51:0462(41)CA - - DOL, Washington, DC and National Council of Field Labor Locals, AFGE - - 1995 FLRAdec CA - - v51 p462
[ v51 p462 ]
The decision of the Authority follows:
51 FLRA No. 41
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF LABOR
NATIONAL COUNCIL OF FIELD LABOR LOCALS,
AMERICAN FEDERATION OF GOVERNMENT
44 FLRA 1540 (1992)
38 FLRA 965 (1990)
DECISION AND ORDER ON REMAND
November 1, 1995
Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.
I. Statement of the Case
This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit. United States Department of Labor v. FLRA, No. 91-1174 (D.C. Cir. Jan. 7, 1992) (mem.) (DOL v. FLRA). After the remand from the court, the Authority remanded the complaint to the Regional Director, Decision and Order on Remand, 44 FLRA 1540 (1992), and a hearing was held before an administrative law judge. The complaint alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to provide the Union with unsanitized copies of disciplinary suspension records for bargaining unit and nonunit employees covering a 5-year period.
It is the Judge's decision on remand, wherein the Judge concluded that the Respondent violated the Statute by failing to provide the Union with sanitized copies of the requested records, which is now before the Authority pursuant to exceptions filed by the General Counsel and the Respondent.(1)
In its initial decision in this case, the Authority concluded, based on a stipulated record, that the Respondent violated the Statute by refusing to provide the Union with unsanitized copies of the requested records. U.S. Department of Labor, Washington, D.C., 39 FLRA 531 (1991) (Labor). The Authority found that the requested information was necessary, within the meaning of section 7114(b)(4) of the Statute, that disclosure of the information was not prohibited by law, and that the request satisfied all the other requirements of that section. In DOL v. FLRA, the court rejected the approach used by the Authority in Labor to find that the requested information was necessary. Without addressing any other aspect of the Authority's decision, the court remanded the case for the Authority to reconsider in light of National Labor Relations Board v. FLRA, 952 F.2d 523 (D.C. Cir. 1992).
For the following reasons, we find that the requested records are not necessary, within the meaning of section 7114(b)(4)(B) of the Statute, and that disclosure of the requested records is prohibited by the Privacy Act, 5 U.S.C. § 552a.(2) Therefore, we dismiss the complaint.
II. Judge's Decision
The facts are set forth in the attached Judge's decision and are only briefly summarized here.
To prepare for arbitration hearings arising from disciplinary suspensions of five unit employees, the Union requested unsanitized copies of all disciplinary suspension records of unit and nonunit employees covering a 5-year period.(3) The Respondent refused to furnish the requested information on the grounds that it was not necessary and that its disclosure was prohibited by law.
The Judge concluded that the requested records were "necessary" within the meaning of section 7114(b)(4) of the Statute. In particular, the Judge concluded that the records were not merely "'useful', but [were] essential to the Union in carrying out its statutory obligation to represent effectively employees subjected to discipline." Judge's Decision at 9 (emphasis omitted).
Although the Judge stated that "[p]rivacy [was] a matter outside the scope of the remand[,]" id., he concluded that consideration of the Privacy Act was compelled by the Supreme Court's decision in United States Department of Defense v. FLRA, __ U.S. , 114 S. Ct. 1006 (1994) (Department of Defense). The Judge found that employees have a significant privacy interest in preventing disclosure of records of disciplinary actions, and that there is a strong public interest in the information because it would shed light on how the Respondent administers discipline. According to the Judge, the public interest in disclosure would be served, and the employees' confidentiality interests would be protected, by requiring the Respondent to provide the requested disciplinary records to the Union in a sanitized form. The Judge stated that requiring disclosure of sanitized information was consistent both with testimony at the ULP hearing that the Union would accept such information and with the Authority's decision in U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1324 (1990) (INS). The Judge concluded that the Respondent's refusal to provide the requested information in a sanitized form constituted a failure to comply with section 7114(b)(4) of the Statute and, thereby, violated the Statute.(4)
III. Positions of the Parties
A. General Counsel's Exceptions and Supplemental Submission
The General Counsel contends that the Judge erred by considering whether disclosure of the requested information violates the Privacy Act because that issue was not within the scope of the remand.(5) The General Counsel also contends that the Judge erred by requiring that the information be sanitized because disclosure of unsanitized disciplinary records is not prohibited by the Privacy Act. According to the General Counsel, disclosure of unsanitized records would serve a significant public interest by opening the Respondent's actions to the light of public scrutiny and that, when the privacy interest is balanced against the public interest, the balance favors disclosure of the unsanitized records to the Union. In addition, the General Counsel argues that disclosure of the requested information is authorized under exception (b)(3) of the Privacy Act, which permits disclosure of information for "routine use."
B. Respondent's Exceptions and Opposition
The Respondent contends that the Judge erred by finding that the Respondent committed an unfair labor practice that was not encompassed by the complaint. In particular, the Respondent argues that the Judge improperly found that it violated the Statute by failing to provide the Union with sanitized and correlated disciplinary information when the Union requested, and the complaint alleged, that the Union was entitled to, unsanitized disciplinary information.
The Respondent also contends that disclosure of the requested disciplinary records would not shed light on the agency's performance of its statutory duties, and that, as the requested files implicate significant privacy interests on the part of suspended employees and witnesses, disclosure is prohibited by the Privacy Act. The Respondent also argues that the requested information may not properly be disclosed to the Union under the routine use exception to the Privacy Act, and that the requested information is not necessary or reasonably available within the meaning of section 7114(b)(4)(B).
IV. Analysis and Conclusions
A. The Proceedings in this Case Do Not Properly Place Before the Authority the Issue of Whether the Respondent Violated the Statute by Refusing to Disclose Sanitized Records
We find, for the following reasons, that the Judge erred in basing his decision that the Respondent violated the Statute on the Respondent's failure to provide the Union with the requested information in a sanitized and correlated form.
