52:1133(113)CA - - HHS, SSA, New York Region, NY, NY and AFGE Local 3369 - - 1997 FLRAdec CA - - v52 p1133



[ v52 p1133 ]
52:1133(113)CA
The decision of the Authority follows:


52 FLRA No. 113

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEPARTMENT OF HEALTH AND HUMAN SERVICES(1)

SOCIAL SECURITY ADMINISTRATION

NEW YORK REGION

NEW YORK, NEW YORK

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO, LOCAL 3369

(Charging Party)

BY-CA-30748

BY-CA-40496

_____

DECISION AND ORDER

March 14, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald Wasserman, Members.(2)

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs with the Authority.

The complaint in Case No. BY-CA-30748 alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to furnish the Charging Party (the Union) with unsanitized information concerning performance awards and on-the-spot awards for the 1992 rating period. The complaint in Case No. BY-CA-40496 alleges that the Respondent violated the same provisions when it failed to provide unsanitized information concerning performance awards and on-the-spot awards for the 1993 rating period, and failed to respond to the request that it furnish the information.

For the reasons that follow, we find that the Respondent's failure to disclose unsanitized information concerning performance awards for the 1992 rating period did not violate the Statute because disclosure of this information is prohibited by the Privacy Act, 5 U.S.C. § 552a.(3) We further find that the Respondent's failure to furnish the Union with unsanitized information concerning on-the-spot awards for the 1992 rating period and unsanitized information concerning performance awards and other awards for the 1993 rating period did not violate the Statute because the Union has not established a particularized need for this information. Finally, we find that the Respondent violated the Statute by failing to respond to the Union's 1993 request.

II. Stipulation

On December 14, 1992, the Union requested copies of Form SSA-2814 (Recommendation for Performance Award) and "the same information regarding on-the-spot awards" for unit employees for the 1992 rating period ending September 30, 1992. Stipulation, Exhibit 11. Form SSA-2814 lists the employee's organization, administrative mailing address, social security number, name, position, pay plan and grade, rating level, and proposed award amount.(4) Prior to fiscal year 1992, the Respondent had provided this information to the Union.

The Union requested that the Respondent not sanitize any of the information and "include name, GS level, position, office location, and amount of award." Id. The Union also requested that the Respondent furnish the data to four other American Federation of Government Employee (AFGE) locals for those offices within each local's jurisdiction. The Union stated that "[t]his information is necessary to monitor compliance with the [n]ational [a]greement." Id.

The Respondent notified the Union by letter dated March 12, 1993, that it was mailing sanitized information to two of the five locals that day and would mail the remaining information to the other locals as soon as possible. The sanitized information that the Respondent furnished to the Union and the other AFGE locals included not only the requested copies of recommendations for performance awards and on-the-spot awards, but also recommendations for Quality Step Increase (QSI) awards and special act or service awards for fiscal year 1992.(5) The Respondent provided the information in a computer-generated format that listed performance awards by office location and included the employee's grade level, current position, award amount and date processed, summary rating, and full-time or part-time status. A copy of the proposed award amounts in a "schedule of payments" by summary rating and grade level was also attached. Stipulation, Exhibit 15. The Respondent sanitized the furnished data by deleting the names of all employees who received the awards. The Respondent stated that it was required to sanitize the information because "unsanitized award information was an invasion of employee privacy rights" under FLRA v. United States Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 962 F.2d 1055 (D.C. Cir. 1992) (FLRA v. Commerce). Stipulation, Exhibit 13.

While the Respondent was in the process of releasing the information to the other locals, the Union renewed its request for the unsanitized information by letter dated March 19, 1993. In that letter, the Union disagreed with the Respondent's position that FLRA v. Commerce was applicable, arguing that FLRA v. Commerce concerned the disclosure of performance evaluations and stating that the Union had not requested performance ratings. The Respondent received the Union's letter on March 22, 1993. It mailed the remaining sanitized information to the other three locals on March 22, 24, and 26, 1993.

Subsequently, by letter dated October 25, 1993, the Union requested that the Respondent furnish it and the other AFGE locals with unsanitized copies of performance award information reported in Form SSA-2814, or its equivalent form, and QSI awards, on-the-spot awards, and special act or service awards for the 1993 rating period.(6) As with the Union's 1992 information request, the Union requested that the information be unsanitized and include name, GS level, position, office location, and amount of award. The Union stated that the 1993 information was "necessary to monitor compliance with the [n]ational [a]greement and to pursue possible grievances and [Equal Employment Opportunity] complaints due to inequities in the distribution of award money." Stipulation, Exhibit 21. The Respondent did not respond to the Union's October 25 request.

III. Positions of the Parties

A. General Counsel

The General Counsel argues that the Respondent committed unfair labor practices by refusing to furnish the Union with the names of employees who received awards, for the 1992 and 1993 rating periods, and by failing to respond to the 1993 request.

The General Counsel contends that the names are necessary, within the meaning of the Statute, in order for the Union to determine, as it had in the past, whether to pursue possible grievances and EEO complaints due to alleged inequities in the distribution of award money. According to the General Counsel, without the names of award recipients, the Union would be unable to verify the Respondent's compliance with its obligations under the parties' negotiated agreement, the parties' awards program, Government-wide merit principles, and other relevant laws and regulations.

The General Counsel argues that the Respondent is not required to sanitize the names pursuant to FLRA v. Commerce. The General Counsel claims that: (1) the Authority has not adopted the reasoning of that case; (2) FLRA v. Commerce stands for the narrow proposition that, under the circumstances in that case, the Statute did not require the agency to furnish lists of employees who received outstanding or commendable personnel evaluations; and (3) the instant case is different because the Union requested only awards data, not performance evaluations. The General Counsel maintains that the on-the-spot awards data has nothing to do with the recipient's performance rating and that the other requested awards data would not directly disclose the recipient's performance rating, because none of the requested information specifies the recipient's summary rating. Similarly, the General Counsel asserts that furnishing "the requested SSA Forms 2814 and 774 data" (recommendation for QSI) would not involve direct disclosure of the employee's performance rating, because none of that information specifies the employee's summary rating. General Counsel's Brief at 8.

The General Counsel contends that disclosure of the names is not prohibited by the Privacy Act but, rather, that the names are disclosable under Exemption 6 of the FOIA. According to the General Counsel, disclosure of the names would indicate whether the Respondent is treating its employees fairly and even-handedly. The General Counsel claims that a strong public interest exists in ensuring that the Respondent treats its workforce fairly, in a nondiscriminatory manner, and in compliance with appropriate laws, rules, and regulations.

The General Counsel argues that, in this case, the Union did not request performance appraisals or summary ratings, but rather requested "awards data which relates only tangentially to employees' performance ratings." Id. at 14. The General Counsel maintains that balancing the public interest against the minimal privacy interests of employees in this case will not result in a clearly unwarranted invasion of privacy. According to the General Counsel, there would be little impact on employee privacy because the names would be released to the Union for the limited purpose of performing its representational function.

Finally, the General Counsel contends that the Respondent committed an unfair labor practice by failing to respond to the Union's 1993 information request. In this regard, citing U.S. Naval Supply Center, San Diego, California, 26 FLRA 324 (1987) (Naval Supply Center), the General Counsel argues that the Authority will find a violation of the Statute when no reply to a request for information is given because "[a] reply to a request for information is necessary for the full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining." General Counsel's Brief at 16.

B. Respondent

The Respondent maintains that because it already provided the rating and award amounts for performance awards to the Union, it had to consider the balancing test in Exemption 6 of the FOIA to determine whether the release of the names of employees who received awards for 1992 would constitute a clearly unwarranted invasion of their privacy.

The Respondent argues that under Ripskis v. Department of Housing and Urban Development, 746 F.2d 1 (D.C. Cir. 1984) (Ripskis), and FLRA v. Commerce, it was required to sanitize the names of employees who received performance awards in 1992. The Respondent asserts that by identifying the names of the employees who received awards, the Union would have been able to determine the appraisal ratings of employees, because the amount of a performance award is tied to the summary rating of the employee receiving the award. The Respondent also argues that it was justified in sanitizing the other award information for the same reasons it was justified in sanitizing the performance award data.

According to the Respondent, it provided the Union with the information required by the parties' agreement. The Respondent claims that the parties' agreement does not require the Respondent to provide the names of employees who received the awards.

Further, the Respondent claims that the Union did not establish a particularized need for the requested information. According to the Respondent, the Union's request for the 1992 awards data lacked the requisite specificity because the Union claimed only that it needed the information to monitor compliance with the national agreement. In particular, the Respondent notes that the Union had not filed a grievance on any matter related to employee awards. With regard to the 1993 information request, the Respondent states that because the information provided to the Union for the 1992 rating period was deemed unacceptable by the Union, the Respondent did not furnish the requested award information to the Union for the 1993 rating period.

IV. Analysis and Conclusions

A. Unsanitized Performance Award Information for 1992 and 1993

1. Disclosure of Requested Names for 1992 Performance Award Information Is Barred by the Privacy Act

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

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

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

In this case, the Respondent provided the Union and the other locals with information concerning performance and on-the-spot awards for fiscal year 1992 in a computer-generated format that lists, among other things, the employees' grade level, current position, award amount, appraisal rating, and full-time or part-time status, with the employees' names deleted. Although in its renewed request the Union indicated that it was not seeking performance ratings, the Union had already obtained the ratings in the information it had received from the Respondent. Thus, the question before us is whether disclosure of the names of employees about whom performance rating and award information had already been disclosed is prohibited by the Privacy Act. We note, in this connection, that, unlike requests that encompass only the names of employees who received awards, the request for names could be matched to the employees' appraisal ratings already provided. As such, disclosure of the requested information would, as discussed below, effectively amount to release of unsanitized appraisal ratings for all employees included in the request.

