46:0234(22)AR - - NTEU and Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, DC - - 1992 FLRAdec AR - - v46 p234
[ v46 p234 ]
The decision of the Authority follows:
46 FLRA No. 22
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL TREASURY EMPLOYEES UNION
U.S. DEPARTMENT OF THE TREASURY
BUREAU OF ALCOHOL, TOBACCO AND FIREARMS
October 23, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Earle William Hockenberry filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
The Union filed a grievance alleging that the Agency unlawfully repudiated provisions of the parties' agreement which require the Agency to furnish the Union with certain documents. The Arbitrator sustained the grievance and directed the Agency to comply with the provisions.
For the following reasons, we will set aside the award in part.
II. Background and Arbitrator's Award
In January 1991, the Agency, citing U.S. Department of Justice and Immigration and Naturalization Service, 37 FLRA 1346 (1990) (INS), notified the Union that it would no longer comply with the following three provisions of the parties' collective bargaining agreement:
ARTICLE 31 Disciplinary Actions
Section 7. The Union will receive notices of any disciplinary action proposal by serving the National Office with a copy of the letter.
ARTICLE 32 Adverse Actions
Section 7. The Union will receive notice of any adverse action proposal by serving the National Office with a copy of the letter.
ARTICLE 33 Unacceptable Performance Actions
Section 2(C). The Union will receive notice of any proposed notice of unacceptable performance actions by serving the National Office with a copy of the letter.
Award at 2-3.
The Union filed a grievance alleging that the Agency's repudiation of the provisions was an unfair labor practice under the Statute and violated the parties' agreement. When the matter was not resolved, it was referred to arbitration, where the parties stipulated the issues as follows:
1. Did [the Agency] violate 5 U.S.C. § 7116(a)(1) and (5) when it repudiated Section 7 of Articles 31 and 32, as well as Section 2C of Article 33 of the parties' collective bargaining agreement?
2. Was [the Agency's] repudiation of the Agreement required by law and authorized by Article 2, Section 2 of the Agreement?
Award at 2.(1)
The Arbitrator determined that INS did not require the Agency to repudiate the provisions. The Arbitrator noted that, in INS, the union sought disclosure of unsanitized copies of proposed and final disciplinary and adverse actions, as well as decisions on appeal. According to the Arbitrator, as the disputed provisions in this case concern only proposed actions, the "quantum of information appears to be far less than that asked for by the union in [INS]" and disclosure of the information encompassed by the provisions would not constitute a clearly unwarranted invasion of personal privacy, within the meaning of exemption (b)(6) of the Freedom of Information Act (FOIA). Award at 16. Based on his conclusion that disclosure of the disputed documents would not constitute a clearly unwarranted invasion of privacy under the FOIA, the Arbitrator further concluded that the provisions were encompassed by exception (b)(2) of the Privacy Act.(2)
The Arbitrator also determined that the Union was entitled to the information under exception (b)(3) of the Privacy Act.(3) In particular, the Arbitrator concluded that release of the information was consistent with routine use notices issued by the Office of Personnel Management (OPM) and the Agency. The Arbitrator stated, in this regard, that the disputed records were contained in the same Agency system of records (ATF System .007) as that for which the Authority found the Union to be a routine user in National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 41 FLRA 1106, 1129-33 (1991) (ATF), appeal as to other matters dismissed sub nom. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, 953 F.2d 687 (D.C. Cir. 1992). Award at 14.
In sum, the Arbitrator concluded that the Agency's repudiation of the disputed provisions violated the agreement and the Statute, and he sustained the grievance. As his award, the Arbitrator ordered the Agency to comply with the provisions and to furnish the Union with copies of pertinent documents issued since January 1, 1991.
III. Positions of the Parties
The Agency asserts that the award is contrary to law because compliance with the disputed provisions would result in a clearly unwarranted invasion of affected employees' personal privacy under exemption (b)(6) of the FOIA. The Agency also argues that the information cannot be disclosed under the routine use exception to the Privacy Act. In this connection, the Agency asserts:
The [A]gency's published System of Records includes in its Personnel Record System .007 . . . the proposed personnel actions at issue here. [The Union], as the recognized bargaining representative, is recognized by ATF's routine use notice as a routine user of such records. However, the Office of Personnel Management (OPM) . . . has declared that the records of adverse actions and actions based on unacceptable performance are OPM records that are in the custody of the Federal agency in which the actions were processed. Thus, as the records in question are OPM records, it is OPM's more restrictive routine use notice with which the disclosure must comply.
