51:1219(97)CA - - SSA, Dallas Region, Dallas, TX and AFGE Local 1336 - - 1996 FLRAdec CA - - v51 p1219



[ v51 p1219 ]
51:1219(97)CA
The decision of the Authority follows:


51 FLRA No. 97

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

SOCIAL SECURITY ADMINISTRATION

DALLAS REGION, DALLAS, TEXAS

(Respondent/Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO, LOCAL 1336

(Charging Party/Union)

6-CA-10825

_____

DECISION AND ORDER

April 30, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.(1)

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions.

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 "memory joggers" that it had requested under section 7114(b)(4) of the Statute.(2)

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision. For the reasons stated below, we conclude that the Respondent did not violate the Statute by refusing to provide the memory joggers and that the issue of whether the Respondent violated the Statute by destroying the memory joggers is not before us; however, we conclude that the Respondent violated the Statute by failing to inform the Union that certain of the requested memory joggers no longer existed.

II. Judge's Decision

The facts, which are fully set forth in the Judge's decision, are briefly summarized here. Joe Skarbek was Stella Moon's supervisor for a period ending on September 30, 1990, when Brenda Liess became her supervisor. On or about November 6, 1990, Moon filed a grievance over her Fiscal Year 1990 (FY 90) performance appraisal and designated Patricia March, a Regional Vice President of the Union, as her representative.

March made two information requests dated November 13, 1990: one to Skarbek requesting memory joggers pertaining to Moon's performance and/or conduct during FY 90 and the other to Liess requesting memory joggers pertaining to Moon's performance and/or conduct for the period Liess was Moon's supervisor. Receiving no response, the Union filed second requests with the two supervisors dated November 29, 1990. By memoranda dated December 19, 1990, the two supervisors acknowledged that they had kept memory joggers concerning Moon's performance and/or conduct but denied the Union's requests for them.

No reason for the requests was given at the time they were made. During the unfair labor practice (ULP) hearing, March testified that the memory joggers were requested for the purposes of: (1) assisting in the investigation, evaluation and processing of Moon's grievance over her FY 90 performance appraisal; (2) determining whether personnel records were being collected, maintained, or retained in violation of Article 3, sections 4 and 5, of the parties' negotiated agreement; and (3) representing Moon in her response to such records.

At the ULP hearing, the Agency revealed that Skarbek destroyed the relevant memory joggers in his possession on or about November 21, 1990, and Liess destroyed those in her possession shortly after Moon left her supervision. Upon this disclosure at the hearing, the General Counsel requested a finding that the Respondent violated the Statute by Skarbek's conduct in failing to inform the Union that the memory joggers in his possession no longer existed. In his post-hearing brief, the General Counsel enlarged the request to include Skarbek's conduct in destroying the memory joggers subsequent to the Union's request.

The Judge concluded that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by: (1) refusing to furnish the requested information to the Union; (2) Skarbek's failure to advise the Union in his December 19, 1990, memorandum that the requested information no longer existed; and (3) Skarbek's action in destroying the information after it had been requested by the Union.

III. Positions of the Parties (3)

A. Respondent's Exceptions

The Respondent excepts to the Judge's findings and conclusions that: (1) the requests were adequate; (2) the information was normally maintained by the Agency and reasonably available; and (3) the information was necessary within the meaning of section 7114 of the Statute. As to the first and third points, Respondent contends that any relationship between the requests for the memory joggers and Moon's grievance over her FY 90 performance appraisal was not apparent from the circumstances. In support of this contention, Respondent asserts, and uncontradicted testimony confirms, that Moon had multiple Equal Employment Opportunity (EEO) complaints pending before the Department of Health and Human Services at the time of the request for the memory joggers. Tr. at 81. Additionally, Respondent contends that the Union did not establish a particularized need for the memory joggers. As to the second point, the Respondent asserts that the memory joggers are the property of the supervisors, not the agency, and that the circumstances involved in this case are distinguishable from those present in Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, New Bedford District Office, New Bedford, Massachusetts, 37 FLRA 1277 (1990), on which the Judge relied.

B. General Counsel's Opposition

The General Counsel asserts that it should have been apparent from the surrounding circumstances that a reason for the Union's information request was Moon's performance appraisal grievance and that it was Respondent's responsibility to seek clarification if the reason was not clear. Contrary to the Respondent, the General Counsel contends that the Judge was correct in concluding that the memory joggers were normally maintained by the Agency in its regular course of business. The General Counsel argues that the Respondent has failed to support its exception to the Judge's conclusion that the memory joggers were reasonably available. Finally, the General Counsel maintains that, even under a particularized need standard, the evidence establishes that memory joggers were necessary to the Union for fulfilling its representational responsibilities.

IV. Analysis and Conclusions

A. The Requested Information Is Not Necessary Within the Meaning of Section 7114(b)(4)

In Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661 (1995) (IRS, Kansas City), the Authority set forth the analytical framework for determining whether requested information is necessary within the meaning of section 7114(b)(4) of the Statute. 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 the requested information, including the uses to which it will put the information and the connection between those uses and the union's representational responsibilities under the Statute. We also stated that the requirement to establish such need is not satisfied merely by showing that the requested information is or would be relevant or useful to the union, but that the union must demonstrate that requested information is "'required in order for the union adequately to represent its members.'" Id. at 669-70 (quoting Department of Justice v. FLRA, 991 F.2d 285, 290 (5th Cir. 1993). Satisfying this burden requires more than a conclusory or bare assertion; among other things, a request for information must be sufficient to permit an agency to make a reasoned judgment as to whether 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.(4) The agency will 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.

Applying IRS, Kansas City to the facts in this case, we find that when it requested the information, the Union did not satisfy its burden of articulating with specificity the reasons for which it needed the requested information and demonstrating that the requested information was required for it to adequately represent its members. At the time of the request, the Union provided no reason for the request. At the hearing, however, the Union offered three reasons for seeking the requested information. We disagree with the Judge and the General Counsel that one of the reasons offered at the hearing, specifically, Moon's grievance over her FY 90 performance appraisal, should have been apparent from the circumstances surrounding the request. Rather, we find that the existence of Moon's multiple EEO complaints and an earlier information request that specifically referenced Moon's performance appraisal grievance clouded the relationship between that grievance and the requests for the memory joggers. Also obscuring recognition of any relationship was the fact that in addition to requesting memory joggers from Skarbek, who was Moon's supervisor during FY 90, memory joggers were requested from Liess, who became Moon's supervisor after FY 90. Indeed, at the ULP hearing the Union asserted multiple reasons for the requests; this undermines a finding that the performance appraisal grievance or any other particular reason was evident at the time of the request.(5)

As we stated in IRS, Kansas City, a request for information must be sufficient to permit an agency to make a reasoned judgment as to whether information must be disclosed under the Statute. Even assuming, without deciding, that any of the reasons proffered at the hearing demonstrated a particularized need for the requested information, the Respondent was not aware of those reasons at a time when it reasonably could have assessed the necessity for the information. See U.S. Equal Employment Opportunity Commission, 51 FLRA 248, 258 (1995).

In sum, the Union has not established that the requested information is necessary within the meaning of section 7114(b)(4) of the Statute and, therefore, the Respondent did not violate the Statute by refusing to give the Union the memory joggers.(6)

B. The Destruction of the Requested Information Did Not Violate the Statute

1. We Do Not Find an Independent Violation Based on Destruction in This Case

The Judge's determination that Skarbek's destruction of requested memory joggers constituted a violation of the Statute is linked, both in the text of his decision and in his recommended Order, to the conclusion that the requested information met the requirements of section 7114(b)(4) for disclosure. Destruction was neither pled nor litigated as an independent violation; the General Counsel first requested a finding of a violation based on Skarbek's destruction of requested memory joggers in his post-hearing brief to the Judge. As the Respondent was not afforded notice and an opportunity to fully and fairly litigate the issue of whether Skarbek's destruction of requested information constituted an independent violation of the Statute, we will not address that issue further in this case. See U.S. Department of Labor, Washington, D.C., 51 FLRA 462, 468 (1995).

Accordingly, in view of our finding that the requested memory joggers were not necessary within the meaning of section 7114(b)(4), we do not adopt the Judge's conclusion that the Respondent further violated the Statute by its failure to comply with that section in destroying the requested information.

2. Where Properly Litigated, Destruction of Requested Information Shall Constitute an Independent Violation of the Statute

Although, for the reasons set forth above, the Authority does not find a violation of the Statute based on Skarbek's destruction of the requested information, in future cases presenting facts such as those undisputed here, where an independent violation is pled and/or fully litigated, the Authority will find that such conduct violates the Statute.

An agency's duty under Section 7114(b)(4) to furnish certain information upon a union's request is a component of the agency's obligation to negotiate in good faith. See U.S. Department of Transportation, Federal Aviation Administration, New York TRACON, Westbury, New York, 50 FLRA 338, 341 (1995) (FAA). In creating this statutory obligation, "Congress recognized the significance that information plays in a union's ability to pursue the full range of its representational responsibilities." Id. at 342. Indeed, although as a consequence of various court decisions the Authority has recognized significant limitations on the disclosability of information under section 7114(b)(4) such as those that flow from the Privacy Act, it has continued to view the "ability to exchange information [as] central to the labor-management relationship." Id. at 344. See also IRS, Kansas City, 50 FLRA at 668.

The knowing destruction by agency personnel of requested information prior to the point at which the merits of an information request have been determined is inconsistent with the Statute. The obligation of an agency to provide information pursuant to section 7114(b)(4) is rendered meaningless if the agency does not consider itself obliged to preserve requested information until resolution of any dispute over whether it need be disclosed. Destruction is inconsistent with the statutory policy of effective and efficient Government because it renders futile litigation to obtain information that is disclosable under section 7114(b)(4). Cf. Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72-73 (S.D.N.Y. 1991) (a litigant has a duty to retain documents that it knows, or reasonably should know, are relevant to pending or potential litigation or are the subject of a pending discovery request; sanctions are appropriate if such documents are destroyed); Jamie S. Gorelick et al., Destruction of Evidence § 3.11 at 93 (1989) ("Destruction of evidence is sanctionable when a party knows or reasonably should know that discoverable material is relevant to pending, imminent, or reasonably foreseeable litigation."). By the same token, destruction of requested information sabotages the effective vindication of employee rights under the Statute by interfering with the Authority's ability to fully remedy a failure to furnish the exclusive representative with information to which it is entitled under section 7114(b)(4).(7) Moreover, it is not a heavy burden for an agency to retain requested information for a limited period of time, or to instruct its personnel to do so.

C. Failure to Inform the Union That Requested Information No Longer Existed Violated the Statute

No exceptions were filed to the Judge's conclusion that the Respondent violated section 7116(a)(1), (5) and (8) by Skarbek's conduct in failing to inform the Union that the requested memory joggers no longer existed. Accordingly, we adopt the Judge's conclusion in this regard for the reasons stated in his decision. We note that the Judge's conclusion that the Agency violated the Statute by failing to inform the Union that the requested memory joggers no longer existed does not depend on a determination that the requested information is disclosable under section 7114(b)(4). See SSA, Boston Region, 39 FLRA at 656 (Authority concluded that agency's failure to inform the union that it did not maintain requested information violated the Statute notwithstanding the absence of a conclusion that the information was necessary within the meaning of section 7114(b)(4)). Consequently, our finding that the requested memory joggers are not necessary does not affect the viability of the Judge's independent conclusion concerning Respondent's failure to inform.

In addition to the rationale cited by the Judge, we find that failure to inform a union that information requested under section 7114(b)(4) does not exist is inconsistent with the statutory requirement that parties bargain in good faith. As stated earlier, the obligation to provide information under section 7114(b)(4) is one component of the duty to negotiate in good faith. FAA, 50 FLRA at 341. Deceiving a union that requests information under section 7114(b)(4) concerning the existence of that information does not constitute good faith. Here, uncontested testimony at the ULP hearing reveals that Skarbek had destroyed the memory joggers relating to Moon prior to his response to the Union's request for them. Thus, when Skarbek acknowledged that he had kept such memory joggers, but gave no indication that they no longer existed, he engaged in deception that was antithetical to the Respondent's statutory obligations.

D. Summary

We adopt the Judge's conclusion that the Respondent violated section 7116(a)(1), (5) and (8) by failing to inform the Union that the memory joggers that it had requested from Skarbek no longer existed. The remainder of the complaint is dismissed.

V. Order

Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Statute, the U.S. Department of Health and Human Services, Social Security Administration, Dallas Region, Dallas, Texas, shall:

1. Cease and desist from:

(a) Failing to inform the Union that information requested under section 7114(b)(4) of the Statute no longer exists.

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

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Inform the Union that information requested by the Union under section 7114(b)(4) of the Statute no longer exists.

(b) Post at all of its facilities 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 Regional Director, Social Security Administration, Dallas Region, 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 Regulations, notify the Regional Director, Dallas 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.

The allegation in the complaint that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by refusing to furnish the Union with memory joggers is dismissed.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF

THE FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Social Security Administration, Dallas Region, Dallas, Texas violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify our employees that:

WE WILL not fail to inform the American Federation of Government Employees, Local 1336, the exclusive representative of a unit of our employees, that information that it requested under section 7114(b)(4) of the Statute no longer exists.

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 Statute.

____________________________

(Activity)

Dated:___________ By:____________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Dallas Regional Office, Federal Labor Relations Authority, whose address is: Federal Office Building, 525 Griffin Street, Suite 926, LB 107, Dallas, TX 75202, and whose telephone number is: (214) 767-4996.

