51:0530(47)CA - - VA Regional Office, St Petersburg, FL and AFGE Local 1594 - - 1995 FLRAdec CA - - v51 p530



[ v51 p530 ]
51:0530(47)CA
The decision of the Authority follows:


51 FLRA No. 47

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF VETERANS AFFAIRS

REGIONAL OFFICE

ST. PETERSBURG, FLORIDA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1594

(Charging Party/Union)

AT-CA-30091

_____

DECISION AND ORDER

November 29, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Regulations, based on a stipulation of facts by the parties who have agreed that no material issue of fact exists. The Respondent and the General Counsel have filed briefs. In addition, in response to the Authority's Order dated March 11, 1994, both parties filed supplemental briefs addressing the applicability of United States Department of Defense v. FLRA, 510 U.S.___, 114 S. Ct. 1006 (1994) (Department of Defense).(1)

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 provide the Union with a "last chance agreement" requested under section 7114(b)(4) of the Statute.(2)

For the reasons stated below, we find that disclosure of the requested last chance agreement is prohibited by the Privacy Act, 5 U.S.C. § 552a.(3) Accordingly, the Respondent was not obligated to furnish the agreement and its refusal to do so did not violate the Statute. 

II. Stipulation

The American Federation of Government Employees, Local 1594 (the Union) is the exclusive representative of a unit of employees at the U.S. Department of Veterans Affairs, Regional Office, St. Petersburg, Florida (Respondent).

The parties stipulated that the Respondent proposed the removal of a bargaining unit employee (hereinafter Employee A), based on her performance. In response to the proposal, Employee A submitted two doctors' letters and a written reply in which she discussed her performance, her medical conditions, and possible accommodations to those conditions that the Respondent could provide. Employee A met with management and orally replied to the proposed removal. Employee A declined Union representation at that meeting and in other matters connected to her proposed removal. Thereafter, the Respondent issued Employee A a decision on her proposed removal. Attached to the decision was a "last chance agreement" which Employee A subsequently signed.

The Union subsequently informed the Respondent by letter that, in its view, the oral reply meeting constituted a formal discussion within the meaning of section 7114(a)(2)(A) of the Statute and, therefore, the Respondent had violated the Statute and the parties' agreement by failing to give the Union the opportunity to be present at the meeting.(4) The Union also requested the Respondent to provide it with copies of all agreements reached between Employee A and the Respondent concerning Employee A's employment or annual performance for the then current performance period. The Respondent denied the Union's request on the ground that the Privacy Act barred disclosure of the requested information. The Respondent noted that the Union did not represent Employee A in this matter, and that the document was releasable only with Employee A's consent.

From the time of the Respondent's denial to the time when the parties submitted their joint stipulation to the Authority, there were no further communications between the parties. During the same period, Employee A also declined to provide the Union with a copy of the agreement.

III. Positions of the Parties

A. General Counsel

The General Counsel states that the last chance agreement is not barred from disclosure by Exemption 6 of the FOIA. The General Counsel claims that the public has a "legitimate interest in information about any new or existing policies with respect to the way the agency handles performance problems or the way in which an agency accommodates employees with handicaps or other medical problems." G.C. Supplemental Brief, April 1, 1994 at 3. Moreover, citing Department of Housing and Urban Development, San Francisco, California, 40 FLRA 1116 (1991), the General Counsel asserts that the employee's decision not to be represented by the Union does not diminish the Union's right to the information, especially in removal cases. The General Counsel asserts that the last chance agreement is also disclosable under the Privacy Act's routine use exception because it is relevant and necessary to the Union's ability to carry out its broad representational responsibilities under the Statute. The General Counsel asserts that the Union requires the information to determine whether the meeting with Employee A constituted a formal discussion and whether the Union was improperly excluded from that discussion.

In addition, the General Counsel contends that the information is necessary, within the meaning of section 7114(b)(4) of the Statute. Citing American Federation of Government Employees, AFL-CIO, Local 1345 v. FLRA, 793 F.2d 1360, 1365 (D.C. Cir. 1986), the General Counsel claims that the Union has a compelling need for information related to unit employees' proposed terminations and dismissals, including last chance agreements.