Exceptions at 5-6 (citations and footnote omitted).(4) The Agency also asserts that disclosure of the information would not satisfy the requirements of section (a)(7) of the Privacy Act because the disclosure would not be "compatible with the purpose for which the information is collected."(5)
Exceptions at 10.
The Union argues that the Arbitrator's award is consistent with the Privacy Act. The Union asserts that disclosure of the information encompassed by the repudiated provisions would not result in a clearly unwarranted invasion of employees' privacy and that, insofar as INS holds otherwise, that decision is "inconsistent with previous decisions of the Authority . . . ." Opposition at 10. The Union also asserts that disclosure is consistent with the routine use exception to the Privacy Act because the disputed information is relevant and necessary to the Union as the exclusive representative of unit employees.
IV. Analysis and Conclusions
The Privacy Act, which governs disclosure of "any record which is contained in a system of records," generally prohibits the disclosure of personal information about Federal employees without their consent. 5 U.S.C. § 552a(b). There is no dispute that the disputed documents constitute records within a system of records under the Privacy Act.
As noted previously, exception (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 FOIA. Under the FOIA, information must be disclosed unless it falls within one of the enumerated exemptions. As relevant here, exemption (b)(6) authorizes the withholding of information in "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." The disputed documents are contained in such files and, therefore, are covered by this exemption. See Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410, 1424 (1991) (Mare Island).
In determining whether disclosure of information would constitute a clearly unwarranted invasion of personal privacy, we balance the "employee's right to privacy . . . against the public's interest in disclosure." United Power Trades Organization and U.S. Department of the Army, Corps of Engineers, Walla Walla, Washington, 44 FLRA 1145, 1179 (1992) (citations omitted) (Corps of Engineers). In so balancing, we have concluded that a proposal which required an agency to disclose to a union unsanitized proposed disciplinary and adverse action letters would result in a clearly unwarranted invasion of the affected employees' personal privacy, within the meaning of exemption (b)(6) of the FOIA. Id. See also Mare Island, 38 FLRA at 1425; INS, 37 FLRA at 1364.(6) We noted, in this connection, that "'there 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.'" Corps of Engineers, 44 FLRA at 1181 (quoting INS, 37 FLRA at 1363).
No basis is presented in this case for reaching a conclusion different from that reached in the foregoing cases.(7) Accordingly, we find that compliance with the disputed provisions would result in the disclosure of information which would, in turn, result in a clearly unwarranted invasion of personal privacy under exemption (b)(6) of the FOIA. As such, disclosure is not authorized under exception (b)(2) of the Privacy Act.
B. Routine Use
We note, at the outset, that the Privacy Act does not bar disclosure of information authorized by any exemption to the Act and that each exemption operates independently. Accordingly, even if disclosure of requested information is not required under the FOIA and, as a result, not authorized by exception (b)(2) of the Privacy Act, such information may be disclosed to a routine user under exception (b)(3). For example, Federal Labor Relations Authority v. U.S. Department of the Treasury, Financial Management Service, 884 F.2d 1446, 1453 (D.C. Cir. 1989). Moreover, contrary to the Agency's assertion, the Authority did not implicitly hold that the disputed information in INS was not disclosable pursuant to a routine use. Instead, that issue was neither raised by the parties nor considered by the Authority. As such, the Authority's decision in INS did not resolve the issue.
As noted previously, exception (b)(3) of the Privacy Act authorizes the disclosure of otherwise nondisclosable information when disclosure is "for a routine use." See note 3. Two conditions must be satisfied for such disclosure. First, a routine use may encompass only such use as "is compatible with the purpose for which [the information] was collected." 5 U.S.C. § 552a(a)(7). Second, a routine user must qualify under a routine use statement published in the Federal Register by the agency having custody of the records. 5 U.S.C. § 552a(e)(4)(D).
The Agency concedes that OPM's routine use notices apply only to records of adverse and performance-based actions. Put simply, it is clear and undisputed that OPM's notices do not apply to records of disciplinary actions. See Exceptions at 5-6 and note 3. Therefore, we will apply the Agency's routine use notice to determine whether disclosure of the information encompassed by Article 31 ("Disciplinary Actions") is authorized and OPM's routine use notices to determine whether disclosure of the information encompassed by Articles 32 ("Adverse Actions") and 33 ("Unacceptable Performance Actions") is authorized.
