51:0675(59)CA - - Air Force, Scott AFB, IL and NAGE, Local R7-23, SEIU, AFL-CIO - - 1995 FLRAdec CA - - v51 p675
[ v51 p675 ]
The decision of the Authority follows:
51 FLRA No. 59
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF THE AIR FORCE
SCOTT AIR FORCE BASE, ILLINOIS
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
LOCAL R7-23, SEIU, AFL-CIO
38 FLRA 410 (1990)
45 FLRA 120 (1992)
DECISION AND ORDER ON REMAND
December 22, 1995
Before the Authority: Phyllis N. Segal, Chair and Tony Armendariz, Member.
I. Statement of the Case
This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit. Department of the Air Force, Scott Air Force Base v. FLRA, 956 F.2d 1223 (D.C. Cir. 1992) (Scott AFB v. FLRA). The Authority remanded the case to the Administrative Law Judge because the record was not sufficient to make the determinations required by the court's remand. Decision and Order on Remand, 45 FLRA 120 (1992).
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 documentation concerning disciplinary action taken against a supervisor who allegedly had used physical force against a bargaining unit employee. The Judge concluded that the Respondent violated the Statute as alleged. The Judge's supplemental decision is now before the Authority pursuant to exceptions filed by the Respondent.(1)
For the reasons discussed below, we conclude that the Respondent violated section 7116(a)(1), (5), and (8) by refusing to release to the Union information that is necessary for the Union to determine whether to proceed to arbitration and is otherwise disclosable under section 7114(b)(4) of the Statute. We modify the Judge's recommended order to condition the Respondent's obligation to provide the requested information on the Union's agreement to limit its dissemination.
As detailed more fully by the Judge in his supplemental decision and in our original Decision and Order, 38 FLRA 410 (Scott AFB I), the Union seeks information concerning any disciplinary action taken against a supervisor for using physical force against a unit employee, as alleged in a grievance filed on behalf of the employee. The grievance also alleged that the supervisor had "a long history of erratic and volatile behavior" and that, because of the nature of the work involving "sharp knives, saws and other dangerous factors[,]" his "actions serve to create an improper and unsafe work environment." Joint Exh. 3.(2) The grievance sought a remedy requiring the Respondent to give the supervisor a medical examination to determine his fitness to continue in his supervisory position and a 30-day suspension. In denying the grievance, the Respondent stated that management had proposed a written reprimand and that "[t]he process of disciplining a management official is not within the purview of the union." Joint Exh. 4.
After the pre-arbitration step of the negotiated grievance procedure, the Respondent again denied the grievance, stating, in part, that "[a]ppropriate action has been taken regarding the supervisor involved in this grievance." Joint Exh. 6. After the Union invoked arbitration, it requested information concerning any disciplinary action taken against the offending supervisor "as referenced in" the Respondent's denial of the grievance. G.C. Exh. 2. The Union stated that it needed the information "in order to prepare the case for arbitration, specifically in regards [sic] to the remedial actions requested." Id. In response to the Respondent's request for clarification of the reason for the request, the Union stated:
We need this information to determine if the requested remedy of disciplinary action against the supervisor was in fact taken, and what that action was. Upon our review of this information, we may well conclude that no further action i[s] warranted in this case. In other words, we need this to assess the need to pursue arbitration.
G.C. Exh. 4. The Respondent declined to provide the information because it "identified the supervisor by name." G.C. Exh. 5. The arbitration hearing is in abeyance pending the outcome of this case.
B. Procedural History
In Scott AFB I, the Authority agreed with the Judge's conclusion that all the information sought by the Union was contained in the final decision letter prepared by the Respondent regarding the discipline of the supervisor. 38 FLRA at 416. The Authority concluded that the Union was entitled to the final decision letter
to evaluate the grievance, [to] decide whether to pursue it, and to prepare for the arbitration proceedings. These bases on which we conclude that the requested information is necessary are independent of the issue of whether an arbitrator may properly order that the supervisor involved in this case be disciplined.
38 FLRA at 417. The Authority stated that because the requested information was necessary without regard to whether an arbitrator may order the discipline of the supervisor "the Respondent's claims concerning the appropriateness of the relief requested in the grievance did not relieve the Respondent of its obligation to furnish the Union with the requested information." Id. The decision also concluded that disclosure of the requested information is not prohibited by the Privacy Act, 5 U.S.C. § 552(a).
In Scott AFB v. FLRA, the court remanded this case to the Authority for reconsideration in light of National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992) (NLRB v. FLRA). In NLRB v. FLRA, the court concluded that an agency need not disclose certain requested information to a union unless the union has a "'particularized need' for such information[,]" id. at 534, and that the Statute requires consideration of the "'countervailing interests' against disclosure[,]" id. at 531. In Scott AFB v. FLRA, the court held that the Authority had not considered such countervailing interests. The court instructed the Authority, on remand, to "consider the [A]gency's interest, if any, in protecting the secrecy of its disciplinary decisions[,]" and "the supervisor's privacy interest against disclosing the letter." 956 F.2d at 1224-25. Finally, the court reiterated that a union may have a particularized need if it has "a grievable complaint covering the information[,]" id. at 1225, quoting NLRB v. FLRA, 952 F.2d at 532 (emphasis in original). The court instructed the Authority to consider "the interest in postponing disclosure until the grievability question is resolved." Id. Stating that it "express[ed] no view now on the Authority's Privacy Act analysis[,]" the court did not address the Agency's argument that disclosure is prohibited by the Privacy Act. Id.
III. Administrative Law Judge's Supplemental Decision
The facts are set forth fully in the attached supplemental decision. The Judge concluded that the "countervailing interests" identified by the court do not outweigh the Union's interest in immediate disclosure of the final decision letter. The Judge reasoned that the letter "addresses directly the basis of the grievance[,]" and that, therefore, the Union's need to know how management dealt with the incident that gave rise to the grievance "is as 'particularized' a need as is imaginable." Supplemental Decision at 10. The Judge denied the Respondent's request for a protective order confining access to the information to a small group of individuals within the Union, based on his concern that such an order could not be enforced. Nonetheless, the Judge admonished the Union that "the information should not be disseminated beyond those with a demonstrated need for it." Id. at 15. As the Authority's remand requested only that the Judge take additional evidence in the areas set out by the court in Scott AFB v. FLRA, the Judge did not address whether the final decision letter is disclosable under the Privacy Act.
IV. Positions of the Parties
A. Respondent's Exceptions and Supplemental Statement
In its exceptions to the Judge's decision, the Respondent argues that its own interests in nondisclosure and the supervisor's privacy interest outweigh the Union's interest in disclosure. With regard to management's interests in maintaining the confidentiality of the letter, the Respondent refers to evidence "of the vindictiveness and efforts of retribution to which [the supervisor] was and is subjected." Exceptions at 9. Noting the "hostile work environment" faced by the supervisor, the Respondent points to testimony "that the employees tend to challenge the authority of [the supervisor] at every turn and would readily use any information about discipline imposed on [him] to create another confrontation and push [him] into a more severe disciplinary action." Id. at 5, 6. The Respondent contends that disclosure of the letter could further compromise the supervisor's ability to manage. With regard to the supervisor's privacy concerns, the Respondent claims that the requested letter contains personal, sensitive, and embarrassing information. The Respondent argues that the Union "has available courses of action even in the face of nondisclosure." Id. at 11. In addition, the Respondent contends that it should not be required to release the information because the grievance "is clearly not arbitrable." Id. at 12. Finally, it asserts that the Judge erred by not addressing the Authority's Privacy Act analysis set out in Scott AFB I.
