39:0531(43)CA - - DOL, Washington, DC and National Council of Field Labor Locals, AFGE - - 1991 FLRAdec CA - - v39 p531
[ v39 p531 ]
The decision of the Authority follows:
39 FLRA No. 43
FEDERAL LABOR RELATIONS AUTHORITY
U.S.DEPARTMENT OF LABOR
NATIONAL COUNCIL OF FIELD LABOR LOCALS
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
February 13, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs with the Authority.
The complaint alleges that the Respondent failed to comply with section 7114(b)(4) of the Federal Service Labor-Management Relations Statute (the Statute), thereby violating section 7116(a)(1), (5), and (8) of the Statute, by refusing to furnish the Union with information requested under section 7114(b)(4) of the Statute.
For the following reasons, we find that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute as alleged in the complaint.
The American Federation of Government Employees (AFGE), AFL-CIO is the exclusive representative of a consolidated nationwide unit of employees assigned to field stations within the Department of Labor (DOL). The Union is the agent of AFGE for the purpose of representing bargaining unit employees assigned to DOL field stations.
In 1989 the Union invoked arbitration in five grievances involving disciplinary suspensions of five unit employees in the following DOL offices:
1. Office of Workers Compensation Programs (OWCP), Employment Standards Administration (ESA) Seattle, Washington;
2. Office of Federal Contract Compliance Programs, ESA, Denver, Colorado;
3. Job Corps, Employment and Training Administration (ETA), Atlanta, Georgia (two employees), and;
4. Wage and Hour Division, ESA, Houston, Texas.
Stipulation at 3.
By letter dated August 1, 1989, the Union requested the Respondent to furnish the following information:
1. Records of suspension for the previous five years involving Insubordination, Improper Conduct, Misconduct, Disruption of the Workplace, Failure to Follow Instructions, Unacceptable Conduct, Abusive Language, Threatening Actions, and Questioning a Supervisors Authority. Such records shall include, but not be limited to, the Name of the Employee, their work location including office and Agency, the charges against them, and the disciplinary action taken. Such records shall include all DOL employees, both bargaining/non-bargaining unit, and management.
Exhibit 4 to Stipulation. The Union requested the information to prepare for grievance arbitration hearings arising from the disciplinary suspensions of the five unit employees. The Union asserted that the requested information was necessary for it "to insure that the Department of Labor has been consistent in it's [sic] disciplinary actions . . ." Id.
By letter dated September 20, 1989, the Respondent denied the Union's information request, asserting that: (1) the requested information was not reasonably available; (2) the request was overly broad; and (3) the disclosure of the names of disciplined employees would constitute an unwarranted invasion of the employees' privacy.
The information requested by the Union is maintained in 17 separate personnel offices, 7 of which are located at the Respondent's headquarters in Washington, D.C. and 10 of which are located at the Respondent's 10 regional offices. In particular, the Respondent maintains all or portions of the requested information in adverse action files and/or in Official Personnel Files (OPF's). Adverse action files and OPF's constitute systems of records, within the meaning of the Privacy Act, 5 U.S.C. º 552A(b). Stipulation at 5-6, para. 20-22.(1)
Adverse action files, which are maintained in each of the personnel offices and which are identified by the names of employees, contain a copy of a Notice of Proposed Suspension, which sets forth the conduct that led to the proposed suspension and the length of the proposed suspension, and a copy of the Decision Letter prepared by the Deciding Official, which constitutes the agency's final decision regarding the suspension. Adverse action files are maintained by personnel offices for 4 years after the "closing of the . . . case." Stipulation at 5, para. 16.(2)
Some, but not all, of the adverse action files contain forms (SF-50's) that record the execution of a suspension, its length, and a short description of the reason for the suspension. SF-50's are located in employees' OPF's, however, which also are located in the Respondent's personnel offices. An OPF is maintained by the appropriate personnel office as long as the employee is employed by DOL.
As of August 1, 1989, the Respondent maintained approximately 350 adverse action files in its personnel offices. The parties stipulate that to retrieve the requested information the Respondent would be required to: (1) review adverse action files to determine which concerned suspensions; (2) reproduce decision letters and notices of proposed suspensions; (3) reproduce SF-50's; and (4) review OPF's to obtain copies of SF-50's that were not located in adverse action files. The parties stipulate also to the Respondent's assertion that it would take approximately 175 employee hours of work to retrieve the information. Finally, the parties stipulate that the requested information does not constitute guidance, advice, counsel or training for management officials or supervisors relating to collective bargaining.
III. Position of the Parties
A. General Counsel
The General Counsel maintains that the Union's information request meets the requirements of section 7114(b)(4) of the Statute.
First, the General Counsel argues that the requested information is "reasonably available" within the meaning of section 7114(b)(4) of the Statute. The General Counsel asserts that the Respondent admits that the 350 adverse action files are normally maintained in the regular course of business in its 17 personnel offices.
Second, the General Counsel argues that the requested information is necessary for the Union to assess and perform its representational functions and responsibilities. The General Counsel notes that the Union requested the information to represent, in arbitration, five suspended employees from diverse organizational elements and locations within the DOL. Citing Department of Defense Dependents Schools, Washington, D.C. and Department of Defense Dependents Schools, Germany Region, 28 FLRA 202, 203 (1987) (Department of Defense Dependents Schools, Germany Region), the General Counsel asserts that disciplinary information concerning nonunit employees is disclosable under section 7114(b)(4) of the Statute. Citing AFGE, Local 1345 v. FLRA, 793 F.2d 1360 (D.C. Cir. 1986), the General Counsel further asserts that a union is entitled to information necessary to perform the full range of its responsibilities in both the negotiation and the administration of a labor agreement. According to the General Counsel, the requested information concerning nonunit employees is necessary for "comparison of like offenses, like penalties and like circumstances" and determining "whether discipline [is] consistent and for just and sufficient cause." General Counsel's Brief at 8.
Finally, the General Counsel argues that disclosure of the requested information is not prohibited by law. The General Counsel notes that the adverse action files are included in a system of records, within the meaning of the Privacy Act, which authorizes the disclosure of the information to officials of labor organizations, as "'routine users'" when the information is "'relevant and necessary to their duties of exclusive representation[.]'" Id. In addition, the General Counsel argues that the release of the information would not constitute an unwarranted invasion of employees' privacy. The General Counsel asserts that there is no contention "that the [Union] has abused its access to personnel documents" and that "there is no basis . . . to infer that the identities of suspended employees will become generally known." Id. at 10. The General Counsel maintains that disclosure of the requested information is not prohibited by law because "the [Union's] public interest in processing grievances . . . outweighs the privacy interests of the suspended employees whose identities will not become generally known . . . ." Id.
The Respondent argues that the information requested by the Union is: (1) not necessary for the Union to perform its representational functions; and (2) prohibited from disclosure by law.
The Respondent argues that the Union has not demonstrated that the requested information is necessary for the Union to perform its representational functions. The Respondent asserts that "while disparate treatment may be a relevant factor in a disciplinary action, it is only relevant with respect to similarly situated employees." Respondent's Brief at 6. According to the Respondent, "records pertaining to employees that are not remotely similarly situated to the employees whose grievances the union is pursuing" are not necessary for the Union to perform its representational duties. Id. at 8-9.
Second, the Respondent contends that the disclosure of the requested information is prohibited by law. The Respondent claims, in this regard, that the requested information is prohibited from disclosure by the Privacy Act because it need not be disclosed under the Freedom of Information Act. The Respondent argues that the "public interest in releasing the adverse action files to the [U]nion is outweighed by the privacy interests of the subject employees." Id. at 14.
Citing United States Dep't of Justice v. Reporters Committee for Freedom of the Press, 109 S. Ct. 1468 (1989) (Reporters Committee), the Respondent asserts that "the union stands as any other requester under the FOIA" and must show that the public interest is served by the disclosure. Respondent's Brief at 16. The Respondent argues that employees have a substantial privacy interest in the confidentiality of disciplinary records because the disclosure of such information could cause "personal embarrassment and humiliation." Id. at 13. The Respondent also asserts that "[w]hile disclosure might further inform the public as to the inner workings of the Department . . . [d]isclosure of the identity of the suspended employees and the facts and circumstances of their offending behavior would undercut the remedial purpose of the suspension." Id. at 18-19. Accordingly, the Respondent argues that "the invasion of personal privacy posed by the union's request . . . strongly outweighs any benefit to the public interest posed by disclosure." Id. at 18.