In the private sector, a person accused of violating the National Labor Relations Act (NLRA) has "the right to be notified of the specific charges raised against him and an opportunity to defend himself against [the charges]." Pergament United Sales, Inc. v. NLRB, 920 F.2d 130, 134 (2d Cir. 1990). This due process requirement "prohibits the enforcement of a finding by the Board of a violation 'neither charged in the complaint nor litigated at the hearing.'" Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1074 (1st Cir. 1981) (Soule Glass). As relevant here, an "uncharged violation may only be found . . . if all issues surrounding the violation have been litigated fully and fairly." National Labor Relations Board v. Coca Cola Bottling Company of Buffalo, Inc., 811 F.2d 82, 87 (2d Cir. 1987). The test is one of "fairness under the circumstances of each case -- whether the employer knew what conduct was in issue and had a fair opportunity to present his defense." Soule Glass, 652 F.2d at 1074. As the relevant provisions of the Statute and the NLRA are comparable, as due process considerations are basic in American jurisprudence, and as no reason is argued or apparent for applying a different requirement under the Statute, we apply this precedent here. Cf. Naval Facilities Engineering Service Center, Port Hueneme, California, 50 FLRA 363, 367 (1995) (Authority concluded that it was "appropriate to bring the approach for determining successorship in the Federal sector into close alignment with the treatment of this issue already well-established in private sector labor law."); U.S. Department of Transportation, U.S. Coast Guard Finance Center, Chesapeake, Virginia, 34 FLRA 946, 952-53 (1990) ("When there are comparable provisions under the Statute and the [NLRA], decisions of the NLRB and the courts interpreting the NLRA have a high degree of relevance to similar circumstances under the Statute.") (citation omitted).
In this case, we conclude that the issue of whether the Respondent violated the Statute by failing to provide sanitized information was not fully and fairly litigated. In particular, our examination of the record confirms that, throughout the proceeding, the Union sought only unsanitized information, and the General Counsel prosecuted the alleged violation of the Statute based on the Respondent's refusal to provide unsanitized information.
The complaint alleged that the Respondent violated the Statute by failing to provide unsanitized disciplinary records. Exhibit 1(c) to Stip., para. 7(a). In addition, the General Counsel argued at the hearing and in the post-hearing brief to the Judge that the Respondent was required to provide unsanitized information to the Union. At no time during the proceedings did the General Counsel offer arguments regarding disclosure of sanitized information. Indeed, the General Counsel continues to argue, in exceptions to the Judge's decision, that the Respondent was required to provide unsanitized information to the Union. In particular, the General Counsel maintains that "there is no record of Respondent's offering the disciplinary files in [a] sanitized form, and there is no record of the Union's conceding that sanitized information would be appropriate, even if correlated." G.C.'s Exceptions at 15.
In these circumstances, we agree with the Respondent that it was not afforded notice and an opportunity to fully and fairly litigate the issue of whether sanitized information should have been furnished the Union. Accordingly, consistent with the complaint and the arguments offered in this proceeding, we will address only whether the Respondent violated the Statute by failing to provide unsanitized information.(6)
B. Disclosure of the Requested Information Is Prohibited by the Privacy Act
As the Judge stated, the scope of the Authority's remand did not include consideration of whether disclosure of the requested information was barred by the Privacy Act. However, we agree with the Judge that, in view of the Supreme Court's decision in Department of Defense,(7) it was appropriate and necessary for him to consider this issue, and we reject the General Counsel's argument to the contrary.
1. Disclosure Would Result In a Clearly Unwarranted Invasion of Privacy Under FOIA Exemption 6
In U.S. Department of Transportation, Federal Aviation Administration, New York TRACON, Westbury, New York, 50 FLRA 338, 345 (1995) (FAA), which involved the disclosure of performance appraisals of bargaining unit employees, we set forth the analytical approach we will follow in assessing an agency's claim that disclosure of information requested under section 7114(b)(4) of the Statute would constitute a clearly unwarranted invasion of personal privacy within the meaning of Exemption 6 of the FOIA and, therefore, is prohibited by the Privacy Act. As we explained in FAA, an agency asserting that the Privacy Act bars disclosure is required to demonstrate: (1) that the requested information 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 such disclosure will serve that public interest. Although the parties bear these burdens, we will, where appropriate, consider matters that are otherwise apparent.
We held in FAA, for reasons 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 as to the activities of the Government. More particularly, we 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, will no longer be considered in our analysis under Exemption 6 of the FOIA.
Once the relevant interests are established, we 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. 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, we find that both the Respondent and the General Counsel have met their burdens of demonstrating, respectively, that disclosure of the information would implicate employee privacy interests and that disclosure of the information would serve a public interest cognizable under the FOIA.(8)
With respect to privacy interests, the Authority has previously found that employees have significant privacy interests in disciplinary information because the release of that information can be embarrassing and stigmatizing to the employee. See U.S. Department of Justice and Immigration and Naturalization Service, 37 FLRA 1346, 1361-64 (1990), request for reconsideration denied, 38 FLRA 946 (1990). This finding is consistent with the conclusions reached by courts reviewing claims under Exemption 6 of the FOIA. See Department of the Air Force v. Rose, 425 U.S. 352, 377 (1976); Chamberlain v. Kurtz, 589 F.2d 827, 841-42 (5th Cir. 1979) (Chamberlain), cert. denied, 444 U.S. 842 (1979).
With respect to the public interest that would be served by disclosure, we agree with the General Counsel that the release of disciplinary suspension records would shed light on Government operations and, therefore, would serve a public interest cognizable under Exemption 6. In particular, disclosure of such information would serve the public interest in monitoring and evaluating the conduct and performance of public officials, and the manner in which the Government disciplines Federal employees.
