25:0633(52)CA - VA Central Office, Washington, DC and VA Regional Office, Denver, CO and AFGE Local 1557 -- 1987 FLRAdec CA
[ v25 p633 ]
The decision of the Authority follows:
25 FLRA No. 52 VETERANS ADMINISTRATION CENTRAL OFFICE, WASHINGTON, D.C. AND VETERANS ADMINISTRATION REGIONAL OFFICE, DENVER, COLORADO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557 Charging Party Case No. 7-CA-60007 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached Decision of the Administrative Law Judge. The General Counsel filed an opposition to the Respondent's exceptions. The issue concerns whether the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing and refusing to furnish the Charging Party (the Union) with information it had requested pursuant to section 7114(b)(4) of the Statute. II. Background and Judge's Conclusions The complaint concerns a request by the Union that the Respondent provide it with information relating to the distribution of awards to all of those unit employees at the Respondent's Denver offices in Lakewood, Colorado, who had received outstanding or highly satisfactory performance ratings during the 1984-85 appraisal period. This request was first made by letter dated August 9, 1985. A request for similar information had been made about one year previously in conjunction with a grievance filed by the Union which asserted, among other things, that monetary awards were not granted in a fair and equitable manner. In response the Respondent had provided the Union with a list of names of unit employees, their ratings and the types and amounts of awards given. Similar information was also provided at the Union's request for the 1982-83 rating period. An arbitration hearing on the Union's grievance was held in January 1985. The Union used the information to develop its assertions, which it pursued at the arbitration, that various employees who had received monetary awards did not meet the agency's criteria for awards such as recency of promotions and time in position while other similarly situated employees were denied monetary awards based on those criteria. Conversely it asserted that other employees who did meet the criteria were denied monetary awards while other similary situated employees received them. No decision had been received in this arbitration proceeding at the time of the Union's 1985 information request. In response to the 1985 request, the Respondent provided the Union with a listing in which the identity of the employees appeared coded rather than by name. The listing also included the rating received, the type of award given, and in those instances where no monetary award had been given, the reason as well as the date of recent promotion and/or the date the employee had entered his/her current position. The Respondent cited concern for the privacy of the employees involved as the reasons for providing a sanitized listing. The Union responded stating that it needed unsanitized information in order to determine whether a grievance should be filed. In a further exchange with the Respondent, the Union referred to the pending grievance over the fairness and -quity of the Respondent's actions in making awards and stated that it needed the information in order to determine whether the alleged violations were continuing. The Respondent, asserting that the Union had not satisfied its requests for proof that the names of the employees involved in the information request were necessary and relevant, refused to provide the names reiterating its concern for the privacy of the employees. The Judge found that the information requested was necessary for discussion, understanding, and negotiation of subjects within the scope of collective bargaining and that its release to the Union was not prohibited by the Privacy Act. Consequently, he found that the Respondent's failure to provide the requested information was contrary to section 7114(b)(4) of the Statute and violated section 7116(a)(1), (5) and (8). In reaching his conclusion as to the necessity of the information, the Judge noted that the Union needed the requested names in order to make an informed judgment on whether the Respondent had followed established criteria, contained in a circular on incentive awards which it had issued, in making awards and on whether to file a grievance over distribution of awards. He concluded that without the actual names the Union would have had no means of verifying the accuracy of the data supplied by the Respondent. As to the Privacy Act, after considering the Union's need for the information and the privacy interests of the employees concerned, he concluded that, on balance, disclosure of the information did not constitute an unwarranted invasion of the employees' privacy and did not conflict with the Privacy Act. III. Positions of the Parties The Respondent excepts to the Judge's reliance on Union testimony at the hearing stating reasons why the Union needed names as opposed to the sanitized listing because it asserts that the reasons had not been conveyed at the time the information was requested. In support of its contention that this was improper it argues that, where the Privacy Act is a consideration in an information request, an agency must be in a position to judge the union's need for the information requested against the privacy interests of employees. It argues that the Union's failure to fully articulate its needs at the time of the information request deprived Respondent of the ability to make an informed judgment as to the