Opinion of Member Armendariz, Concurring in Part and Dissenting in Part

I agree, consistent with Authority precedent, that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to notify the Union of the unavailability of the requested information. I write separately because I do not believe that it is appropriate in this case to address the question of whether knowing destruction by an agency of requested information would constitute an independent unfair labor practice violation of the Statute where the agency would not be obligated under section 7114(b)(4) of the Statute to furnish the requested information to the exclusive representative. The Judge found that the Respondent violated the Statute by destroying the requested memory joggers because he found that the memory joggers were necessary information under section 7114(b)(4). Our finding that the memory joggers are not necessary eliminates the premise of that violation. The supervisor's action in destroying the memory joggers after they had been requested by the Union was not litigated as an independent violation at any stage of the proceeding in this case. See U.S. Department of Labor, Washington, D.C., 51 FLRA 462, 467-68 (1995).

In particular, in requesting that the Judge find a violation based on the supervisor's destruction of the requested memory joggers, the General Counsel did not request that the Judge find such a violation even if he found that the requested information did not meet the other requirements of section 7114(b)(4). Consequently, the Respondent had no reason to address the destruction issue separately from its defense that the memory joggers were not necessary within the meaning of section 7114(b)(4) and, in fact, did not do so. For this reason, I do not join in Section IV.B.2. of this decision. I will not address the issue here, but will state my views when it is alleged and litigated in an appropriate case.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424

SOCIAL SECURITY ADMINISTRATION,
DALLAS REGION, DALLAS, TEXAS
Respondent

and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1336
Charging Party/Union

Case No. 6-CA-10825

Wilson G. Schuerholz
Representative of the Respondent

Reginald T. Huey
Representative of the Charging Party

Joseph T. Merli
Counsel for the General Counsel, FLRA

Before: GARVIN LEE OLIVER
Administrative Law Judge

DECISION

Statement of the Case

The unfair labor practice complaint alleges that Respondent violated section 7116(a)(l), (5), and (8), of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(1), (5), and (8), by failing and refusing to provide the Union with requested information to which it was entitled under section 7114(b)(4) of the Statute.

Respondent has denied that it violated the Statute as alleged. Respondent contended in its answer to the complaint that the information requested by the Union was (1) not normally maintained in the regular course of business, (2) was not reasonably available, (3) was not necessary for the Union's representational duties, and (4) was prohibited from disclosure by law. Additionally, Respondent claimed at the hearing that the Union's charge was untimely filed and that the Union's request for information was overly broad.

A hearing was held in Dallas, Texas. The Respondent, Union, and the General Counsel were represented and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The Respondent and General Counsel filed helpful briefs. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.

Findings of Fact

From about 1988 until December 1990, the Union, through Patricia March, the Union's Primary Representative and later Regional Vice President, was actively engaged in representing Stella Moon, a bargaining unit employee, in a number of personnel matters. These personnel matters included three grievances over Moon's performance appraisals for 1988, 1989, and 1990, and numerous EEO complaints.

Everyone in Moon's chain of command knew that March was Moon's Union representative in her grievances and EEO complaints. Specifically, Moon's first line supervisors, Joe Skarbek and Brenda Liess, and higher level supervisors, Judy Pieper, Floyd Jamieson, and Dave Crawford, were all aware that March was representing Moon in her grievances and EEO complaints.

Moon filed the grievance over her 1990 performance appraisal on November 6, 1990. On the same date the Union made a request for information in connection with this grievance.(1) However, this request for information did not specifically request or mention memory joggers, although Moon had communicated to March earlier that "she [Moon] had reason to believe that the agency was keeping memory joggers on her and that she felt that it was necessary to find out what kind of information that they were surreptitiously keeping on her."

Therefore, seven days after the November 6, 1990 request for information, the Union, through March, made a specific request for memory joggers dated November 13, 1990. Two requests for information were sent by the Union, one to Skarbek and one to Liess. Both requests stated:

Please advise if you kept "memory joggers" on Stella Moon's performance and/or conduct during FY 90. If so, please provide copies of all "memory joggers" you wrote which relate to Stella either directly or indirectly. This information is requested pursuant to 5 USC 7114(b)(4). Please furnish this information directly to be by COB November 20, 1990.

Memory joggers are brief notes made by a supervisor to stir the supervisor's memory. They record specific facts or dates contemporaneous with an event. The notes are entered into a logbook, notebook, or calendar, or put into a "drop file" kept by the supervisor. Supervisors have been instructed during training sessions that memory joggers can be useful to bring an event to the supervisor's mind for a counselling session at a later date. For example, memory joggers can form the proper documentation for a counselling session over tardiness. A supervisor would record the name of the employee, the date of the incident, the time of the incident, and the amount of tardiness. In this case a memory jogger written on a calendar might read, "John, lunch, 30 minutes late." Joe is the name of the employee, the block on the calendar records the date, lunch is the time of the incident, and 30 minutes is the amount of tardiness. Other examples of memory joggers are notes that an employee was observed on the telephone too often, too long, or that an employee's work product was deficient.

It is discretionary with a supervisor whether or not to prepare memory joggers, but, where prepared in connection with employee conduct or performance, they are written by the supervisor in the course of the supervisor's employment and maintained by the supervisor in the supervisor's official capacity.

Memory joggers are not maintained in an agency system of records. Supervisors have been instructed not to keep memory joggers in a folder that identifies a certain person by name or Social Security number, but to keep them in a folder with no name, perhaps containing memory joggers on several employees, or just to keep such notes on a calendar. The Agency also leaves the retention or destruction of memory joggers to the supervisor's discretion. Memory joggers are normally retained by the individual supervisor as long as they have any usefulness to the supervisor.

The Respondent never asked the Union for a clarification of why the Union needed the memory joggers that it had requested. On all prior occasions when the Respondent did not understand why the Union needed certain information, or claimed that the Union's request did not articulate the reason it needed certain information, Respondent requested, in writing, an explanation from the Union.

March testified that the Union needed the memory joggers for three reasons: (1) to help Moon prepare a response or rebuttal to the memory joggers as provided for in Article 3, Section 4 of the parties' negotiated agreement, (2) to help the Union more effectively represent Moon in the grievance filed on November 6, 1990, and (3) to determine whether supervisors were maintaining records on employees contrary to Article 3, Section 5 of the contract, i.e. to investigate a possible contract violation and potential grievance. Article 3, Section 4 and 5 of the parties' collective bargaining agreement provides as follows:

Section 4----Official Records and Files in General

A. No personnel record may be collected, maintained, or retained except in accordance with law, government-wide regulation, SSA Personnel Manual for Supervisors, S-293, and this agreement. All personnel records are confidential, shall be viewed or disseminated by officials/employees only with a legitimate administrative need to know, and must be retained in a secure location at the employee's permanent duty station, except for official personnel folders which may be located at certain administrative personnel centers.

B. Employees and/or their authorized representatives shall have the right and be granted a reasonable amount of time to examine any of their personnel records on duty time in the presence of a management official. The employee shall have the right to prepare and enter on the record, while on duty status, a response to material placed in such records.

C. Access to personnel records of the employee by the employee and/or the authorized representative normally shall be granted within two (2) working days of the request if such records are maintained on the premises in which the employee is located and are immediately available. If the records are not so maintained as available, the employer will initiate prompt action to obtain the records from their location.

Section 5---SF-7B Extension File

A. Except as specifically authorized by this agreement, the SF-7B Extension File is the only authorized file for personnel records, which may be maintained by a supervisor, other than the official personnel folder.

B. The files will be screened and purged annually and outdated material shall be removed.

C. Records shall be retained only as long as such administrative need exists, but not longer than 1 year.

D. Employees shall be advised of the nature and purpose of their official personnel folder, SF-7B Extension File, and their locations. Employees shall be notified and given a photocopy of any material placed in the SF-7B Extension File within three (3) working days. Employees who review their Official Personnel File may request a copy of material not routinely furnished them. Employees should acknowledge receipt by signature. It is understood such acknowledgement does not constitute agreement with the contents.

E. Other than records that are exempt, any record that has not been disclosed to an employee on a timely basis and placed in his/her SF-7B Extension File cannot be used in a disciplinary or adverse action.

The Union never received a response to its November 13, 1990 request for memory joggers.(2) Therefore, on November 29, 1990 the Union, through March, made a "Second Request" for memory joggers. Again the Union sent two copies, one to Skarbek and one to Liess, with copies to Dana Callahan, Respondent's Labor Relations Officer. Both requests stated:

Pursuant to 5 USC 7114(b)(4) and 37 FLRA #108, please advise if you are keeping "memory joggers" on Stella Moon's performance and/or conduct. If so, please provide copies of all "memory joggers" you have written since becoming Stella's supervisor. Please furnish this information directly to me by COB December 6, 1990.

On December 19, 1990 the Respondent, in letters drafted by Callahan and signed by Skarbek and Liess, denied the Union's request for memory joggers and refused to release them to the Union. The responses from Skarbek and Liess stated:

In response to your memorandum dated 11/29/90, I am providing the following information:

I have, on occasion, made notes regarding employee performance and/or conduct (sometimes referred to as "memory joggers") to help me recall specific dates and events. I have made such notes in reference to Stella Moon. These notes are written to myself. I do not keep them in a system of records, and I do not file them in a way that would make them retrievable by name, SSN, or any other identifier.

I consider these notes memory joggers. They are not official documents, and are not considered Agency records. I do not plan to release these personal notes to you or to anyone else.

The memory joggers requested by the Union were never provided by Respondent and no longer exist. Contrary to Skarbek's December 19, 1990 statement that he had in his possession memory joggers pertaining to Moon, Skarbek destroyed the memory joggers he had made and maintained on Moon on or about November 21, 1990 shortly after receiving the Union's first request for memory joggers.(3) Skarbek had supervised Stella Moon for a period of time ending September 30, 1990. Brenda Liess, who supervised Moon from October 1, 1990 through January 26, 1991, destroyed the memory joggers she had made and maintained on Moon sometime later at the end of January 1991 shortly after Moon left her supervision. Dana Callahan, Respondent's Labor Relations Officer, testified that the memory joggers were destroyed by the supervisors because they had no reason to keep them once their supervision of Moon ended.

Discussion and Conclusions

Under section 7114(a) of the Statute, a labor organization which as been accorded exclusive recognition is entitled to "act for, and negotiate collective bargaining agreements" covering all employees in the unit. Section 7114(b)(4) of the Statute provides that an agency shall, upon request, furnish the exclusive representative, to the extent not prohibited by law, data which is normally maintained in the regular course of business; which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and which does not constitute guidance, advice, counsel or training provided for management officials or supervisors, relating to collective bargaining.

Charge Not Untimely

Respondent contends that the June 6, 1991 unfair labor practice charge was filed beyond the six month period permitted by section 7118(a)(4)(A) of the Statute, as it initially denied the Union's first request for information by letters dated November 20, 1990. A preponderance of the evidence established that no denial dated November 20, 1990 was ever delivered to the Union on that, or any other, date. Consequently, the Union's first notice that the Respondent would not provide it with the information it had requested was on December 19, 1990. This made the June 6, 1991 filing of the charge timely as it was within the six month period required by section 7118 (a)(4)(A).

Request Was Sufficient

Respondent contends that the Union gave no explanation for the request for memory joggers and the Union's need for the information was not apparent. Respondent claims that management could not determine if the request related to Ms. Moon's grievance, to her numerous EEO complaints, or to some other unknown issue.

While it would have been better practice for the Union to have clearly stated why it needed the information, this is not a case where the relevance of the data was "open to conjecture or surmise." Defense Mapping Agency, Aerospace Center, St. Louis, Missouri, 21 FLRA 595, 607 (1986); Internal Revenue Service, Washington, D.C., 32 FLRA 920, 926-927 (1988) (IRS). Respondent did not rely on this claim in its response to the Union's request, and it did not ask the Union to clarify or explain its need for the information as it had always done in the past whenever the Respondent did not fully understand why the Union needed certain information. See 438th Air Base Group, McGuire Air Force Base, Case No. 2-CA-609, ALJDR 4 (1982) (Agency has a responsibility to inform union of problems with request.) Respondent merely refused to provide the information on the basis that the memory joggers were personal notes and not official documents or agency records.

The relevance and necessity of information concerning Moon's performance to the processing of a grievance over her performance appraisal should have been, and no doubt was, apparent to Respondent from the circumstances. The Union had requested specific and limited information concerning "memory joggers on Stella Moon's performance and/or conduct during FY90." Respondent was well aware of Moon's grievance, filed seven days earlier, over her 1990 performance appraisal and was well aware of the Union's representation of Moon. Thus, I conclude that the nature of the request was sufficient in these circumstances to trigger Respondent's duty to supply the information if it was otherwise disclosable under section 7114(b)(4) of the Statute.

Normally Maintained

Respondent claims that the memory joggers are not "normally maintained by the agency in the regular course of business" as (1) they are the personal notes of the supervisor, an extension of memory; (2) the supervisor decides when they should be destroyed; (3) they are not controlled by the agency; (4) they do not meet the definition of "record" in 5 U.S.C. § 552(a)(4), nor would they be included in a "system of record" as defined in 5 U.S.C. § 552(a)(5); and (5) the 7B file is the only individual personal record on the employee normally maintained by the agency.

The Authority rejected these same arguments in Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 37 FLRA 1277 (1990)(SSA). Respondent attempts to distinguish this case on the basis that the memory joggers sought in SSA involved notes prepared at the request of a district manager and turned over to him. Respondent omits the fact that there the union also sought a memory jogger of the type sought in this case, namely a notation the district manager had made on his calendar concerning what transpired at an awards ceremony. With respect to all the requested information, the Authority concluded that the term "record," as used in the Privacy Act, is not synonymous with the term "data" set forth in 7114(b)(4) of the Statute. The Authority also rejected the argument that the memory joggers were personal and private notes, concluding that they were maintained by the district manager; were prepared by the supervisors in their official capacity for the purpose of making a contemporaneous record regarding the employee's conduct; were, therefore, written in the course of their employment for reasons of agency business; and were, therefore, normally maintained by the agency in the regular course of business.

Similarly, in this case, at the time of the initial requests the memory joggers did exist and were maintained by the supervisors in their official capacity. They were, therefore, normally maintained by the agency as they were subject to the agency's control or could be retrieved and provided to the agency at its request. SSA, 37 FLRA at 1285; U.S. Department of Justice, Office of the Inspector General, Washington, D.C. and U.S. Immigration and Naturalization Service, U.S. Border Patrol, El Paso, Texas, 45 FLRA No. 135 at 4 (1992).

The record also establishes that, as in SSA, the supervisors here (1) wrote memory joggers in the course of their employment, (2) maintained memory joggers in their official capacity, (3) wrote and maintained memory joggers for reasons of agency business, (4) wrote memory joggers for the purposes of making a contemporaneous record, and, in this case, were trained in the use of memory joggers through specific classes conducted by the agency. Therefore, contrary to the Respondent's contention, the evidence establishes that the information was maintained by the Respondent in the regular course of business within the meaning of section 7114(b)(4) of the Statute.

Reasonably Available

In Department of Health and Human Services, Social Security Administration, 36 FLRA 943 (1990), the Authority defined what is meant by the phrase "reasonably available" in section 7114(b)(4) of the Statute. The Authority found that "available" referred to information which is accessible or obtainable, while "reasonable" referred to means that are not extreme or excessive. Id. at 950. Here, as noted above, the information requested by the Union was maintained by Respondent's supervisors at the time of the Union's initial request. There was no showing that, at that time, the information was not accessible or obtainable, or that it could be retrieved only through the use of extreme or excessive means. Therefore, the information requested by the Union was "reasonably available" under section 7114(b)(4).

Necessary

The Union requested the memory joggers to assist it in the investigation, evaluation, and processing of Moon's grievance over her 1990 performance evaluation; to determine whether personnel records were being collected, maintained, or retained in violation of Article 3, Section 4 and 5 of the collective bargaining agreement; and to represent Moon in her responses or rebuttals to such records. I conclude that the requested data was necessary for the Union to fulfill its representational responsibilities under section 7114(b)(4). SSA, 37 FLRA at 1286.

Not Prohibited By Law

Respondent denied in its answer that the information was not prohibited from disclosure by law, but has not specifically supported that contention with evidence at the hearing or by argument in its brief, other than as discussed with respect to other points. Accordingly, I consider this defense to have been abandoned and conclude, in agreement with Counsel for the General Counsel, that the release of the data requested is not prohibited by law.

It is concluded that Respondent violated section 7116(a)(1), (5), and (8) of the Statute by its failure to comply with section 7114(b)(4) and furnish the Union copies of the memory joggers written on Stella Moon by two supervisors as requested by the Union's letters dated November 13, 1990 and November 29, 1990.

Counsel for the General Counsel also requests a finding that Respondent, by the conduct of Supervisor Joe Skarbek, violated the Statute by failing to inform the Union in the December 19, 1990 letter that Skarbek's memory joggers no longer existed and/or by destroying some of the information which had been requested by the Union only a week before.

The Authority has previously held that a complaint alleging a violation of section 7116(a)(1), (5), and (8) of the Statute based upon an agency's refusal to provide the Union with requested information, is broad enough to include a violation based upon the agency's failure to inform the Union that the information does not exist. Veterans Administration, Washington, D.C. and Veterans Administration Regional Office, Buffalo, New York, 28 FLRA 260 (1987). The Authority has held that a response that the specific information sought does not exist is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining. Social Security Administration, Baltimore, Maryland, 39 FLRA 650, 656 (1991) (Fact that uninformed labor relations officer served as agency's agent does not excuse failure to inform union that agency did not maintain data). Therefore, Respondent's failure to advise the Union that certain of the information no longer existed violated section 7116(a)(1), (5), and (8) of the Statute.

I also agree with Counsel for the General Counsel that Respondent, by Joe Skarbek, violated section 7116(a)(1), (5), and (8) of the Statute in these circumstances by destroying some of the information after it had been requested by the Union. The information met all of the requirements of section 7114(b)(4) of the Statute and should have been furnished to the Union forthwith. By destroying the information Respondent failed and refused to comply with section 7114(b)(4) and violated section 7116 (a)(1), (5), and (8) of the Statute.

Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following Order:

ORDER

Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority's and section 7118 of the Statute, it is hereby ordered that the Social Security Administration, Dallas Region, Dallas, Texas shall:

1. Cease and desist from:

(a) Failing and refusing to furnish the American Federation of Government Employees, Local 1336 (Union), the agent of the exclusive representative of a unit of its employees, information requested in the Union's letters of November 13 and 29, 1990 consisting of copies of memory joggers maintained on an employee's performance and/or conduct.

(b) Failing to inform the Union that certain of the information requested no longer exists.

(c) Destroying information which is necessary for the Union's representational duties following the Union's request for such information.

(d) In any like or related manner interfering with, restraining or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations 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 Union, upon request, data which is normally maintained in the regular course of business, which is reasonable available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining, which does not constitute guidance, advice, counsel, or training

provided for management officials or supervisors relating to collective bargaining, and which is not prohibited by law from release.

(b) Inform the Union whenever certain information requested by the Union pursuant to its representational duties no longer exists.

(c) Post at all of its facilities 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 Regional Director and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Dallas Region, Federal Labor Relations Authority, 525 Griffin Street, Suite 926, Dallas, Texas 75202, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, DC, November 5, 1992

_________________________
GARVIN LEE OLIVER
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 or refuse to furnish the American Federation of Government Employees, Local 1336 (Union), the agent of the exclusive representative of a unit of our employees, information requested in the Union's letters of November 13 and 29, 1990, consisting of copies of memory joggers maintained on an employee's performance and/or conduct.

WE WILL NOT fail to inform the Union that certain of the information requested no longer exists.

WE WILL NOT destroy information which is necessary for the Union's representational duties following the Union's request for such information.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL furnish to the Union upon request, data which is normally maintained in the regular course of business, which is reasonable available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining, which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining, and which is not prohibited by law from release.

________________________
(Activity)

Dated:_________By:____________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Dallas Region, whose address is: 525 Griffin Street, Suite 926, Dallas, Texas 75202, and whose telephone number is: (214) 767-4996.




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


Authority's Footnotes Follow:

1. The separate opinion of Member Armendariz appears at the end of this decision.

2. "Memory joggers" are brief notes made by a supervisor to refresh the supervisor's memory at a later point.

3. In addition to the exceptions to the Judge's decision and an opposition, the Respondent and the General Counsel filed supplemental submissions in response to an Authority Order requesting additional information and argument.

4. As in previous cases, Member Wasserman expresses no opinion as to whether section 7114(b)(4) requires the Authority to take into account an agency's countervailing anti-disclosure interests when determining whether information is "necessary." E.g., U.S. Department of Transportation, Federal Aviation Administration, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Connecticut, 51 FLRA 1054, 1067 n.12 (1996). Although Member Wasserman sees no value in repeating this statement in every case in which IRS, Kansas City is cited, he will, in an appropriate case, address this issue.

5. Neither of the other two reasons offered at the hearing and on which the Judge relied to find that the requested information was necessary was articulated or otherwise evident at the time of the Union's request and the Respondent's denial of information.

6. In view of this conclusion, we do not address whether the information request satisfied the other requirements of section 7114(b)(4) of the Statute. E.g., Social Security Administration, Baltimore, Maryland and Social Security Administration, Area II, Boston Region, Boston, Massachusetts, 39 FLRA 650, 656 (1991) (SSA, Boston Region) (a data request filed under section 7114(b)(4) must meet all the requirements set forth in the three subsections of that section).

7. For this reason, it is inappropriate to base a violation on the ultimate determination that the requested information must be disclosed under section 7114(b)(4)(B). In contrast to other situations where the Authority employs an "act at peril" doctrine, see, e.g., U.S. Department of the Treasury, Customs Service, Washington, D.C., 38 FLRA 770, 788 (1990), the destruction of requested documents vitiates the Authority's ability to fully remedy a failure to produce information later determined to be disclosable.


ALJ's Footnotes Follow:

1. On November 26, 1990 Respondent replied to the November 6, 1990 request for information by furnishing copies of certain performance appraisals and studies. Respondent also stated that copies of all documents in Moon's 7B file had previously been provided. Respondent asked that the Union explain the relevance of certain other specific information it had requested.

2. Dana Callahan, Respondent's Labor Relations Officer, testified that Supervisors Skarbek and Liess came to her for assistance in responding to the Union's November 13, 1990 requests for memory joggers; that she drafted responses denying the requests; and that she assumed that their secretary personally hand-carried the letters dated November 20, 1990 to Ms. March or placed them on her desk as was the usual practice. I credit Mr. March's testimony that she did not receive such responses. It is also noted that (1) no witness testified to their actual delivery to March; (2) Ms. March's November 29, 1990 requests were clearly labeled "Second Request"; and (3) Respondent's December 19, 1990 replies do not refer t