B. Respondent

The Respondent claims that disclosure of the last chance agreement is prohibited by the Privacy Act because it would constitute a clearly unwarranted invasion of personal privacy within the meaning of Exemption 6 of the FOIA. The Respondent states that there are few workplace matters that evoke such significant privacy interests as disciplinary and adverse actions and that release of information connected to such actions could cause an employee personal embarrassment and have a stigmatizing effect. In addition, the Respondent claims that, as the Union requested only Employee A's agreement, sanitization of the agreement would not protect the employee's identity and privacy interests.

The Respondent also claims that the information is not disclosable under the routine use exception to the Privacy Act because the information is neither relevant nor necessary within the meaning of Federal Personnel Manual (FPM) Letter 711-164 (Sept. 17, 1992). The Respondent claims that the last chance agreement has no traceable, logical or significant connection to the Union's claim that the Agency wrongfully denied the Union the right to be present at the formal discussion with Employee A. The Respondent also asserts that the Union has not shown that the Union's need to ascertain whether the discussion with Employee A was formal could not have been obtained through less intrusive means.

Finally, the Respondent contends that the Union has failed to demonstrate that the last chance agreement was necessary, within the meaning of section 7114(b)(4) of the Statute. According to the Respondent, the last chance agreement is not necessary because the Union did not have a right to be present at the meeting.

IV. Analysis and Conclusions

For the following reasons, we find that disclosure of the requested information is barred by the Privacy Act because the disclosure would constitute a clearly unwarranted invasion of personal privacy, under FOIA Exemption 6, and is not authorized under the routine use exception. Accordingly, without addressing whether the information is necessary, within the meaning of section 7114(b)(4) of the Statute, we conclude that the Respondent did not violate the Statute by refusing to provide the information.

A. Disclosure of the Requested Information Would Constitute a Clearly Unwarranted Invasion of Privacy Under FOIA Exemption 6

In U.S. Department of Transportation, Federal Aviation Administration, New York TRACON, Westbury, New York, 50 FLRA 338, 345 (1995) (FAA), which involved the disclosure of performance appraisals of bargaining unit employees, we set forth the analytical approach we will follow in assessing an agency's claim that disclosure of information requested under section 7114(b)(4) of the Statute would constitute a clearly unwarranted invasion of personal privacy within the meaning of Exemption 6 of the FOIA and, therefore, is prohibited by the Privacy Act. As we explained in FAA, an agency asserting that the Privacy Act bars disclosure is required to demonstrate: (1) that the requested information is contained in a "system of records" under the Privacy Act; (2) that disclosure of the information would implicate employee privacy interests; and (3) the nature and significance of those privacy interests. If the agency makes the requisite showings, the burden shifts to the General Counsel to: (1) identify a public interest that is cognizable under the FOIA; and (2) demonstrate how such disclosure will serve that public interest. Although the parties bear these burdens, we will, where appropriate, consider matters that are otherwise apparent.

We held in FAA, for reasons fully explained there, that the only relevant public interest to be considered in this context is the extent to which the requested disclosure would shed light on the agency's performance of its statutory duties, or otherwise inform citizens as to the activities of the Government. More particularly, we held that the public interest in collective bargaining that is embodied in the Statute, or specific to a union in fulfilling its obligations under the Statute, will no longer be considered in our analysis under Exemption 6 of the FOIA.

Once the relevant interests are established, we will balance the privacy interests of employees against the public interest in disclosure. Where this balance leads us to conclude that the privacy interests are greater than the public interest at stake, we will find that the requested disclosure would constitute a clearly unwarranted invasion of personal privacy under Exemption 6 and, therefore, that disclosure is "prohibited by law" under section 7114(b)(4) of the Statute; accordingly, the agency is not required to furnish the information, unless disclosure is permitted under another exception to the Privacy Act. In contrast, where the balance tips the other way, because the public interest is greater than the privacy interests, we will conclude that disclosure would be required under the FOIA and, therefore, is not prohibited by the Privacy Act.(5)

In applying this analytical framework to the case before us, we note that the parties have stipulated that the requested last chance agreement is contained in an OPM system of records, OPM-GOVT 3. In addition, we find that both the Respondent and the General Counsel have demonstrated, respectively, that disclosure of the information would implicate employee privacy interests and serve the public interest.