In its supplemental statement, the Respondent argues that the information requested in this case is protected under the Privacy Act and that, under Department of Defense, the privacy interest in the disciplinary record far outweighs the public's interest in disclosure. The Respondent states that the requested letter is contained in the supervisor's official personnel folder, which, it maintains, qualifies as a system of records within the meaning of the Privacy Act; it contends that the exception to the Privacy Act that permits disclosure of a record in a system of records for a "routine use" does not apply in this case because the required publication relating to official personnel folders does not list release of disciplinary records as a routine use.
B. General Counsel's Opposition and Supplemental Statement
The General Counsel argues that the Respondent failed to support its claim that the supervisor's privacy interests outweigh the Union's need for the information, and asserts that the Authority correctly determined in Scott AFB I that disclosure was not barred by the Privacy Act. The General Counsel also asserts that the Judge properly determined that it was likely that the grievance would be found to be grievable.
In its supplemental statement, the General Counsel argues that the privacy interest in this case is weak because "it is widely known . . . [the supervisor] was given some sort of discipline for the incidents which prompted [the] grievance[,]" and, therefore, only the specific disciplinary action taken against the supervisor remains confidential. General Counsel's Supplemental Statement at 3. The General Counsel contends that the public's interest in disclosure is strong in this case because the public has a right to know how the government "responds to and handles complaints involving alleged physical violence in the workplace." Id. The General Counsel also contends that the information may be obtained as a "routine use" under exception (b)(3) of the Privacy Act.(3)
V. Analysis and Conclusions
A. The Final Decision Letter Is "Necessary" Within the Meaning of Section 7114(b)(4)
1. Analytic Approach
In its remand, the court instructed the Authority to consider whether the requested letter is "necessary" in light of NLRB v. FLRA. Recently, the Authority issued Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661 (1995) (Member Talkin concurring) (IRS, Kansas City), which set forth the analysis we will follow for determining whether and how information must be disclosed under section 7114(b)(4) of the Statute. Id. at 669-71. We held that a union making a request under that section must establish a particularized need for the information by articulating, with specificity, why it needs that information, including the uses to which the information will be put, and the connection between those uses and the union's representational responsibilities under the Statute. We also stated that a union's need will not be satisfied merely by showing that requested information is or would be relevant or useful, but that the union must establish that the information is "'required in order for the union adequately to represent its members.'" Id. at 670 (quoting Department of Justice v. FLRA, 991 F.2d 285, 290 (5th Cir. 1993)).
The union's responsibility for articulating and explaining its interests extends to more than a conclusory or bare assertion; among other things, the request for information must be sufficient to permit an agency to make a reasoned judgment as to whether the information must be disclosed under the Statute. As for the agency's responsibilities, we stated that when it denies an information request, the agency must assert and establish any countervailing anti-disclosure interests. The agency does not satisfy its burden by making conclusory or bare assertions.
Where the parties are unable to agree on whether, or to what extent, requested information must be provided, we will find an unfair labor practice if a union has established a particularized need for the information and either: (1) the agency has not established a countervailing interest; or (2) the agency has established such an interest but it does not outweigh the union's demonstration of particularized need. In determining whether and/or how disclosure is required, the parties should consider alternative forms or means of disclosure that may satisfy both a union's information needs and an agency's interests in information. Id. at 671 (citing Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979) (Detroit Edison) (employer's "willingness to disclose" requested information in a manner other than that requested by the union "satisfied its statutory obligations").
2. The Union Articulated and Established a Particularized Need
The Union has maintained throughout these proceedings that it needs information regarding disciplinary action taken against the supervisor to assess whether to pursue a grievance to arbitration and to prepare for arbitration in the event arbitration is deemed necessary. It clearly stated this need in its original request for the information, which referenced its need "to prepare the case for arbitration[.]" G.C. Exh. 2. In response to the Respondent's request for clarification, the Union reiterated that it needed the information to "assess the need to pursue arbitration." G.C. Exh. 4. The Union also has consistently connected its need for the information to the Respondent's reliance on undisclosed "appropriate" action that, in denying the grievance, the Respondent asserted it had taken against the supervisor. Jt. Exh. 6. In its clarification of the request for information, the Union stated the need "to determine if . . . disciplinary action against the supervisor was in fact taken, and what that action was." G.C. Exh. 4.
Thus, the Respondent's explanation for denying the grievance effectively created the Union's need for the requested information. If the Union concurs that the Respondent's action is adequate to remedy the grievance, there would be no further reason for the Union to pursue arbitration. If, on the other hand, the Union believes that the action taken was not appropriate to address the events giving rise to its grievance, it could decide to proceed to arbitration. The Respondent's refusal to disclose information about the action it has made relevant in denying the grievance effectively deprives the Union of any ability to independently determine whether arbitration is still needed to serve the interests of unit employees and to prepare for arbitration if it decides that arbitration is required.
Pursuant to longstanding precedent in both the private and Federal sectors, a union has a substantial interest in information that will assist it in determining whether to proceed to arbitration. For example, National Labor Relations Board v. Acme Industrial Co., 385 U.S. 432 (1967) (NLRB v. Acme Industrial); U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Helena District, Helena, Montana, 39 FLRA 241, 252 (1991).(4) In general, one evident reason for this interest is the commitment of resources required when a grievance is submitted to arbitration.(5) In this case, the Union asserts that pursuing the grievance to arbitration would be relatively expensive and that, if it did so, its "limited funds" would preclude the arbitration of some other grievance. Judge's Decision at 5. In addition, although the cost of a preliminary hearing to resolve grievability questions would probably be less than that of a full hearing on the merits, even this expense is avoidable in the event the Union decides, on the basis of the final decision letter, to withdraw or resolve the grievance.(6)
Having relied, in denying the grievance, upon the action it had already taken, the Respondent has made this action central to the Union's determination whether to proceed to arbitration. Accordingly, we are persuaded that the Union needs the letter to adequately represent its members. The Union has both articulated and established a particularized need for this information, without which it is unable either to make an informed judgment whether to challenge the Respondent's denial of the grievance or, if necessary, to prepare for arbitration.
3. Countervailing Interests
In its remand, the court directed the Authority to consider three non-disclosure interests: the Respondent's interest, "if any," in confidentiality; the supervisor's interest in privacy; and "the interest in postponing disclosure until the grievability question is resolved." Scott AFB v. FLRA, 956 F.2d at 1225. As no further countervailing interests have been asserted, we address these three interests in maintaining the secrecy of the final decision letter.
a. Management's Interest in Confidentiality
With regard to whether the Agency has an interest in maintaining confidentiality about the action it has taken, the Respondent asserts that various problems would result from disclosure. These include: promoting employee disrespect for the supervisor, diminishing his credibility and effectiveness as a supervisor, and encouraging employee action that might provoke the supervisor into further acts of misconduct. However, the Respondent has offered nothing beyond its speculation about these possible outcomes. Such conjecture falls short of establishing any agency interests deserving of much weight. To illustrate the problem: one might as easily speculate that an agency would experience a salutary effect from disclosing information about its response to the widely-known assault of an employee by a supervisor at the workplace. For example, such information might increase respect for the Respondent's disciplinary process, or restore a sense of security that employees will be working in a safe environment. There is no basis in the record to establish that the speculative outcome proffered by the Respondent is more likely than other consequences that can be envisioned.
b. Supervisor's Interest in Privacy
With regard to the supervisor's personal interests, there is no question that every employee "has a significant privacy interest in his or her disciplinary records." Scott AFB v. FLRA, 956 F.2d at 1225. As the Authority has found, an employee's privacy interest in disciplinary information is substantial because the release of that information can be embarrassing and stigmatizing to the employee. See U.S.Department of Justice and Immigration and Naturalization Service, 37 FLRA 1346, 1361-64, request for reconsideration denied, 38 FLRA 946 (1990).