competing interests involved. It argues that the Judge in reaching his conclusions as to the Union's need for the names should have limited his consideration to the reasons specifically expressed by the Union at the time of the request. It contends that no violation occurred because at that time the Union failed to establish its need for names. The Respondent also requests that the Judge's recommended order be modified to limit posting of any remedial notice to employees to its Denver, Colorado, Regional Office as that is where the employees involved are located. In opposition to the Respondent's exceptions, the General Counsel argues that the Union's need for the requested information, i.e., names, should have been apparent to the Respondent from the circumstances. The specific circumstances which the General Counsel cites are the grievance regarding the distribution of awards which was pending at the time of its information request, the provisions of the Respondent's circular on incentive awards and the Union's statement to the Respondent at the time of its request that it wished to ascertain whether the alleged violations previously grieved were continuing. Given these factors, the Union's need for the identity of employees who had received outstanding or highly satisfactory ratings should have been evident to the Respondent. The General Counsel makes no specific argument in response to the Respondent's request that the Judge's recommended remedy be modified. IV. Analysis Section 7114(b)(4) requires an agency to furnish to an exclusive representative, upon request and to the extent not prohibited by law, data which: (A) is normally maintained by the agency in the regular course of business; (B) is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (C) does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining. The issue raised by the exceptions in this case is whether the data sought by the Union is necessary to its performance of its role as exclusive representative and whether the necessity of the information should have been obvious to the Respondent at the time of the request. In view of the nature of the Union's previous grievance regarding the Respondent's distribution of awards and its statement that it wished to ascertain whether a similar grievance was warranted, we find it reasonable to conclude that the Union's need for information which included the names of relevant employees, as opposed to sanitized information, should have been evident to the Respondent. The Union's previous grievance which asserted that awards were not distributed in a fair and equitable manner was based on an allegation of disparate treatment of similarly situated employees. In support of its allegation the Union cited instances involving specific employees. In order to do so, it needed to know the identities of those employees who received monetary awards and those who met eligibility standards relating to performance ratings but did not receive monetary awards. Although the Union did not prevail in its grievance, its approach in pursuing it was not unreasonable. In view of its statements that it wanted the requested information to determine whether a similar grievance was warranted, it is obvious that it needed to know the identities of employees in order to make such a determination. We agree with the General Counsel that it is reasonable to conclude that the necessity of the requested names to the Union's representational functions was evident from the surrounding circumstances. As to the Judge's reliance on reasons stated in testimony at the hearing to support his conclusions that the requested information was necessary, we do not view the reasons stated as anything beyond what should have been obvious to anyone familiar with the circumstances, i.e., the history of the pending grievance and the Union's avowed intent to determine whether a similar grievance was in order. The reasons expressed at the hearing were nothing more than statement of what should have been reasonably obvious to the Respondent at the time of the Union's information request. /1/ In agreement with the Judge, we conclude that, balancing the Union's need for the requested information against the privacy interests of the employees involved, disclosure of the information did not constitute an unwarranted invasion of the employees' privacy. As noted above, the information was necessary to the Union's ability to perform its function as exclusive representative. As established by the record, similar information had been previously disclosed to the Union with no indication of widespread circulation of the information or protest from the employees involved. Thus we find, based on the Judge's reasoning, that disclosure of the requested information was not prohibited by the Privacy Act. Based on the circumstances present in this case we find in agreement with the Judge that Respondent violated section 7116(a)(1), (5) and (8) by refusing to provide the information sought by the Union. Compare Department of Health and Human Services, Social Security Administration and Social Security Administration, Field Operations New York Region, 21 FLRA No. 35 (1986), petition for review filed sub nom. American Federation of Government Employees, AFL-CIO v. FLRA, No. 86-4077 (2d Cir. June 13, 1986), in which the Authority dismissed a complaint that an agency had failed to provide an exclusive representative with necessary information. In that case the Authority found that the necessity for the requested information