However, there is no assertion or other basis on which to conclude that this public interest would be better served by the disclosure of disciplinary records in an unsanitized form that reveals the identity of employees who were the subject of discipline. See United States Air Force, Headquarters, 442nd Fighter Wing (AFRES) Richards-Gebaur Air Force Base, Missouri, 50 FLRA 455, 460-61 (1995); FAA, 50 FLRA at 349. See also United States Department of State v. Ray, 502 U.S. 164, 178 (1991) (public interest in knowing whether the agency was performing its responsibilities was "adequately served by disclosure of the redacted interview summaries" and that the "addition of the redacted identifying information would not shed any additional light on the Government's conduct of its obligation."); Chamberlain, 589 F.2d at 842 (disclosure of redacted disciplinary reports served the public interest in understanding the conduct of the agency's operations and that "knowing the identities of the persons discussed in the reports add[ed] nothing to the equation."); Cotton v. Adams, 798 F. Supp. 22, 27-28 (D.D.C. 1992) (Cotton) (release of an Inspector General's investigative report concerning the conduct of low-level employees would not allow the public to evaluate the agency's discharge of its duties).
We recognize that there may be circumstances where the public does have an interest in the identity of particular Federal employees. For example, "the level of responsibility held by a federal employee, as well as the activity for which such an employee has been censured, are appropriate considerations for determining the extent of the public's interest in knowing the identity of that censured employee." Stern v. Federal Bureau of Investigation, 737 F.2d 84, 92 (D.C. Cir. 1984) (Stern). In this connection, courts have held that there is no strong public interest in the alleged misconduct, particularly when such misconduct is, for example, unintentional, of Federal employees who do not occupy high-ranking positions. E.g., id. at 92-93 (names of two lower-level employees, censured for negligence, were protected from disclosure "where the public interest in their identity [was] grounded only in a general notion of public servant accountability"); Cotton, 798 F. Supp. at 27 (identities of lower-level employees named in an Inspector General's report were protected from disclosure because the "generalized public interest in good management [did] not override the [employees'] privacy interests"). On the other hand, the "public has a great interest in being enlightened" about serious misconduct by a "high-level officer . . . ." Stern, 737 F.2d at 94 (court ordered disclosure of letter of censure of high-level agency official for participating "deliberately and knowingly in the withholding of damaging information in an important inquiry[.]").
In the case before us, however, there is no contention that the Union's request pertains to high-level public officials involved in serious wrongdoing. Indeed, the Union requested all relevant disciplinary suspension records covering a particular time period--for unit and nonunit employees--without regard to either the position held by the affected employees, or the nature of the wrongdoing involved. In this situation, we conclude that the General Counsel has not established that the disclosure of employees' names, the precise part of the requested information that implicates employee privacy interests, serves the public interest that is cognizable under Exemption 6. Although disclosure of unsanitized disciplinary records might assist the Union in discharging its representational responsibilities, 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 FAA, 50 FLRA at 349. See also United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 771 (1989) ("[T]he identity of the requesting party has no bearing on the merits of his or her FOIA request."); Department of Defense, 114 S. Ct. at 1014 ("[A]ll FOIA requestors have an equal, and equally qualified, right to information[.]").
Based on the foregoing, and in view of judicial precedent holding that similar documents are not disclosable, we conclude that, on balance, the public interest that would be served by disclosing the requested unsanitized disciplinary information in this case is outweighed by the substantial invasion of employee privacy that would result. Accordingly, we find that disclosure of the requested information would constitute a clearly unwarranted invasion of personal privacy, within the meaning of Exemption 6 of the FOIA, and, thus, is not authorized by the FOIA exception to the Privacy Act.
2. Disclosure of the Requested Information Is Not Authorized Under the Routine Use Exception to the Privacy Act
The information requested in this case is contained in the OPM/GOVT-1 and OPM-GOVT 3 systems of records. OPM's routine use statements governing those systems of records, identified as routine use "j" applicable to OPM/GOVT-1 (encompassing OPFs), and "a" applicable to OPM/GOVT-3 (encompassing adverse action files), provides that records may be disclosed "to officials of labor organizations recognized under 5 U.S.C. chapter 71 when relevant and necessary to their duties of exclusive representation . . . ." 57 Fed. Reg. 35698, 35706, 35712 (1992). Accordingly, to determine whether the routine use exception applies to the requested information, we must decide whether the requested information is "relevant and necessary" within the meaning of routine use statements "a" and "j."
OPM issued "guidance to agencies" for interpreting these terms in FPM Letter 711-164, which was published on September 17, 1992. When the FPM was abolished on December 31, 1993, the Letter, along with certain other parts of the FPM, was provisionally retained through December 31, 1994. For the reasons set forth in U.S. Department of Transportation, Federal Aviation Administration, Little Rock, Arkansas, 51 FLRA No. 24 (1995), we apply the FPM Letter's guidance in deciding this case.
The FPM Letter contains two requirements that a union must satisfy in order to establish that requested information is consistent with routine uses "a" and "j": (1) the information must be "relevant" to the express purpose for which it is sought, meaning that the nature of the information must bear a traceable, logical, and significant connection to the purpose to be served; and (2) the information must be "necessary," meaning that there are no adequate alternative means or sources for satisfying the union's informational needs. In clarifying this second requirement, the FPM Letter explains that it is to be determined on a case-by-case basis: the union "must show that it has a particularized need for the information in a form that identifies specific individuals, and that its information needs cannot be satisfied through less intrusive means, such as by releasing records with personally-identifying information deleted."
In this case, we find that the Union has failed to demonstrate that the requested information is both "relevant and necessary" within the meaning of FPM Letter 711-164. Addressing first the standard of "relevance," and looking at the ordinary meaning of the terms "traceable," "logical," and "significant,"(9) we have examined the record to assess whether the Union has established that the requested name-identified disciplinary suspension records can reasonably be attributed to and are likely to influence or affect the purpose for which the records were sought. We find that the name-identified records bear a traceable, logical, and significant connection to the purpose for which the information was sought. Furnishing the records would clearly assist the Union's stated purpose of uncovering possible disparate treatment of unit employees. It would also enable the Union to make comparisons among employees in order to ascertain whether the Respondent administers discipline to employees in a fair and equitable manner.
However, we are not persuaded that the record before us supports a finding that the information is "necessary," within the meaning of the FPM Letter. Although the General Counsel maintains that the Union needs the requested information to determine whether there was disparate treatment of the grievants, the General Counsel has failed to establish that this need cannot be satisfied through less intrusive means than by using name-identified disciplinary records. The FPM Letter contains an example of a less intrusive means: release of records with personally-identifying information deleted. In this case, it is clear that this less intrusive means exists: the Judge ordered the records disclosed in a sanitized and correlated form.
Although the General Counsel contends that the Judge erred by refusing to order the disclosure of unsanitized disciplinary suspension records, no argument is offered why sanitized and correlated records would not satisfy the Union's needs. Based on the foregoing, we conclude that the Union has failed to show that the information is necessary, within the meaning of routine use statements "a" and "j." Therefore, the Union has not established, as it must under FPM Letter 711-164, both the relevance and necessity of unsanitized copies of all the requested disciplinary records. Consequently, the information is not disclosable in the unsanitized form sought by the Union as a routine use under section 552a(b)(3) of the Privacy Act.
As disclosure of the unsanitized disciplinary information would constitute a clearly unwarranted invasion of personal privacy, within the meaning of Exemption 6 of the FOIA, and release of the unsanitized information is not authorized as a routine use under section 552a(b)(3) of the Privacy Act, such disclosure is prohibited by law within the meaning of section 7114(b)(4) of the Statute. Accordingly, the Respondent's failure to provide the Union with the requested information did not violate section 7116(a)(1), (5), and (8) of the Statute.
C. Disclosure of the Requested Information Is Not Necessary Within the Meaning of Section 7114(b)(4)
Our conclusion that disclosure of the requested unsanitized disciplinary suspension records is barred by the Privacy Act requires dismissal of the complaint without regard to whether the records meet the other requirements of section 7114(b)(4). E.g., FAA, 50 FLRA at 341. However, the court remanded this case to us for the express purpose of reconsidering the Authority's previous conclusion that the information was necessary, within the meaning of the Statute. Accordingly, we do so here.
Recently, the Authority issued Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661 (1995) (Member Talkin concurring) (IRS, Kansas City), which set forth the analytical framework for determining whether information is "necessary" under section 7114(b)(4) of the Statute. We held that a union making a request under that section must establish a particularized need for the requested information by articulating, with specificity, why it needs that information, including the uses to which the information will be put, and the connection between those uses and the union's representational responsibilities under the Statute. We also stated that a union's need will not be satisfied merely by showing that requested information is or would be relevant or useful, but that the union must demonstrate that the information is "'required in order for the union adequately to represent its members.'" Id. at 670 (quoting Department of Justice v. FLRA, 991 F.2d 285, 290 (5th Cir. 1993)). The union's responsibility for articulating and explaining its interests extends to more than a conclusory or bare assertion; among other things, the request for information must be sufficient to permit an agency to make a reasoned judgment as to whether the information must be disclosed under the Statute. As for the agency's responsibilities, we stated that when it denies an information request, the agency must assert and establish any countervailing anti-disclosure interests. The agency will not satisfy its burden by making conclusory or bare assertions.
Where the parties are unable to agree on whether, or to what extent, requested information must be provided, we will find an unfair labor practice if a union has established a particularized need for the information and either: (1) the agency has not established a countervailing interest; or (2) the agency has established such an interest but it does not outweigh the union's demonstration of particularized need.
Applying IRS, Kansas City to the facts in this case, we find that the Union has not satisfied its burden of demonstrating that the requested information is required for it to adequately represent its members.
At the time of its information request, the Union stated that it needed the information to prepare for arbitration proceedings involving suspensions of five unit employees. In addition, the Union explained that it needed the information to ensure that the Respondent had been "consistent in its disciplinary actions of all employees." Exh. 4 to Stip. These statements articulate the Union's reasons for requesting the disciplinary suspension records in general, and establish a need for some disciplinary suspension records to compare with the suspensions given the grievants. They do not, however, explain why the Union needs the information it has requested, and the particular uses to which it would put the information if it were disclosed.
The information requested by the Union in this case encompasses: (1) disciplinary suspension records; (2) covering a 5-year period; and (3) that are name-identified. The Union has not established with the requisite specificity a need for these records. In this regard, testimony established that the Union requested 5 years of disciplinary suspension records because it believed that the Agency maintained such records for that time period. Tr. at 77. However, that disciplinary suspension records covering a period of 5 years are available does not establish that those records are necessary. No basis has been presented in this case to find that the Union articulated or established with the requisite specificity that it needs records covering this extended length of time.
The Union also has not established that or why it needs name-identified documents. Although the Judge concluded that the requested records were "essential" for the Union to fulfill its representational responsibilities, the Judge made no finding that names of employees were necessary. Indeed, as the Judge ordered disclosure of sanitized information, it follows that the Judge did not find that name-identified information was required for the Union to prepare for the arbitration proceedings.
In these circumstances, we conclude that the Union has not satisfied its burden of articulating and establishing, with the required specificity, why it needed the requested information, the uses to which the information would be put, and the connection between those uses and the Union's representational responsibilities under the Statute. As such, we conclude that the requested information is not necessary, within the meaning of section 7114(b)(4) of the Statute.(10) See U.S. Equal Employment Opportunity Commission,51 FLRA No. 26, slip op. at 11 (1995) (union did not satisfy its burden of articulating and establishing that performance-related information was necessary).
