43:0164(16)CA - - HHS, SSA and SSA Field Operations, Region II and AFGE Local 2608 - - 1991 FLRAdec CA - - v43 p164

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[ v43 p164 ]
The decision of the Authority follows:

43 FLRA No. 16











(Charging Party/Union)



November 20, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding 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 certain unsanitized performance appraisals, as requested, under section 7114(b)(4) of the Statute. The Administrative Law Judge further found that the Respondent had not violated the Statute by purging its files of some of the requested information.

The Respondent filed exceptions to the Administrative Law Judge's decision and the General Counsel filed an opposition to the Respondent's exceptions.(1) The Charging Party filed an opposition that appeared to be untimely. On April 19, 1991, the Authority issued an Order requesting that the Charging Party show cause why its opposition should be considered by the Authority. As the Charging Party did not respond to this Order, we have not considered the Charging Party's opposition.

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. We affirm those rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order, as modified below.(2)

We agree with the Judge, for the reasons stated in his decision, that the requested information was necessary for the full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining within the meaning of section 7114(b)(4)(B) of the Statute. We also agree with the Judge, for the reasons stated below, that disclosure of the requested information is not barred by the Privacy Act, 5 U.S.C. § 552a.

With certain enumerated exceptions, the Privacy Act prohibits the disclosure of any record concerning a Federal employee if that record is contained in a system of records and the individual to whom that record pertains has not consented to the disclosure. 5 U.S.C § 552a(b). Section (b)(2) of the Privacy Act provides that the prohibition against disclosure is not applicable if disclosure of the information would be required under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA). Section (b)(3) of the Privacy Act permits disclosure "for a routine use," which is defined in 5 U.S.C. § 552a(a)(7) as "the use of such record for a purpose which is compatible with the purpose for which it was collected."

In order to determine whether disclosure of the requested information in this case is permitted by section (b)(2) of the Privacy Act, we must examine whether it is disclosable under Exemption (b)(6) of the FOIA. That section provides that information contained in personnel files, in addition to medical and other similar 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 disclosure of the requested information would constitute a clearly unwarranted invasion of personal privacy, we must balance the employee's right to privacy against the public interest in disclosure. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 38 FLRA 120, 132 (1990) (National Weather Service), application for enforcement filed sub nom. FLRA v. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, No. 91-1175 (D.C. Cir. Apr. 12, 1991).

In applying the balancing test, we look to the public interest embodied in the Statute. See generally U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515, 525-35 (1990), application for enforcement denied sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 941 F.2d 49 (1st Cir. 1991). We have recognized that the "public interest" identified in the Statute may be summarized as "the facilitation of the collective bargaining process . . . ." Id. at 531. We conclude here that there is a strong public interest in the disclosure of the requested information.

As the Judge found, the Union requested the appraisals in order to determine whether the Respondent had generally given lower appraisals for the generic job task of interviewing during the previous appraisal year. The Union needed the names of those appraised so that, if its survey established that appraisals were in fact lower for the interviewing task, it could contact individual employees to learn if they wished the Union to file a grievance on their behalf. Although it is less clear why the Union needed to review more than the portion of the appraisal relating to interviewing, the General Counsel argues that an analysis of an entire appraisal would permit the Union to evaluate whether the interviewing element was inconsistent with the rest of the appraisal. We agree with the Judge that the Union requested the appraisals "for a clearly representational purpose, which function is in the public interest and also safeguards the public interest." Judge's Decision at 8.

We further conclude that the employees' privacy interests, though substantial, are outweighed by the public interest embodied in the Statute. Unquestionably, the employees could view disclosure of their performance appraisals as an invasion of their personal privacy. We agree with the Respondent that "[a] rating in a given GJT, even though it may be acceptable, can be considered by some employees as stigmatizing." Respondent's Exceptions at 7. As the Court of Appeals for the District of Columbia Circuit has stated, "disclosure of even favorable information may well embarrass an individual or incite jealousy in his or her co-workers." Ripskis v. Department of Housing and Urban Development, 746 F.2d 1, 3 (D.C. Cir. 1984) (Ripskis). See also National Labor Relations Board, Office of the General Counsel, Washington, D.C. and National Labor Relations Board Union, 37 FLRA 1036 (1990). On the other hand, the Judge found that "there is no indication that the Union envisioned public disclosure or desired the appraisals for anything more than to compare two years' appraisals for "'interviewing'" in the exercise of its representative rights and responsibilities . . . ." Judge's Decision at 9.