With regard to the employee's privacy interests, the courts and the Authority have recognized that release of unsanitized information about disciplinary and adverse actions implicates significant privacy interests. See U.S. Department of Labor, Washington, D.C., 51 FLRA No. 41, slip op. at 10 (1995) (DOL). This finding is consistent with the conclusions reached by courts reviewing claims under Exemption 6 of the FOIA. See Department of the Air Force v. Rose, 425 U.S. 352, 377 (1976); Chamberlain v. Kurtz, 589 F.2d 827, 841-42 (5th Cir. 1979), cert. denied, 444 U.S. 842 (1979). Moreover, Employee A refused to approve release of the last chance agreement to the Union and chose not to have the Union act as her representative. These facts indicate that the employee's privacy interests are implicated and that the employee wishes not to disclose such embarrassing and stigmatizing information to the Union. See Federal Aviation Administration, New York TRACON, Westbury, New York, 51 FLRA 115, 122 (1995) (FAA, Westbury).

With regard to the public interest in disclosure, we find, in agreement with the General Counsel, that the release of the last chance agreement would shed light on how the agency accommodates employees with medical or handicapping conditions who are facing removal for performance reasons. In this regard, we note that the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (1988), imposes a duty on Federal agencies to make reasonable accommodations for such employees, unless an agency can show that to do so would impose undue hardship on its operations.(6) See American Federation of Government Employees, Local 2921 and U.S. Department of Defense, Army and Air Force Exchange Service, Dallas, Texas, 50 FLRA 69, 72 (1994); U.S. Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 42 FLRA 1186, 1192 (1991) (citing Rodgers v. Lehman, 869 F.2d 253, 258 (4th Cir. 1989)). Thus, Congress has recognized a public interest in how Federal agencies accommodate employees with handicapping conditions.

However, there is no indication that disclosure of the last chance agreement in a name-identified form would enhance the foregoing public interest. See DOL, 51 FLRA No. 41 at 10-11. See also FAA, Westbury, 51 FLRA at 122-23 (disclosure of EEO settlement agreement with personally identifying information did not enhance the extent to which the public interest in monitoring agency actions is served). Cf. Norwood v. Federal Aviation Administration, 993 F.2d 570, 575 (6th Cir. 1993) (disclosure of settlement agreements for reinstatement of fired air traffic controllers, redacted of directly identifying data, served the public purpose of monitoring agency operations). Moreover, because the last chance agreement was requested for only one name-identified employee, it is not possible to protect the identity of the individual whose privacy is at stake. See FAA, Westbury, 51 FLRA at 122; Schonberger v. National Transportation Safety Board, 508 F. Supp. 941, 945 (D.D.C. 1981). Although disclosure of the unsanitized last chance agreement might assist the Union in performing its representational functions, this interest is specific to the Union as the requesting party and, as such, may not be considered in assessing the public interest under FOIA Exemption 6. See FAA, 50 FLRA at 349.

Based on the foregoing, the weight of judicial and Authority precedent supports a conclusion that the public interest that would be served by disclosure of the last chance agreement is outweighed by the invasion of privacy that would result therefrom. Accordingly, we find that disclosure of the agreement would constitute a clearly unwarranted invasion of personal privacy, within the meaning of Exemption 6 of the FOIA.

B. Disclosure of the Requested Information Is Not Authorized Under the Routine Use Exception to the Privacy Act

OPM's routine use statement for the OPM-GOVT 3 system of records, identified as routine use "a," provides that records may be disclosed "to officials of labor organizations recognized under 5 U.S.C. chapter 71 when relevant and necessary to their duties of exclusive representation." 57 Fed. Reg. 35710 (1992). Accordingly, to determine whether the routine use exception applies to the requested information, we must decide whether the requested information is "relevant and necessary," within the meaning of routine use "a."