In addition, the Respondent argues that "[t]he routine use exception of 5 U.S.C. º552a(b)(3) does not permit disclosure of the requested information in this case." Id. at 19. According to the Respondent, the routine use exceptions set forth in relevant Privacy Act systems notices do not apply to the Union's request because "the union's request . . . is not necessary or relevant to the union's representational function." Id. at 20.
IV. Analysis and Conclusions
A. The Requested Information Is Necessary For the Union to Perform its Statutory Functions
As relevant here, section 7114(b)(4) of the Statute requires an agency to furnish a union, upon request, with information which is: (1) normally maintained by the agency in the regular course of business; and (2) reasonably available and necessary for discussion, understanding, and negotiation of subjects within the scope of collective bargaining.
The Respondent stipulated that the requested information is normally maintained by the agency in the regular course of business and does not dispute that the requested information is reasonably available.(3) For the following reasons, we reject the Respondent's contentions that the requested information is not necessary.
It is well established that under section 7114(b)(4) of the Statute, a union is entitled to information that is necessary to enable it to carry out effectively its representational functions and responsibilities. Information requested by a union is necessary, within the meaning of section 7114(b)(4) of the Statute, if it would be useful to the union in the investigation, evaluation and/or presentation of a potential or actual 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. 1, 1990). See also, for example, U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1319 (1990) (INS, Border Patrol), petition for review filed sub nom. U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas v. FLRA, No. 90-4960 (5th Cir. Dec. 28, 1990); U.S. Department of the Air Force, Air Force Logistics Command, Sacramento Air Logistics Center, McClellan Air Force Base, California, 37 FLRA 987, 995 (1990) (Sacramento Air Logistics Center).
There is no requirement that information requested under 7114(b)(4) of the Statute actually be used in a grievance. Moreover, an agency's contention that requested information cannot be used as evidence in a grievance does not relieve an agency of its obligation to furnish requested information. See, for example, Department of the Air Force, Scott Air Force Base, Illinois, 38 FLRA 410, 415-17 (1990) (Scott Air Force Base), petition for review filed sub nom. Department of the Air Force, Scott Air Force Base, Illinois v. FLRA, No. 91-1042 (D.C. Cir. Jan. 24, 1991); INS, Border Patrol, at 1320; Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Omaha District, Omaha, Nebraska, 25 FLRA 181, 185 (1987). Like questions of arbitrability, questions of whether the requested information is relevant to the grievance, or admissible as evidence in arbitration, are matters to be resolved in the grievance procedure. We reject, in this regard, the Respondent's contention that the requested information was not necessary because, in the Respondent's view, the information could not be used as evidence of disparate treatment in the grievances.
In addition, an agency is required to furnish information concerning nonunit positions when the information is necessary for the union to effectively fulfill its representational responsibilities. See, for example, Department of Health and Human Services, Social Security Administration Baltimore, Maryland and Social Security Administration, Region X, Seattle, Washington, 39 FLRA No. 23, slip op. at 12 (1991); Sacramento Air Logistics Center at 995. Further, information concerning the discipline of other employees, including management officials and supervisors, requested for the purpose of making comparisons in potential grievance situations, is disclosable. See, for example, Scott Air Force Base at 415-417; Department of Defense Dependents Schools, Germany Region, 28 FLRA at 205 (1987). Therefore, we reject the Respondent's contention that the requested information was not necessary because it included information concerning nonunit employees.
The Union requested the Respondent to provide the disputed information in connection with its preparation for arbitration hearings arising from suspensions of five unit employees from different organizational elements and locations within DOL. In its request, the Union stated that the information was necessary for it to determine whether the Respondent was proposing and effecting suspensions in a consistent manner. It is clear that the Union requested the information in order to: (1) assess and evaluate the merits of the employees' grievances; (2) ascertain whether the Respondent was administering its disciplinary system in a fair and equitable manner and in accordance with applicable laws, rules, regulations and the parties' collective bargaining agreement; and (3) determine the most appropriate course of action to take in the arbitration hearings.
It is well established that under section 7114(b)(4), a union is entitled to information which will enable it to realistically assess the strengths or weaknesses of an employee's grievance and determine the most appropriate course of action to take concerning the matter. See, for example, National Labor Relations Board, 38 FLRA 506, 517 (1990), petition for review filed sub nom. National Labor Relations Board v. FLRA, No. 91-1044 (D.C. Cir. Jan. 24, 1991); Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, New Bedford District Office, New Bedford, Massachusetts, 37 FLRA 1277, 1286-87 (1990); U.S. Department of Labor, Office of the Assistant Secretary for Administration and Management, 26 FLRA 943, 950 (1987). Accordingly, in view of the purposes for which the Union requested the information, we find that the information is necessary, within the meaning of section 7114(b)(4), for the Union to perform its representational responsibilities under the Statute.
B. Disclosure of the Information Is Not Prohibited by Law
The Privacy Act generally prohibits the disclosure of personal information about Federal employees without their consent. However, exception (b)(2) of the Privacy Act, 5 U.S.C. º 552a(b)(2), provides that the prohibition against disclosure is not applicable if disclosure of the information would be required under the Freedom of Information Act (FOIA), 5 U.S.C. º 552. See generally, Portsmouth.
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 the personal privacy." 5 U.S.C. º 552(b)(6). In determining whether disclosure of personal information would constitute clearly unwarranted invasion of personal privacy, the employees' right to privacy must be balanced against the public interest in disclosure. See Portsmouth; See also, for example, Scott Air Force Base at 417; National Labor Relations Board, Office of the General Counsel, Washington, D.C. and National Labor Relations Board Union, 37 FLRA 1036, 1044 (1990) (NLRB); National Treasury Employees Union, Chapter 237 and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 32 FLRA 62 (1988); Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 25 FLRA 1060, 1062 (1987) (AAFES).
In applying the balancing test, we look to the public interest embodied in the Statute. Portsmouth at 525-35. In this regard, we reject the Respondent's contention that the "public interest" as defined in Reporters Committee is the public interest which is balanced against the privacy interest of the employees. The "public interest" identified in the Statute is "the facilitation of the collective bargaining process in the Federal sector[.]" Id. at 531. Further, in balancing the public's interest in disclosure against the employees' privacy interest, the facts and circumstances unique to each case must be taken into account. See Scott Air Force Base at 419. Applying the balancing test here, we find that the public's interest in the disclosure of the employees' disciplinary records to the Union, as the exclusive representative of suspended unit employees, outweighs the personal privacy interests of the employees whose records are disclosed.
We conclude first that there is a strong public interest in disclosure of the requested information. As discussed above, the requested information is necessary, within the meaning of section 7114(b)(4), for the Union to perform its statutory representational functions. The release of information which is necessary for a union to perform its statutory representational functions promotes important public interests. Portsmouth at 530-31. In addition, disclosure of the requested information will 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 release of information necessary to ensure that an agency complies with its responsibilities in administering its disciplinary system in a fair and evenhanded manner involves matters of public concern. See Scott Air Force Base at 418-419 (agency required to provide the union with documentation concerning disciplinary action taken against a supervisor who allegedly used physical force against a bargaining unit employee); AAFES at 1062-63 (disclosure of information concerning the removal of two unit employees, who had not requested union representation, was not barred by the Privacy Act because the public interest in disclosure outweighed the invasion of privacy resulting from disclosure). See also U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 38 FLRA 120, 132-33 (1990) (National Weather Service) (disclosure of the names and duty stations of bargaining unit employees who received commendable or outstanding performance ratings served an important public interest).
On the other hand, employees have significant privacy interests in records concerning disciplinary and adverse actions taken against them. In U.S. Department of Justice and Immigration and Naturalization Service, 37 FLRA 1346, 1363 (1990) (Department of Justice), request for reconsideration denied, 38 FLRA No. 80 (1990), petition for review filed sub nom. United States Department of Justice, Immigration and Naturalization Service v. FLRA, No. 90-1613 (D.C. Cir. Dec. 27, 1990) the Authority stated:
[t]here are few workplace matters that evoke such significant privacy interests as disciplinary and adverse actions that are proposed to be taken, or are taken, against employees. These actions generally connote negative conduct or performance on the part of an employee. The personal embarrassment as well as the stigmatizing effect these actions have must be weighed heavily in assessing the employee's privacy interest.
Id. at 1363. The Authority concluded in Dep't of Justice, that a provision requiring the blanket disclosure to the union of unsanitized proposed and final disciplinary and adverse actions, without an expressed, particularized need for the actions, was inconsistent with the Privacy Act because the provision would result in a clearly unwarranted invasion of the affected employees' personal privacy. The Authority emphasized, however, that its conclusion did not necessarily apply to specific information, including unsanitized information, requested by a union under section 7114(b)(4) of the Statute. Id. at 1374.
It is clear that the disclosure of the requested information affects employees' privacy interests. We note, however, that the effect of disclosure is minimized by the limited access to the requested information. There is, for example, no evidence or argument by the Respondent that the information would be widely disseminated by the Union or that the identities of the disciplined employees would become generally known as a result of the release of the information. See Scott Air Force Base at 419-20; National Weather Service, at 133-35; AAFES at 1062-63.
Moreover, balancing the invasion of the employees' privacy against the public interest served by disclosure of the requested information to the Union, we conclude that disclosure would not constitute a clearly unwarranted invasion of the affected employees' privacy. In particular, we conclude that the public's interest in the facilitation of the collective bargaining process by providing the Union with information necessary for the performance of its representational functions and its strong interest in the manner in which the Government disciplines Federal employees outweigh the privacy interest of the affected employees. Accordingly, as disclosure of the requested information would not constitute a clearly unwarranted invasion of the employees' personal privacy, within the meaning of exemption (b)(6) of the FOIA, disclosure of the information is not prohibited by the Privacy Act.
Finally, we conclude that disclosure of the requested information is authorized under exception (b)(3) of the Privacy Act, which permits disclosure of information for a "routine use." We note, in this regard, that at all times relevant to this case, OPF's have been maintained in a system of records identified as OPM/GOVT-1. We also note, however, that during the pendency of this case, adverse action files, previously encompassed by the Respondent's system of records identified as DOL/OASAM-12, became subject to OPM/GOVT-3, a preexisting system maintained by the Office of Personnel Management. The Respondent maintains that the Authority should apply the routine use applicable to the system of records in which the adverse action files were located at the time of the request.
We disagree. It is clear and well established that the Authority applies the law as it is at the time of the Authority's decision. For example, National Guard Bureau and Adjutant General, State of Pennsylvania, 35 FLRA 48, 53 (1990). It is undisputed that, as of April 30, 1990, the routine use applicable to adverse action files is that contained in OPM/GOVT-3. We will, therefore, apply that routine use in this case.
Routine use disclosures are confined to "'ones that are "compatible with the purposes for which [the information] was collected," 5 U.S.C. º 552a(a)(7); . . . and within the uses "described under" 5 U.S.C. º 552a(e)(4)(D).'" Portsmouth, 37 FLRA at 537. The Office of Personnel Management (OPM) publishes notices defining the routine uses of personnel records of Federal employees maintained in various systems. As relevant here, routine use "j" applicable to OPM/GOVT-1 (encompassing OPF's) and routine use "a" applicable to OPM/GOVT-3 (encompassing adverse action files) authorize disclosure of the records in those systems in the following circumstance:
To disclose information to officials of labor organizations recognized under 5 U.S.C. chapter 71 when relevant and necessary to their duties of exclusive representation concerning personnel policies, practices, and matters affecting working conditions.
See 55 Fed. Reg. 3802, 3839-40, 3945.
The standard governing disclosure of information under OPM routine use notice "j," applica