was not apparent from the circumstances and the union had failed to divulge the reasons it sought the information despite the agency's reasonable requests for clarification. With regard to the posting of the remedial unfair labor practice notice, we find that a posting limited to the Respondent's Denever, Colorado, Regional Office will best effectuate the purposes and policies of the Statute, and we shall modify the Judge's recommended order accordingly. While it is clear that the violations involved employees in that particular location, there is no showing that employees at the Respondent's Central Office in Washington, D.C., were involved. Moreover, we note that the General Counsel did not specifically oppose the Respondent's request that the recommended order be so modified. Consequently, we see no basis for requiring posting of the notice at the Central Office. V. Conclusion Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing, find that no prejudicial error was committed, and affirm those rulings. We have considered the Judge's Decision, the exceptions to that Decision, the positions of the parties and the entire record, and adopt the Judge's findings, conclusions and recommended order except as noted above. We therefore conclude that the Respondent failed to comply with section 7114(b)(4) in violation of section 7116(a)(1), (5) and (8) of the Statute when it refused to provide the information sought by the Union. ORDER Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118(a)(7) of the Federal Service Labor-Management Relations Statute, it is ordered that the Veterans Administration Central Office, Washington, D.C. and Veterans Administration Regional Office, Denver, Colorado, shall: 1. Cease and desist from: (a) Failing and refusing to furnish, upon request by the American Federation of Government Employees, AFL-CIO, Local 1557, the names of employees which correspond to the alphabetical designations for employees on the 1984-85 Rating and Award sanitized list submitted to the exclusive representative. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative action: (a) Upon receipt, furnish to the American Federation of Government Employees, AFL-CIO, Local 1557, the names of the employees which correspond to the alphabetical designations for employees on the 1984-85 Rating and Award sanitized list submitted to the exclusive representative. (b) Post at its facility, Veterans Administration Regional Office, Denver, Colorado, 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 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. The Director shall take reasonable steps to ensure that such notices are not altered, defaced or covered by any other material (c) Notify the Regional Director, Region VII, Federal Labor Relations Authority, in writing, witthin 30 days from the date of this Order, as to what steps have been taken to comply herewith. Issued, Washington, D.C., February 12, 1987. Jerry L. Calhoun, Chairman Henry B. Frazier III, Member Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT fail and refuse to furnish, upon request by the American Federation of Government Employees, AFL-CIO, Local 1557, the names of the employees which correspond to the alphabetical designations for employees on the 1984-1985 Rating and Award sanitized list submitted to the exclusive representative. 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, upon request, furnish the American Federation of Government Employees, AFL-CIO, Local 1557, the names of the employees which correspond to the alphabetical designations for employees which correspond to the alphabetical designations for employees on the 1984-1985 Rating and Award sanitized list submitted to the exclusive representative. (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 its provisions, they may communicate directly with the Regional Director, Federal Labor Relations Authority, Region VII, whose address is: 535 - 16th Street, Suite 310, Denver, CO 80202, and whose telephone number is: (303) 837-5224. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No.: 7-CA-60007 VETERANS ADMINISTRATION CENTRAL OFFICE, WASHINGTON, D.C. AND VETERANS ADMINISTRATION REGIONAL OFFICE, DENVER, COLORADO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO LOCAL 1557 Charging Party Douglas Doane, Esq. For Respondent Matthew Jarvinen, Esq. Joseph Swerdzewski, Esq. For General Counsel Before: WILLIAM NAIMARK Administrative Law Judge DECISION Statement of the Case Pursuant to a Complaint and Notice of Hearing issued on December 12, 1985, by the Regional Director for the Federal Labor Relations Authority, Region VII, Denver, Colorado, a hearing was held before the undersigned on January 16, 1986. This case arose under the Federal Service Labor-Management Relations Statute, 5 U.S.C. Section 7101, et seq. (herein called the Statute). It is based on a charge filed on October 10, 1985 by American Federation of Government Employees, AFL-CIO, Local 1557 (herein called the Union) against Veterans Administration Regional Office, Denver, Colorado (herein collectively called Respondent). The Complaint alleged, in substance, that the Union requested Respondent to furnish it with the names of unit employees, for the 1984-85 appraisal period, who received outstanding or highly satisfactory ratings together with the type of award received by said individuals; if no Quality Step Increase or Cash award was given to said employees, the reason therefor; the length of time in position of the individuals; and the promotions of such employees during said period. It was further alleged Respondent did furnish all of the requested data except the names of the employees corresponding to the data which was provided. By reason of the refusal to furnish the said names, it was alleged Respondent failed to comply with 7114(b)(4) of the Statute, /2/ and thus violated Section 7116(a)(1), (5) and (8) thereof. Respondent's Answer, dated December 31, 1985, denied that the information it failed to provide the Union was necessary for full and proper discussion, understanding and negotiation of collective bargaining subjects. It also denied that the information it failed to provide was not prohibited by law, and alleged that the release of the names would violate the Privacy Act, 5 U.S.C. Section 552(a). The Answer denied the commission of any unfair labor practices. All parties were represented at the hearing. Each was afforded full opportunity to be heard, to adduce evidence, and to examine as well as cross-examine witnesses. Thereafter, briefs were filed which have been duly considered. /3/ Upon the entire record herein, from my observation of the witnesses and their demeanor, and from all of the testimony and evidence adduced at the hearing, I make the following findings and conclusions: Findings of Fact 1. At all times material herein American Federation of Government Employees, AFL-CIO, has been the certified exclusive representative of nationwide consolidated units of Respondent's professional and non-professional employees with specified exclusions. 2. At all times material herein the Union has been, and still is, the agent of American Federation of Government Employees, AFL-CIO for the purpose of exclusively representing the bargaining unit employees who are employed in Respondent's Denver offices in Lakewood, Colorado. /4/ 3. Respondent and American Federation of Government Employees, AFL-CIO are parties to a national collective bargaining agreement, in existence at all times material herein, covering unit employees who are employed at Respondent's Denver offices in Lakewood, Colorado. 4. Articel 13 of the aforesaid agreement provides a grievance procedure for the resolution of complaints, as specified, initiated by employees, the Union, or management. Under Section 2B(6) of this Article decisions on incentive awards are not grievable. /5/ 5. Article 32 of the said agreement sets forth a "Performance Appraisal System" applicable to bargaining unit employees. Section 6(A) thereof, "Awards and Other Actions," provides, in substance, that when an employee is rated Highly Satisfactory in the annual performance evaluation, the appropriate supervisor will review the rating to determine if the employee should be recommended for a monetary award under the Incentive Awards program. Section 6(B) thereof provides that when an employee is rated Outstanding, he will be automatically considered for a monetary award under the program. Section 6(C) thereof provides "Awards for performance will be distributed in a fair and equitable manner." (underscoring supplied). 6. Under date of August 7, 1984 Respondent issued Circular No. 25-84-35 (Joint Exhibit 6) which deals with Incentive Awards applicable to the Denver, Colorado regional office. This circular established the policy of said office, as well as the responsibilities and procedures, in respect to granting such awards. 7(a). Paragrah 2(c)(2) of the Circular provides that awards will be granted equitably on a merit basis; "and that information is made available concerning persons who have received awards and the reasons why the awards were granted." (b). Paragraph 2(c)(4) of the Circular provides for distributing awards for performance in a fair and equitable manner. (c). Paragraph 6(a)(3) of the Circular provides, in part, that "an employee must have a highly satisfactory or outstanding rating to be considered for a superior performance award." (d) Paragraph 7, entitled "Quality Step Increase," /6/ provides for such award, instead of a cash award, for sustained superior performance. Under this paragraph an employee must have a highly satisfactory or outstanding rating to be considered for QSI; employment is required to be one year in the same type of position and at the same grade level; and if the QSI is being based on a highly satisfactory rating, over 50% of key responsibilities and 100% of those designated as critical elements must be evaluated as "far exceed." /7/ 8. In a letter dated August 17, 1984 Union president Carroll O'Brien-Mergler submitted to the Director of the Respondent's Denver regional office a grievance /8/ pursuant to Article 13, Section 7, NOTE 6 of the collective bargaining agreement. The Union grieved over the complaint that monetary awards were not granted in a fair and equitable manner. Further, the grievance stated the procedures to determine who should get incentive awards was not negotiated with the Union. 9. Management replied to the aforesaid grievance in a letter dated August 24, 1984 which Director Alverson wrote to the Union President. The grievance was denied based on the determination that decisions on incentive awards under the contract were not grievable, and that all other issues raised were not negotiable. 10. In a letter dated September 10, 1984 the Union President wrote Personnel Office Norman Frickey and, based on 7114(b)(4) of the Statute, requested the following information to meet its representational functions: "Copies of all Quality Step Increase awards given to bargaining unit employees; and copies of each bargaining unit employees' performance appraisals (Section C - overall ratings)." 11. Management responded by sending the Union a list of named unit employees, their ratings with the types and amounts of awards received by the employees. 12. Thereafter, under date of November 20, 1984 the Union wrote Frickey and requested copies of awards given to all unit employees, the amounts awarded, and the names of all employees receiving awards for the rating period 1982-1983. /9/ On December 4, 1984 Frickey sent the Union a named listing of unit employees, together with the rating, auard, and amount given to each employee for 1983. 13. The arbitration hearing was held on January 9, 1985. The 1983 and 1984 data furnished by management was utilized by the Union at the hearing to argue unfair distribution of awards by Respondent. 14. The arbitrator's decision issued on December 18, 1985. He concluded that the grievance, which alleged unfair and inequitable distribution of incentive awards, was a proper grievance under Article 13 of the bargaining agreement; that the focus of the grievance was not on the decision as to whether individual employees were entitled to the awards, but on the procedures followed in their distribution; and, further, that the evidence did not support a conclusion that the distribution was unfair and inequitable. The arbitrator sustained the grievance insofar as it alleged the employer adopted new criteria for the 1984 awards without notifying the Union and affording it an opportunity to bargain re impact and implementation. 15. Based on its receiving complaints from employees that some workers were being given awards which were undeserved or not earned, the Union made a request for information for the 1984-1985 appraisal period. By letter dated August 9, 1985 O'Brien-Mergler requested the following data to fulfill its representational duties: (a) A list of all unit employees receiving an outstanding or highly satisfactory rating; type of award given. (b) If any of the employees did not receive a Quality Step Increase or Cash award, the reason therefor. (c) Length of time in position for the above employees. (d) All promotions made during 1984-1985 appraisal period. 16. Record testimony reflects the Union President did not know, at the time of the 1985 request, whether a grievance would be filed; that the information was needed to determine if such would be done; that the basis for such determination rested on considering Article 32, Section 6(C) of the national agreement and paragraphs 2c(2), 6a(3) and 7 of Circular No. 25-84-35. 17. Under date of September 3, 1985, Frickey sent the Union a 1984 rating and award list for 116 bargaining unit employees. No names of employees were given. The list was sanitized to show the rating for each unit employee who was coded and unnamed, the rating for the unidentified employee, and the type of award he received. The data also listed coded and unnamed employees who did not receive a QSI or Cash award and the reason therefor, and the length of time in position for such employees. Further, it set forth the promotions during 1984-1985 for employees who did not receive a QSI or Cash award. /10/ 18. In sending the aforesaid data Frickey stated in an attached letter that he did not send an unsanitized list of employees since it might be an invasion of the employee's privacy. He also stated that the information could be provided if the Union submitted a "written release information from an employee"; or if it could be shown that names are necessary and relevant to represent unit employees, the names could be released. 19. O'Brien-Mergler wrote Frickey on September 5, 1985 and advised the Personnel Officer that the sanitized roster is of no use in determining if grievance should be filed by the Union. 20. In a reply to the foregoing letter Frickey repeated his refusal to furnish the names of the employees on the 1985 rating and awards list. He stated that, as he understood the law, there was no obligation to submit such information unless it was shown to be necessary and relevant, and then only to the extent not prohibited by law. Frickey again referred to the privacy of the employees and indicated the Union had two options: (a) provide proof the data is necessary or relevant, or (b) provide release from the affected employees. 21. In a letter dated September 17, 1985 O'Brien-Mergler mentioned the grievance filed in 1984 re awards not being granted in a fair and equitable manner. She further wrote that to assure this has not occurred in 1985 the Union needed unsanitized copies of the information sought in her letter of August 9, 1985. 22. Frickey's response, dated September 30, 1985, stated that while he might have to furnish the unsanitized information if a grievance or unfair labor practice charge were filed, to provide it for a seemingly "fishing expedition" was neither appropriate nor consistent under the law. He repeated his concern about privacy considerations as well as the conditions under which the data would be released. 