1. Disciplinary Records
The Agency concedes that the disciplinary records encompassed by Article 31 are maintained in Agency System .007 and that the Union, "as the recognized bargaining representative, is recognized by [the Agency's] routine use notice as a routine user" of such records. Exceptions at 5.(8) Based on the record, therefore, we conclude that disclosure of the disciplinary records required by Article 31 is consistent with the Agency's routine use notice and is authorized by exception (b)(3) of the Privacy Act.(9) Accordingly, even though, as we found above, disclosure of the information encompassed by the disputed portion of Article 31 is not required by the FOIA and, thereby, is not authorized by exception (b)(2) of the Privacy Act, we find that such disclosure is not inconsistent with the Privacy Act. Therefore, we reject the Agency's exception to the Arbitrator's award insofar as it concerns Article 31.
2. Adverse and Performance-Based Actions
The repudiated portions of Articles 32 and 33 require the Agency to disclose to the Union copies of proposed adverse and performance-based actions. It is undisputed that, since February 5, 1990, records of these actions have been maintained in an OPM system of records (OPM/GOVT-3) and have been covered by an OPM routine use notice. The OPM routine use notice applicable to OPM/GOVT-3, most recently republished without change at 57 Fed. Reg. 35712 (August 10, 1992), provides under routine use "a" that documents in the system may be used:
To provide 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 work conditions.
The Authority has held that the standard for determining whether disclosure to a union is authorized under this routine use statement is the same as that used to determine whether requested information is necessary under section 7114(b)(4) of the Statute. U.S. Department of Labor, Washington, D.C., 39 FLRA 531, 542 (1991) (Labor), remanded on other grounds sub nom. U.S. Department of Labor v. FLRA, No. 91-1174 (D.C. Cir. Jan. 7, 1992) (unpublished), Decision on Remand, 44 FLRA 1540 (1992). In so holding the Authority relied on its previous interpretation of a separate, but identically worded, routine use statement (use "j") applicable to a different system of records (OPM/GOVT-1). Labor, 39 FLRA at 543.
More particularly, the Authority referenced and relied on its previous decisions concerning the disclosure to unions, as routine users under use "j" of OPM/GOVT-1, of home addresses of bargaining unit employees. For example, Portsmouth Naval Shipyard, 37 FLRA at 537-41. In those decisions, the Authority noted OPM's position that information could be deemed necessary and, thereby, disclosed under use "j" only when, among other things, adequate alternative means of satisfying a union's need for requested information were unavailable. The Authority refused to defer to OPM's interpretation of routine use "j," however, because, in the Authority's view, that routine use was "little more than a codification of previously established Federal sector labor law principles[,]" and because the interpretation was promulgated in litigation documents instead of through the more traditional methods of publication in the Federal Personnel Manual. Id. at 539. The Authority's refusal to defer to OPM's interpretation of routine use "j" was affirmed by the U.S. Court of Appeals for the Third Circuit. Federal Labor Relations Authority v. U.S. Department of the Navy, 966 F.2d 747, 762 (3d Cir. 1992) (en banc) ("[U]ntil the OPM publishes its interpretation in a manner sufficient to place the public on notice of both the existence and content of that interpretation, we will not defer to the OPM's interpretation.").(10)
On September 17, 1992, OPM published FPM Letter 711-164. The stated purpose of the Letter is:
[T]o provide guidance to agencies on the application of the Privacy Act to information requested by certified unions and contained in systems of records administered by OPM, but maintained by, and in the possession of, employing agencies. This guidance confirms longstanding policy guidance and interpretations.
Id. at 1. The Letter applies, as relevant here, to OPM/GOVT-1 and OPM/GOVT-3. Id. n.1.
As noted previously, the routine uses for OPM/GOVT-3, the system of records in which the information encompassed by Articles 32 and 33 is maintained, were recently republished in the Federal Register. 57 Fed. Reg. 35712 (August 10, 1992). Although it was republished, the wording of routine use "a," which is relevant here, has remained unchanged since its promulgation in February 1990.(11) In this regard, there is no basis on which to disagree with OPM's statement that the interpretation of routine use "a" contained in the FPM Letter merely confirms its preexisting interpretation of the routine use. Moreover, there also is no basis on which to conclude that the FPM Letter was not properly promulgated or, for any other reason, should not be applied here. In these circumstances, we conclude that, although routine use "a" and the Statute are worded similarly, it no longer is appropriate for the Authority to interpret the routine use as a mere codification of Federal sector labor law principles. We conclude, therefore, that FPM Letter 711-164 governs interpretation of routine use "a" for OPM/GOVT-3 and previous decisions applying a different interpretation will no longer be followed.