On balance, we conclude that the public interest inherent in the Union's discharge of its obligations under the Statute to monitor and administer the collective bargaining agreement, including the grievance/arbitration provision of that agreement, outweighs the employees' personal privacy interests in preventing disclosure of their appraisals to their exclusive collective bargaining representative.

Even if, in the alternative, we apply the public interest test identified by the Supreme Court in United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 772 (1989) (Reporters Committee), which requires that we examine the requested document and its relationship to the basic purpose of the FOIA "to open agency action to the light of public scrutiny[,]" we find that there is an overriding public interest in the disclosure of the information requested by the Union in this case.

The record discloses that the concern with the interviewing job task followed the implementation in 1988 of a system of requiring appointments for interviews between members of the public and the unit employees whose appraisals are at issue in this case. A Union official testified that after the appointment system was implemented members of the public became upset when they could not be interviewed because they did not have an appointment, and that, as a result, "[e]mployees are getting flack from the public. They're the first line of employees that deals directly with the public, so the field offices are sort of the infantry of Social Security." Transcript at 37. The Union official continued to testify that:

I don't think that the appointment system has been successful in terms of service to the public, and it's been causing problems. And if it was going to cause problems for the public, you know, we don't represent the public, unfortunately, but we do represent employees whose evaluations seem to be getting lowered because of the appointment system. So we wanted to get to see what to do about it. We needed to see the information area-wide.

Id. This testimony indicates that the Union believed there was a correlation between a perceived dissatisfaction on the part of the public with the service given by unit employees and the performance appraisals given to those employees for the interviewing function of their jobs. In other words, in the Union's view, the employees were serving as scapegoats for a system that was not working. It appears that in attempting to redress any injustice that may have been imposed on the employees whom it represents, the Union was also questioning the efficacy of the Agency's appointment system. Accordingly, a valuable by-product of the disclosure of the appraisals to the Union could be "to open agency action to the light of public scrutiny." Reporters Committee, 489 U.S. at 772. Moreover, as we have stated before, "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." National Weather Service, 38 FLRA at 132. See also U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Helena District, Helena, Montana, 39 FLRA 241, 253 (1991) (disclosure of performance appraisal information that is necessary for a union to pursue a grievance "furthers the public interest in promoting the fair and equitable treatment of Federal employees, the absence of illegal discrimination, and the application of merit system principles.").

Given the strong public interest involved in this case, we conclude that disclosure of the information is consonant with the Privacy Act even under the test set forth in Reporters Committee.

Finally, we conclude that the information is also subject to disclosure as a "routine use" under Section (b)(3) of the Privacy Act. Performance appraisals for Federal employees and supporting documentation for those appraisals are contained in the system of records entitled "Employee Performance File System Records." 55 Fed. Reg. 3842-43. Routine uses of records maintained in this system include:

To disclose information to an arbitrator to resolve disputes under a negotiated grievance procedure or to officials of labor organizations recognized under 5 U.S.C. chapter 71 [the Statute] when relevant and necessary to their duties of exclusive representation.

55 Fed. Reg. 3844. We have found above that disclosure of the requested information is relevant and necessary for the proper discharge of the Union's representational functions. Accordingly, the routine use statement encompasses disclosure to the Union, which, therefore, is permitted under section (b)(3) of the Privacy Act.

In sum, we conclude that, as disclosure of the requested information is not prohibited by law and meets all the other requirements for disclosure set forth in section 7114(b)(4) of the Statute, the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by failing and refusing to furnish it to the Union.

II. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, Region II, shall:

1. Cease and desist from:

(a) Failing and refusing to furnish the American Federation of Government Employees, AFL-CIO, Local 2608, the agent of the exclusive representative of certain of its employees, unsanitized copies of all existing performance appraisals of Area 8 unit employees with a generic job task for "interviewing" for the appraisal periods ending September 1987 and September 1988.

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