On the other hand, the Union seeks information only about specific disciplinary action taken against the supervisor for one instance of supervisory misconduct, which the record indicates is common knowledge among the employees and as to which the Respondent has already assured the Union it has taken "appropriate action."(7) Thus, as the Authority stated in its initial decision in this case, "the stigmatizing effect of the [disciplinary] action . . . had already occurred" as a result of the Respondent's own disclosures and the widespread knowledge of the incident among the employees. 38 FLRA at 419-20.(8)
Although the Respondent has established a strong interest in maintaining the confidentiality of the final decision letter in order to protect the supervisor's privacy interests in that information, it is possible in this case to satisfy the Union's need for disclosure in a way that recognizes these interests and mitigates the embarrassing or stigmatizing effects the supervisor might otherwise suffer. The Authority has previously stated that the parties should, and the Authority will, consider "alternative forms or means of disclosure that may satisfy both a union's information needs and an agency's interests in information." IRS, Kansas City, 50 FLRA at 671 (citing Detroit Edison). In addition, the Respondent suggests in these proceedings that if disclosure is required, dissemination of the information contained in the decision letter should be limited. We conclude that in this case, and others where the union's interests are paramount, but asserted privacy interests are worthy of some protection, disclosure can be limited by placing constraints on dissemination of the released information. See section VI below.(9) In so doing, we diminish the extent to which the Respondent's countervailing interests warrant precluding any disclosure at all.
Under established law, an arbitrator has jurisdiction to address any matter that is within the scope of the negotiated grievance procedure. See, e.g., United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 568 (1960) ("The agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious."). It is undisputed here that the grievance is based on alleged harm to a unit employee,(10) a matter that is clearly within the scope of the parties' negotiated grievance procedure.(11)
Consistent with longstanding precedent, an arbitrator has the authority to address an alleged violation, even if the remedies available to correct that violation are limited. See Marine Corps Logistics Support Base, Pacific, Barstow, California and American Federation of Government Employees AFL-CIO, Local 1482, 3 FLRA 397, 399 (1980). Further, arbitrators have a wide latitude to fashion remedies. See Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597 (1960) (arbitrators bring their "informed judgment to bear in order to reach a fair solution to a problem[, which] is especially true when it comes to formulating remedies [where] the need is for flexibility in meeting a wide variety of situations"). The fact that a union seeks a particular remedy does not, in and of itself, constrain the arbitrator's ability to fashion what he or she deems appropriate to any violation that is found. Cf. Marvin F. Hill, Jr. & Anthony V. Sinicropi, Remedies in Arbitration 47 (2d ed. 1991) (unless a particular remedy is withdrawn from an arbitrator's authority, the arbitrator generally will be found to possess the power to make the award and fashion an appropriate remedy). Nor does it justify an assumption that an arbitrator's remedy will implicate a management right under the Statute. See, for example, Department of Justice, Federal Prisons Systems, El Reno Federal Correctional Institution, El Reno, Oklahoma and American Federation of Government Employees, Council of Prisons Locals, Local No. 171, 35 FLRA 329, 338 (1990) (award did not interfere with management's rights because it did not require the agency to take or refrain from taking any action pursuant to its rights under section 7106(a) of the Statute). In short, we are aware of no basis on which to conclude that the relief sought by the Union in this grievance determines its grievability. Of course, pursuant to Section 7122(a)(1) of the Statute, an agency can always file exceptions requesting review of any remedy that it considers to be inconsistent with law.
Moreover, even if an arbitrator were to consider the requested relief in determining grievability, the relief sought in this case does not necessitate a finding that the matter is not grievable. The Authority previously has upheld an award directing an activity to discipline a supervisor for misconduct toward an employee under his supervision. Department of Justice, U.S. Federal Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania and American Federation of Government Employees, Council of Prison Locals, Local 148 C-33, 39 FLRA 1288 (1991), petition for review denied, 981 F.2d 1339 (D.C. Cir. 1993) (Bureau of Prisons, Lewisburg). See also Veterans Administration, Hospital, Fort Howard, Maryland, 11 FLRA 10, 11 (1983). In declining on jurisdictional grounds to review the Authority's decision in Bureau of Prisons, Lewisburg, the court found "no specific provision in the [Statute] that, in clear and mandatory terms, prohibits an arbitrator from ordering an agency to discipline a supervisor, or that prohibits the Authority from affirming an arbitral award that mandates supervisory discipline." 981 F.2d at 1343. Indeed, the court stated, in dicta, that "[t]he structure of the [Statute,] and prior case law in the FLRA and this circuit, suggest that the opposite is true. The [Statute] does not condition or limit an arbitrator's power to design remedies." Id. at n.2 (citation omitted). In addition, there is support in private sector labor law for the grievability of grievances seeking the discipline of supervisors in circumstances which may be deemed similar to the assault alleged in this case by a supervisor with "a long history of erratic and volatile behavior" in a workplace involving "sharp knives, saws and other dangerous factors." Jt. Exh. 3. See Elkouri and Elkouri, How Arbitration Works 582-83 (4th ed. 1985) (a demand for discipline or discharge of a supervisor may be grievable "'in very extreme cases, where a foreman's conduct is beyond the limits of lawfulness or decency, making for an intolerable condition . . .' or where there is 'a menace to the life and health of the employees while at their work . . . .'").
Based on the foregoing, we conclude that, in the event the Union decides to proceed to arbitration after it has had a chance to review the final decision letter, there is a significant likelihood that an arbitrator will find the grievance at issue in this case grievable.(12) We also conclude that any interests the Respondent may have in avoiding disclosure will probably not be served by postponing disclosure until grievability is determined. In reaching these conclusions, we have not taken lightly the court's admonition that the Respondent has "a strong interest in postponing disclosure until after . . . resolution [of the grievability issue]." Scott AFB v. FLRA, 956 F.2d at 1225. However, for the reasons discussed above, if the Union pursues arbitration, the grievance is likely to be considered on its merits. In addition, the confidentiality and privacy interests identified by the court can be mitigated in this proceeding in a way that does not deny the Union information for the particularized need it has established. These interests can be protected by ordering limited disclosure with constraints on further dissemination of the released information by the Union. See section VI below.(13) Taking into consideration all of the circumstances of this case, including our ability to mitigate the privacy and confidentiality concerns expressed by the Respondent, we have heeded the advice of the Supreme Court that basic labor law principles do not require a union to assume the expense of arbitration only so that it can determine whether arbitration is in fact necessary. NLRB v. Acme Industrial, 385 U.S. at 569.
4. The Union's Interests in Disclosure Outweigh the Respondent's Countervailing Interests
Weighing the particularized need established by the Union for the final decision letter against the Respondent's countervailing interests, we conclude that the Union's interests prevail. First, as we have determined above, the Union has established a substantial interest in the disclosure of the final decision letter to enable it to determine whether to process its grievance to arbitration and, if deemed necessary, to prepare for arbitration. In contrast, as discussed above, the Respondent's anti-disclosure interests are relatively weak because: (1) the rationale asserted on behalf of management's interest is speculative; (2) the otherwise strong privacy interests of the supervisor can be mitigated by an order limiting disclosure; and (3) it is likely that the grievance will be found to be grievable.
In sum, the Union's particularized need for the final decision letter to determine whether to process the grievance to arbitration and to prepare for arbitration, if deemed necessary, outweighs the countervailing interests identified in Scott AFB v. FLRA. Accordingly, the letter is necessary within the meaning of section 7114(b)(4).