FPM Letter 711-164 provides the following general guidance:
Under OPM's routine uses, a recognized union's access to information from Privacy Act systems of records is not unconditional. The requestor representing the union must demonstrate to the system manager that the information requested is both "relevant" to the express purpose for which it is sought, and "necessary" for that purpose. By "relevant" OPM means that the nature of the information bears a traceable, logical, and significant connection to the purpose to be served. "Necessary" means that there are no adequate alternative means or sources for satisfying the union's informational needs. This "adequate alternative" test must be applied on a case-by-case basis.
Id. at 2. The Letter contains "two types of broad guidelines that apply, depending on whether the union is seeking home addresses or other types of information about individuals." Id. With respect to "other types of information," which would include the adverse and performance-based records encompassed by the repudiated portions of Articles 32 and 33 in this case, the Letter states:
Unions will often cite a generalized need for information about agency actions with respect to individual employees. For example, the union may ask for lists of employees who have been counseled or disciplined within a specific timeframe, stating that it needs the information in order to consider whether or not to file a grievance. Agencies must apply a two-step analysis in determining whether the requested information is releasable. First, the union must show that the information is "relevant" to carrying out its representational obligations. For example, a dispute may not be grievable under the parties' collective bargaining agreement and, if that is the case, information pertaining to it is not "relevant."
Second, if the agency determines that the information is "relevant," it must also determine that the information is in fact "necessary." The union must show that it has a particularized need for the information in a form that identifies specific individuals, and that its information needs cannot be satisfied through less intrusive means, such as by releasing records with personally-identifying information deleted.
Id. at 3.
It is clear, at the outset, that OPM interprets routine use "a" as requiring "case-by-case" application. Id. at 2. In this connection, it also is clear that such case-by-case application necessitates, in OPM's view, agency determinations that specific employees' records are both relevant, using OPM's definition, and necessary. In the latter connection, determinations regarding the necessity of information require case-by-case inquiries into alternative means, including the provision of sanitized information, of satisfying a union's need for information. The repudiated portions of Articles 32 and 33, on the other hand, require blanket disclosure of unsanitized adverse and performance-based action proposals. The Agency would not be permitted, under the provisions, to make case-by-case determinations regarding the relevance and necessity of the documents and the Union could not be required to demonstrate "a particularized need for the information in a form that identifies specific individuals[.]" Id.
We conclude, based on the foregoing, that the disputed portions of Articles 32 and 33 require the disclosure of information beyond that authorized by routine use "a" in OPM/GOVT-3. As such, the articles are not encompassed by exception (b)(3) of the Privacy Act and disclosure of the information required by the articles is inconsistent with the Act.
In sum, the disputed portions of Articles 32 and 33 require the disclosure of information which would result in a clearly unwarranted invasion of employees' personal privacy, within the meaning of exemption (b)(6) of the FOIA. Accordingly, disclosure of the information encompassed by these Articles is not required by the FOIA or, thereby, authorized by exception (b)(2) of the Privacy Act. Similarly, the disputed portions of Articles 32 and 33 require the disclosure of information beyond that authorized by the applicable routine use statement. As such, disclosure of that information is not authorized by exception (b)(3) of the Privacy Act. As the information encompassed by Articles 32 and 33 is not authorized by either relevant exception to the Privacy Act, disclosure of that information is inconsistent with the Act and the Arbitrator's award requiring compliance with those Articles is contrary to law.(12)
The disputed portion of Article 31 also would require the disclosure of information which is not required by the FOIA and, thereby, authorized by exception (b)(2) of the Privacy Act. However, the Agency concedes that this information is contained in an Agency (not OPM) system of records for which the Union is an authorized routine user. As such, disclosure of the information encompassed by Article 31 is authorized by exception (b)(3) of the Privacy Act. Therefore, we will deny the Agency's exception to the portion of the Arbitrator's award addressing Article 31.
