[ v44 p312 ]
44:0312(27)CA
The decision of the Authority follows:
44 FLRA No. 27
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
UNITED STATES DEPARTMENT OF VETERANS AFFAIRS
REGIONAL OFFICE
SAN DIEGO, CALIFORNIA
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 490
AFL-CIO
(Charging Party/Union)
8-CA-90297
8-CA-90301
DECISION AND ORDER
March 12, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This consolidated unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached Administrative Law Judge's decision. The General Counsel filed a brief with the Authority.
In Case No. 8-CA-90297 the complaint alleged 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 to the Charging Party information that was necessary for it to assess a potential grievance. The complaint in Case No. 8-CA-90301 alleged that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally changing working conditions of unit employees when it implemented a new work assignment procedure without giving the Union the opportunity to bargain over the impact and implementation of the change. The Judge found that the Respondent violated the Statute as alleged.
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. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order for the reasons that follow, in addition to the reasons in his decision.
A. Case No. 8-CA-90297
l. Judge's Findings and Exceptions to Judge's Decision
In Case No. 8-CA-90297, the Judge found that in November and December 1988 the Union requested the bottom half of certain spread sheets giving production figures for individual unit employees who worked as claims examiners or "adjudicators." Judge's Decision at 4. In response to an earlier request for the spread sheets, the Respondent had supplied the top portion of the sheets, but had refused to disclose the bottom portions. The Judge concluded that the material was reasonably available and necessary for the Union to perform its representational duties and that the Union had not waived its right to the information. The Judge concluded also that disclosure of the information would not violate the adjudicators' privacy rights.
There is no dispute that the requested information is reasonably available. In addition, there were no exceptions to the Judge's determination that the information requested by the Union was necessary for it to perform its representational duties because the material was sought as part of an investigation of a potential grievance.(1) The Respondent argues in its exceptions, however, that the Union had waived its right to obtain the information and that the Judge erred in evaluating the evidence and in concluding that there was no waiver; that release of the information could not properly be required because the information pertained to a matter that was moot; and that release of the information was prohibited by the Privacy Act.
Contrary to the Respondent's contention, we agree with the Judge that the record contains insufficient evidence to conclude that the bargaining history establishes a clear and unmistakable waiver of the Union's right to the requested information. Accordingly, as all the other criteria of section 7114(b)(4) have been met, the Respondent violated the Statute by refusing to furnish the material unless release of the information was prohibited by the Privacy Act.
2. Disclosure Not Prohibited by the Privacy Act
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 the 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 determine 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).
To determine 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 Transportation, Federal Aviation Administration, National Aviation Support Facility, Atlantic City Airport, New Jersey, 43 FLRA 191, 199 (1991) (FAA, Atlantic City Airport). 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) (Portsmouth Naval Shipyard), 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) (FLRA v. Portsmouth Naval Shipyard).(2) 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, in connection with a potential grievance the Union requested certain spread sheets, the bottom half of which gave production figures for individual employees, as well as certain other data that was used to evaluate the adjudicators' work performance. The Union sought the information on production figures because of its concern that the reassignment of certain easier work, if made, could have affected employees' productivity. The Respondent conceded that the information sought is essential in formulating the employees' performance appraisals. As the Judge found, the information "was necessary for [the Union] to assess a potential grievance and was consistent with its obligation to perform its representational responsibilities." Judge's Decision at 9. We conclude, consistent with our precedent, that such representational responsibilities are in the public interest and also safeguard the public interest. See, for example, U.S. Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, Region II, 43 FLRA 164, 166 (1991) (Social Security Administration), petition for review filed sub nom. U.S. Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, Region II v. FLRA, No. 92-1012 (D.C. Cir. Jan. 15, 1992).
We recognize that the employees have definite privacy interests, but conclude that those interests are outweighed by the public interest embodied in the Statute. The Respondent argued that it could not furnish the bottom half of the spread sheets even in sanitized form because, if it did so, individuals could be identified from the information on that portion of the document and confidential information about those individuals would be disclosed, including the amount of leave used and statistics that determine an adjudicator's performance rating. Unquestionably, the employees could view disclosure of information on which their performance appraisals were based as an invasion of their personal privacy. See Social Security Administration, 43 FLRA at 167. However, we note that there is no indication that the Union envisioned public disclosure of the information; nor was it asserted that the information was stigmatizing or that it might be used to embarrass the employees involved.(3)
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 information about their performance to their exclusive collective bargaining representative.
Even if, as an alternative to our test in Portsmouth Naval Shipyard, we apply the public interest test identified by the U.S. 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 documents and their 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. See FAA, Atlantic City Airport, 43 FLRA at 202 (1991) (Union sought transcript of Equal Employment Opportunity Commission hearing to determine whether agency had violated parties' agreement by not following the procedures in their merit promotion plan; Authority concluded that disclosure would open to public scrutiny the manner in which the Agency administers its selection process and whether that process is administered in a fair and evenhanded manner and that, therefore, the public interest outweighed the limited privacy interest of a single employee).
The record in this case discloses that the Union was interested in the information in dispute in connection with its investigation of the manner in which work assignment procedures had been implemented. Specifically, the Union was concerned that the Respondent had changed its method of work assignments in such a way as to negatively affect the timeliness and quality of the adjudicators' work, which in turn could have affected the performance appraisals of all of the adjudicators. Thus, it appears that in attempting to redress any injustices done to individual employees, the Union was also questioning the fairness of the Respondent's administration of its performance appraisal system and the objectivity of the distribution of work that underlies the appraisals. As we have said 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." U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 38 FLRA 120, 132 (1990), application for enforcement filed sub nom. FLRA v. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, MD, No. 91-1175 (D.C. Cir. April 12, 1991); Social Security Administration, 43 FLRA at 168. In view of the public's interest in the
Respondent's compliance with its responsibilities for administering its appraisal system in a fair and evenhanded manner, a valuable by-product of the disclosure of the procedures by which work is assigned could be "to open agency action to the light of public scrutiny," Reporters Committee, 489 U.S. at 772. See Atlantic City Airport. Moreover, the adjudicators are responsible for awarding or denying benefits to veterans. Thus, any insight into the efficiency of the processing of those claims that might be gained by disclosing work assignment procedures also would be a valuable by-product of the disclosure of the requested information. As the Supreme Court has said, "[o]fficial information that sheds light on an agency's performance of its statutory duties falls squarely within that statutory purpose." Reporters Committee, quoted in United States Department of State v. Ray, 112 S. Ct. 541, 549 (1991).(4)
Accordingly, balancing the employees' limited privacy interest in the bottom half of the spread sheets against the strong public interest in the disclosure to the Union of that material, we conclude that disclosure would not constitute a clearly unwarranted invasion of personal privacy and that such disclosure is consonant with the Privacy Act, even under the test set forth in Reporters Committee.
We conclude that the information is also subject to disclosure as a "routine use" under section (b)(3) of the Privacy Act. Under Office of Personnel Management regulations, 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. No exceptions were filed to the Judge's findings that disclosure of the requested information is necessary for the proper discharge of the Union's representational functions. Accordingly, as the information concededly is necessary to the Union's duties of exclusive representation, it is encompassed by the routine use statement and, therefore, disclosure of the information is permitted under section (b)(3) of the Privacy Act.
3. The Judge's Remedy is Appropriate
Finally, we reject the Respondent's argument that even if it violated the Statute, it should not be ordered to furnish the information because the grievance filed in November, 1988, "is no longer cognizable under law as it is . . . moot." Respondent's exceptions at 9.
The Union made the specific request for the complete spread sheets on November 22, 1988. As noted by the Judge, "[t]he evidence is uncontroverted that the Union was investigating a potential grievance." Judge's Decision at 8. The record discloses that the Union requested the information because it believed that it could aid the Union in assessing the fairness of the adjudicators' performance evaluations. Shortly thereafter, it filed a grievance contending that work "was not assigned [to unit employees] fairly and equitably under the Performance Standard." G.C. Exh. 11.
Even assuming, as argued by the Respondent, that further processing of the grievance that was filed is time-barred, there is no basis in the record to suggest that the spread sheets would not be useful in connection with the investigation of other potential grievances regarding the adjudicators' performance evaluations. Accordingly, we conclude that the information remains necessary for the Union to fulfill its representational functions. Compare Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, 41 FLRA 259, 262 (1991) (INS, El Paso) (union's need for information was not rendered moot by the removal from employment of a potential grievant because the information was necessary for the union to fulfill its broader representational obligations) with Department of Veterans Affairs, Department of Veterans Affairs Medical Center, Fort Lyon, Colorado, 41 FLRA 1091, 1100 (1991), petition for review filed, No. 91-1470 (D.C. Cir. Nov. 14, 1991) (respondent not ordered to furnish information despite unfair labor practice finding by Authority because no basis to conclude that the information would be useful to the union in fulfilling its representational duties) and U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Helena District, Helena, Montana, 39 FLRA 241 (1991) (respondent not ordered to furnish information to remedy violation, in view of charging party's statement that information is of no present use to it).
In sum, in Case No. 8-CA-90297 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 the information to the Union. To remedy the violation found, we will order the Respondent to furnish the requested information to the Union.
B. Case No. 8-CA-90301
In Case No. 8-CA-90301, we agree with the Judge, for the reasons he stated, that the Respondent violated section 7116(a)(1) and (5) of the Statute when it unilaterally changed the productivity standard for file clerks, who are unit employees, without bargaining over the impact and implementation of the change.(5) Thus, we conclude that the Respondent changed a condition of employment, which had an impact on unit employees that was more than de minimis, and that the Union did not waive its right to bargain over the impact and implementation of the change.