23. Record testimony by O'Brien-Mergler indicates she was unable to verify the data as to the individual employees without their names; that she needed the dates in positions to determine whether employees who received a QSI award were in position for a full year as required by the Circular. She testified that if the name of the employee had been furnished who received a QSI, a check could be made to determine if the individual had been promoted during the year. A promotion then would have disqualified the employee for QSI consideration. In such event, O'Brien-Mergler stated, the Union could have used the information to decide whether to file a grievance where the awards were not in conformity with the requirements set forth in the master agreement or the Circular. Further, the Union official testifed the Union did not have to grieve a decision by management concerning granting or denying awards to an employee; that a grievance could be filed re the granting of an award incorrectly where the employee did not meet the criteria laid down in Article 32 of the agreement dealing with the Performance Appraisal System; that a grievance, in such instance, challenged the fair and equitable manner in which awards were made. 24. Record facts show management had not encountered any previous problems with the Union releasing sensitive information to persons outside the Union; that the Union never had problems re disclosure of personal data furnished to it by Respondents management. Conclusions There are two principal issues for determination herein: (1) whether the data sought by the Union herein was necessary for discussion, understanding and negotiation of collective bargaining within the meaning of Section 7114(b)(4)(B) of the Statute; (2) whether a disclosure by Respondent of the names of the employees on the sanitized list furnished to the Union would be prohibited under the Privacy Act. (1) Respondent concedes that the Union was entitled to file a grievance as to whether there was fair and equitable distribution of the awards. It takes the position, however, that since no grievance had been pending or proposed, the names of the employees rated outstanding or highly satisfactory was not necessary for the Union to perform its functions. If a grieved employee had been named, it is urged, then the Union might be entitled to the names of those employees similarly situated. Further, Respondent contends that the unprovided data would not enable the Union to show unfair and inequitable distribution, especially since a supervisor's recommendation concerning awards forms part of the decision in granting or denying them. Under Section 7114(b) of the Statute an obligation is imposed upon an agency to furnish data to the bargaining representative, not prohibited by law, "which is reasonably available and necessary for full and proper discussion, understanding, and negotation of subjects within the scope of collective bargaining." Such must be necessary to enable a union to fulfill its representational functions, including the effective evaluation and processing of grievances. U.S. Equal Opportunity Commission, Washington, D.C., 20 FLRA No. 37; U.S. Customs Service, Region VII, Los Angeles, California, 10 FLRA 251, 253. This duty is not absolute, and mere assertion that data is needed to process a grievance does not automatically require that it be supplied. An agency's obligation in this regard will depend upon the request and the circumstances in each case. See Department of the Treasury, United States Customs Service, Region IV, Miami, Florida, 10 FLRA No. 53; Army and Air Force Exchange Service (AAFES), 17 FLRA No. 92. Turning to the case at bar I am persudaded that the data requested by the Union was necessary to carry out its representation functions. Both Article 32, Section 6(C) of the Master Agreement, and Paragraph 2(c)(4) of the Circular, provide that awards will be distributed in a fair and equitable manner. Based upon communications from employees, the Union was concerned that the 1985 awards were not distributed in such a manner, and it sought data to verify the matter. It seems quite apparent that the sanitized list of awards and ratings would not afford the Union a method of such verification. Withou the names of the unit employees the Union could not verify the dates when employees were in a position and when employees were promoted. It was not possible for the Union to check the requirement in paragraph 7 of the Circular that those who receive a QSI be in the same position and grade level for one year. Further, unless it obtained the names, it was unable to talk to those who received a QSI based a highly satisfactory rating and be satisfied such employees were rated "far exceed" in respect to 50% of key responsibilities and 100% of those designed as critical elements. Respondents' contention that since no grievance was pending, the Union should not be entitled to all the names of those on the list is rejected. Case law does not require that an actual grievance be filed before information may be requested. In truth, an examination of the data may convince the representative that no grievance is warranted -- that the distribution of awards and ratings was fair and equitable. Neither do I accept the argument that Respondent should be called upon to furnish only the names of employees situated similarly to one who is a grievant and thus named by the Union. Such a view begs the question. The Union may not be in a position to name a particular grievant until it verifies the information and it may find that difficult without the names corresponding to the data. It is also insisted by Respondent that inasmuch as the decision re awards and ratings rests, in part, on the supervisor's recommendation, the names of employees would not aid the Union since it was not able to grieve the reasons underlying such recommendation. However, the fact that the representative is not entitled to grieve an individual decision of an