B. The Privacy Act Does Not Bar Disclosure
1. It Is Necessary to Determine Whether the Privacy Act Prohibits Disclosure
In Scott AFB I, the Authority concluded that disclosure of the requested decision letter is not prohibited by the Privacy Act.(14) Neither the court in Scott AFB v. FLRA nor the Judge in the decision on remand addressed the Authority's Privacy Act analysis. After the Judge's decision issued, the U.S. Supreme Court decided Department of Defense, holding that the relevant public interest in disclosure set forth in Reporters Committee applies to section 7114(b)(4) cases involving personnel data maintained in a system of records covered by the Privacy Act. Subsequently, in U.S. Department of Transportation, Federal Aviation Administration, New York Tracon, Westbury, New York and National Air Traffic Controllers Association, MEBA/NMU (AFL-CIO) New York Tracon Local, 50 FLRA 338 (1995), the Authority applied Department of Defense and 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.
Given these developments in the decisional law concerning the Privacy Act and the Respondent's contention that disclosure is prohibited under that statute, it is appropriate that we reevaluate our previous ruling on this issue. As discussed below, we agree with the General Counsel that the information is disclosable under the routine use exception to the Privacy Act. In light of this conclusion, it is unnecessary to determine whether release of the final decision letter would constitute a clearly unwarranted invasion of personal privacy within the meaning of Exemption 6 of the FOIA. We note that each exception to the Privacy Act operates independently. Thus, even if requested information is not disclosable under the FOIA exception, such information could be disclosed to a routine user under the routine use exception. For example, FLRA v. U.S. Department of the Treasury, Financial Management Service, 884 F.2d 1446, 1453 (D.C. Cir. 1989) cert. denied, 493 U.S. 1055 (1990); National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, Washington, D.C., 46 FLRA 234, 246 (1992).
2. The Final Decision Letter Is Disclosable Under the Routine Use Exception
According to the Respondent, the final decision letter requested in this case is contained in a system of records that encompasses information in employees' official personnel folders. Respondent's Supplemental Statement at 6. This system of records is identified as OPM/GOVT-1. 57 Fed. Reg. 35698, 35705. OPM's routine use statement governing this system of records, identified as routine use "j",(15) 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. 35706 (1992).(16) Accordingly, to determine whether the routine use exception applies to the final decision letter, we must decide whether the information contained therein is "relevant and "necessary" within the meaning of routine use statement "j."
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 216 (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 requested information is consistent with routine use "j": (1) the information must be "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 must be "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,"(17) we have examined the record to assess whether the Union has established that the nature of the information requested can reasonably be attributed to and is likely to influence or affect the purpose for which the information was sought. We find that the final decision letter bears a traceable, logical, and significant connection to the purpose of deciding whether to proceed to arbitration and to preparing for arbitration, if deemed necessary. The information it contains is the very information needed to enable the Union to decide whether and how to proceed with arbitration. The action taken by the Respondent--which this letter documents--became relevant when the Respondent relied on it to justify denying the grievance. We find, therefore, that the final decision letter is relevant.
With regard to the second standard, no party has asserted, and it is not otherwise apparent, that there are less intrusive means of satisfying the Union's needs. It is evident that the information itself cannot be conveyed in a way that conceals the supervisor's identity. At the first hearing it was determined, and it has not been contested, that the entire letter was "encompassed by the Union's request" and that no reason had been established for distinguishing portions of the letter with regard to the Union's needs or the Respondent's defenses. Scott AFB I, 38 FLRA at 429, n.7. Accordingly, the record does not provide any basis for finding that there are less intrusive means of obtaining the information that are reliable and verifiable.
In view of the foregoing, we conclude that the final decision letter is disclosable under the routine use exception to the Privacy Act. As we have concluded that the letter is necessary within the meaning of section 7114(b)(4), and as all the other statutory requirements for disclosure of the requested information were either admitted or not disputed by the Respondent, see Scott AFB I, 38 FLRA at 421, we conclude that the Respondent's refusal to furnish the Union with the final decision letter constitutes a failure to comply with section 7114(b)(4) and, thereby, a violation of section 7116(a)(1), (5), and (8) of the Statute.
VI. The Remedy
In assessing the relative strength of the parties' interests in this case, we have taken into consideration our ability to address the Respondent's countervailing interests without denying the Union the final decision letter for the limited purposes for which it was requested. We conclude that, in the circumstances of this case, the appropriate remedy for the violation of the Statute found above is to limit the dissemination of the final decision letter once it is released to the Union. In this regard, we note that the Respondent requested that we impose such conditions on release if we found a violation and no party has argued before us that such a remedy is inappropriate. In addition, although the Judge expressed concerns about the enforceability of the protective order requested by the Respondent, he admonished the Union to limit dissemination of the information to those with a demonstrated need for the letter. Supplemental Decision at 15.
Our order that the Respondent furnish the letter therefore is conditioned upon the Union's agreement to limit further disclosure to those individuals whose knowledge of the letter's contents is critical to the purposes for which the information was requested.(18) Any matters involving the scope of this order should be resolved in compliance proceedings.
Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of the Air Force, Scott Air Force Base, Illinois shall:
1. Cease and desist from:
(a) Failing and refusing to furnish the final decision letter, requested by the National Association of Government Employees, Local R7-23, SEIU, AFL-CIO (Local R7-23), the agent of its employees' exclusive representative, concerning the supervisor whose conduct on or about March 6, 1987, is the subject of a grievance, provided that Local R7-23 agrees to limit further disclosure of the final decision letter and its contents as set forth in this decision.
(b) 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 Federal Service Labor-Management Relations Statute:
(a) Furnish to the National Association of Government Employees, Local R7-23, the final decision letter concerning the supervisor whose conduct on or about March 6, 1987, is the subject of a grievance, upon agreement by the Union to limit further disclosure of the final decision letter and its contents as set forth in this decision.
(b) Post at its facilities at the Scott Air Force Base, 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 Commanding Officer of Scott Air Force Base, 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 ensure that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional Director, Chicago 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 furnish the final decision letter, requested by the National Association of Government employees, Local R7-23, SEIU, AFL-CIO (Local R7-23), the agent of our employees' exclusive representative, concerning the supervisor whose conduct on or about March 6, 1987, is the subject of a grievance, provided that Local R7-23 agrees to limit further disclosure of the final decision letter and its contents, as set forth in a decision of the Federal Labor Relations Authority.
WE WILL NOT in any like or related manner, interfere with, restrain or coerce our employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL furnish to Local R7-23 the final decision letter concerning the supervisor whose conduct on or about March 6, 1987, is the subject of a grievance, upon agreement by the Union to limit further disclosure of the final decision letter and its contents, as set forth in a decision of the Federal Labor Relations Authority.
This Notice must be 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 its provisions, they may communicate directly with the Regional Director, Chicago Regional Office, Federal Labor Relations Authority, whose address is: 55 West Monroe, Suite 1150, Chicago, IL 60603, and whose telephone number is: (312) 353-6306.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424
DEPARTMENT OF THE AIR FORCE,
SCOTT AIR FORCE BASE, ILLINOIS .
and . Case No. 5-CA-80069
NATIONAL ASSOCIATION OF
LOCAL R7-23, SEIU, AFL-CIO
Susanne S. Matlin-Klein, Esquire
For the General Counsel
Major David F. Brash, Esquire
For the Respondent
Mr. Carl Denton
For the Charging Party
Before: JESSE ETELSON
Administrative Law Judge
This case is before me on remand from the Federal Labor Relations Authority (Authority). The Authority's Decision and Order on Remand is reported at 45 FLRA 120 (1992). Previously, the United States Court of Appeals for the District of Columbia Circuit had remanded the case to the Authority. Department of the Air Force, Scott Air Force Base v. FLRA, 956 F.2d 1223 (D.C. Cir. 1992). The case involves the issue of the obligation of the Respondent (Scott), pursuant to section 7114(b)(4) of the Federal Service Labor-Management Relations Statute (the Statute), to disclose to the Charging Party (the Union) a disciplinary letter issued to a supervisor.
The Authority, in a decision reported at 38 FLRA 410 (1990), concluded that the requested letter was "necessary" to the Union, within the meaning of section 7114(b)(4)(B) ("necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining[.]") The letter was necessary, the Authority concluded, for the Union to evaluate a grievance, decide whether to pursue it, and to prepare to represent the grievant in the arbitration of the grievance. 38 FLRA at 416. The Court of Appeals, however, concluded that the Authority had not, in its analysis, satisfied the "necessity" requirement of section 7114(b)(4)(B) because, in the court's view, that section mandates a "particularized- need standard" that involves considering not only pro-disclosure interests, but also the countervailing interests against disclosure. In the instant case, the court identified as countervailing interests Scott's interest in protecting the secrecy of its disciplinary decisions, the supervisor's privacy interest, and, in view of Scott's contention that the underlying grievance is not arbitrable, the interest against ordering disclosure before the arbitrator (in the first instance) decides the issue of grievability. The court's remand to the Authority, therefore, directed it as follows (956 F.2d at 1225-26):
In determining whether the statute requires disclosure of the disciplinary letter, the Authority should weigh both the union's need for the information and the countervailing interests against disclosure. The Authority should consider the interests of the agency and the supervisor in preserving the confidentiality of disciplinary records. And it should consider the interest in postponing a decision on public disclosure until after the arbitrator determines whether the underlying grievance is grievable.
The Authority accepted the remand, but noted that the record before it was not sufficient to make the determinations required by the court's remand. The Authority therefore remanded the case to me, "for further proceedings consistent with this decision." 45 FLRA at 123. I scheduled a second hearing, pursuant to the remand. Such hearing was held on July 29, 1992, in St. Louis, Missouri. Counsel for the General Counsel and for Scott filed excellent post-hearing briefs.
Findings of Fact
As previously found in the Authority's decision after the first hearing in this case, the parties' collective- bargaining agreement defines a grievance covered by the negotiated grievance procedure as "a request by any employee . . . ., the Union, or the Employer for appropriate relief in a matter of concern or dissatisfaction which is subject to the control of the Union or the Employer." 38 FLRA at 411. A bargaining unit employee submitted a grievance concerning the alleged use of physical force against him by his supervisor, alleging that the use of force was unfair and improper treatment and contributed to an unsafe work environment. The grievant requested as a remedy that the supervisor be examined for medical fitness and that the supervisor receive appropriate discipline for his alleged misconduct. Id.
The Union processed the grievance through each step of the negotiated grievance procedure, up to and including the selection of an arbitrator. At both the second and third steps Scott responded in part that matters of disciplining management officials are "not within the purview of the union." Darlene Greenleaf, Commissary Officer at Scott, responded to the second step of the grievance. Her response stated, among other things, and notwithstanding the statement that it was "not within the purview of the union," that she had "coordinated with Mr. Hicks, [the supervisor's] first line supervisor, in proposing a written reprimand."
Scott denied the grievance at the third and final pre-arbitration step, stating in part that "[a]ppropriate action has been taken regarding the supervisor involved in this grievance." Id. The Union, however, did not know what that "appropriate action" was. It requested the documenta- tion that would so inform it, in order to assess the need to pursue arbitration and, if necessary, to prepare for the presentation of the grievance to the arbitrator. Id. Scott refused to furnish the requested information. All these events occurred in 1987.
B. Evidence Adduced at the Second Hearing
Scott established Civilian Personnel Officer Daniel Marlett as an expert witness on management principles and techniques concerning discipline of employees. Marlett provided Scott's evidence as to management's interest in preserving the confidentiality of disciplinary records. He testified credibly that the purpose of discipline is to correct the infraction with which the employee is charged, and should not subject the employee to "public ridicule or that sort of thing." To reprimand a supervisor in public--that is, "in front of [his] employees"--would be particularly damaging because his relationship with his employees would be damaged and he would be unable to maintain their respect and credibility. Marlett further testified that most supervisors would be very reluctant to take any sort of action against a subordinate if they thought it was going to be made public or if, where the disciplined subordinate was a supervisor, that supervisor's employees were going to be made aware of it.
The supervisor whose disciplinary record is the subject of this case did not appear to testify concerning his own privacy interest. His absence was not explained except for a representation by Counsel for the General Counsel that the supervisor knew about the hearing but took leave, and a statement by Counsel for Scott that, in Counsel's case preparation, he "determined to call another witness to address that area, rather than the supervisor himself: someone I believe is emotionally detached from the case and can make objective observations." That witness was David Leffert, store manager of the Commissary at Scott and the present supervisor of the supervisor involved. Leffert, it should be noted, had only held his present position for 14 months prior at the time of the second hearing, and was not shown to have had any knowledge of the supervisor's circumstances in 1987, when the data in dispute was requested and refused.
Leffert testified credibly that employees of the supervisor had on several occasions asked Leffert whether the supervisor was going to be punished. Leffert believed that the employees were likely to use such information against the supervisor, because "[m]ost of them don't care for him too much." Leffert has heard employees say that they can't stand him. On one occasion, when the supervisor had just suffered a diabetes attack, employees told Leffert, "if he was to have a real bad attack, that they would not do anything to help him."(1) Leffert also testified that the supervisor had told him that he would not want any more people to know about his discipline "than is absolutely necessary." I credit that such a conversation occurred.
Labor Relations Officer Robert Nelson testified on behalf of Scott on the issue of the interest in postponing disclosure until the question of the grievability (that is, the arbitrability) of the underlying grievance is resolved. Nelson testified credibly that the Union had not offered any assurance of "safeguarding" the requested information. He stated that the arbitration of the underlying grievance was still pending (awaiting the outcome of this proceeding). He estimated that an average arbitrator's fee was (presumably around the time this grievance originally advanced to the arbitration stage) about $750, but that, based on the average of the last few bills Scott had incurred, it might now be in the area of $1,000 to $1,500.
Counsel for the General Counsel presented Union President Carl Denton to rebut Scott's presentation of the case for the "countervailing interests." Mr. Denton's testimony focused principally on the Union's present interest in obtaining the requested information before going to arbitration on the issue of grievability. He testified that, although the employee who filed the grievance no longer worked in the Commissary or under the supervisor in question, he was still employed by Scott and still was interested in pursuing it. Denton also testified that the Union itself had a concern with the underlying incident because it affects the safety, health, and welfare of the employees in general. He estimated that a 1-day arbitration hearing would also involve two days of "research and preparation" by the arbitrator and would cost approximately $1,500, to be shared equally by the Union and Scott. The Union's limited funds would require that, if this case were taken to arbitration, some other case probably would not be. Although a tentative decision had been made to take this grievance to arbitration (and the parties have already selected an arbitrator), that decision might be reversed, depending on whether the Union, on learning what discipline was actually given to the supervisor, found that discipline to be appropriate.
None of this appears to me to be seriously disputable, and I credit all of Denton's testimony to this point. However, when asked to consider whether his estimate for the cost of arbitration would be as great if the parties proceeded first on the issue of arbitrability alone, Denton was reluctant to concede that the cost might be considerably less. Instead, he attributed to Scott an intention to make a "federal case" and a "mountain . . . out of a molehill" even in that instance, resulting in extended and expensive proceedings. I find this testimony to be based more on speculation than on objective facts. Denton ultimately conceded that an arbitration proceeding limited to the issue of arbitrability "should be cheaper," and I conclude that it is more likely than not that it would be. Still, I find it difficult to make an accurate and reasonable estimate of the cost of such an arbitration proceeding, based on the record presented here, except that I would expect it to require no more than two days of the arbitrator's time, resulting in a bill of about $1,000 or less.
A. Some Preliminary Thoughts
I am bound in the first instance to follow Authority precedent, even if a reviewing court has refused to accept it, until the Authority itself has changed course. Here, the Authority has not announced that it will in the future follow the approach and analysis of the Court of Appeals for the District of Columbia Circuit in determining whether the "necessity" element of section 7114(b)(4)(B) has been satisfied. Nevertheless, it has accepted the court's remand, and has remanded the case to me to make the determinations required by the court. I interpret the Authority's actions as signalling that I am to follow the court's analysis and approach for the purposes of this case--i.e.--as the law of the case. Observations made in the course of my discussion that reflect those made in the court's decision are made pursuant to these assumptions.
B. Management's Interest in Preserving the Confidentiality of Disciplinary Records
Scott argues that a rule that management may have to disclose information regarding employee discipline would have far-reaching and devastating implications. Management would then be less likely to take disciplinary action, and any discipline imposed would be less constructive due to the employee's fear of ridicule and embarrassment. The effects of such a rule would be particularly adverse where the person potentially subject to discipline is a supervisor. Such a supervisor's superior would then be presented with the no-win choice. She could fail to discipline a faulty supervisor or administer the discipline and destroy the workplace supervisor-subordinate relationship because the subordinate with access to such information might believe he could take advantage of that knowledge by intimidating or threatening the supervisor. Such a possibility is particularly relevant to this case, Scott asserts.
The General Counsel asserts that Scott's generalized evidence concerning the "good management reasons" for nondisclosure of such information is less persuasive than the Union's need to know. Scott originally told the Union what action it was proposing and that some action had been taken. The General Counsel questions, therefore, why the line must be drawn at revealing the final disciplinary action.
I find, in agreement with the General Counsel, that the management principles militating against disclosure as a general policy are outweighed here by the force of the Union's need. This is not a case where the alleged offense giving rise to the discipline is something about which the bargaining unit employees' interest is limited to idle curiosity or worse. It is a subject of legitimate interest to employees, regardless of whether some employees have an interest merely in wishing this supervisor ill. Discipline that is designed to "correct some infraction of the rules," in Mr. Marlett's phrase, stands on a different footing, with regard to disclosure, when the "infraction" is one that directly affects employee safety and self-esteem. In this case, the general principles on which Scott relies must yield to the Union's interest in having information that is necessary to permit it to take reasonable steps to deter future incidents of the kind alleged.
C. The Privacy Interest of the Supervisor
In discussing the supervisor's interest, as that issue was formulated by the court and remanded first to the Authority and then to me, it must be emphasized that it does not involve the applicability of the Privacy Act. The court expressed no view on the Authority's analysis of the Privacy Act in this case, as reported in 38 FLRA at 417-20. The privacy interest of the supervisor, for the purpose of this remand, is to be analyzed only in the context of the balancing process dictated by the court's "particularized- need standard."
After the court issued its decision, Scott moved before the Authority for a remand to the administrative law judge to receive certain evidence, including the supervisor's own addressing of his personal privacy interests. In remanding the case to me, the Authority acknowledged Scott's motion but did not specifically attribute its decision to remand to that motion. Nevertheless, the motion does stand as an indication that Scott intended to produce the supervisor as a witness. I mention this because, although the court may or may not have envisioned that evidence on this issue would come from the supervisor himself, one has the right to infer that Scott had reason to believe when it made the motion that the supervisor had something to offer in this connection.
With this in mind, it may be that the most probative evidence before me of the supervisor's privacy interest is his failure to appear. The problem is that, to the extent that his absence from the hearing is probative at all, it is a sword with many edges. At the first and most superficial level of analysis, the supervisor's absence could be taken to indicate an indifference to the issue. However, at the next level, his desire not to appear is arguably a powerful indication of his sensitivity to the manner in which this whole dispute has impinged on his privacy. But the analysis cannot stop at this level, either. For Scott can be expected to have been aware that, after announcing its intention to call the supervisor, his failure to appear would give just that impression of his sensitivity. Thus I cannot discount the possibility that his absence was tactical. It occurred to no one at the hearing, including myself, to explore these possibilities by calling witnesses concerning the supervisor's absence. Therefore, since I can only speculate about the significance properly to be given to this turn of events, I shall accord it no weight at all.
We begin, then, to assess the showing of the super- visor's privacy (not Privacy Act) interest that has been made without the benefit of his own testimony. In its decision in this case, the Court of Appeals observed that "it is indisputable that an employee has a significant privacy interest in his or her disciplinary records." 956 F.2d at 1225. The task here is to determine to what extent this "significant" interest has been fleshed out in this instance and then to weigh the resulting whole against the Union's interest in disclosure.
This fleshing-out has been left to rest solely on the testimony of Commissary Manager Leffert. However, there is a big problem with Leffert's testimony. It tells us more than we would like to know about the supervisor's recent relations with his employees, but nothing about those rela- tions in 1987, when the unfair labor practice alleged here was either committed or was not. Thus, even assuming that the attitude of the supervisor's employees toward him is the sort of evidence that the court had in mind (an assumption the validity of which no one has addressed), we have no evidence regarding the situation Scott confronted when the duty to disclose, if any, arose.
Perhaps it is arguable that an inference should be drawn that the employee-supervisor relationships Leffert described as existing within the 14 months in which he had the opportunity to observe represent a continuation of similarly bad relationships that date as far back as 1987. A lesson earned the old-fashioned way dissuades me from drawing such an inference. In U.S. Department of the Treasury, Internal Revenue Service, Louisville District, Louisville, Kentucky, 42 FLRA 137 (1991), I drew the rebuttable inference that the practice of employees retaining their use of Government cars, in spite of logging fewer miles than required for retention under GSA guidelines, had existed for an extended period and reflected more than a temporary laxity in enforcement. Id. at 150. The Authority had other ideas. It insisted on, among other things, specific proof that "in the past," the particular employees whose Government cars were in issue had driven fewer miles than the guidelines called for. Id. at 142-43. I find the instant case to provide less justification than IRS Louisville (see, at 150-51) for invoking an inference that the situation described in the record can be attributed also to an earlier period, especially since such a retrospective inference must, to reach the relevant period, be made to extend backward for four or more years.
Where does this leave us? The supervisor has, in the abstract, a "significant privacy interest." He has also told Leffert that he would prefer limiting disclosure of his disciplinary record to those as to whom it is "absolutely necessary." Against this there is the Union's interest in knowing whether it has any cause to proceed to arbitration and, if necessary, in preparing itself for such a proceeding. I conclude that the Union's interest is entitled to greater weight. For essentially the same reasons articulated by the Authority in performing the balancing, required under the Privacy Act, between the supervisor's and the Union's interests (see 38 FLRA at 418-420), I conclude that the supervisor's interest here, while "significant," is not particularly compelling in comparison.
D. The Interest in Postponing Disclosure Until "Grievability" is Resolved
The parties agree that the matter over which the grievance was filed was properly submitted to the negotiated grievance procedure and that the issue Scott has raised goes to its arbitrability. Scott argues that postponing disclosure is reasonable because an initial submission to the arbitrator of the issue of arbitrability alone would be relatively inexpensive and would probably dispose of the matter, thus rendering the disclosure issue moot. Scott argues that even if the grievance advanced to the arbitrator for resolution on the merits, the arbitrator could deal with the issue of disclosure, thus making a determination by the Authority unnecessary. The General Counsel argues that Authority precedent would support an arbitrator's award finding this grievance to be arbitrable, that the Union has no intention of revealing the contents of the disciplinary letter beyond that limited group that must evaluate and prepare the case, and that bifurcating the arbitration proceeding is inefficient and impractical. Rather, consistent with public policy favoring early resolution of disputes, information that might cause the Union to abandon the grievance should be disclosed.
I find the General Counsel to have the better of the argument. The Court of Appeals was persuaded that there is "a strong interest in postponing disclosure until after that resolution." 956 F.2d at 1225. Granting that, the Union's interest in disclosure before proceeding to arbitration is, in my view, stronger. The information requested is not data that is merely incidental to the matter being grieved. It is data that addresses directly the basis of the grievance: the employee's perception that a serious incident, one that compromised employee safety, has not been adequately redressed by the employer. The Union's need to know how it has been addressed is as "particularized" a need as is imaginable. Thus, if postponing disclosure were justified in this case, it is difficult to imagine a case, in which an employer contests arbitrability, where postponement would not be justified.
Arguably, however, the balance would be thrown the other way if, as Scott seems to be contending here, it is "so clear this matter is not arbitrable" (Br. at 12) that it is almost a foregone conclusion that the postponed disclosure issue would become moot. One is tempted to call that a brash assertion. At least as I interpret the Authority's view, the prospects for the arbitrability of a matter like the one presented here are not so dim. Of course, the Authority is not the appropriate forum to resolve arbitrabi- lity in the first instance. However, an Authority decision cited by the General Counsel presents a strong indication that Scott's extreme skepticism is not warranted.
In the cited case, an arbitrator, as part of the remedy for a supervisor's "failure to look after the medical concerns" of the grievant, had directed the agency to issue a letter of reprimand to the supervisor. The agency filed exceptions to the award, including a series of arguments as to why the remedy of ordering a letter of reprimand was improper. The Authority rejected each of these arguments, including those that the remedy was inconsistent with various provisions of the Federal Service Labor-Management Relations Statute and other parts of Title 5 of the United States Code, and that it violated 5 C.F.R. § 735.107. U.S. Department of Justice, U.S. Federal Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania and American Federation of Government Employees, Council of Prison Locals, Local 148 C-33, 39 FLRA 1288 (1991) (Bureau of Prisons) petition for review filed sub nom. U.S. Department of Justice, U.S. Federal Bureau of Prisons, U.S. Penitentiary, Lewisburg, Pennsylvania v. FLRA, No. 91-1232 (D.C. Cir. May 21, 1991).
The Authority further explored, in Bureau of Prisons, many of the kinds of objections to arbitrability that Scott might be expected to raise in connection with the grievance involved here. One of the arguments made by the agency in Bureau of Prisons was that the remedy was improper because arbitrators may go no further than to correct violations with respect to the conditions of employment of bargaining unit employees. The Authority's response to that argument is worth quoting here because its essence, if not its precise language, might plausibly serve as a response to Scott's general assertion that the Union has no standing to contest an issue concerning management's discipline of supervisors (Id. at 1299):
We find that the Arbitrator's remedy in this case was designed to correct the effects of the Agency's violation of the parties' collective bargaining agreement on the grievant's conditions of employment. Having found that the grievant was harmed by the Agency's violation of the parties' collective bargaining agreement, the Arbitrator properly fashioned a remedy designed to correct the effects of that violation.
The Authority recently reaffirmed its Bureau of Prisons approach, in National Treasury Employees Union, National Treasury Employees Union Chapter 33 and U.S. Internal Revenue Service, Phoenix District, 44 FLRA 252 (1992). There, the Authority acknowledged that in U.S. Department of the Navy v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992) the court had rejected the Authority's construction and application of the so-called "vitally affects" test for the scope of the duty to bargain under the Statute. The Authority emphasized, however, that the court's rejection of the Authority's approach in the duty-to-bargain context did not bring into question the legitimacy of an arbitrator's remedy on the ground that it affected nonunit employees, if the remedy was designed to correct the harm suffered by a unit employee as a result of improper agency action. 44 FLRA at 275-76.
None of this means that the arbitrator selected for the grievance with which the instant case is concerned would necessarily rule in favor of arbitrability. What I think it means is that his so ruling (and the Authority's affirming such a ruling if necessary) is not so unlikely as to make the mooting of the disclosure issue a probable result of bifurcating the arbitration proceeding. Without being in a position to play the role of the arbitrator here, it would not seem surprising if, presented with the whole case at once, the arbitrator were to consider the adequacy of the discipline imposed and render a decision based on that assessment. (All this might well be accomplished in far less than a full-day hearing.) Technically, that would require a determination of arbitrability. But if the arbitrator agreed with Scott on the adequacy of the discipline, the question of arbitrability will have effectively been rendered academic and would not need to be revisited unless the Union wished to assume the heavy burden of challenging the arbitrator's award before the Authority. If, on the other hand, the arbitrator ordered greater discipline or another remedy, Scott could, of course, seek review on arbitrability and on the merits and the remedy.
Finally, the arbitrator's power to order or withhold disclosure does not warrant the Authority's staying its hand in processing this unfair labor practice complaint. Congress made the withholding of certain information an unfair labor practice and charged the Authority with the duty to resolve such complaints. Section 7105 (2)(G) of the Statute requires the Authority to "conduct hearings and resolve complaints of unfair labor practices under Section 7118 of this title." Section 7116(d) sets forth certain limitations on the availability of unfair labor practice procedures to aggrieved parties, but nothing in the Statute (as far as I am aware) gives the Authority discretion to refuse to hear and resolve unfair labor practice issues properly presented to it. Postponing disclosure to permit the arbitrator to deal with it would violate, at the very least, the spirit of the Statute, and would negate the Authority's line of cases requiring disclosure to enable unions to evaluate whether to proceed to arbitration.
The Union's interest in disclosure before submitting any part of the grievance to arbitration is, obviously, that it might choose in light of the revealed information not to proceed. This possibility, in addition to saving both parties the time and expense of arbitration, serves the public interest of permitting the parties to put the dispute behind them. These ends, while dependent on a contingency, are so worthy of pursuit as to outweigh the prospective benefit of the other contingency Scott optimistically invokes--a determination of nonarbitrability.
Conclusion and Remedy
I have concluded that none of the three distinct "countervailing interests" identified by the court outweighs the interests in favor of disclosure now. Neither the court nor the parties have addressed specifically the question of whether the interests in favor of disclosure are to be matched up against each of the countervailing interests individually or against the cumulative weight of all three. While the distinction might be considered as much a rule for an intellectual game as a real attempt to describe a decisional process, this is after all a formal legal proceeding and nice questions of that sort need be addressed.
The easy and least satisfactory way to resolve this is to note that the court, in discussing the need for a remand, stated: "The Authority has never balanced the union's interest in disclosure against the three non-disclosure interests we have identified[.]" 956 F.2d at 1225. That statement might be taken to mean that it is the cumulative weight of all three that must be balanced against the union's interest. But to so conclude, one would have to assume that the court consciously addressed this problem. I cannot confidently assert that it did. However, I do regard each of the three identified countervailing interests as a factor to be considered in applying the court's standard of "particularized need." Therefore I believe that the Union's interests here, to meet that standard, must be found to overbalance the weight of all three. (Would it be sufficient if the Union's interest merely counterbalanced the other three so that the scale was in equipoise? I shall not even attempt to fathom the court's intention in that regard.)
Having formulated this ground rule for the weighing exercise, I conclude that the Union's interests do outweigh the countervailing interests cumulatively. The Union's interests are particularly strong here because the information it has requested goes to the heart of the matter. It is indispensable for deciding whether to proceed and for presenting the case to the arbitrator if it elects to do so. The management interest in nondisclosure is general and not particularly persuasive in this situation; the supervisor's interest is "significant" but not compelling; and the interest in postponing disclosure is "strong" but not so likely to make resolution of the disclosure issue unnecessary as may have been assumed. I therefore conclude that the Union has shown a "particularized need" for the requested data and that, in refusing to furnish it, Scott violated section 7116(a)(1), (5), and (8) of the Statute.
Scott submits that, even if a violation is found, disclosure should not be ordered because the Union no longer needs the information. Scott asserts in support of this contention that (1) the discipline in question occurred so long ago that it should not be disturbed and (2) that the employee who initiated the grievance no longer works in the Commissary. As to (1), the propriety of changing the discipline of the supervisor is not for the Authority to decide. As to (2), the decision to proceed with a grievance on behalf of an employee who is still (undisputedly) entitled to have the grievance pursued is for the Union to make, subject to its duty, under section 7114(a)(1) of the Statute, to represent "the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership."
Scott renews its request, made after the first hearing in this case, for a protective order in the event that disclosure to the Union is deemed to be an appropriate remedy. In its latest form, this request has been refined to describe a protective order that would confine access to the disclosed information to the Union president, the Union grievance committee, the Union attorney, and the grievant. This is a well crafted suggestion, especially in its recognition that the grievance committee and the grievant need access to the information. However, Scott has not addressed the difficulties I expressed when denying its earlier request, most importantly my lack of confidence that such an order could be enforced. Unless access were confined to those few over whom the Union could realistically be said to have control, I am inclined to think that the Authority would look foolish in purporting to be able to determine the responsibility for a leak or to take appropriate measures upon making such a determination. Since I do not believe that access can properly be so confined, and I do not know in any event what an appropriate sanction for violating a protective order would be, I shall deny the request. I repeat my admonition to the Union that the information should not be disseminated beyond those with a demonstrated need for it. I recommend that the Authority issue the following order:
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, Department of the Air Force, Scott Air Force Base, Illinois shall:
(a) Failing and refusing to furnish the final decision letter, requested by the National Association of Government Employees, Local R7-23, SEIU, AFL-CIO, the employees' exclusive representative, concerning the supervisor whose conduct on or about March 6, 1987, is the subject of a grievance.
(b) 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) Furnish to the National Association of Government Employees, Local R7-23, SEIU, AFL-CIO, the requested final decision letter.
(b) Post at its facilities at the Scott Air Force Base copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt, the forms shall be signed by the Commanding Officer of Scott Air Force Base, 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.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Chicago Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
Issued, Washington, DC, September 30, 1992
Administrative Law Judge
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 HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to furnish the final decision letter requested by the National Association of Government Employees, Local R7-23, SEIU, AFL-CIO, the employees' exclusive representative.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL furnish, to the National Association of Government Employees, Local R7-23, SEIU, AFL-CIO, the requested final decision letter.
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, Chicago Region, Federal Labor Relations Authority, whose address is: 175 W. Jackson Boulevard, Suite 1359-A, Chicago, IL 60604, and whose telephone number is: (312) 353-6306.
(If blank, the decision does not have footnotes.)
Authority's Footnotes Follow:
1. The General Counsel filed an opposition to the exceptions. In response to the Authority's request, the Respondent and the General Counsel filed supplemental statements of position addressing the applicability of United States Department of Defense, et al. v. FLRA, __ U.S. __, 114 S. Ct. 1006 (1994) (Department of Defense) to this case. 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). The Respondent filed a motion to strike a portion of the General Counsel's supplemental statement, which we deny as discussed below at note 3.
2. References are to exhibits from the original hearing in this case.
3. In its motion to strike the portion of the General Counsel's supplemental statement dealing with the routine use exception, the Respondent claims that this issue was not raised by either party before the Judge or in the earlier exceptions to the Authority. However, no one argues that the issue of disclosure under the Privacy Act in general is not before us and, for reasons discussed below, we conclude it is necessary to address that issue here. See section V.B.1 below. In addition, in Scott AFB I the Authority held that the requested information is disclosable as a routine use, 38 FLRA at 420, and both parties addressed the applicability of the routine use exception in their briefs to the court. Therefore, as the court did not dispose of this issue, we conclude that the General Counsel has properly raised it in this proceeding and we deny the Respondent's motion.
4. Similarly, a union has a substantial interest in information that will assist it in preparing a grievance for arbitration. For example, U.S. Department of Transportation, Federal Aviation Administration, New England Region, Burlington, Massachusetts, 38 FLRA 1623, 1629-30 (1991).
5. As the Supreme Court stated in NLRB v. Acme Industrial:
[a]rbitration can function properly only if the grievance procedures leading to it can sift out unmeritorious claims. For if all claims originally initiated as grievances had to be processed through to arbitration, the system would be woefully over-burdened. Yet, that is precisely what the respondent's restrictive view would require. It would force the union to take a grievance all the way through to arbitration without providing the opportunity to evaluate the merits of the claim. The expense of arbitration might be placed upon the union only for it to learn that the machines had been relegated to the junk heap. Nothing in federal labor law requires such a result.
385 U.S. at 438 (footnote omitted).
6. We note the Judge's conclusion that he "would expect" the cost of a hearing to determine grievability to be "about $1,000 or less." Supplemental Decision at 6. Although the Respondent contends that the Union exaggerated the costs of such a proceeding, Respondent's Exceptions at 11, it does not dispute the Judge's estimate.
7. There is no indication that disclosure of the letter will reveal other sensitive matters beyond the conduct that is the subject of the Union's grievance. In this regard, we note the Judge's statement that "[n]o party has attempted to distinguish among parts of the letter with respect to the Union's need for the information or any of the defenses available to the Respondent." 38 FLRA at 429 n.7.
8. We note that for purposes of assessing disclosure under the Privacy Act, the fact that otherwise private information may have been at one time or in some way known to the public does not diminish an individual's privacy interests in that information. Halloran v. Veterans Administration, 874 F.2d 315, 322 (5th Cir. 1989). However, as in this case, prior disclosure may be relevant in determining whether such information is necessary, within the meaning of section 7114(b)(4) of the Statute, in the context of a particular request.
9. We note that such constraints cannot be imposed to satisfy privacy interests under the FOIA or Privacy Act. Cf. National Association of Retired Federal Employees v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989) (court stated that, under FOIA, "information available to anyone is information available to everyone" and "a court cannot limit the disclosure of records to particular parties or for particular uses"). As explained above in note 8, the determination of necessity under the Statute involves a different analysis.
10. The grievance filed by the Union alleges that the supervisor "used physical force on two occasions to move the grievant . . . against [the grievant's] will. [The grievant] grieves that in so doing that he was treated unfairly, inequitably, and improperly by his supervisor[.]" Among other things, the grievance also states that the supervisor's actions "serve to degrade [the grievant] as a subordinate employee." Joint Exh. 3.
11. Article XXI, Section 3 of the collective bargaining agreement defines a grievance as a request "for appropriate relief in a matter of concern or dissatisfaction which is subject to the control of the union or the employer" with certain exceptions not relevant here. Jt. Exh. 2, amended agreement.
12. We note that any determination by the arbitrator concerning grievability would, on exceptions, be subject to de novo review by the Authority. U.S. Department of the Treasury, U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994).
13. In contrast, if release of the information were withheld pending an arbitral finding on the grievability issue, as suggested by the court, and an arbitrator resolved that issue in the Union's favor, the Union might then be free to divulge the confidential information regarding the supervisor's discipline to whomever it pleased.
14. The Privacy Act regulates the disclosure of any of information contained in an agency "record" within a "system 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 FOIA. 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 subsection (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."
15. The Respondent argues that the letter is not covered by a routine use notice because the notice relating to official personnel folders does not separately identify release of disciplinary records to unions as a routine use. The Federal Register notice covering OPM/GOVT-1 lists, as pertinent here, the following records that are in that system and, therefore, encompassed by routine use "j": "notices of all personnel actions, such as . . . demotions . . . suspensions . . . and removals." 57 Fed. Reg. 35705 (