II. Order
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that United States Department of Veterans Affairs, Regional Office, San Diego, California, shall:
1. Cease and desist from:
(a) Failing and refusing to provide the American Federation of Government Employees, Local 490, AFL-CIO, the exclusive representative of its employees, requested information that is reasonably available and necessary for it to properly perform its representational responsibilities in connection with specific productivity standards for claims adjudicators.
(b) Unilaterally changing working conditions of unit employees by implementing digit assignments for file clerks without fulfilling its obligation to bargain with the American Federation of Government Employees, Local 490, AFL-CIO, the exclusive representative of its employees, concerning the impact and implementation of such change.
(c) In any like or related manner interfering with, restraining or coercing its employees in the exercise of rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Upon request, furnish the American Federation of Government Employees, Local 490, AFL-CIO, the exclusive representative of its employees, all copies of the full spread sheets that are reasonably available and necessary for it to properly perform its representational responsibilities in connection with specific productivity standards for claims adjudicators.
(b) Upon request, negotiate with the American Federation of Government Employees, Local 490, AFL-CIO, the exclusive representative of its employees over the impact and implementation of the changes of digit assignments for file clerks which was implemented on or about March 3, 1989.
(c) Post at its U.S. Department of Veterans Affairs Regional Office, San Diego, California 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 and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, San Francisco Regional Office, 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 fail or refuse to provide the American Federation of Government Employees, Local 490, AFL-CIO, the exclusive representative of our employees, requested information that is reasonably available and necessary for it to properly perform its representational responsibilities in connection with specific productivity standards for claims adjudicators.
WE WILL NOT unilaterally change working conditions of unit employees by implementing digit assignments for file clerks without fulfilling our obligation to bargain with the American Federation of Government Employees, Local 490, AFL-CIO, the exclusive representative of our employees, concerning the impact and implementation of such change.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL, upon request, provide the American Federation of Government Employees, Local 490, AFL-CIO, the exclusive representative of our employees, all copies of the full spread sheets that are reasonably available and necessary for it to properly perform its representational responsibilities in connection with specific productivity standards for claims adjudicators.
WE WILL, upon request, negotiate with the American Federation of Government Employees, Local 490, AFL-CIO, the exclusive representative of our employees over the impact and implementation of the changes of digit assignments for file clerks which was implemented on or about March 3, 1989.
_____________________________
(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 any of its provisions, they may communicate directly with the Regional Director San Francisco Regional Office, 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.)
1. The record shows that the Union also filed a grievance in November 1988, which arose from the mid-term evaluations of unit employees.
2. Although the U.S. Court of Appeals for the First Circuit denied the Authority's petition for enforcement of Portsmouth Naval Shipyard, another court of appeals enforced a similar Authority decision that relied on Portsmouth Naval Shipyard. FLRA v. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, Nos. 90-1852 (4th Cir., Jan. 24, 1992), enforcing 37 FLRA 663 (1990). Further, on November 5, 1991, the U.S. Court of Appeals for the Third Circuit granted the Authority's petition for rehearing en banc in FLRA v. U.S. Department of the Navy, Navy Ships Parts Control Center, et al., Nos. 90-3690, 90-3724 (3d Cir. Sept. 13, 1991), in which a divided panel of the Court of Appeals for the Third Circuit had denied the Authority's petition for enforcement of U.S. Department of the Navy, Navy Ships Parts Control Center and Navy Fleet Material Support Office and NAVSEA Logistics Center and Navy Publishing and Printing Service, 37 FLRA 722 (1990), which relied on Portsmouth Naval Shipyard. We respectfully adhere to our decision in Portsmouth Naval Shipyard.
3. Although the Respondent contends in its exceptions that "members of the rank and file did not want this information released to the Charging Party," Respondent's Exceptions at 5 (emphasis in original), the evidence cited to support that assertion consists of a statement by a management witness that two of the nine adjudicators had told her they did not want the information released, Transcript (Tr.) at 72, and testimony on cross-examination by a Union witness that of the three adjudicators he had spoken to regarding the release of the information, he remembered that one had given him the information and he could not remember whether the others had done so, Tr. at 38.
4. We note that the Supreme Court has expressly declined to rule that consideration of derivative uses of requested documents is not a proper analytical tool to use in the process of balancing the public interest in disclosure against the individual's interest in privacy. United States Department of State v. Ray, 112 S. Ct. at 549-50.
5. The Respondent excepts to certain credibility resolutions of the Judge on which his findings of fact are based. The demeanor of witnesses is an important factor in resolving issues of credibility. Only the Judge has had the benefit of observing the witnesses while they testified. We will not overrule a judge's determination regarding credibility of witnesses unless a clear preponderance of all the relevant evidence demonstrates that the determination was incorrect. We have examined the record carefully and find no basis for reversing the Judge's credibility findings. U.S. Department of Justice, Litigating Divisions and Office of the Solicitor General, Washington, D.C., 43 FLRA 530 (1991).