Before analyzing the respective privacy and public interests, we note that the parties did not stipulate that the information is contained in a system of records and the Respondent does not address that issue. However, as the Authority found in FAA, 50 FLRA at 346, performance appraisals, which necessarily include overall ratings, of Federal employees are contained in the OPM/GOVT-2 system of records entitled "Employee Performance File System Records." 57 Fed. Reg. 35709 (August 10, 1992). That system also contains information concerning employee awards. Social Security Administration, San Francisco Bay Area, 51 FLRA 58, 63 (1995) (SSA).(7)

Having determined that performance award information is included in a system of records covered by the Privacy Act, we turn to the question of whether the requested unsanitized 1992 performance award information is disclosable under the Privacy Act. In so doing, we are guided by the statement in Halloran v. Veterans Administration, 874 F.2d 315, 321 (5th Cir. 1989) (Halloran) that "[i]n both FOIA and other contexts involving privacy concerns, it has long been the rule that our concern is not with the identifying information per se, but with the connection between such information and some other detail . . . which the individual would not wish to be publicly disclosed." In this case, the Union asked the Respondent to "not sanitize any information . . . [and] include [the] names" of the recipients of the awards. Exhibit 11. If the Respondent were required to provide the Union with the name of the employee receiving a particular monetary award, the Union would be able to match this award to the columns of corresponding appraisal ratings in the computer-generated format it previously had received. In this regard, the situation presented here is analogous to that in SSA, in which a union sought the names of employees who had attained particular levels of performance and whether they received awards. We found that disclosure of the names inherently would identify appraisal rating information about individual employees and we took that factor into account in balancing the interests under FOIA Exemption 6. SSA, 51 FLRA at 63-65.

The Union was provided with performance awards by office in a computer-generated format. The information included columns identifying, among other things, the employees' current grade level, the current position, and the award amount with a letter inserted to show the summary rating. In addition to the awards data, a copy of the schedule of payments, by summary rating and grade level, was attached. If the Respondent provided the Union with the name of the employee receiving an award, the Union easily would be able to discern this employee's summary rating by matching the name to his current position in the computer-generated format. For example, if the Union knew the employee's name, then it could determine that the employee was a GS-7 Contact Representative in the Monticello office who received an award of $620, and by examining the computer-generated list, it would know that the employee had received an appraisal rating of exceptional. Based on the record in this case, it is clear that in all instances knowledge of the particular award amount an employee received would enable the Union to ascertain that employee's appraisal rating. Furthermore, we note that the release of names of employees who received a QSI also would reveal their appraisal ratings because only those employees with an outstanding rating, a level 5, qualified for a QSI.

Previously, the Authority determined that employees have significant privacy interests in their performance ratings. SSA. Disclosure of favorable, as well as unfavorable, information could subject employees to embarrassment and jealousy among co-workers, which could result in discord at the workplace. FAA, 50 FLRA at 347. See also U.S. Department of Justice, Office of Justice Programs, 50 FLRA 472, 479-80 (1995); U.S. Department of Transportation, Federal Aviation Administration, Jacksonville Air Traffic Control Tower, Jacksonville, Florida, 50 FLRA 388 (1995) (FAA, Jacksonville). Consistent with this precedent, we find that the employees have substantial privacy interests in not having this rating information disclosed.

The requested information also implicates a public interest cognizable under Exemption 6 because the information would shed light on Government operations and serve the public interest of ensuring that the appraisal and awards systems are administered in a fair and equitable manner, without discrimination, and in accordance with laws, rules and regulations. The information relating to awards also would serve the public interest of monitoring the public fisc to ensure that the Respondent's expenditure of monies for awards is appropriate. More particularly in this case, permitting comparisons of employee ratings and awards, including award amounts, would enable a requestor to assess whether award monies were being disbursed to those employees who were most deserving based on job performance. Finally, the Authority has noted that the public interest in award information has been recognized in a Government-wide regulation, 5 C.F.R. § 293.311, which includes name-identified award data among the categories of information available to the public, so long as the award information is not disclosed in a manner that would reveal an individual's performance appraisal rating. See Scott AFB, 51 FLRA at 607; SSA, 51 FLRA at 64.(8)

However, the 1992 information already provided would serve this public interest, and the names of rating and award recipients--the precise portion of the information withheld by the Respondent--would not shed any additional light on the Government's conduct. See, e.g., United States Department of State v. Ray, 502 U.S. 164, 178 (1991); Ripskis, 746 F.2d at 3-4 (D.C. Cir. 1984); FAA, Jacksonville, 50 FLRA at 393-94. In this connection, disclosure of the employees' names for the requested 1992 information may well enhance the Union's ability to use the information to determine whether there is disparate treatment among bargaining unit employees and to evaluate grievances based on disparate treatment. However, this interest is specific to the Union as the requesting party and, as such, may not be considered in balancing interests under FOIA Exemption 6. See SSA, 51 FLRA at 65. See also United States Department of Defense v. FLRA, 510 U.S. 487, 499 (1994) ("[A]ll FOIA requestors have an equal, and equally qualified, right to information[.]"); Reporters Committee, 489 U.S. at 771 ("[T]he identity of the requesting party has no bearing on the merits of his or her FOIA request.").

Moreover, although the public has a strong interest "in ensuring that [the] Respondent treats its workforce fairly, in a nondiscriminatory manner . . .[,]" (General Counsel's Brief at 13), the General Counsel has not shown how disclosure of name-identified summary ratings and awards would enhance a member of the public's (as opposed to the Union's) ability to determine whether the Respondent was administering its performance appraisal and awards systems equitably. Cf. Painting and Drywall Work Preservation Fund, Inc. v. Department of Housing and Urban Development, 936 F.2d 1300, 1303 (D.C. Cir. 1991) (court found that the possibility that requested information "would facilitate investigation of government efforts to enforce" certain laws constituted a "limited public interest," which was outweighed by individuals' privacy interests in the records).

We conclude, on balance, that the public interest served by disclosure of the names of employees about whom performance rating and award information has already been provided for 1992 is outweighed by the invasion of employees' privacy that would result. See Scott AFB, 51 FLRA at 606-07. Accordingly, we find that disclosure of the requested names for 1992 would constitute a clearly unwarranted invasion of personal privacy within the meaning of FOIA Exemption 6 and, thus, is prohibited by the Privacy Act. Therefore, the Respondent was not obligated to provide the Union with the requested names under section 7114(b)(4) and its failure to do so did not violate the Statute.(9)

2. Disclosure of Requested Names for 1993 Performance Award Information Is Not Barred by the Privacy Act

The requested 1993 performance award information consists of copies of Form SSA-2814 (or its equivalent form), and recommendations for QSI awards. The Union did not request that appraisal ratings be included in the information, but did request that the Respondent include the employee name, GS level, position, office location and amount of award. Unlike the circumstances concerning the 1992 request, no information was provided to the Union in response to the 1993 request.

For the same reasons stated previously, we find that information pertaining to performance-based actions such as awards, pay increases, and bonuses is contained in a system of records. However, unlike the request for 1992 award information, there is no evidence in this case that disclosure of the requested 1993 award information would reveal an employee's specific performance rating or other information in performance award records that employees wish to keep confidential. As a result, the weighty privacy interest, which tipped the balance against disclosure in Scott AFB and SSA, is significantly reduced in the case before us. In contrast, the regulatorily recognized public interest in disclosure remains undiminished. U.S. Department of Transportation, Federal Aviation Administration, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Connecticut, 51 FLRA 1054, 1066 (1996) (Bradley Air Traffic Control Tower). Therefore, we find that disclosure of the 1993 performance award information, without summary ratings, is not barred by the Privacy Act.

B. Disclosure of 1992 and 1993 On-The-Spot Awards Is Not Barred by the Privacy Act

The special act or service awards recognize special contributions or accomplishments in the public interest. The on-the-spot awards recognize employees where immediate recognition is consequential. Material on employee awards is contained in the OPM/GOVT-2 system of records. See 57 Fed. Reg. 35709. See also Scott AFB, 51 FLRA at 604 (documents containing monetary award amounts are contained in an Office of Personnel Management system of records). We find that it is proper to take official notice of that fact in this case. FAA, 50 FLRA at 346.

The Respondent provided the Union with sanitized copies of special act or service awards and on-the-spot awards paid in fiscal year 1992. The Respondent did not provide this information for 1993. The information provided for 1992 included the type of award, the award amount, employee location, position and grade. The only difference between this information and the award information provided to the Union in previous years was that the names of the employees were deleted in 1992.

The requested information concerning special act or service awards and on-the-spot awards does not contain any information that would reveal appraisal rating information. Therefore, we conclude that any public interest that would be served by disclosure is not outweighed by the invasion of employees' privacy that could result. As a result, the weighty privacy interest, which tipped the balance against disclosure in Scott AFB and SSA, is significantly reduced in the case before us. In contrast, the regulatorily recognized public interest in disclosure remains undiminished. See Bradley Air Traffic Control Tower, 51 FLRA at 1066.

We find that, on balance, the employees' personal privacy interests in this data do not outweigh the public interest that its disclosure would serve. Accordingly, we find that disclosure of the requested award data would not constitute a clearly unwarranted invasion of personal privacy within the meaning of the FOIA Exemption 6. Therefore, we find that disclosure of the requested information is not barred by the Privacy Act.

C. The 1992 and 1993 On-The-Spot Awards and the 1993 Performance Awards Are Not Necessary Within the Meaning of Section 7114(b)(4) of the Statute Because The Union Did Not Establish a Particularized Need for This Information

Because we have determined that the requested 1992 and 1993 on-the-spot awards and the 1993 performance awards are not prohibited from disclosure by the Privacy Act, we next consider whether this information is necessary within the meaning of section 7114(b)(4) of the Statute.

1. The Analytical Approach for Determining Whether the Requested Information Is Necessary Within the Meaning of Section 7114(b)(4) of the Statute

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 approach for determining whether requested information is necessary within the meaning of section 7114(b)(4) of the Statute. Under this approach, a union requesting information under section 7114(b)(4) of the Statute "must establish a particularized need for the information by articulating, with specificity, why it needs the requested information, including the uses to which the union will put the information and the connection between those uses and the union's representational responsibilities under the Statute." Id. at 669 (footnote omitted). Further, the union's responsibility for articulating its interests in the requested information includes more than a conclusory or bare assertion and must permit an agency to make a reasoned judgment as to whether the disclosure of the information is required under the Statute. The agency is responsible for asserting and establishing any countervailing anti-disclosure interests and, like the union, must do so in more than a bare or conclusory way.

The Union is required to articulate its disclosure interests at or near the time of the request--not for the first time at the unfair labor practice hearing. E.g., Department of Justice, United States Immigration and Natrualization Service, United States Border Patrol, Dallas, Texas, 51 FLRA 545, 551 (1995); U.S. Equal Employment Opportunity Commission, 51 FLRA 248, 258 (1995) (EEOC).

2. The Union Did Not Establish a Particularized Need for the 1992 On-The-Spot Awards

The 1992 on-the-spot awards information requested by the Union includes the type of award, the award amount, employee name, location, position and grade. The Union's request for the 1992 on-the-spot awards information stated simply that the requested information was "necessary to monitor compliance with" the parties' national agreement. Exh. 11. This statement describes, in very general and conclusory terms, the Union's reason for requesting the information. It does not, however, explain the particular uses to which the Union would put the information if it were disclosed.

The Union has not established with requisite specificity its need for the requested information. The Union made a bare assertion that it needs the information to monitor the national agreement and subsequently stipulated that Article 17 of the agreement governs the conditions under which awards are granted. No basis has been presented in this case to find that the Union articulated or established with the requisite specificity that it needed this information, the uses to which it would be put, and the connection between those uses and the Union's responsibilities under the Statute. See, for example, Department of the Air Force, Washington, D.C. and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 52 FLRA No. 105, slip op. at 10 (1997) (Wright Patterson); Department of Labor, 51 FLRA at 476-77. As such, we conclude that the requested information is not necessary, within the meaning of section 7114(b)(4) of the Statute. See EEOC, 51 FLRA at 257-58.

3. The Union Did Not Establish a Particularized Need for the 1993 On-The-Spot Awards or the 1993 Performance Award Information

Like the requested 1992 on-the-spot information, the requested 1993 on-the-spot and performance award information included the type of award, the award amount, employee name, location, position and grade. Also like the request for the 1992 information, the Union's request for the 1993 on-the-spot and performance award information stated that the requested information was "necessary . . . to monitor compliance" with the parties' national agreement. Exh. 21. In addition, however, the Union further stated in the 1993 request that the requested information was "necessary . . . to pursue possible grievances and EEO complaints due to inequities in the distribution of award money." Id. For the reasons explained here, we do not find that this additional general assertion warrants reaching a conclusion that the 1993 request, unlike the 1992 request, satisfies the particularized need requirement.

The statements in the 1993 request describe the Union's reasons for requesting award information in general, and establish a need for some award information to monitor compliance with the national agreement and to determine whether there are inequities in the distribution of award money. They do not, however, explain why the Union needs the name-identified information it requested, and the particular uses to which the Union would put the information if it were disclosed. In particular, although this request contains assertions of need in addition to that in the request for 1992 information -- to pursue possible grievances and to EEO complaints -- these assertions are as general and conclusory as the assertion that the information was necessary to monitor compliance with the national agreement. A union cannot overcome the insufficiency of conclusory assertions by making several such assertions in the same request.

We are not persuaded that the additional points made in the parties' stipulation warrant finding that particularized need has been established for the information sought by the Union in the 1993 request. In this regard, our dissenting colleague points out that the stipulation references and incorporates the parties' national agreement, and finds that several provisions of the agreement are relevant to the request. However, in addition to the fact that the Union's request, the stipulation, and the General Counsel's brief do not assert such relevancy, we do not agree that these particular provisions serve to elucidate the Union's need for the requested name-identified information. They do nothing more, in our view, than present grounds on which the Union could have articulated particularized need. Similarly, we do not agree with the weight attached by the dissent to the parties' stipulation that, "[b]ased on a similar 1991 information request, the Union is currently representing a group of employees in an EEO complaint alleging that they were discriminated against when they did not receive award money." Stipulation, para. 14. This stipulation, which was entered into in 1995, does not indicate whether the EEO complaint was filed before or after the request for the 1993 information was made, or how information from the 1993 rating period is necessary in connection with the Union's representational responsibility in processing a complaint based on a 1991 information request.