award does not foreclose its right to challenge the manner in which awards were distributed. Assuming arguendo the data reveals that certain named employees were not in grade for a requisite period, or did not meet the criteria in the Circular, the Union may want to discuss with management the failure to abide by the procedure set forth for granting awards. It may well grieve management's failure to distribute the latter in a fair and equitable manner without grieving decisions re individual awards. Due consideration had been given by the undersigned to the Authority's decision in Bureau of Alcohol, Tobacco and Firearms, National Office, Washington, D.C., 18 FLRA No. 74. In the cited case a grievance was filed by an employee re his non-selection for a posted position. In order to process the grievance, information was requested by the union involving the promotion package utilized by the agency, including relevant data pertaining to the manner in which a panel arrived at scores for each applicant for the position. Management furnished a sanitized promotion package containing evaluations and rankings for applicants on the requisite rating lists. It deleted the names of the applicants and personal identifiers. The Authority concluded that certain data deleted by the agency had to be furnished, i.e. prior employment records of the unsuccessful applicants, names of institutions they attended, and weight assigned to each factor evaluated by the Raters. However, the Authority determined the General Counsel failed to demonstrate the necessity for unsuccessful applicant's names, personal identifiers, language skills, references, salary histories, identity of forms supervisors and names of Rater and selecting officials. It was concluded that such data was not shown to be necessary under 7114(b)(4) for the union to determine if the selection process was fair. Several factors which are present in the case at bar warrant the conclusion that the present controversy is distinguishable from the cited case. The Authority concluded in the Bureau of Alcohol, Tobacco and Firearms case, supra, that lacking the names and personal identifiers of unsuccessful candidates for the position with the SF-171's and their evaluation forms would not aid the union in processing the grievance. The union argued, and the Authority agreed, that it needed to know and compare the reputation of the institutions attended by other applicants, as well as the size and reputation of previous places of employment and such applicant's length of service thereat. As to the names of the other applicant, no sufficient reason was given that they were needed to process the grievance. Contrariwise, in the case at bar, the Union has stated it required the names of the employees to verify and check certain basic facts which could be determinative as to whether the awards were distributed fairly and equitably. Thus, the Union wanted to contact employees who received a QSI and check whether they were in the same type of position and at the same grade level for a year, as required by the Circular. The Union also needed the names to contact employees receiving a QSI based on a highly satisfactory rating and verify the "far exceed" evaluation which the Circular required as to critical elements and responsibilities. In addition, the Union asserted it desired to ascertain from employees who received a QSI whether, in fact, they were promoted during the year where so indicated on the sanitized list. This became important since, if so promoted, those individuals could not receive a QSI under the Circular. While management may characterize the request for the names of the employees as a "fishing" expedition, record facts do support the conclusion that a sound bases existed for the information. Thus, it is noted that the Union did receive complaints from employees that awards were being given to individuals which were undeserved. In order to fulfill its function as the representative of unit employees, the Union could scarcely determine whether awards were so granted to individuals without having the names of those persons so as to verify information provided it by management. It is difficult to understand how the Union could decide if the awards were made in a fair and equitable manner, and ultimately decide whether to grieve if not so distributed, unless it obtained the names of those receiving awards as well as the other and check the data as to each employee in the list. (2) It is also argued by Respondent that, assuming arguendo the data requested by the Union is "necessary" within 7114(b)(4) of the Statutute, the disclosure thereof is prohibited by the Privacy Act. /11/ The Privacy Act regulates the disclosure of any information contained in an agency "record" within a "system of records" that is retrieved by reference to an individual's name or some other personal identifier. /12/ The list of employees with ratings and awards they received, in addition to length of time in position for said employees, as well as promotions of all unit employees, are considered records contained within the Respondent's systems of records under the Privacy Act, /13/ and so conceded by Respondent. They are generally prohibited from disclosure unless one of the specific Privacy Act exceptions under 5 U.S.C. 552a(b)(1)-(12) (1982) is applicable. An exception set forth in 5 U.S.C. 552a(b)(2) permits disclosure of Privacy Act -- protected information to the extent that such information is required to be released under the Freedom of Information Act (FOIA). /14/ The theory of FOIA is that all records in the possession of Federal Government agencies must be disclosed upon request under subject to a specific FOIA exemption. /15/ There is however, an exemption - (b)(6) of the FOIA - which allows an agency to withhold personnel and medical files as well as similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy. In cases where requests for individually identifiable records such as promotion and personnel files are made under FOIA, the Federal Courts apply a balancing test to determine whether disclosure would result in a clearly unwarranted invasion of privacy. In American Federation of Government Employees, AFL-CIO, Local 1923 v. United States Department of Health and Human Services, 712 F.2d. 931 (4th Cir. 1983) the union sought the home addresses of all unit employees pursuant to the FOIA. The Court of Appeals balanced the individual's interest in the right to privacy and the possible harmful effects from disclosure against the public's interest in making the information available. The same balancing test was applied in Celmius v. United States Department of Treasury, 457 F. Supp. 13 (D.D.C. 1977) in determining whether the agency was required to disclose the promotion file and other promotion documents requested under FOIA by unsuccessful promotion applicants. The data requested herein by the Union is similar to information requested in the cases heretofore cited. It calls for individually identifiable records of named employees, which may be disclosed under FOIA when it is determined that there is no clear invasion of an individual's privacy. The Authority has concluded that disclosure of such information in employee's files pursuant to a union's request under 7114(b)(4) of the Statute is not per se prohibited by law. It is subject to the same scrutiny and balancing test applied by the Courts in evaluating FOIA requests under the 5 U.S.C. 552(b)(6) exemption. The Authority, in deciding whether "necessary, data under 7114(b)(4) should be disclosed, will balance the necessity for the union's purposes against the degree of intrusion on the individual's privacy interests caused by disclosure of the data. See U.S. Equal Employment Opportunity Commission, Washington, D.C., 20 FLRA No. 37, AAFES, supra. Applying the standards set forth in the foregoing cases I am persuaded that disclosing the names of the unit employees corresponding to the awards data furnished the Union would not constitute an unwarranted invasion of their privacy. Several factors compel this conclusion. Thus, it is noted that the Respondent previously sent the Union, upon request, the names of unit employees and awards given for the 1983-1984 period as well as for the 1982-1983 appraisal period. This data was furnished to the Union for its use in preparing for the arbitration hearing held on January 9, 1985. The record does not reflect that any widespread circulation was made of this information. /16/ Neither does it appears that any protests or repercusions resulted from Respondent's having supplied the Union with the names of those receiving awards and their ratings. Moreover, furnishing the names and corresponding data is in conformity with the policy of the Incentive Awards program as established in the Circular. Paragraph 2c(2) thereof (Joint Exhibit 6), which acknowledges that awards be granted equitably on the basis of merit, significantly provides . . . "that information is made available concerning persons who have received awards and the reason(s) why the awards were granted." (underscoring supplied). Respondent asserts, as one justification for a refusal to furnish the data requested, that until the Union comes forward and shows a named employee who claims to be treated unfairly no showing has been made that the Union's need is greater than the privacy interest of its members. This contention begs the issue at hand. The Union may scarcely be in a position to discern whether the distribution of awards was equitable before it obtains the information requested. It's request is made in order to determine if there is any merit to complaints received from employees re the granting of awards. In performing it representational functions a union should be equally concerned that a grievance not be filed which is meritless, and it may well decide that no grievance is justified. In sum, I conclude that General Counsel has established herein that the names of the employees, corresponding to the data furnished the Union by Respondent on September 3, 1985, were necessary for proper representation of unit employees under 7114(b)(4) of the Statute; that the Privacy Act does not justify Respondent's refusal to provide such names as such disclosure would not be a clear and unwarranted invasion of the employees' right of privacy; and that the refusal to furnish the names of the employees on the sanitized list sent to the Union was violative of Section 7116(a)(1), (5) and (8) of the Statute. Having concluded that Respondents' refusal to furnish the exclusive representative with information necessary to perform its representational functions in violation of the Statute, it is recommended that the Authority adopt the following: ORDER Pursuant to Section 7118(a)(7) of the Federal Service Labor-Management Relations Statute, and Section 2423.29 of the Rules and Regulations, it is hereby ordered that Veterans Administration Central Office, Washington, D.C. and Veterans Administration Regional Office, Denver, Colorado, shall: 1.