The Arbitrator's award is set aside insofar as it requires the Agency to comply with Article 32, section 7 and Article 33, section 2(C) of the parties' agreement. The Agency's exceptions to the portion of the award concerning Article 31, section 7 are denied.
(If blank, the decision does not have footnotes.)
1. Article 2, section 2 provides, in pertinent part:
Should any part of this Agreement . . . be rendered or declared invalid, such invalidation . . . shall not invalidate the remaining portions of this Agreement, and they shall remain in full force and effect.
Award at 3.
2. Exception (b)(2) of the Privacy Act, 5 U.S.C. § 552a(b)(2), authorizes disclosure of information that "would be required under [the FOIA]."
3. Exception (b)(3) authorizes disclosure of records in a system of records when disclosure is "for a routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D) of this section[.]"
4. The Agency notes, however, that "OPM has not published any routine use notice for disciplinary actions." Exceptions at 6 n.3.
5. 5 U.S.C. § 552a(a)(7) provides:
the term "routine use" means, with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected.
6. We reject the Union's argument that INS should not be applied here because that decision is inconsistent with other Authority decisions. In INS, 37 FLRA at 1360-66, the Authority discussed the decisions cited by the Union and found no inconsistency. The Authority also noted, however, that insofar as those decisions suggested that a union's interests in disclosure of information relating to disciplinary and adverse actions would always outweigh employees' privacy interests, those decisions would no longer be followed. Id. at 1365.
7. In Corps of Engineers, we identified the public interest as that "embodied in the Statute." 44 FLRA at 1179 (citing U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990) (Portsmouth Naval Shipyard), enforcement denied sub nom. Federal Labor Relations Authority v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 941 F.2d 49 (1st Cir. 1991)). However, we would reach the same conclusion if we balanced employees' privacy interests against the narrower public interest determined under the 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).
8. The applicable Agency routine use (use "e") provides for disclosure of documents in ATF System .007 to: "Unions recognized as exclusive bargaining representatives under the Civil Service Reform Act of 1978, 5 U.S.C. 7111 and 7114." 55 Fed. Reg. 6279 (March 1, 1988). Jt. Exh. 7 (attached to Agency's exceptions).
9. It is not clear whether the Agency is arguing that, although the Union is a recognized routine user of disciplinary records, disclosure of such records nevertheless would be incompatible with the purpose for which the records were collected. In this regard, as noted previously at note 5, "routine use" is defined, in part, as use which is compatible with the purpose for which requested information is requested. However, insofar as the Agency argues that disclosure would not be compatible with the purpose for which the records were collected, we reject the argument for the reasons set forth in ATF, 41 FLRA at 1132-33.
10. Other courts have disagreed with the Authority's refusal to defer to OPM's interpretation of routine use "j": FLRA v. United States Department of the Navy, Navy Exchange, Naval Training Station, Naval Hospital, Great Lakes, Illinois, No. 90-3178 (7th Cir. Sept. 16, 1992); FLRA v. United States Department of Veterans Affairs, Washington, D.C. and United States Department of Veterans Affairs Medical Center, Newington, Connecticut, 958 F.2d 503 (2d Cir. 1992); FLRA v. Department of the Navy, Naval Resale Activity, Naval Air Station-Memphis, Millington, Tennessee, 963 F.2d 125 (6th Cir. 1992); FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 941 F.2d 49 (1st Cir. 1991); FLRA v. Department of the Treasury, Financial Management Service, 884 F.2d 1446 (D.C. Cir. 1989) cert. denied, 110 S. Ct. 863 (1990). Three courts have found it unnecessary to address the issue: FLRA v. United States Department of Defense, United States Department of the Navy, Washington, D.C. and Navy CBC Exchange, Construction Battalion Center, Gulfport, Mississippi, No. 90-4722 (5th Cir. Oct. 9, 1992); FLRA v. U.S. Department of the Navy, Navy Resale and Services Support Office, Field Support Office, Auburn, Washington, 958 F.2d 1490 (9th Cir. 1992), petition for rehearing and suggestion for rehearing en banc pending; FLRA v. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, 954 F.2d 994 (4th Cir. 1992), petition for rehearing en banc granted.
11. We note, in this regard, that the Agency notified the Union that it would no longer comply with Articles 32 and 33 in January 1991, after the disputed adverse and performance-based action records became subject to OPM/GOVT-3.