OPM issued "guidance to agencies" for interpreting these terms in FPM Letter 711-164, which was published on September 17, 1992. When the FPM was abolished on December 31, 1993, the Letter, along with certain other parts of the FPM, was provisionally retained through December 31, 1994. For the reasons set forth in U.S. Department of Transportation, Federal Aviation Administration, Little Rock, Arkansas, 51 FLRA No. 24, slip op. at 8-11 (1995), we apply the FPM Letter's guidance in deciding this case.

The FPM Letter contains two requirements that a union must satisfy in order to establish that the requested information is consistent with routine use "a": (1) the information is "relevant" to the express purpose for which it is sought, meaning that the nature of the information must bear a traceable, logical, and significant connection to the purpose to be served; and (2) the information is "necessary," meaning that there are no adequate alternative means or sources for satisfying the union's informational needs. In clarifying this second requirement, the FPM Letter explains that it is to be determined on a case-by-case basis; 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."

Addressing first the standard of "relevance," and looking at the ordinary meaning of the terms "traceable," "logical," and "significant,"(7) it is necessary to examine the relationship between the last chance agreement and the purpose for which it was sought: to ascertain whether the oral reply meeting with Employee A constituted a formal discussion from which the Union was improperly excluded.(8) We note that, in determining whether a discussion is "formal," within the meaning of section 7114(a)(2)(A), the Authority considers a number of relevant factors: (1) the position in the management hierarchy occupied by the individual who held the meeting; (2) whether any other management representatives attended; (3) where the discussion took place (i.e., in the supervisor's office, at each employee's desk, or elsewhere); (4) how long the discussion lasted; (5) how the meeting was called (i.e., with formal advance written notice or more spontaneously and informally); (6) whether a formal agenda was established; (7) whether employee attendance was mandatory; and (8) the manner in which the meeting was conducted (i.e., whether the employee's identity and comments were noted or transcribed). See, e.g., Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 475, 477 (1984).

The General Counsel has not shown how a last chance agreement bears a traceable, logical, and significant connection to the Union's stated purpose of determining whether the oral reply meeting was formal within the meaning of section 7114(a)(2)(A). Furthermore, it is not apparent to us how the contents of the agreement could disclose the specifics of the meeting or indicate whether the meeting met the above mentioned indicia of formality.

Moreover, in this case our analysis is informed by our in camera examination of the last chance agreement itself. This examination confirms that the agreement does not bear a traceable, logical, and significant connection to the Union's stated purpose for requesting the document. The last chance agreement sets forth management's terms and conditions governing Employee A's future performance. The agreement contains no reference to the oral reply meeting in general, or any information that pertains to the specific indicia of formality set forth above. We have also examined the other related documents that were submitted to us under seal and find that the only mention of the oral reply meeting is contained in the Respondent's cover letter to the last chance agreement. The cover letter indicates that management considered six matters in reaching the decision to offer Employee A the last chance agreement, and that one of those six was Employee A's oral reply made during the disputed meeting. However, the cover letter contains no details regarding the oral reply meeting.

Based on our examination of the record as a whole, and applying the FPM Letter's "relevance" standard, we conclude that the record does not demonstrate that the last chance agreement is likely to affect the purpose for which it was sought. Accordingly, we conclude that the requested last chance agreement has not been shown to be relevant to that express purpose. Therefore, without deciding whether the information is "necessary" under the requirements of the FPM Letter, we conclude that the information sought by the Union is not disclosable as a routine use under section 552a(b)(3) of the Privacy Act.

In summary, we conclude that, as disclosure of the requested last chance agreement would constitute a clearly unwarranted invasion of personal privacy, within the meaning of Exemption 6 of the FOIA, and as release of the information is not authorized as a routine use under section 552a(b)(3) of the Privacy Act, such disclosure is prohibited by law within the meaning of section 7114(b)(4) of the Statute. Accordingly, the Respondent's failure to provide the Union with the requested information did not violate section 7116(a)(1), (5), and (8) of the Statute.

V. Order

The complaint is dismissed.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The General Counsel also filed a brief concerning whether the requested information is necessary within the meaning of section 7114(b)(4) of the Statute, in response to a Federal Register notice, 59 Fed. Reg. 63995 (1994).

2. In general, a "last chance agreement" is a contract between an employee and an employer that gives the employee an opportunity to conform his/her conduct or performance to meet the employer's requirements in exchange for the retraction of disciplinary or adverse actions. American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 309, n.1 (1990) enforced sub nom. U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio v. FLRA, 949 F.2d 475 (1992).

3. The Privacy Act regulates the disclosure of any information contained in an agency "record" within a "system of records," as those terms are defined in the Privacy Act, that is retrieved by reference to an individual's name or some other personal identifier. 5 U.S.C. § 552a(a)(4), (5). With certain enumerated exceptions, the Privacy Act prohibits the disclosure of personal information about Federal employees without their consent. Two exceptions to this prohibition are relevant here. First, exception (b)(2) of the Privacy Act, 5 U.S.C. § 552a(b)(2) (the Freedom of Information Act or FOIA exception), provides that the prohibition against disclosure is not applicable if disclosure of the requested information would be required under the Freedom of Information Act, 5 U.S.C. § 552. Exemption (b)(6) of the FOIA (Exemption 6) provides, in turn, that information contained in "personnel and medical files and similar files" may be withheld if disclosure of the information would result in a "clearly unwarranted invasion of personal privacy[.]" 5 U.S.C. § 552(b)(6). If such an invasion would result, then disclosure is not required by the FOIA. Second, exception (b)(3) of the Privacy Act, 5 U.S.C. § 552a(b)(3) (the routine use exception), provides for release of information "for a routine use as defined in section (a)(7) . . . ." A "routine use" is defined in section (a)(7) as the use of covered information "for a purpose which is compatible with the purpose for which it was collected."

4. The record does not disclose whether the Union pursued its claim that the oral reply meeting constituted a formal discussion. That claim is not before us in this case.

5. As we noted in FAA, a finding that disclosure is not prohibited by law does not end the inquiry into whether an agency's failure to disclose requested information violates the Statute. In order to sustain such a violation, we must find that all of the requirements of section 7114(b)(4) have been met. FAA, 50 FLRA at 345.

6. The record discloses that Employee A claims that certain physical conditions affected her performance.

7. In U.S. Department of the Interior, Bureau of Mines, Pittsburgh Research Center, 51 FLRA No. 28, slip op. at 9, n.7 (1995), we stated that according to Webster's Third New International Dictionary (unabridged) (1986), traceable is defined as "suitable or of a kind to be attributed: Due, Ascribable"; logical means "that [which] is in accordance with inferences reasonably drawn from preceding or surrounding or predictable facts or events or circumstances"; and significant refers to "having or likely to have influence or effect." The Authority occasionally refers to dictionary definitions of terms to supply meaning where none has otherwise been provided. For example, American Federation of Government Employees, Local 31 and U.S. Department of Veterans Affairs Medical Center, Wade Park Unit, Cleveland, Ohio, 49 FLRA 957, 958 n.2 (1994). See also U.S. Department of the Army, Red River Depot, Texarkana, Texas v. FLRA, 977 F.2d 1490, 1492 (D.C. Cir. 1992) (court found that Authority's adoption of dictionary definition of statutory term was permissible).

8. In its information request, the Union stated only that it needed the last chance agreement because "[t]his secret agreement[,] made between [Employee A] and the agency[,] was in direct violation" of its right to be present at an oral reply meeting. Exhibit F. The General Counsel asserted that the last chance agreement also was necessary to assist the union in carrying out its full range of responsibilities under the Statute, particularly as they relate to employee removals. To the extent that this is an additional, different reason for the request, and not merely a clarification or explanation of the reason previously given by the Union, we will not consider it in determining whether the information is relevant, within the meaning of routine use "a." Basing our determination on the reasons stated by the Union for the information is consistent with FPM Letter 711-164, which requires a requestor of information to "demonstrate to the system manager" of the agency that the information is relevant and necessary, and with Authority precedent construing the obligation to provide a union with "necessary" information under sec