The complaint is dismissed.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
| U.S. DEPARTMENT OF LABOR, WASHINGTON, D.C.
NATIONAL COUNCIL OF FIELD LABOR LOCALS, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
David L. Pena, Esquire
For the Respondent
Hazel E. Hanley, Esquire
For the General Counsel
For the Charging Party
Before: JOHN H. FENTON
Chief Administrative Law Judge
Statement of the Case
This is an information case decided by the Authority at 39 FLRA 531, and remanded to the Authority by the United States Court of Appeals for the District of Columbia Circuit on the ground the Authority's analysis of the question whether certain suspension records of employees were "necessary" for performance of the Union's functions under 5 U.S.C. § 7114(b)(4)(B), had been rejected by the Court in NLRB v. FLRA, 952 F.2d 523. The Authority, in turn, remanded the matter to the Regional Director at 44 FLRA No. 118, and the matter went to a hearing designed to "provide the parties with an opportunity to address the application of NLRB v. FLRA to this case".
In its original decision the Authority found a violation of Section 7116(a)(1), (5) and (8) in Respondent's failure to comply with the Union's request that it furnish:
Records of suspension for the previous five years involving Insubordination, Improper Conduct, Misconduct, Disruption of the Workplace, Failure to Follow Instructions, Unacceptable Conduct, Abusive Language, Threatening Actions, and Questioning a Supervisors Authority. Such records shall include, but not be limited to, the Name of the Employee, their work location including office and Agency, the charges against them, and the disciplinary action taken. Such records shall include all DOL employees, both bargaining/non-bargaining unit, and management.
The Union requested the information to prepare for grievance arbitration hearings arising from the disciplinary suspensions of five unit employees in four different offices (OWCP, OFCC, Job Corps and Wage and Hour) and locations of DOL. The Union asserted the information was necessary for it "to insure that the Department of Labor has been consistent in its disciplinary actions". The Authority rejected Respondent's contentions that the requested information was not necessary for the Union to perform its representational functions and was prohibited from disclosure by law. The Court, in essence, held that the Authority had failed to recognize that the "necessity" required by Section 7114(b)(4)(B) "implicitly recognizes countervailing interests". More to the point, it said that:
. . . the FLRA's construction of § 7114(b)(4)(B) is flawed to the extent that the Authority views the subsection to cover both "necessary" and "relevant" information. This view is clearly incorrect with respect to information on "guidance," "advice," "counsel" or "training" for management officials. The FSLMRS makes only "necessary" documents available to the union, nor merely "relevant" ones. Where the information sought pertains to "guidance," "advice," "counsel" or "training" for management officials, "necessity" means that there must be a particularized need in order to justify disclosure under subsection (b)(4)(B).
Findings of Fact
At the hearing, General Counsel introduced the collective bargaining agreement (already in evidence as an attachment to the Stipulation). Article 13, section 1 states that no "employee will be the subject of a disciplinary action except for just and sufficient cause, and for reasons which will promote the efficiency of the Department". Article 13, section 2 sets forth the procedures for suspensions of 14 calendar days or less. Those procedures include requirements that the notice of proposed suspension state the reasons therefor "specifically and in detail," that management furnish "a copy of all written documents (it) relied on . . . for the reasons and specifications", and that evidence which management may not "divulge to an employee under the Privacy Act will not be used against the employee". Article 15, section 2, seems clearly to cover grievances which might arise from any suspension, including a failure to follow the procedures described.
Few further facts were offered. National Vice President Richard Coon elaborated on the Union's need for the information sought. He testified that in the summer of 1989 the arbitration committee which he chaired, as a consequence of its study of the five grievances then pending arbitration, developed some concern that the agency was imposing harsher penalties upon unit employees than upon those (including supervisors) outside the unit. As he put it "we speculated that . . . we were taking an active role in defending these employees, so management was making their proposals a little higher than normal in hopes of settling. You know, everybody hopes they can settle the cases and still get a higher penalty out of it. And we didn't feel it was consistent with what they may be treating non-unit employees". (Tr. 72). Because they did not have the facts to persuade an arbitrator that discipline was being imposed in an uneven or unlawful manner, they sought the information here at issue, in order to enable them to establish disparate treatment of similarly situated employees.
Coons further testified that sanitized or redacted information would have severely limited usefulness, as the Union needed to know whether the subject of the discipline was a unit or non-unit employee, and wished to be in a position to interview employees, including those named in files who were not the subjects of discipline. Coons expressed a willingness to accept sanitized documents should the Authority determine that the law required such approach.
At hearing, Respondent did not offer anything new as "countervailing interests" to be weighed by the Authority in determining whether the information sought was necessary in light of the new NLRB standard. It seized upon Coon's testimony that the Union's Arbitration Committee "speculated" that discipline was unevenly imposed to argue that a "gut feeling" without more does not provide a proper foundation for an information request of the breadth and scope of this one, i.e. that "necessary" no longer means merely relevant or possibly relevant, but more. It reiterated its arguments that the information was not reasonably available, and that disclosure would violate privacy rights.
One allegedly representative suspension file was admitted under seal.(1) General Counsel was permitted to use it in trial and for briefing purposes. It contains: (1) a supervisor's account to his superior of employee X's improper and disruptive behavior toward the supervisor, together with a recommendation about discipline; (2) notes of interviews with six witnesses to the incident; (3) an unsigned summary of what occurred based on those interviews; (4) a memo of a conversation between X and the Chief of his section; (5) a memo proposing to suspend X for five calendar days from that Chief; (6) an undated "Rebuttal to Charges"; (7) a grievance filed by X together with what appears to be a 4-page effort to explain, justify or put forth mitigating circumstances; (8) notes, made by an agreed-upon party, of X's oral response to the proposed suspension in a meeting involving his Union representative, the Regional Administrator and the latter's Executive Assistant; (9) the Regional Administrator's memo to X setting forth his Decision to Suspend, and (10) a copy of the SF-50 recording the 5-day suspension for "Improper conduct and disruption of work area."
As noted, it would seem clear from Coon's testimony that the Union wanted the entire file, including the names of witnesses and their statements. The original union request certainly can be read as including such materials, as it sought "records of suspension . . . includ(ing) but not . . . limited to. . . ."
On the other hand, the Stipulation originally submitted to the Authority provides a different view of precisely what the Union's nebulous request means:
15. With respect to a suspension, an OPF will contain an SF-50 form that identifies the fact of the suspension, its length, and a short description of the reason for the suspension. For example, the SF-50 will state that the suspension was for "insubordination", or "disruptive conduct", but does not provide information regarding the details of the conduct that led to the suspension. The OPF is maintained by the appropriate personnel office as long as the employee is employed by the DOL.
16. The Department also maintains, in each of the 17 personnel offices, files known as "adverse action files". For each suspension, an adverse action file is opened and contains among other things, a copy of the Notice of Proposed Suspension which details the conduct that led to the suspension as well as the length of the proposed suspension, and a copy of the Decision Letter prepared by the Deciding Official, that constitutes the agency's final decision regarding the suspension. These files are identified by the employees name. Some, but not all of these files also contain the SF-50 that would have been prepared to record the execution of the suspension. These documents together with the SF-50 provide all of the information requested by the union in its letter of August 1, 1989. The adverse action file is maintained by the appropriate personnel office for four (4) years after the closing of the subject case.
The Stipulation further said that the information sought "does not constitute guidance, advice, counsel or training for management officials relating to collective bargaining," i.e. the parties agreed that the exemption set forth in Section 7114(b)(4)(C) is inapplicable.
Finally, it was stipulated that there were, on the date of the request, "approximately 350 adverse action files . . . pertaining to suspensions; and that retrieval of the requested information would require:
(a) Reviewing the adverse action files for the purpose of ascertaining which concern suspensions;
(b) Reproduc(tion) of the decision letters and notices of proposed suspensions;
(c) Reproduc(tion) of the SF-50 that documents the final action.(2)
No new matter has been raised as a consequence of the remand. Rather, the original contentions are restated in a fashion designed to deal with NRLB's two-pronged approach to "necessary" as implying the existence of countervailing interests in management's non-disclosure, and the new standard of defining that word as referring to something more than mere relevance or "usefulness".
It has, of course, been necessary for me to read the entire record before the Authority. It seems to me quite clear that the Stipulation described the Union's arguably unlimited information request as seeking precisely three documents: the Notice of Proposed Suspension, the Decision Letter prepared by the deciding official and the SF-50 which records the execution of a suspension and provides its duration and a brief description of the reason for it.(3) The Stipulation, after describing or naming only these documents, recites that "these documents . . . provide all the information requested by the union. . . ." If there can be any doubt about the breadth of the request, it would seem to be removed (and its perimeters precisely delineated) by the Stipulation's reference to the burden placed on DOL in responding to the request. As noted, retrieval of such information, it was agreed, would require locating and reproducing just the three documents and nothing else.
None of the documents sought is an "intramanagement memorandum", by which I mean none discloses the employer's predecisional deliberations about the discipline (suspension) to be imposed. In National Park Service, (48 FLRA 1151) the Authority adopted the standard set forth by the Court in NLRB for determining when a union has demonstrated a sufficient need for information involving managerial guidance, advice or counsel to require disclosure under Section 7114(b)(4)(B), i.e. what is labelled a "particularized need". The question of particularized need would be posed were we faced with a request for documents revealing the recommendations or deliberations of managers to one another. But we are faced with a request for management's memorandum proposing to suspend an employee (which is served on the employee (advising of the right to Union representation), and solicits his/her defense) and a memorandum in which the deciding official informs the employee of the final decision respecting the claimed misconduct and the severity of the suspension imposed.
Evolution of the new NLRB standard began with the Authority's decision at 26 FLRA 108, in which it found that NLRB need not disclose a personnel recommendation made by a Regional Director to his headquarters superiors, on the ground that such disclosure "was prohibited by Section 7106 because it would improperly interject the union into management's internal deliberative process concerning the exercise of management's right to assign work." The Circuit Court, at 842 F.2d 483 remanded the matter, holding that Section 7106 had absolutely nothing to do with disclosure of information. On reexamining the matter the Authority, in 38 FLRA 506, held that the Regional Director's memorandum was "necessary" under Section 7114(b)(4) for the union to process the employees grievance, and that the recommendation therein did not constitute guidance, advice, counsel or training of management officials "relating to collective bargaining" and hence was not exempt from disclosure under 7114(b)(4)(C). That is to say, the quoted phrase was limited to intramanagement communi-cations relating specifically to the collective bargaining process. The Circuit Court, in turn, at 952 F.2d 523, again remanded the matter to the Authority, holding that advice, guidance or counsel not relating to that process, but never-theless concerned with matters within the scope of collective bargaining, is available to the union when "necessary for full and proper discussion, understanding and negotiation" of such subjects. In such circumstances, however, access to advice or guidance requires demonstration of a particularized need as opposed to a mere showing of relevance or usefulness. Thus, in a sense, we have come almost full circle, with management accorded a qualified privilege to withhold what it regards as confidential internal communications which would, if disclosed, reveal its predecisional deliberations.
Here, none of the information covered by the request (as defined in the Stipulation) contains any recommendation from one manager to another. Whatever predecisional deliberations may have taken place, the only material sought which might conceivably be argued to be a recommendation is the Notice of Proposed Suspension, in which the Supervisory Claims Examiner "proposed" a five-day suspension as appropriate in the circumstances. While it can be claimed that this is the equivalent of the supervisor's recommendation to his superiors, it clearly is not an internal communication (being subject to disclosure by the contract) and in no sense reveals managerial predecisional deliberations. It cannot reasonably be contended that management is deprived of the unfettered judgement of lower echelon people because of the lack of confidentiality. Nor can it be assumed that the Notice represents only the judgment of its author, or even that it coincides with recommendations he made to others in manage-ment. In truth, it is a proposal made for publication, the revelation of which does not impinge upon management's "countervailing interest" in keeping confidential its internal deliberations.
In sum, I fail to see how "particularized need" should come in to play in this case. It nevertheless seems plain that "necessary" may not be interpreted as liberally as was the custom. An employer's reasons for nondisclosure are to be balanced against a union's need for the withheld information, but I see nothing in National Park Service which erects particularized need as a hurdle where disclosure of intramanagement guidance or "predecisional deliberation data" is not at risk.(4) In such circumstances the Authority's original analysis at 39 FLRA 531 seems entirely apt in all but one respect. At page 537 the Authority said that "(i)nformation requested by a union is necessary, within the meaning of section 7114(b)(4) . . . if it would be useful to the union in the investigation, evaluation and/or presentation of a potential or actual grievance." It is clear now that the intensity or urgency of that need must be balanced in some fashion against any agency non-disclosure interests. Here the Union's interest is bottomed on grievance arbitrations and is clearly strong, and the Agency's interest in preserving the confidentiality of its suspension records is, (aside from privacy considerations), weak indeed, in the absence of a request embracing intramanagement guidance. Thus, I would recommend that the Authority's conclusion in this respect should remain the same, buttressed only by a finding that such records are not merely "useful", but are essential to the Union in carrying out its statutory obligation to represent effectively employees subjected to discipline.
Privacy is a matter outside the scope of the remand. Nevertheless, it seems necessary to address it, as a sea change has occurred with the Supreme Court's decision in DOD v. FLRA, No. 92-1223, 62 U.S.L.W. 4143. The Court said that, where privacy is implicated, the only relevant public interest in disclosure to be weighed in the balance is the extent to which disclosure would serve the "core purpose of the FOIA . . contribut(ing) significantly to public understanding of the operations or activities of the government." The collective bargaining purpose justifying the original order to disclose is thus no longer relevant. And the Authority in its original decision recognized that employees have a very significant privacing interest in records of disciplinary action, although finding it to fall short when invasion of such privacy is balanced against the strong public interest in providing the union with the requested information.(5)
There is an evident strong public interest under FOIA in access to information shedding light on whether Respondent administers discipline in a disparate or discriminatory manner. At hearing, the Union Vice President expressed a willingness to accept sanitized information should the Authority hold sanitization to be necessary, notwithstanding his strong contention that such approach would severely limit its usefulness. The public's right to know whether DOL administers discipline in a fair and lawful way being clear, the information sought must be furnished unless prohibited by law under the Supreme Court's formulation. In my judgment it is not necessary to reach that question, in this mixed and overlapping analysis, for reasons having to do with the previously discussed question of necessity. An agency's adherence to the requirements of a fair and lawful system for imposing discipline can be effectively monitored, at least for starts, without knowing the identity of the persons whose disciplinary records are being compared. The most relevant factors would be made known to the union for purposes of determining whether given punishment fits the crime, or whether there are discernible differences in discipline which appear to be affected by such irrelevant or even invidious factors as whether the subject is or is not represented by the Union or whether he/she is an employee or a supervisor/ manager.
However unrealistic the effort to preserve privacy is in such matters, (discipline tending to be notorious), we are required to make that attempt. I am confronted, as noted, with a decision in which the Authority has already seen no need to sanitize. Yet the balancing of the public interest in knowing how its government discharges its duty to fairly and lawfully administer personnel programs against the interest of employees in preventing disclosure of embarrassing, stigma-tizing, perhaps humiliating information from their personnel files would appear to be avoidable. Such an approach was taken in INS, Border Patrol, El Paso, supra, with respect to performance appraisals, on the ground that individual identifiers were not necessary, so long as codes could be substituted to enable the union to correlate the documents and draw the desired comparisons. From the viewpoint of the public's right to know there is arguably even less force to the claim that identities must be known to fully explore the question whether disparate or discriminatory treatment has occurred. Here, there is a need to know whether a "file" concerns a rank-and-file employee represented by the Union or one outside the unit, and whether it concerns a supervisor or manager. With such information concerning approximately 350 disciplinary actions, any patterns of disparate treatment as between employees and managers, or between employees in a collective bargaining unit and those not in such unit should appear without recourse to dissemination of potentially embarrassing or stigmatizing information.(6)
In sum, I conclude that Respondent's refusal to provide the Union with the requested information was violative of section 7116(a)(1), (5) and (8), and I recommend that the Authority enter the following:
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the United States Department of Labor, Washington, D.C., shall:
1. Cease and desist from:
(a) Failing and refusing to furnish the National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO, the exclusive representative of certain of its employees, with sanitized and correlated copies of the disciplinary information requested in its letter of August 1, 1989, as it is specifically described and delineated in paragraphs 15 and 16 of the parties' Stipulation.
(b) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Upon request, furnish the National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO, with sanitized and correlated copies of the disciplinary information requested in its letter of August 1, 1989, as it is specifically described and delineated in paragraphs 15 and 16 of the parties' Stipulation.
(b) Post at its facilities throughout the Department of Labor, where bargaining unit employees represented by the National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO, are located 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 Secretary of Labor, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Denver Region, 1244 Speer Boulevard, Suite 100, Denver, CO 80204-3581, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
Issued, Washington, DC, July 26, 1994
JOHN H. FENTON
Chief Administrative Law Judge
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to furnish the National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO, the exclusive representative of certain of our employees, with sanitized and correlated copies of the disciplinary information requested in its letter of August 1, 1989, as it is specifically described and delineated in paragraphs 15 and 16 of the parties' Stipulation.
WE WILL NOT in any like or related manner, interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL furnish the National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO, with sanitized and correlated copies of the disciplinary informa-tion requested in its letter of August 1, 1989, as it is specifically described and delineated in paragraphs 15 and 16 of the parties' Stipulation.
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Denver Region, 1244 Speer Boulevard, Suite 100, Denver, CO 80204-3581, and whose telephone number is: (303) 844-5224.
(If blank, the decision does not have footnotes.)
Authority's Footnotes Follow:
1. The Respondent also filed an opposition to the General Counsel's exceptions, and the General Counsel filed a motion to correct portions of the Respondent's opposition. We find that the General Counsel's motion constitutes a response to the Respondent's opposition. As the Authority's Regulations do not provide for the filing of a response to an opposition, the General Counsel's motion has not been considered. E.g., U.S. Immigration and Naturalization Service, New York District Office, New York, New York, 46 FLRA 1210 n.1 (1993) aff'd, 22 F.3d 1184 (D.C. Cir. 1995). In addition, the Respondent and the General Counsel filed supplemental briefs concerning whether the requested information is necessary, within the meaning of section 7114(b)(4) of the Statute, in response to a Federal Register notice. 59 Fed. Reg. 63995 (1994).
2. 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 Privacy Act, that is retrieved by reference to an individual's name or some other personal identifier. 5 U.S.C. § 552a(a)(4), (5). With certain enumerated exceptions, the Privacy Act prohibits the disclosure of personal information about Federal employees without their consent. Two exceptions to this prohibition are relevant here. First, exception (b)(2) of the Privacy Act, 5 U.S.C. § 552a(b)(2) (the Freedom of Information Act or FOIA exception), provides that the prohibition against disclosure is not applicable if disclosure of the requested information would be required under the Freedom of Information Act, 5 U.S.C. § 552. Exemption (b)(6) of the FOIA (Exemption 6) provides, in turn, that information contained in "personnel and medical files and similar files" may be withheld if disclosure of the information would result in a "clearly unwarranted invasion of personal privacy[.]" 5 U.S.C. § 552(b)(6). If such an invasion would result, then disclosure is not required by the FOIA. Second, exception (b)(3) of the Privacy Act, 5 U.S.C. § 552a(b)(3) (the routine use exception), provides for release of information "for a routine use as defined in section (a)(7) . . . ." A "routine use" is defined in section (a)(7) as the use of covered information "for a purpose which is compatible with the purpose for which it was collected."
3. The Judge construed the request as encompassing, and ordered disclosure of, notices of proposed suspensions, decision letters regarding the suspensions, and Standard Forms (SF-50s) effectuating the suspensions. As is discussed in more detail infra, note 5, the General Counsel maintains that the Judge should have ordered disclosure of more documents. For the purposes of this decision, we use the term "disciplinary suspension records" as encompassing the documents ordered by the Judge.
4. The Judge's recommended order requires the Respondent to provide "sanitized and correlated" copies of the requested records. Judge's Decision at 11. By "correlated," the Judge intended that the records be coded to enable the Union to identify records involving the same individual and to identify the unit status of the individual as well as whether the individual is a supervisor or manager. Id. at 10.
5. The General Counsel also contends that the Judge's remedial order is inadequate because it orders disclosure only of three documents for each disciplinary suspension. See note 3, supra. According to the General Counsel, the Union sought, and the Judge should have ordered disclosure of, other documents contained in disciplinary suspension files, including, among other things, notes regarding interviews with witnesses. In view of our conclusion that disclosure of the documents encompassed by the Judge's order is prohibited by the Privacy Act, and as the General Counsel does not argue that we should consider the additional documents separate from the documents that are encompassed by the Judge's order, we do not address the General Counsel's contention further.
6. Previous Authority decisions concluded that respondents violated the Statute by failing to provide sanitized information when unsanitized information was sought by a union, including INS, relied on by the Judge. See, e.g., Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, 40 FLRA 792 (1991). In reaching these conclusions, the Authority did not specifically address whether the issue had been fully and fairly litigated. To the extent that these previous decisions hold that a respondent may be found to have violated the Statute by failing to disclose sanitized information without regard to whether such violation was charged in the complaint or fully and fairly litigated, they will no longer be followed.
7. Until Department of Defense, the United States Courts of Appeals were split on the issue of whether, or to what extent, public interests embodied in the Statute could be considered cognizable under Exemption 6 of the Freedom of Information Act. Compare FLRA v. United States Department of Defense, United States Department of the Navy, Washington, D.C., 975 F.2d 1105, 1110 (5th Cir. 1992) (court considered "the weighty public interest in labor organizations and collective bargaining") with FLRA v. U.S. Department of the Treasury, Financial Management Service, 884 F.2d 1446, 1453 (D.C. Cir. 1989), cert. denied, 493 U.S. 1055 (1990) (court of appeals concluded that it could not "introduce collective bargaining values into the balancing process"). In Department of Defense, the Court held that the only relevant public interest to be considered in the FOIA Exemption 6 balancing analysis is the extent to which disclosure of the information would shed light on the agency's performance of its statutory duties or otherwise inform citizens as to "'what their government is up to.'" Department of Defense, 114 S. Ct. at 1013-14 (citation omitted).
8. The parties previously stipulated that the requested information is contained in a system of records. Stip. at 5, para. 20.
9. According to Webster's Third New International Dictionary (unabridged) (1986), traceable is defined as "suitable or of a kind to be attributed: Due, Ascribable"; logical means "that [which] is in accordance with inferences reasonably drawn from preceding or surrounding or predictable facts or events or