In our view, there is no basis in the record on which to conclude that the Union articulated or established with the requisite specificity "that or why it needs name-identified" information to monitor compliance with the national agreement and to determine whether there are inequities in the distribution of award money. Department of Labor, 51 FLRA at 477. It is not apparent, in this regard, that names of employees are necessary, as the Union claimed, "to pursue possible EEO complaints . . . ." Exh. 21. It is entirely possible that, as our colleague concludes, names would be required to determine whether discrimination based on sex or race had occurred because, among other things, the Union could have used names to contact employees personally. This does not mean, however, that they are necessary within the meaning of section 7114(b)(4). Moreover, these are reasons that appear nowhere in the record of this case.

It might have been possible during a hearing for the Union to explain its previously-stated reasons for requesting name-identified awards information, and had it done so the Authority would have considered such a further explanation in determining whether the Union had established a particularized need for the information. See U.S. Department of Transportation, Federal Aviation Administration, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Connecticut, 51 FLRA 1054, 1067-68 (1996). However, in determining that this case should be submitted on a stipulated record, the General Counsel/parties did not consider facts beyond those they agreed upon to be material and, as a result, we are limited to the facts as set forth in the stipulated record. For the reasons set forth above, we find that those facts are insufficient to show that the Union established a particularized need for the 1993 name-identified award information in this case.

Accordingly, we conclude that no basis has been presented in this case to find that the Union articulated or established with the requisite specificity why it needed this information, the uses to which it would be put, and the connection between those uses and the Union's responsibilities under the Statute. See, for example, Wright-Patterson, 52 FLRA No. 105, slip op. at 10; Department of Labor, 51 FLRA at 476-77. As such, we conclude that the requested information is not necessary, within the meaning of section 7114(b)(4) of the Statute. See EEOC, 51 FLRA at 257-58.

D. The Respondent's Failure to Respond to the Union's 1993 Request for Information Violated the Statute

Section 7114(b)(4) requires that an agency respond to a information request, even if the response is to tell an exclusive representative that the agency does not maintain the information which the exclusive representative seeks. Naval Supply Center, 26 FLRA at 326-27. A timely reply to a union's request for information under section 7114(b)(4) is necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining. U.S. Department of Justice, Office of Justice Programs, 45 FLRA 1022, 1026-27 (1992). See also Social Security Administration, Baltimore, Maryland and Social Security Administration, Area II, Boston Region, Boston, Massachusetts, 39 FLRA 650, 656 (1991).

The record demonstrates that the Respondent never responded to the Union's 1993 information request. The Respondent offers no explanation for its failure to respond. Accordingly, we find that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to respond to the Union's requests for information. See id.; Naval Supply Center, 26 FLRA at 326-27.

E. Summary

The Respondent's failure to disclose unsanitized performance award information for the 1992 rating period did not violate section 7116(a)(1), (5), and (8) of the Statute because disclosure is prohibited by the Privacy Act. The Respondent's failure to disclose on-the-spot award information for the 1992 rating period and the requested name-identified information for the 1993 rating period also did not violate the Statute because the Union has not established a particularized need for this information. The Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to respond to the Union's 1993 request.

V. Order

Pursuant to section 2423.29 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of Health and Human Services, Social Security Administration, New York Region, New York, New York, shall:

1. Cease and desist from:

(a) Failing and refusing to reply to requests for information from the American Federation of Government Employees, AFL-CIO, Local 3369, the exclusive representative of its employees, which reply is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.

(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 Statute:

(a) Reply in a timely manner to requests for information made by the American Federation of Government Employees, AFL-CIO, Local 3369, the exclusive representative of bargaining unit employees, which reply is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.

(b) Post at its facilities in the New York Region 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 Commissioner, Field Operations, 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 of the Denver 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.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Department of Health and Human Services, Social Security Administration, New York Region, New York, New York violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify bargaining unit employees that:

WE WILL NOT fail or refuse to reply to requests for information from the American Federation of Government Employees, AFL-CIO, Local 3369, the exclusive representative of bargaining unit employees, which reply is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.

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

WE WILL reply in a timely manner to requests for information made by the American Federation of Government Employees, AFL-CIO, Local 3369, the exclusive representative of bargaining unit employees, which reply is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.

________________________
(Agency)

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 its provisions, they may communicate directly with the Regional Director, Boston Regional Office, whose address is: 99 Summer Street, Suite 1500, Boston, MA 02110-1200, and whose telephone number is: (617) 424-5730.

Member Wasserman, dissenting in part:

I disagree with the majority only with regard to the disclosure of the awards information requested for fiscal year 1993. For the following reasons, I would find that the Respondent was required to disclose that information under section 7114(b)(4)(B) of the Statute and, therefore, that the Respondent violated the Statute by failing to do so.

