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27:0048(12)CA - HHS,SSA and SSA, Field Operations, NY Region and AFGE -- 1987 FLRAdec CA

[ v27 p48 ]
The decision of the Authority follows:

 27 FLRA No. 12
 Charging Party
                                            Case Nos. 2-CA-40303
                                              (21 FLRA No. 35)
                         I.  Statement of the Case
    This consolidated case is before the Authority on remand from the
 United States Court of Appeals for the Second Circuit.  American
 Federation of Government Employees v. FLRA, 811 F.2d 769 (2d Cir. 1987).
  The question before us is whether the information sought by the
 Charging Party is exempt from disclosure under the Privacy Act, 5 U.S.C.
 section 552a(b).
                              II.  Background
    The case involves a consolidated complaint alleging that 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 with information it had requested
 pursuant to sections 7103(a)(9) and/or 7114(b)(4) of the Statute.  The
 Charging Party requested the following information:  (1) Case No.
 2-CA-40303 -- unsanitized copies of the official time and attendance
 records for all employees in the East New York Office for the period of
 October 1, 1983 to March 13, 1984;  (2) Case No. 2-CA-40304 --
 unsanitized copies of progress reviews and performance appraisals for
 all bargaining unit employees in the Murray Hill Office for the period
 of January 1, 1983 to March 15, 1984;  (3) Case No. 2-CA-40343 --
 unsanitized copies of all progress reviews and performance appraisals
 for all Title II Claims Representatives in the Jamaica Office for the
 period of January 1, 1983 to March 20, 1984;  and (4) Case No.
 2-CA-40350 -- unsanitized copies of the following information related to
 Title II Claims Representatives in the Downtown District Office for the
 period of January 7, 1983 to February 29, 1984:  (a) annual performance
 appraisals, (b) Claims Representative desk audits, (c) Claims
 Representative interview audits, (d) performance improvement plans, (e)
 interviewing time studies, (f) quality review deficiency flags
 (bounces), and (g) weekly DOWR statistics for each Title II breakdown.
                 III.  Administrative Law Judge's Decision
    The Judge issued a Decision and Order recommending dismissal of the
 consolidated complaint.  He held that the Respondent did not violate the
 Statute by refusing to furnish the Charging Party with the requested
 data.  He found that the Charging Party was entitled to information
 needed to enable it to effectively carry out its representational
 responsibility, provided that the information sought was necessary and
 relevant to discharging its duties.  The Judge further found that the
 Charging Party never disclosed the reasons for seeking the information
 to the Respondent.  The Judge also rejected the General Counsel's
 argument that the information being sought was presumptively relevant.
    The Judge also addressed the applicability of the Privacy Act to the
 issue of whether the Respondent was obligated to release the information
 requested by the Charging Party under the Statute.  The Judge concluded
 it was essential that an agency have sufficient information concerning a
 union's need for the data in order for the agency to determine its
 duties and obligations under the Privacy Act and the Statute.
                  IV.  Previous Decision of the Authority
    The General Counsel and the Charging Party filed exceptions to the
 Administrative Law Judge's decision.  The Authority dismissed the
 complaint, finding that the General Counsel had not met the burden of
 proving that the Respondent failed to comply with section 7114(b)(4) of
 the Statute.  Department of Health and Human Services, Social Security
 Administration and Social Security Administration, Field Operations, New
 York Region and American Federation of Government Employees, AFL-CIO, 21
 FLRA No. 35 (1986).  In reaching its conclusion, the Authority rejected
 the contention that the information sought was presumptively relevant
 and decided the case on the basis of the Charging Party's failure to
 communicate the necessity for the information to the Respondent.  In
 view of the finding that the information sought by the Charging Party
 was not shown to be necessary within the meaning of section 7114(b)(4)
 of the Statute, the Authority found it unnecessary to pass either upon
 the contention that the information could be released to the Charging
 Party under the "routine use" exception in the Privacy Act or upon the
 findings of the Administrative Law Judge concerning the Privacy Act.
                   V.  Decision of the Court of Appeals
    The Charging Party petitioned for review of the Authority's decision
 in the Second Circuit.  The Charging Party argued among other things
 that the Authority erred because it should have required the Respondent
 to furnish the information by using the "presumptive "relevance"
 doctrine developed under the National Labor Relations Act.  The court
 rejected this argument, but went on to find that the Charging Party had
 "adequately conveyed to the (Respondent) its need for the information
 sought." AFGE v. FLRA, 811 F.2d at 774.  While "agree(ing) with the
 Authority's finding that much of the (Charging Party's) conclusory
 representations to the (Respondent) . . . added little force to its
 request for information," the court stated "after careful review of the
 communications between the (Charging Party) and the (Respondent) in the
 four cases involved here, we find that the Authority's decision was
 based on too narrow an interpretation, on the record before it, of the
 agency's duty to provide information under section 7114(b)(4)." Id.  The
 court concluded "in this case it was reasonably clear that the
 information the union sought was needed to evaluate an existing or
 potential grievance relating to (the information requested), and
 therefore was necessary for 'full and proper discussion, understanding,
 and negotiation of subjects within the scope of collective bargaining'."
 Id. at 775.  The court reversed the Authority's decision and, noting
 that the Authority had not previously addressed whether the information
 sought under section 7114(b)(4) of the Statute could be disclosed under
 the Privacy Act, remanded the case to us "for a determination of whether
 the information is exempt from disclosure under the Privacy Act." Id. at
                       VI.  Analysis and Conclusion
    As the record in this case is currently constituted, we are unable to
 determine whether the information sought by the Charging Party is exempt
 from disclosure under the Privacy Act.  In order to make the
 determination required by the court, we need additional information.
 Specifically, we need information concerning the entire period pertinent
 to the complaint as well as the present, to include:  (1) the notices of
 the system(s) of records maintained by the Office of Personnel
 Management and the Department of Health and Human Services/Social
 Security Administration containing the information sought;  (2) the
 effective dates of these systems of records;  (3) the routine use
 statement(s) for each applicable system of records;  and (4) any
 applicable collective bargaining agreement provisions which address
 release of information from a system of records to the exclusive
    Accordingly, we must remand the consolidated case to the
 Administrative Law Judge to reopen the record for receipt of the
 information described above and any other information he deems relevant;
  and to make findings as to whether the information sought by the
 Charging Party is exempt from disclosure under the Privacy Act.
    The consolidated case is remanded to the Administrative Law Judge for
 action consistent with the above.
    Issued, Washington, D.C., May 20, 1987.
                                       /s/ Jerry L. Calhoun
                                       Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III
                                       Henry B. Frazier III, Member
                                       /s/ Jean McKee
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY