42:0371(30)CA - - Justice, Office of Justice Programs and AFSCME Local 2830 - - 1991 FLRAdec CA - - v42 p371
[ v42 p371 ]
The decision of the Authority follows:
42 FLRA No. 30
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on the Regional Director's "Order Transferring Case to the Authority" pursuant to a stipulation of facts under section 2429.1(a) of the Authority's Rules and Regulations.
The General Counsel and the Respondent filed briefs with the Authority. In addition, the Respondent filed a motion to strike portions of the General Counsel's brief and the General Counsel filed an opposition to the Respondent's motion.
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 with information requested under section 7114(b)(4) of the Statute. For the following reasons, we remand this case to the Regional Director for further processing.
Based on the parties' stipulation of facts and exhibits, we find the following:
The Union is the exclusive representative of an appropriate unit of the Respondent's employees. By letter dated September 6, 1990, the Union requested the Respondent to furnish a list of all unit and nonunit employees in certain of the Agency's offices who received outstanding evaluations and/or awards from January 1, 1988 to September 6, 1990, and a list of all employees who were promoted since January 1, 1990. Stipulation Jt. Exh. 4.
On October 26, 1990, the Respondent provided the Union with a list of employees who received promotions from January 1, 1990 to October 26, 1990. Stipulation Jt. Exh. 6. On January 11, 1991, the Union filed an unfair labor practice charge alleging that the Respondent violated section 7114(b)(4) of the Statute by refusing to furnish the Union with the requested information concerning outstanding ratings and awards. Stipulation Jt. Exh. 1. On January 31, 1991, the Respondent provided the Union with a list of the employees who received awards in 1988, 1989 and 1990. In that correspondence, the Respondent stated that it denied the request for a list of employees who received outstanding performance ratings "pursuant to the Freedom of Information Act, 5 U.S.C. 552 (b)(6), which exempts 'personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]'" Stipulation Jt. Exh. 7.
The parties stipulate that:
[T]he only issues between the parties are (1) whether the release of names, or organizational units and disclosure of personal identifiers of . . . employees who received outstanding ratings and awards is necessary and essential for the Union to carry out its functions pursuant to 5 U.S.C. 7114; and (2) whether a valid interest exists in the disclosure of names and personal identifiers in violation of the Privacy Act.
Stipulation at 3, para. 12. The parties also stipulate that "the Respondent's objections to providing organizational units stems from the fact that some of the . . . units are so small that identification of such . . . units would act as a 'personal identifier.'" Id. at 3-4, para. 13.
III. The Positions of the Parties
A. The Respondent's Brief
The Respondent contends that it "offered to provide the appraisal and award information without names and personal identifiers." Respondent's Brief at 5. The Respondent asserts that "the only reason why the agency was in some instances unwilling to provide the name of the organizational unit [was] that doing so would enable the Union to identify the employee receiving a particular appraisal or award." Id. at 6. According to the Respondent, release of unsanitized information would violate the Privacy Act, 5 U.S.C. § 552 and, consequently, such release is "prohibited by law" under section 7114(b)(4) of the Statute.
The Respondent further asserts that "[t]he Union has not made any attempt to explain why it needs to know specifically to whom each appraisal or award belongs." Id. at 7 (footnote omitted). Accordingly, the Respondent argues that the "names [and] personal identifiers" of the employees involved are not "necessary" for the Union to perform its representational functions. Id.
B. The General Counsel's Brief
The General Counsel asserts that the requested information is necessary, under section 7114(b)(4) of the Statute, because the "Union seeks the data to monitor Respondent's fair and equitable application of the performance appraisal system." General Counsel's Brief at 8.
The General Counsel also argues that "since the Union has agreed to receive the requested data in a sanitized form, the Authority need not reach the issue [of] whether release of the names of employees who received outstanding performance ratings [is] violative of the Privacy Act." Id. (footnote omitted). The General Counsel maintains that the Respondent "has refused to provide this data in even the sanitized form offered by the Union which, in effect, omits the recipients' name and identifies the number of outstanding ratings received by employees in each of Respondent's six sub-offices." Id. The General Counsel argues that, "[g]iven the size of Respondent's operations, . . . identifying recipients of outstanding performance ratings by the office . . . will not serve as a 'personal identifier' . . . ." Id.
Finally, the General Counsel asserts that the "Respondent's belated furnishing . . . of a list of employees who received awards . . . was untimely and therefore violative of the Statute." Id. at 9. The General Counsel notes, in this regard, that the Respondent did not provide the requested information for over a 4-month period after the unfair labor practice charge was filed.
C. The Respondent's Motion to Strike
The Respondent moves to strike portions of the General Counsel's Brief which, in the Respondent's view, are based on facts that were not stipulated or facts that contradict facts that were stipulated.
The Respondent asserts, among other things, that the General Counsel's statement of the issues to be resolved is inaccurate. According to the Respondent, the General Counsel "neglects to mention that the issues as stipulated dealt with the necessity and legality of providing award information as well as appraisal information." Motion at 2 (emphasis in original). The Respondent argues that although it "waived the right to argue" that disclosing the awards information it provided to the Union violated the Privacy Act, it did not "waive the right to argue that, even though it chose to provide the information, the information was not 'necessary' . . . ." Id. at 2-3.
In addition, the Respondent objects to the General Counsel's assertion regarding "the issue of whether the provision of the award information to the union was given too late to satisfy the requirements of the Statute." Id. at 3. The Respondent argues that "the parties agreed that it would not be an issue, and framed the stipulation accordingly." Id. (emphasis in original).
Finally, as relevant here, the Respondent objects to the General Counsel's assertion that, in view of the size of the Respondent's offices, identifying recipients of outstanding performance ratings by office would not serve as a "personal identifier." Id. at 10. According to the Respondent, the parties stipulated that "revealing the organizational unit would, in fact, constitute a personal identifier." Id. (emphasis in original).
D. General Counsel's Opposition to Motion
The General Counsel asserts that the portions of the General Counsel's brief to which the Respondent objects contain only legal arguments that are based on stipulated facts. Among other things, the General Counsel rejects the Respondent's characterization of the parties' stipulation regarding the effect of the release of information identified by organizational unit. According to the General Counsel, "the General Counsel acknowledges [in that stipulation] that it is Respondent's position (but not her own) that providing the data by 'organizational units' would act as a 'personal identifier.'" Opposition at 4.
IV. Analysis and Conclusions
We conclude that the stipulated record contains insufficient information for the Authority to determine whether, as alleged in the complaint, the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the Union with certain information requested under section 7114(b)(4).(1)
Determining whether the Respondent violated the Statute requires resolution of such issues as whether the information was necessary, within the meaning of section 7114(b)(4), and whether disclosure of the information is prohibited by the Privacy Act.(2) Resolution of these issues, in turn, depends on facts concerning such matters as: (1) the reason(s) for the Union's request for the information; (2) whether the Respondent offered to provide the Union with sanitized data and, if so, the precise form and content of the data offered; (3) whether the Union was willing to accept sanitized data from the Respondent and, if so, the form and content of the data; and (4) the number of employees in each of the Respondent's sub-offices. In our view, these are "material issue[s] of fact," within the meaning of section 2429.1(a) of our Rules and Regulations.
The parties' stipulation and accompanying exhibits do not contain sufficient information for us