In concluding that the Union established a particularized need for the 1993 information, I look first at the Union's October 25, 1993, request for that data. In contrast to the Union's requests for similar data covering fiscal year 1992, the October 25 request was more specific in articulating reasons why the Union needed the information: "to monitor compliance with the National Agreement and to pursue possible grievances and EEO complaints due to inequities in the distribution of award money." Stipulation, para. 14 and exh. 21. By linking the asserted need to monitor the parties' agreement with potential EEO complaints, the Union put the Respondent on notice that, at the least, it was seeking information to administer those portions of the agreement involving discrimination matters.(1) The parties' agreement is referenced in the stipulation and attached to the stipulation as an exhibit. Stipulation, para. 8; Exh. 7. It is, therefore, part of the record in this case. An examination of that agreement discloses that Article 1, § 1 (2) and Article 3, § 2 (3) are directly on point. In addition, Article 18 sets forth the Respondent's Equal Employment Opportunity policies.

In sum, in its October 25, 1993, letter, the Union informed the Respondent about the uses to which it would put the information (assessing possible inequities in awards distribution) and the connection between those uses and the Union's representational responsibilities under the Statute (monitoring compliance with the parties' collective bargaining agreement; representing bargaining unit employees in possible grievances and/or EEO complaints if the requested information disclosed inequities). As stated by the Supreme Court in NLRB v. Acme Industrial Co., 385 U.S. 432, 438 (1967), a union possesses a "substantial interest" in information that will assist it in determining whether to proceed to arbitration. For example, Department of the Air Force, Scott Air Force Base, Illinois v. FLRA, 104 F.2d 1396, 1400 (D.C. Cir. 1997). Such information is especially helpful in assessing whether an agency has discriminated against potential grievants. For example, Bureau of Indian Affairs, Uintah & Ouray Area Office, Ft. Duchesne, Utah, 52 FLRA 629, 640 (1996) (Chair Segal dissenting); U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Helena District, Helena, Montana, 39 FLRA 241, 251-52 (1991). In particular, given the fact that the Union requested the information to determine whether the Respondent had acted discriminatorily in making the 1993 awards, it needed to know the identities of those who received awards in order to assess whether discrimination had in fact occurred. For example, if the Union suspected that the Respondent had treated employees disparately based on sex, the names would be critical to such a determination. And, if the Union wishes to determine whether there was disparate treatment based on race, it needs the names in order to contact the employees personally. Therefore, in its request, the Union established a connection between the names of the employees receiving awards and its representational responsibilities. Accordingly, applying our decision in Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661, 669-70 (1995), it is clear to me that the Union adequately articulated and explained its interests in the disclosure of the information. Cf. U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C. and U.S. Department of the Treasury, Internal Revenue Service, Oklahoma City District, Oklahoma City, Oklahoma, 51 FLRA 1391, 1395-97 (1996) (IRS, Oklahoma City) (union did not satisfy burden of establishing particularized need for performance appraisals to demonstrate disparate treatment of grievant where union conceded that the grievant was performing a different job function and union failed to respond to agency's request for clarification).

In addition, I rely on the Union's stipulation that "[b]ased on a similar 1991 information request, the Union is currently representing a group of employees in an EEO complaint alleging that they were discriminated against when they did not receive award money." Stipulation, para. 14. As this statement directly relates to one of the previously articulated reasons given by the Union to support its need for the information, it constitutes a further explanation of why the information was necessary. It is reasonable to conclude, as I do, that the complaint based on the 1991 awards was pending at the time of the Union's request in October 1993. As we have held, we will take into account a union's enhanced explanation of previously-stated reasons for needing information, even if the later rationale occurs during proceedings before the Authority. See U.S. Department of Transportation, Federal Aviation Administration, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Connecticut, 51 FLRA 1067 (1996) (FAA). With particular relevance to this case, explanations made before us that relate to previously-stated reasons are accorded more weight in cases where the agency has made no reasonable attempt to clarify the union's earlier request. Compare id. (Authority considered hearing testimony that further explained the union's previously-stated reasons for needing name-identified performance award information where the agency had neither responded to the union's request nor sought to have the union clarify the request) with IRS, Oklahoma City, 51 FLRA at 1396 (where union offered only conclusory reasons for needing information and failed to respond to agency's request for clarification, which was neither "disingenuous" nor "unreasonable," Authority refused to consider explanation proffered at the hearing). In any event, the Respondent should have been able to connect the dots between the points made by the Union: (1) its current representation of employees in an EEO complaint; (2) its contemplation of another EEO action; and (3) its critical need to have name-identified information. Furthermore, if the Respondent had any questions as to why names were absolutely necessary, if not critical, to pursue an EEO complaint, it could have requested clarification on that point.

My position in this case is consistent with my recent concurrence in Department of the Air Force, Washington, D.C. and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 52 FLRA No. 105 (1997). In that case, I agreed with my colleagues that the union's request was sufficiently vague that the union had an obligation to respond to the agency's reasonable request for clarification; as the union had not responded, and thus had foreclosed the potential for accommodating the parties' respective interests, I agreed that the agency did not violate the Statute by failing to provide the requested information. In this case, by contrast, the Union conveyed its need for the 1993 performance awards information in its original request and the Respondent made no response whatsoever to that request. In these circumstances, I find it appropriate to consider the statement in the stipulation that further clarifies one aspect of the Union's previously-expressed need for the information. FAA, 51 FLRA at 1067-68. In light of all of the Union's expressed reasons for disclosure, I have no trouble concluding that the Union established a particularized need for the information.

