority has never addressed the issue of whether a union is entitled to information where the request is related to an issue which was not raised until the arbitration stage of the grievance procedure. The Respondent maintains that the case law suggests that the duty to provide information must be related to issues raised during the initial stages of the grievance procedure and argues that to allow new issues to be brought up at arbitration would reduce the value of negotiated grievance procedures. The Respondent contends "that to grant the right to information for the first time in preparation for arbitration would not serve the purpose of the Statute." Exceptions at 5 (emphasis in original).

Second, the Respondent contends that the Judge erred in finding that the Authority's decision in DODDS was dispositive of the current case. The Respondent argues that in DODDS, there was no allegation that providing the information in sanitized form was prohibited by the Privacy Act. Exceptions at 7. Here, Respondent maintains that to release the information in any form would violate the Privacy Act interests. The Respondent further argues that, unlike the agency in DODDS, it is specifically contending in this case that release of sanitized data would not cure the privacy concerns. In addition, it argues that DODDS does not address a situation where employees and managers may not be similarly situated for a disparate treatment analysis and that the Judge erred by failing to consider its contention that in the current case the supervisors and employees were not similarly situated.

The Respondent further argues that the Judge erred in his interpretation and application of the balancing requirement of the Privacy Act. It contends that the Judge's conclusion that the Union has the role of reviewing documents in order to determine whether disparate treatment exists ignores the Respondent's responsibility under the Privacy Act. The Respondent argues that the Privacy Act requires it to evaluate the Union's request to determine whether the documents should be released; it asserts that it struggled with the competing interests and determined that the privacy interests outweighed the Union's need for the information. Consequently, the Respondent maintains that it fulfilled its requirements under the Privacy Act.

The Respondent also contends that the Judge erred in balancing the identity of the individuals against the Union's right to obtain the information, while ignoring specific elements in the case protected by the Privacy Act. The Respondent argues that the proper balancing in this case is between the highly personal information in the files and the Union's right to that information. The Respondent asserts that when the proper factors are balanced, the case law supports its refusal to release the information.

Finally, the Respondent argues that the Judge erred by concluding that the facts that there would not be widespread release of the information and that all steps had been taken to protect the identity of the information were important considerations in the case. The Respondent asserts that the nature of the request and the number of employees involved in the arbitration indicate that there would be a considerable amount of circulation of the data. In addition, it asserts that the steps taken to insure that the identities would not be released is irrelevant to the outcome of the case.

Consequently, the Respondent asserts that it did not violate the Statute by failing to release the information requested by the Union and requests that the Judge's decision be reversed.

B. The General Counsel

The General Counsel argues that the Judge properly balanced the competing interests under the Privacy Act in concluding that the Respondent was obligated to release the information. In support, the General Counsel first contends that the Judge properly rejected the Respondent's contention that it is not required to release the information because the Union raised the issue of disparate treatment for the first time in preparation for arbitration. The General Counsel asserts that the Judge's conclusion is fully supported by the D.C. Circuit's decision in North Germany Area Council, Overseas Education Association v. FLRA, 805 F.2d 1044 (D.C. Cir. 1986). The General Counsel noted that the court found that arbitrators regularly consider evidence of disparate treatment when determining whether an employee has been disciplined for just cause.

The General Counsel maintains that the main issue in this case is not whether disparate treatment occurred or whether the issue was previously raised in the grievance procedure, but whether the Union has a legitimate interest in the requested documents for the development of its case for arbitration. The General Counsel further contends that the Authority in its DODDS decision found that "a union's interest in a disparate treatment theory" is sufficient to require the release of information under the Statute and that the facts of this case require a similar result. General Counsel's response at 3.

Finally, the General Counsel contends that the Respondent's Privacy Act analysis must be rejected. The General Counsel argues that the Union's interests in the information outweigh the privacy interests of the individuals. The General Counsel contends that the privacy interests of the individuals are protected by the sanitization of the requested information. Consequently, the General Counsel argues that the Privacy Act does not bar release of the information.

V. Analysis and Conclusions

A. The Requested Information Is Necessary Within the Meaning of Section 7114(b)(4) of the Statute

Under section 7114(b)(4) of the Statute, an agency has an obligation to furnish the exclusive representative of its employees, upon request and to the extent not prohibited by law, information that is necessary to enable the union to fulfill its representational functions. DODDS, 28 FLRA at 205. Those representational functions include the preparations necessary to represent employees in the arbitration of individual grievances. Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, SEIU, AFL-CIO, 38 FLRA 410 (l990) (Scott Air Force Base).

We agree with the Judge that the information requested by the Union was necessary within the meaning of section 7114(b)(4) of the Statute. The Union stated that it needed the information to evaluate possible disparate treatment, to prepare cross examination, and to determine whether there was a need to call any management personnel as witnesses. Judge's Decision at 3-4. We have previously found that a union has a significant interest in the issue of disparate treatment and that documents relating to that issue are necessary within the meaning of section 7114 of the Statute. See DODDS, 28 FLRA at 205. Further, the Union's remaining purposes for requesting the documents concern other aspects of its representational functions related to the grievance arbitration proceeding. We conclude that the requested data is directly related to the arbitration and is necessary for the Union to properly fulfill its function of effectively representing the employees involved. Consequently, we find that the requested information is necessary within the meaning of the Statute. See Scott Air Force Base, 38 FLRA at 416.

We reject the Respondent's contention that the requested information should not fall within the purview of section 7114 because the Union requested the information concerning an issue that was raised for the first time in preparation for arbitration. There is nothing in the Statute or the Authority's case law that suggests such a narrow reading of section 7114. We agree with the Judge that such a narrow reading would not serve the purposes of the Statute. We note in this regard that the National Labor Relations Board, with court approval, has long required "the provision, after as well as before a grievance has been submitted to arbitration, of requested information necessary to its intelligent evaluation and processing." Fawcett Printing Corporation, 201 NLRB 964, 972 (1973) (production on request after arbitration has been sought lessens the burden on the arbitral system by contributing to settlement of grievances without arbitration, by permitting representatives who are often more skilled and sophisticated at that stage to assess what information is necessary for arbitration, and, by assisting the parties in preparing the case for arbitration, thereby shortening the arbitration hearing and making the evidence received at the hearing more complete). See also, Pfizer, Inc., 268 NLRB 916, 918 (1984), enf'd 763 F.2d 887 (7th Cir. 1985); Chesapeake and Potomac Telephone Co., 259 NLRB 225, 227 (1981), enf'd 687 F.2d 633, 635 (2d Cir. 1982).

Based on the foregoing analysis we find that the information was necessary within the meaning of section 7114(b)(4) of the Statute and that the Union properly requested the information to prepare for arbitration of the employee grievances. Accordingly, as there is no contention that the information is not normally maintained by the Respondent and reasonably available or that it constitutes guidance, advice, counsel or training for management, it is disclosable under section 7114(b)(4) unless it is prohibited by law.

B. Disclosure of the Information Is Not Prohibited by the Privacy Act

The Privacy Act generally prohibits the disclosure of personal information about Federal employees without their consent. National Labor Relations Board, Office of the General Counsel, Washington, D.C. and National Labor Relations Board Union, 37 FLRA 1036, 1043 (1990) (National Labor Relations Board). 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 Freedom of Information Act (FOIA). 5 U.S.C. § 552a(b)(2). 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). In determining whether the disclosure of information would constitute a clearly unwarranted invasion of privacy, the right to privacy must be balanced against the public's interest in disclosure. Scott Air Force Base, 38 FLRA at 418; National Labor Relations Board, 37 FLRA at l044.

In balancing the competing interests in this case, we find that the public's interest in disclosure of the documents concerning disciplinary action taken against supervisors for alleged travel voucher falsification outweighs the personal privacy interests of the management officials involved. As discussed above, the documents were necessary within the meaning of section 7114(b)(4) for the Union to adequately represent employees at arbitration. In addition, the disclosure of such information would also permit the Union to determine whether the Respondent is complying with its responsibilities in administering its disciplinary system in a fair and evenhanded manner. The Authority has held that both of these purposes promote important public interests. See American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 309, 333 (l990); Scott Air Force Base, 38 FLRA at 418-19.

We recognize that the employees have a privacy interest in disciplinary actions taken against them. See U.S. Department of Justice and Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 37 FLRA 1346 (l990). However, in the circumstances of this case, we find that interest to be not as compelling as the Union's interest in documents necessary for its preparation of issues for arbitration. As found by the Judge, the stigmatizing effect of the release of the information would not be great because the identities of the supervisors who were disciplined were widely known at the facility. Further, contrary to the Respondent's contention, there is nothing in the record to indicate that there would be widespread dissemination of the information. The Union requested the information to prepare for arbitration, and there is no evidence that the documents would be used for any purpose inconsistent with that request. Finally, the Union agreed to accept the documents in a sanitized form. Consequently, we find that the Union's need for the information outweighs the privacy interests involved.

We reject the Respondent's contention that the Judge incorrectly balanced the competing interests under the Privacy Act because he weighed the identity of the management officials against the right of the Union to receive the information. The Judge used the fact that the identities of the management officials who were disciplined were known throughout the facility as one factor in balancing the privacy interests. We find that the Judge properly considered this fact when concluding that release of the information would not have a significant stigmatizing effect on those individuals. The stigmatizing effect of the release of data is a proper factor to consider in a Privacy Act analysis. See, for example, Scott Air Force Base, 38 FLRA at 419-20. In addition, the Judge considered other factors, such as the information being released in a sanitized form, the fact that there would not be widespread circulation of the data, and that all reasonable steps had been taken to protect the individuals' identities. Consequently, we find that the Judge did not commit any error in his privacy analysis.

Moreover, even if disclosure is prohibited under exception (b)(2) of the Privacy Act, it is authorized under exception (b)(3), which permits disclosure of information for a "routine use." Routine use disclosures are confined to "'ones that are 'compatible with the purpose for which [the information] was collected,' 5 U.S.C. § 552a(a)(7); . . . and within the uses 'described under' 5 U.S.C. § 552a(e)(4)(D).'" U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515, 537 (l990) (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-l949 (1st Cir. Oct. 1, l990) application for review filed, No. 90-2014 (Oct. l9, 1990)). According to the Office of Personnel Management, personnel records are amassed in part to "establish employee rights and benefits under pertinent law and regulations governing Federal employment." 49 Fed. Reg. 36,955 (Sept. 20, 1984). The Authority found in Portsmouth Naval Shipyard that the release of "necessary" information in response to a section 7114(b)(4) request is fully consistent with the purpose for which it was collected because it protects employees' statutory interests and assists a union in its obligations to represent unit employees. Similarly, we find that the release of the requested data in this case is fully consistent with the purposes for which it was collected. Id. Moreover, it is consistent with the routine use notice published by the Office of Personnel Management. 55 Fed. Reg. 3802, 3839-40 (Feb. 5, 1990). See Portsmouth Naval Shipyard, 37 FLRA at 540-41.

Based on the foregoing analysis, we find that the Union's interest in the documents outweighs the supervisors' privacy interests. Therefore, we find that disclosure of the information is not prohibited by the Privacy Act.

In sum, we conclude that the Judge correctly found that the Union was entitled to the information concerning disciplinary actions taken for travel voucher falsification under section 7114(b)(4) of the Statute. Because the Union was entitled to the information, the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to provide the requested data. We will adopt the Judge's recommended Order, as modified.(*)

VI. Order

Pursuant to section 2423.29 of the our Rules and Regulations and section 7118 of the Statute, we order that the Federal Aviation Administration, New England Region (Burlington, Massachusetts) shall:

1. Cease and desist from:

(a) Failing and refusing to furnish the National Association of Air Traffic Specialists, the employee's exclusive representative, all requested documents, in sanitized form, relating to disciplinary actions against management or supervisory employees in 1987 based on allegations of travel voucher falsification.

(b) In any like or related manner, interfering with, restraining, or coercing 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 National Association of Air Traffic Specialists all requested documents, in sanitized form, relating to disciplinary actions against management or supervisory employees in 1987 based upon allegations of travel voucher falsification.

(b) Post at all its facilities where unit employees 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 Director of the New England Region, and shall be posted and maintained for 60 consecutive days thereafter excluding holidays and vacations, in conspicuous places, including all bulletin boards and other places where notices to 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 1, Federal Labor Relations Authority, Room 1017, 10 Causeway Street, Boston, Massachusetts, 02222-1046, in writing within 30 days from the date of this Order as to what steps have been taken to comply herewith.

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 HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail or refuse