As was the case in FAA, the Respondent has asserted no anti-disclosure interests. Accordingly, as the other elements of section 7114(b)(4)(B) are not in dispute, see stipulation, para. 4, I would find that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by refusing to furnish

the performance awards information covering fiscal year 1993.(4)




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


Authority's Footnotes Follow:

1. During the pendency of this case, the Social Security Administration (SSA), previously an agency within the U.S. Department of Health and Human Services, was established as an independent agency.

2. Member Wasserman's opinion dissenting in part is set forth at the end of this decision.

3. The Privacy Act regulates the disclosure of any information contained in an agency "record" within a "system of records," as those terms are defined in the 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. Section (b)(2) of the Privacy Act provides that the prohibition against disclosure is not applicable if disclosure of the requested information would be required under the Freedom of Information Act, 5 U.S.C. § 552 (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 constitute 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. In addition to the exception relating to the FOIA, other exceptions to the Privacy Act may permit disclosure of requested information. However, no other exceptions are asserted to apply in this case.

4. Form SSA-2814 is no longer used by the Respondent. The requested data in Form SSA-2814 is now maintained in a different format.

5. In years prior to fiscal year 1992, the Respondent routinely provided the Union with Form SSA-774 (Recommendation for QSI) and listings for special act or service awards and on-the-spot awards.

6. With respect to the 1993 request, the complaint in Case No. BY-CA-40496 alleges only that the Union requested the recommendations for performance awards and on-the-spot awards. However, the charge in that case stated that the Union also requested similar information regarding QSIs and special act or service awards. The Respondent and the General Counsel presented arguments concerning recommendations for performance awards, on-the-spot awards, QSIs, and special act or service awards in their stipulation, exhibits, and briefs. Stipulation, Exhibits 11-21; General Counsel's Brief at 5, 8, 10, 13; Respondent's Brief at 12, 16, 18. These issues have been fully litigated by the parties and are properly before the Authority. See, for example, Bureau of Prisons, Office of Internal Affairs, Washington, D.C. and Phoenix, Arizona and Federal Correctional Institution, El Reno, Oklahoma, 52 FLRA 421, 429 (1996); U.S. Department of the Air Force, 56th Support Group, MacDill Air Force Base, Florida, 51 FLRA 1144, 1157 (1996); U.S. Department of Labor, Washington, D.C., 51 FLRA 462, 467 (1995) (Department of Labor). For convenience, further references in this decision to "performance awards" for the 1993 rating period will encompass QSIs as well, and further references to "on-the-spot awards" for the 1993 rating period will encompass special act or service awards as well.

7. In SSA the Authority referenced the system of records at 55 Fed. Reg. 3843 (1990). We note that a more current system of records was published in 57 Fed. Reg. 35709-10 (1992). See U.S. Department of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Illinois, 51 FLRA 599, 604 n.4 (1995) (Scott AFB).

8. 5 C.F.R. § 293.311 permits, among other things, public access to certain enumerated information about present and former Federal employees, including "[p]resent and past annual salary rates (including performance awards or bonuses, incentive awards, merit pay amount, Meritorious or Distinguished Executive Ranks, and allowances and differentials)[.]" 5 C.F.R. § 293.311(a)(4). However, under 5 C.F.R. § 293.311(b)(1), an agency may not disclose information if its disclosure "would reveal more about the employee on whom information is sought than the six enumerated items, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]" Given the nature of the request, and for the reasons discussed, disclosure of the requested employees' names would reveal information regarding each employee's appraisal rating, which, as we find here, would result in a clearly unwarranted invasion of the employees' privacy.

9. Based on our finding that the Respondent did not violate the Statute by refusing to provide the names, it is not necessary to address whether the information is necessary within the meaning of section 7114(b)(4).


Dissenting Opinion Footnotes Follow:

1. By contrast, the Union's request for information covering fiscal year 1992 stated only that it needed the information "to monitor compliance with the National Agreement." Stipulation, exh. 11. In that request, the Union gave no other indication to the Respondent as to the provisions it wished to monitor or the specific uses to which it would put the data.

2. Article 1, § 1 states:

In the administration of all matters covered by this agreement, officials and employees shall be governed by existing or future laws and existing government-wide rules and regulations, as defined in 5 USC 71, and by subsequently enacted government-wide rules and regulations implementing 5 USC 2302.

Stipulation, Exh. 7.

5 U.S.C. § 2302 is entitled "Prohibited personnel practices." As pertinent here, 5 U.S.C. § 2302(b)(1) prohibits an agency from discriminating against any employee

(A) on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16);

(B) on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (