[ v51 p1054 ]
51:1054(87)CA
The decision of the Authority follows:
51 FLRA No. 87
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
_____
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
NEW ENGLAND REGION
BRADLEY AIR TRAFFIC CONTROL TOWER
WINDSOR LOCKS, CONNECTICUT
(Respondent)
and
NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION
Y90 LOCAL, MEBA/NMU, AFL-CIO
(Charging Party/Union)
1-CA-10350
1-CA-10351
DECISION AND ORDER
March 29, 1996
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions.(1)
The consolidated complaint alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by: (1) refusing to furnish the Union with unsanitized copies of the performance appraisals of bargaining unit and non-bargaining unit employees (Case No. 1-CA-10350) and unsanitized performance award data on non-bargaining unit employees (Case No. 1-CA-10351); and (2) failing to respond to two data requests from the Union in a timely manner.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended order only to the extent consistent with this decision. For the reasons stated below, we find that the Respondent did not violate the Statute by failing to furnish the Union with unsanitized copies of the requested performance appraisals because disclosure of this information is prohibited by the Privacy Act, 5 U.S.C. § 552a.(2) Accordingly, we dismiss the complaint filed in Case No. 1-CA-10350. However, we find that the release of the requested performance award data in Case No. 1-CA-10351 is not prohibited by the Privacy Act and that the information is necessary, within the meaning of section 7114(b)(4) of the Statute. Consequently, we conclude that the Respondent failed to comply with section 7114(b)(4) by refusing to provide that data and thereby violated section 7116(a)(1), (5), and (8) of the Statute. We also conclude, in the absence of exceptions to the Judge's conclusion, that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to respond to the Union's requests for information in a timely manner.
II. Judge's Decision
The facts are set forth fully in the attached Judge's decision and briefly summarized here. The Union submitted data requests to the Manager of the Bradley Air Traffic Control Tower for unsanitized copies of performance appraisals for all bargaining unit and non-bargaining unit employees at the facility, and for unsanitized performance award data on non-bargaining unit employees. The Union requested that the award recipients be identified "by name and position." General Counsel's Exhibit No. 3. The Union stated that it needed the performance appraisal data to complete an investigation for bargaining unit employees concerning performance evaluations, procedures, processes, and determinations and to ensure that bargaining unit employees are not treated differently from nonunit employees because they exercise their rights under the Statute. The Union stated that it needed the performance award data to discuss the recognition and awards program in accordance with Article 21, Section 4 of the parties' agreement and to ensure that bargaining unit employees are not treated differently from nonunit employees because they exercise their rights under the Statute.(3)
Several weeks after the requests were submitted, the Respondent's Manager informed the Union that the requests would be forwarded to the Federal Aviation Administration's (FAA's) New England Regional Office for processing. However, neither the Regional Office nor the Respondent provided any further response to the Union's requests prior to the issuance of the complaint in this case.
The Judge concluded, in a decision issued prior to Department of Defense, that the Respondent's refusal to furnish the unsanitized performance appraisal and performance award data violated the Statute. In reaching this conclusion, the Judge stated that the Union testified that it needed the performance appraisal data in unsanitized form to determine how an employee was being appraised and whether there had been favoritism shown toward non-bargaining unit employees. The Judge stated that the Union testified that it needed the performance award data in unsanitized form to: (1) associate what an employee did to receive the award with the award that was given; (2) discuss the recognition and awards program in labor-management meetings; (3) determine whether bargaining unit employees who exercised their rights under the Statute were treated differently from nonunit employees; and (4) assess a potential grievance. Considering the two information requests together, the Judge found that disclosure of the requested information concerning bargaining unit and non-bargaining unit employees in an unsanitized form was not prohibited by the Privacy Act. The Judge stated that the Respondent conceded that the performance appraisal data as to bargaining unit employees was necessary. The Judge found that the performance appraisal and performance award data concerning non-bargaining unit employees was also necessary under section 7114(b)(4) of the Statute, was reasonably available and normally maintained, and did not constitute guidance, advice, counsel, or training related to collective bargaining.
Finally, the Judge found that the Statute requires an agency to respond in a timely manner to requests for information from an exclusive representative even if the response is that the information sought does not exist. The Judge concluded that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to provide a meaningful response to the Union's data requests until after the complaint was issued.(4) The Judge ordered the Respondent to: (1) furnish the requested information; (2) respond in a timely manner to the Union's requests for data made pursuant to the Statute; and (3) post notices concerning its unfair labor practices, signed by the Respondent's Regional Administrator, at its facilities in the New England Region.
III. Positions of the Parties
A. Respondent's Exceptions and Supplemental Submission
The Respondent contends that the performance appraisal information requested by the Union concerning non-bargaining unit employees is not "necessary," within the meaning of section 7114(b)(4) of the Statute, because it concerns employees in dissimilar positions and, therefore, is "unrelated to the need identified by the Union" and not "necessary and relevant for purposes put forth in [the Union's] request." Agency's Brief at 9, 10. The Respondent argues that the Judge impermissibly permitted the Union, for the first time at the hearing, to add to its reasons why the requested performance appraisal information is necessary within the meaning of the Statute.
The Respondent also contends that disclosure of the requested performance appraisal and performance award information in this case is prohibited by the Privacy Act because employees have a substantial privacy interest in their performance appraisals. The Respondent asserts that the release of the performance award data would identify those employees who did not receive an award and would have an impact on their personal privacy as well as the privacy of those employees who received awards. The Respondent argues that the disclosure of the information is an unwarranted invasion of personal privacy and does not shed light on how the agency performs its statutory duties--promoting the use of civil aviation and establishing standards to ensure the safety of the public on the ground. The Respondent asserts that neither the requested performance appraisal nor performance award information reveals anything about aviation safety or promoting the use of civil aviation.
The Respondent argues that the Judge incorrectly balanced the employees' privacy interests against the public interest embodied in the Statute when he concluded that the Privacy Act did not preclude disclosure of the information. The Respondent asserts that the only relevant public interest, as set forth in Department of Defense, is the interest in letting citizens know what their Government is up to.
The Respondent excepts to the Judge's conclusion that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute and requests that the Judge's decision be set aside and the complaint dismissed in its entirety.
Finally, the Respondent excepts to the Judge's remedy requiring the FAA's New England Regional Administrator to sign and post a notice at all the FAA's New England regional facilities. The Respondent argues that this case concerns only the Bradley Air Traffic Control Tower at Windsor Locks, Connecticut, and does not result from actions or inactions on the part of the FAA Regional Administrator. The Respondent argues that if a remedy is required in this case, the appropriate remedy would be a cease and desist order signed by the Bradley Air Traffic Control Tower Manager and posted only at that location.
B. General Counsel's Opposition and Supplemental Submissions
The General Counsel asserts that the performance appraisal data as to bargaining unit and non-bargaining unit employees, as well as the performance award data as to non-bargaining unit employees, is necessary for the Union to determine whether there is disparate treatment between bargaining unit and non-bargaining unit employees and "to evaluate grievances based on disparate treatment." Opposition at 1.
The General Counsel contends that the unsanitized performance appraisals of bargaining unit and non-bargaining unit employees are not exempt from disclosure under the FOIA. According to the General Counsel, disclosure of this data is supported by Authority precedent sustaining the disclosure of unsanitized appraisals.(5) The General Counsel argues that disclosure of the requested appraisal information in this case will "'shed light on an agency's performance of its statutory duties' and reveal to the public 'what the [G]overnment is up to,' because they show how well (or poorly) the agency's employees are doing their jobs." Supplemental Brief at 3. Further, the General Counsel asserts that disclosure of the requested information will also indicate whether the Respondent is treating its employees fairly and in accordance with merit principles, facilitate the early resolution of potential grievances, and contribute to the proper administration of performance appraisal systems.
Additionally, the General Counsel maintains that the Respondent's employees are engaged in rendering vital air traffic control services and that such work involves personal contacts with the public. The General Counsel notes that the Judge found that the data included matters related to "operational errors, flight assists, on-the-job training," and the evaluation of unit and non-bargaining unit employees' performance of air traffic work, all of which "have critical implications for the safety of the traveling public." Id. The General Counsel argues that "[u]nder these circumstances, and considering the Respondent's statutory mission, disclosure of the unsanitized data serves 'the only relevant public interest in the FOIA balancing analysis[,]' as the Court put it in Department of Defense[.]" Id. The General Counsel asserts that "recent initiatives" by "the Executive Branch[,]" to make Government work better and be more accountable to the public it serves, "add impetus to the objectives served by disclosure" of the requested information. Id. at 4. According to the General Counsel, this national policy is served by disclosure of the requested appraisal and award data in this case.
Finally, the General Counsel argues that a posting which would be signed by the FAA Regional Administrator and posted throughout the New England Region is proper because the data requests were forwarded by the manager of the Bradley Air Traffic Control Tower to the New England Regional Office for action and the New England Regional Office failed to respond or provide any data.
IV. Analysis and Conclusions
A. Disclosure of Performance Appraisal Data Is Barred by the Privacy Act
We find that disclosure of the requested performance appraisal data for bargaining unit and non-bargaining unit employees is barred by the Privacy Act because the disclosure would constitute a clearly unwarranted invasion of personal privacy under FOIA Exemption 6. Accordingly, without addressing whether this information is necessary under section 7114(b)(4) of the Statute, we conclude that the Respondent did not violate the Statute by refusing to provide the information.
In FAA, New York TRACON, 50 FLRA at 345-46, 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 FOIA Exemption 6 and, therefore, is prohibited by the Privacy Act. We stated that an agency asserting that the Privacy Act bars disclosure is required to demonstrate: (1) that the information requested is contained in a "system of records" under the Privacy Act; (2) that disclosure of the information 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 that is cognizable under the FOIA; and (2) demonstrate how disclosure of the requested information 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, New York TRACON, for reasons more fully explained there, that the only relevant public interest to be considered in this context is the extent to which the requested disclosure would shed light on the agency's performance of its statutory duties, or otherwise inform citizens as to the activities of their 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 will balance the privacy interests of employees against the public interest in disclosure. Where this balance leads us to conclude that the privacy interests are greater than the public interest at stake, we will find that the requested disclosure would constitute a clearly unwarranted invasion of personal privacy under Exemption 6 and, therefore, that disclosure is "prohibited by law" under section 7114(b)(4) of the Statute; accordingly, the agency is not required to furnish the information, unless disclosure is permitted under another exception to the Privacy Act. In contrast, where the balance tips the other way, because the public interest is greater than the privacy interests, we will conclude that disclosure would be required under the FOIA and, therefore, is not prohibited by the Privacy Act.
Applying the analytical framework set forth in FAA, New York TRACON, we note that the Respondent does not address whether the requested performance appraisal information is contained in a system of records. However, as we found in FAA, New York TRACON, 50 FLRA at 346, performance appraisals of Federal employees are contained in the OPM/GOVT-2 system of records entitled "Employee Performance File System Records." See 57 Fed. Reg. 35698, 35709 (Aug. 10, 1992). We find that it is proper to take official notice of that fact here.
We find that the General Counsel and the Respondent have demonstrated, respectively, that disclosure of unsanitized copies of the performance appraisals of all bargaining unit and non-bargaining unit employees would implicate employee privacy interests and serve the public interest. We find further, in agreement with the Respondent and for reasons discussed more fully in FAA, New York TRACON, that employees have significant privacy interests in shielding their individual performance appraisals from public view. See FAA, New York TRACON, 50 FLRA at 347. The Union's request for performance appraisals encompasses all unit and non-bargaining unit employees' performance appraisals, whether favorable to the employee or not. In this regard, privacy interests may be heightened with respect to derogatory information in an appraisal. See Gilbey v. Department of Interior, No. 89-0801(RCL), 1990 WL 174889 (D.D.C. Oct. 22, 1990). However, such interests exist even as to favorable information, such as favorable performance appraisals. See FLRA v. United States Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 962 F.2d 1055, 1060 (D.C. Cir. 1992); Ripskis v. Department of Housing and Urban Development, 746 F.2d 1, 3 (D.C. Cir. 1984) (Ripskis).
We also find, in agreement with the General Counsel, that release of the requested performance appraisals would shed light on Government operations and, therefore, would serve the public interest. In particular, disclosure of unsanitized appraisals would permit review of the ways in which the Respondent administers its performance appraisal systems and monitors and rewards the quality of the work products generated in fulfilling its statutory mission.
However, our review of the record leads us to conclude that the public interest articulated by the General Counsel and cognizable under Exemption 6 of the FOIA would not be enhanced by the disclosure of the requested performance appraisal data in a manner that includes names and other identifiers. See, e.g., U.S. Department of the Interior, Bureau of Mines, Pittsburgh Research Center, 51 FLRA 276, 282 (1995); U.S. Equal Employment Opportunity Commission, 51 FLRA 248, 255 (1995); U.S. Department of Transportation, Federal Aviation Administration, Jacksonville Air Traffic Control Tower, Jacksonville, Florida, 50 FLRA 388, 393-94 (1995)(FAA Jacksonville).
In this connection, disclosure of the unsanitized performance appraisal data may well enhance the Union's ability to use the information to determine whether there is disparate treatment between bargaining unit and non-bargaining unit employees and to evaluate grievances based on disparate treatment. However, this interest is specific to the Union as the requesting party and, as such, may not be considered in balancing interests under FOIA Exemption 6.(6) See Social Security Administration, San Francisco Bay Area, 51 FLRA 58, 65 (1995) (SSA). See also Department of Defense, 114 S. Ct. at 1014 ("[A]ll FOIA requestors have an equal, and equally qualified, right to information[.]"); Reporters Committee, 489 U.S. at 771 ("[T]he identity of the requesting party has no bearing on the merits of his or her FOIA request[.]"). Moreover, although the public has an interest in determining whether the Respondent has violated the Statute by, for example, evaluating and rewarding employees differently based on their unit status, the General Counsel has not shown how disclosure of unsanitized appraisals would enhance a member of the public's (as opposed to the Union's) ability to determine whether such disparate treatment had occurred.(7) Cf. Painting and Drywall Work Preservation Fund v. Department of Housing and Urban Development, 936 F.2d 1300, 1303 (D.C. Cir. 1991) (court found that the possibility that requested information "would facilitate investigation of [G]overnment efforts to enforce" certain laws constituted a "limited public interest," which was outweighed by individuals' privacy interests in the records).
We conclude that, on balance, the public interest served by disclosure of the requested information is outweighed by the substantial invasion of employees' privacy that would result. Accordingly, we find that disclosure of the requested unsanitized performance appraisals would constitute a clearly unwarranted invasion of personal privacy, within the meaning of FOIA Exemption 6, and, thus, is prohibited by the Privacy Act. Therefore, the Respondent was not obligated to provide the Union with the requested performance appraisals under section 7114(b)(4) of the Statute and its failure to do so did not violate the Statute.
B. Disclosure of Performance Award Data Is Not Barred By the Privacy Act
The requested performance award data consists of awards given under the Performance Management Recognition System (PMRS) and the Performance Management System (PMS), quality within-grade increases, special achievement awards, and letters of commendation. See GC's Exhibit No. 3. Information pertaining to performance-based actions (such as awards, pay increases, and bonuses) and notices of commendation is contained in the OPM/GOVT-2 system of records.(8) See 55 Fed. Reg. 35709-10 (1992). See also U.S. Department of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Illinois, 51 FLRA 599, 604 (1995) (Scott AFB); SSA, 51 FLRA at 63. We find that it is proper to take official notice of that fact in this case.
The Authority previously has found that employees have a privacy interest in performance award data because performance award documents may contain favorable information that employees may wish to keep confidential and which, if disclosed, could: (1) subject employees to embarrassment and jealousy among co-workers; and (2) result in discord at the workplace. See National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Louisville, Kentucky, 45 FLRA 1346, 1353 (1992).(9) Employees who did not receive awards also may have a privacy interest in the release of performance award data because disclosure of that data could reveal information that could subject those employees to embarrassment. Id.
On the other hand, the Authority has recognized that disclosure of information relating to performance awards would serve the public interests of: (1) ensuring that the appraisal and awards systems are administered in a fair and equitable manner, without discrimination, and in accordance with laws, rules and regulations and (2) monitoring the public fisc to ensure that the agency's expenditure of money for awards is appropriate. See Scott AFB, 51 FLRA at 606-07. The Authority has noted that the public interest in award information has been recognized in a Government-wide regulation, 5 C.F.R. § 293.311(a)(4), which includes name-identified award data among the categories of information available to the public, so long as the award information is not disclosed in a manner that would reveal an individual's performance appraisal. See Scott AFB, 51 FLRA at 607; SSA, 51 FLRA at 64.(10)
Where name-identified performance award data would reveal information about an employee's performance rating and the inclusion of the names of award recipients would not add to the public interest, the Authority has found that employee privacy interests' outweigh the public interest in disclosure. Scott AFB, 51 FLRA at 606-07; SSA, 51 FLRA at 64. In these cases, the Authority concluded that the release of the information would constitute a clearly unwarranted invasion of personal privacy. Scott AFB, 51 FLRA at 607; SSA, 51 FLRA at 64.
Unlike Scott AFB and SSA, there is no evidence in this case that disclosure of the requested awards information would reveal an employee's specific performance rating or other information in performance award records that employees wish to keep confidential. As a result, the weighty privacy interest, which tipped the balance against disclosure in Scott AFB and SSA, is significantly reduced in the case before us. In contrast, the regulatorily recognized public interest in disclosure remains undiminished.
We conclude that, on balance, the employee's personal privacy interests in this performance award data do not outweigh the public interest that its disclosure would serve. Accordingly, we find that disclosure of the requested performance award data would not constitute a clearly unwarranted invasion of personal privacy within the meaning of the FOIA Exemption 6. Consequently, based on the foregoing, we conclude that disclosure of the requested information of nonbargaining unit employees is not barred by the Privacy Act.
C. The Performance Award Data Is "Necessary" Within the Meaning of Section 7114(b)(4) of the Statute
We have determined that the requested performance award data is not prohibited from disclosure by law. We also find that this information is necessary.(11)
Subsequent to the Judge's decision, 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 analytic approach to be used in determining whether information is "necessary" under section 7114(b)(4) of the Statute. We held that a union requesting information under that section must establish a particularized need for the 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.'" 50 FLRA 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 that 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.(12) 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 the analytical framework of IRS, Kansas City, the record shows that the Union initially requested name-identified performance award information in order to prepare for annual labor-management meetings, which would include discussions of the Agency's recognition and awards program, and to determine whether unit employees had been treated differently under the program. At the hearing, the Union President further explained the Union's previously stated reasons for the request by testifying that he needed the information to engage in discussions with management officials and for comparison purposes, to determine whether bargaining unit and non-bargaining unit employees were being recognized in the same manner for the same performance. He also stated that the performance award data was needed in an unsanitized form so the Union could associate the employee's performance (as observed by the Union) with the award and determine whether there had been favoritism shown toward non-bargaining unit employees. According to the Union President, during the 2 years preceding the request, the Union received numerous complaints from bargaining unit employees that a disproportionate number of exceptional and outstanding awards were given to non-bargaining unit employees.
In these circumstances, we find that the Union has established a particularized need for the name-identified awards information. The record supports the Judge's findings that there are a small number of employees at the facility and, of them, 16 non-bargaining unit employees perform traffic control work similar to bargaining unit employees.(13) The record also supports the Judge's conclusions that unsanitized performance award data concerning the non-bargaining employees was necessary because without it, the Union could not relate the award data to what the Union knows that specific non-bargaining employees have done with regard to on-the-job training, flight assists, and operational errors.(14) We agree with the Judge that without name-identified award information the Union would not be able to assess the relationship between awards and performance based on its independent knowledge of what bargaining unit and non-bargaining unit employees do. That is, without the information, the Union could not determine the merit of bargaining unit employees' complaints concerning disproportionate treatment under the awards and recognition program and, as the Judge found, assess a potential grievance.(15)
The Respondent does not assert any specific anti-disclosure interests. Cf. IRS, Kansas City, 50 FLRA at 672. Instead, the Respondent argues that data about non-bargaining unit commendations and awards is not necessary or relevant for comparison purposes because it concerns employees in dissimilar positions. We interpret the Respondent's argument as a claim that the data is not relevant to prove disparate treatment and, therefore, not necessary within the meaning of section 7114(b)(4). As explained above, we have already rejected this argument.
We conclude that the Union has established a particularized need for the information. The Respondent has not asserted any anti-disclosure interests in the information. Accordingly, we find that disclosure of the names of non-bargaining unit employees and the letters of commendation and monetary performance awards given those employees is necessary, within the meaning of section 7114(b)(4) of the Statute. Consequently, based on the record before us, we conclude that the Respondent failed to comply with the requirements of section 7114(b)(4) and, thereby, violated section 7116(a)(1), (5) and (8) of the Statute.
D. Respondent's Request to Limit Posting of the Notice of Unfair Labor Practices Is Denied
The unfair labor practice complaint was filed against the FAA, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Connecticut. The Judge found, and the record demonstrates, that the Union's requests for information were submitted to the Bradley Air Traffic Control Tower, which forwarded them to the FAA, New England Region for processing. The record also shows that after the information requests were forwarded to the New England Region, the New England Region failed to act on the requests in a timely manner, in violation of the Statute. Consistent with the Authority's findings in similar cases, we find that requiring the Notice to be signed by the Regional Administrator of the New England Region and posted throughout the FAA, New England Region will best effectuate the purposes and policies of the Statute. As the Authority stated in U.S. Department of Treasury, Customs Service, Washington, D.C. and Customs Service, Region IV, Miami, Florida, 37 FLRA 603, 605 (1990):
Notices provide evidence that rights guaranteed under the Statute will be vigorously enforced. Although violations of these rights often arise as a result of actions taken or not taken by individuals and particular remedies of these violations often will provide immediate benefits to individual employees, the statutory rights benefit and accrue to all employees and the Government as a whole. In addition, the posting of a Notice provides, for most unit employees, the only visible indication that a respondent recognizes and intends to fulfill its obligations under the Statute. As such, it is appropriate to require Notices to be posted in areas other than the particular locations where violations occurred.
Accordingly, we reject the Respondent's exception to that aspect of the posting requirement set forth in the Judge's order.
V. Order
Pursuant to section 2423.29 of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Federal Aviation Administration, New England Region shall:
1. Cease and desist from:
(a) Failing and refusing to furnish the unsanitized letters of commendation and performance award data, requested by the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO, the exclusive representative of certain of its employees, pursuant to the Federal Service Labor-Management Relations Statute.
(b) Failing and refusing to respond in a timely manner to requests for data made pursuant to the Federal Service Labor-Management Relations Statute by the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO, the exclusive representative of certain of its employees.
(c) 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) Furnish the unsanitized letters of commendation and performance award data, requested by the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO, the exclusive representative of certain of its employees, pursuant to the Federal Service Labor-Management Relations Statute.
(b) Respond in a timely manner to requests for data made pursuant to the Federal Service Labor-Management Relations Statute by the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO, the exclusive representative of certain of its employees.
(c) Post at its facilities in the New England Region copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Regional Administrator and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Regulations, notify the Regional Director of the Boston Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
The allegations in the complaint in Case No. 1-CA-10350 that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the Union with unsanitized copies of the performance appraisals of bargaining unit and non-bargaining unit employees are dismissed.
NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY
The Federal Labor Relations Authority has found that the U.S. Department of Transportation, Federal Aviation Administration, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Connecticut violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.
We hereby notify our employees that:
WE WILL NOT refuse to furnish the unsanitized letters of commendation and performance award data, requested by the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO, the exclusive representative of certain of our employees, pursuant to the Federal Service Labor-Management Relations Statute.
WE WILL NOT refuse to respond in a timely manner to requests for data made pursuant to the Federal Service Labor-Management Relations Statute by the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO.
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 unsanitized letters of commendation and performance award data, requested by the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO, pursuant to the Federal Service Labor-Management Relations Statute.
WE WILL respond in a timely manner to requests for data made pursuant to the Federal Service Labor-Management Relations Statute by the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO.
_____________________
(Agency)
Dated:___________ By:___________________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director, Boston Regional Office, Federal Labor Relations Authority, whose address is: 99 Summer Street, Suite 1500, Boston, MA 02110-1200, and whose telephone number is: (617) 424-5730.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424
FEDERAL AVIATION ADMINISTRATION,
NEW ENGLAND REGION, BRADLEY AIR
TRAFFIC CONTROL TOWER
WINDSOR LOCKS, CONNECTICUT
Respondent
and
NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION, Y90 LOCAL,
MEBA/NMU, AFL-CIO
Charging Party
Case Nos. 1-CA-1035
1-CA-10351
Ronald J. Sevigny
Counsel for the Respondent
Bruce E. Means
Representative of the Charging Party
Marilyn H. Zuckerman
Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
The amended unfair labor practice complaint alleges that Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7116(a)(1), (5), and (8), by failing to comply with section 7114(b)(4) in that it (1) refused to furnish the Charging Party (Local 90 or Union) with unsani- tized copies of the performance appraisals of bargaining unit and nonbargaining unit employees and performance award data on nonbargaining unit employees and (2) failed to respond to the two data requests from the Union.
Respondent's answer admitted the allegations as to Respondent, the Union, the charge, and that the request was denied, but denied that the information is necessary, not prohibited from disclosure by law, and denied any violation of the Statute.
A hearing was held in Boston, Massachusetts. The Respondent, Charging Party, and the General Counsel were represented and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The Respondent and General Counsel filed helpful briefs. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.
Findings of Fact
The National Air Traffic Controllers Association, MEBA-NMU, AFL-CIO (NATCA) is the certified representative of a nationwide unit of employees appropriate for collective bargaining at the Respondent. The Charging Party is an agent of NATCA for representing unit employees at the Respondent's Bradley Air Traffic Control Tower (ATCT) in Windsor Locks, Connecticut.
By letter dated April 18, 1991, Bruce Means, President, NATCA Local 90, requested that the Manager, Bradley ATCT, provide unsanitized copies of the performance appraisals for all bargaining unit employees and nonbargaining unit employees at the facility to the Local Union. For employees under the Performance Management System (PMS), the appraisals were requested for the periods of April 1, 1989 to March 31, 1990 and April 1, 1990 to March 31, 1991. For employees under the Performance Management Recognition System (PMRS), the appraisals were requested for the last period ending in 1990. The employees under the PMS are all bargaining unit employees and some nonbargaining unit employees(1), while the PMRS encompasses the remainder of the non-bargaining unit employees.
By letter dated May 2, 1991, the Manager, Bradley ATCT, informed the Local Union President that his requests for information were being forwarded to the FAA New England Regional Office for processing. The manager stated that he would inform the Local Union President upon receipt of a response from the Region pertaining to a release of the data. Respondent did not provide any further response to the Union on either data request prior to the issuance of the Complaint on August 30, 1991.
NATCA Local 90 represents approximately thirty bargaining unit employees who work in the radar room at Bradley ATCT. There are approximately twenty-five nonbargaining unit employees at the facility of whom approximately sixteen perform air traffic work.(2)
In the performance appraisal data request of April 18, 1991, the Local Union President stated that the data was necessary "in order to complete an investigation for bargain-ing unit members as it pertains to performance evaluations, procedures, processes and determinations" and "to insure that bargaining unit members are not being treated different[ly] because of exercising their rights as specified by Title 5, United States Code, Chapter 71." Local president Means testified at the hearing that no specific incident triggered his requests for information, but over the past two years he has received numerous complaints from bargaining unit members that a disproportionate amount of exceptional and outstanding awards are being given to nonbargaining unit employees. He testified that the data was also necessary: (1) to ensure that the performance appraisals of bargaining unit employees and non-bargaining unit employees are done in an objective manner with objective documentation and in accordance with.
FAA procedures;(3) (2) to investigate a grievance into disparate treatment of bargaining unit and nonbargaining unit employees; (3) to determine if bargaining unit employees and nonbargain-ing unit employees are given the same treatment with respect to operational errors, flight assists, on the job training, controller in charge duties, and letters of commendation; (4) to ensure that tape talks which are not supposed to be included on the performance appraisals are handled in the same manner for both group of employees; (5) to see that there is no disparate treatment by different supervisors of team members; (6) to determine how two employees whose jobs have been moved in and out of the bargaining unit are treated; (7) to ensure that the three traffic management coordinators who perform air traffic work are evaluated as are the others who perform air traffic work; (8) to see how developmentals are being handled; and (9) to provide input to an FAA committee mentioned in Article 20, Section 5 of the FAA/NATCA agreement which makes recommendations concerning performance standards.
The Local Union President testified that he needs the performance appraisal data in unsanitized form, because if the data is sanitized, he would have no way of knowing whether the performance appraisal related to an employee who he knows has provided on the job training or had a flight assist or an operational error or deviation. If the performance appraisal data is sanitized, he would be unable to determine whether it pertained to an employee who has acted on behalf of the Union, or who, between bargaining unit and nonbargaining unit employees, may be receiving favorable treatment from certain supervisors.
In his data request of April 18, 1991 for the unsanitized performance award data on nonbargaining unit employees, the Local Union President stated that he needed the information "to discuss the recognition and awards program in accordance with Article 21, Section 4 of the NATCH/FAA Agreement" and to ensure "that bargaining unit employees are not being treated different[ly] because of exercising their rights" under Title 5. Pursuant to Article 21, section 4 of the NATCA/FAA agreement the parties meet annually at the facility level to discuss the recognition and awards program. The Local Union President testified that he needs the information to engage in such discussions for comparison purposes since bargaining unit and some nonbargaining unit personnel receive spot awards for many of the same things. Mr. Means also testified that he needs this information to compare the treatment of bargaining unit employees and nonbargaining unit employees on flight assists and to see which nonbargaining unit employees in PMS have received awards, since their awards money comes out of the total pool for PMS which also encompasses bargaining unit employees. The performance award data on nonbargaining unit employees is needed in unsanitized form because if the data is sanitized, the Union would have no way of associating what the employee did to receive the award with the award, or whether there has been favoritism shown toward nonbargaining unit employees.
Discussion and Conclusions
Under section 7114(a) of the Statute, a labor organization which as been accorded exclusive recognition is entitled to "act for, and negotiate collective bargaining agreements" covering all employees in the unit. Section 7114(b)(4) of the Statute provides that an agency shall, upon request, furnish the exclusive representative, to the extent not prohibited by law, data which is normally maintained in the regular course of business; which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and which does not constitute guidance, advice, counsel or training provided for management officials or supervisors, relating to collective bargaining.
There is no dispute that the performance appraisal and performance award data requested is normally maintained by the Respondent, is reasonably available, and does not constitute guidance, advice, counsel or training provided for management officials or supervisors, relating to collective bargaining. The remaining issues are whether the data is necessary, whether its disclosure is prohibited by law, and whether Respondent failed to respond to the two data requests.
The General Counsel alleges that Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to provide the Union with the unsanitized data it requested and by failing to respond to the Union's two requests prior to the complaint being filed. The General Counsel claims that the information is necessary and is not precluded from disclosure by the Privacy Act.
Respondent now concedes that the performance appraisal data requested as to bargaining unit members is necessary, but claims that the data regarding nonbargaining unit members is not necessary within the meaning of section 7114(b)(4) of the Statute, and it objects to the unsanitized format. (Respondent's Brief at 6). Respondent claims that the duties and responsibilities of nonbargaining unit members were not shown by the General Counsel to be similar to those of bargaining unit members so as to require disclosure for comparison purposes. With respect to the request for an unsanitized list of performance awards to nonbargaining unit employees, Respondent claims that the Union does not need the information to engage in discussions concerning awards pursuant to the collective bargaining agreement as such discussions relate only to bargaining unit members.
Necessary
The Authority has held that section 7114(b)(4) encompasses information necessary for an exclusive representative to perform effectively the full range of representational responsibilities, including information necessary to enable a union to process a grievance, file an unfair labor practice, monitor the performance appraisal system, or prepare for negotiations. Federal Aviation Administration, Aviation Standards National Field Office, Mike Monroney Aeronautical Center, Oklahoma City, Oklahoma, 43 FLRA 1221, 1226-27 (1992) (collecting cases). Further, an agency is required to furnish information concerning nonbargaining unit positions when the information is necessary for the union to effectively fulfill its representational responsibilities. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Region X, Seattle, Washington, 39 FLRA 298, 309 (1991).
The Authority has required the production of unsanitized performance appraisals of bargaining unit employees and the names of unit employees who received performance awards where necessary for a union to fulfill its representational responsibilities. See U.S. Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, Region II, 43 FLRA 164 (1991) (HHS) (performance appraisals); Veterans Administration Central Office, Washington, D.C. and Veterans Administration Regional Office, Denver, Colorado, 25 FLRA 633 (1987) (performance awards). Such information is necessary here to assess a potential grievance and to perform its other contract administration and representational responsibilities with respect to the performance appraisal and performance award programs.(4)
In this case, the Local Union needs the performance appraisal and performance award data on nonbargaining unit employees as well in order to determine if there has been disparate treatment between bargaining unit and non- bargaining unit employees. The record reflects that about 64% of the nonbargaining unit employees perform air traffic work similar to the bargaining unit employees.(5) Thus, in addition to determining whether there has been disparate treatment with respect to use of official time and union representation, the Union seeks to determine whether nonbargaining unit employees are given the same treatment with respect to operational errors, flight assists, on-the-job training, controller-in-charge duties, and letters of commendation. The Authority has emphasized that a union has a significant interest in the issue of disparate treatment and that documents relating to that issue are necessary within the meaning of section 7114 of the Statute. U.S. Department of Transportation, Federal Aviation Administration, New England Region, Burlington, Massachusetts, 38 FLRA 1623, 1629 (1991), (information concerning disciplinary action taken against supervisors for falsification of travel vouchers found necessary for union to evaluate possible disparate treatment for grievance arbitration proceeding); U.S. Department of the Air Force, Air Force Logistics Command, Sacramento Air Logistics Center, McClellan Air Force Base, California, 37 FLRA 987, 995 (1990) (information concerning the temporary duty assignments of military personnel was necessary for the union for comparison purposes to pursue its grievance that such assignments should have been given to unit employees); Veterans Administration Medical Center, Jackson, Mississippi; 32 FLRA 133 (1988) (information concerning bargaining unit and nonbargaining unit employees was necessary for the union to determine whether to file a grievance over a pattern of unlawful discriminatory treatment); Department of Defense Dependents Schools, Washington, D.C. and Department of Defense Dependents Schools, Germany Region, 28 FLRA 202, 205 (1987) (information concerning the discipline of management officials and supervisors was necessary for the union to establish whether the unit employee was being treated differently for the same or similar conduct). Compare United States Environmental Protection Agency, Health Effects Research Laboratory, Cincinnati, Ohio, 16 FLRA 52 (1984) (performance appraisal work sheets of three nonbargaining unit employees not necessary to assist union as only one received an outstanding rating and his duties as a supervisory professional were substantially different from the five nonprofessional unit employees in question).
The data requested must be provided in unsanitized form. The number of employees at the facility is relatively small (55), and if sanitized, the unrefuted evidence shows that the Union would have no way of relating the appraisal or award to what the employee is known to have done (on-the- job training, flight assists, operational errors, representational duties, or use of official time) to the appraisal or award.
Having made the determination that such data is "necessary" within the meaning of section 7114(b)(4) of the Statute, it must be determined whether disclosure of that data is nevertheless "prohibited by law" from disclosure within the meaning of section 7114(b)(4) by the Privacy Act, 5 U.S.C. § 552(a). In United States Department of Veterans Affairs Regional Office, San Diego, California, 44 FLRA 312, 314 (1992) (Veterans Affairs) the Authority discussed the proper application to be made of the Privacy Act, as follows:
With certain enumerated exceptions, the Privacy Act prohibits the disclosure of any record concerning a Federal employee if the record is contained in a system of records and the individual to whom that record pertains has not consented to the disclosure. 5 U.S.C. § 552a(b). Section (b)(2) of the Privacy Act provides that the prohibition against disclo- sure is not applicable if disclosure of the information would be required under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA). Section (b)(3) of the Privacy Act permits disclosure "for a routine use," which is defined in 5 U.S.C. § 552a(a)(7) as "the use of such record for a purpose which is compatible with the purpose for which it was collected."
In order to determine whether disclosure of the requested information in this case is permitted by section (b)(2) of the Privacy Act, we must determine whether it is disclos- able under Exemption (b)(6) of the FOIA. That section provides that information contained in personnel files, in addition to medical and other similar files, may be withheld if disclosure of the information would constitute a "clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6).
To determine whether disclosure of the requested information would constitute a clearly unwarranted invasion of personal privacy, we must balance the employee's right to privacy against the public interest in disclosure. U.S. Department of Transportation,Federal Aviation Administration, National Aviation Support Facility, Atlantic City Airport, New Jersey, 43 FLRA 191, 199 (1991) (FAA Atlantic City Airport). In applying the balancing test, we look to the public interest embodied in the Statute. See generally U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515, 525-35 (1990) (Portsmouth Naval Shipyard), application for enforcement denied sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 941 F.2d 49 (1st Cir. 1991) (FLRA v. Portsmouth Naval Shipyard). We have recognized that the "public interest" identified in the Statute may be summarized as "the facilitation of the collective bargaining process . . . ." Id. at 531. . . . (footnote omitted.)
Based on the Union's need for the information as set forth above, I conclude that there is a strong public interest in the disclosure of the requested information. Such representational interests are in the public interest and safeguard the public interest. The Authority has emphasized that "the early resolution of potential grievances and the proper administration of agency performance appraisal systems are the type of public interests which disclosure of information is intended to further." Veterans Affairs, 44 FLRA at 317.
The Respondent has not demonstrated or even asserted how or in what manner the disclosure of the requested information would constitute a clearly unwarranted invasion of the privacy interests of the employees involved. However, it is generally recognized that employees have substantial privacy interests in this area and could view disclosure of their performance appraisals as an invasion of their personal privacy. HHS, 43 FLRA at 166-67. On the other hand, there is no indication in the record that the Union envisioned public disclosure or desired the appraisals and the list of performance awards for anything other than the exercise of its representational responsibilities. Id. at 167; Veterans Affairs, 44 FLRA at 316.
On balance, the employee's privacy interests, though substantial, are outweighed by the public interest inherent in the Union's discharge of its obligations under the Statute to monitor and administer the collective bargaining agreement, including the grievance/arbitration provision of that agreement. Id.
It is concluded that Respondent violated section 7116(a)(1), (5), and (8) of the Statute by its failure to comply with section 7114(b)(4) and furnish the Union the unsanitized performance appraisal and performance award data requested by letter dated April 18, 1991.
Respondent also violated section 7116(a)(1), (5), and (8) by failing to respond to the Local Union's two data requests of April 18, 1991 in a meaningful way until after the complaint was issued on August 30, 1991. The Authority has held that section 7114(b)(4) of the Statute requires an agency to respond in a timely manner to requests for information from an exclusive representative even if the response is that the information sought does not exist. A reply is "necessary, for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining" within the meaning of section 7114(b)(4)(B). U.S. Naval Supply Center, San Diego, California, 26 FLRA 324, 326-27 (1987); U.S. Department of the Treasury, United States Customs Service, Southwest Region, Houston, Texas, 43 FLRA 1362 (1992).
Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following Order:
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Federal Aviation Administration, New England Region, Bradley Air Traffic Control Tower, Windsor Locks, Connecticut shall:
1. Cease and desist from:
(a) Failing and refusing to respond in a timely manner to requests for data made pursuant to the Statute by the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO, the agent of the exclusive representative of certain of its employees.
(b) Failing and refusing to furnish unsanitized copies of performance appraisals of bargaining unit and nonbargaining unit employees and an unsanitized list of performance awards issued to nonbargaining unit employees as requested in separate letters dated April 18, 1991 by the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO, the agent of the exclusive representative of certain of its employees.
(c) In any like or related manner interfering with, restraining or coercing its employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Furnish unsanitized copies of performance appraisals of bargaining unit and nonbargaining unit employees and an unsanitized list of performance awards issued to nonbargaining unit employees as requested in separate letters dated April 18, 1991 by the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO, the agent of the exclusive representative of certain of its employees.
(b) Respond in a timely manner to requests for data made pursuant to the Statute by the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO, the agent of the exclusive representative of certain of its employees.
(c) Post at its facilities in the New England Region copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Regional Administrator and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Boston Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.
Issued, Washington, DC, May 5, 1992
____________________________
GARVIN LEE OLIVER
Administrative
Law Judge
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to respond in a timely manner to requests for data made pursuant to the Statute by the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO, the agent of the exclusive representative of certain of our employees.
WE WILL NOT fail and refuse to furnish unsanitized copies of performance appraisals of bargaining unit and nonbargaining unit employees and an unsanitized list of performance awards issued to nonbargaining unit employees as requested in separate letters dated April 18, 1991 by the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO, the agent of the exclusive representative of certain of our employees.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL furnish unsanitized copies of performance appraisals of bargaining unit and nonbargaining unit employees and an unsanitized list of performance awards issued to non- bargaining unit employees as requested in separate letters dated April 18, 1991 by the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO, the agent of the exclusive representative of certain of our employees.
WE WILL respond in a timely manner to requests for data made pursuant to the Statute by the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO, the agent of the exclusive representative of certain of our employees.
_____________________________
(Activity)
Dated:___________ By:___________________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.
If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Boston Regional Office, whose address is: 10 Causeway Street, Room 1017A, Boston, MA 02222-1046, and whose telephone number is: (617) 565-7280.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
Authority's Footnotes Follow:
1. The parties were provided an opportunity to submit supplemental briefs addressing the Supreme Court's decision in United States Department of Defense v. FLRA, __ U.S. , 114 S. Ct. 1006 (1994) (Department of Defense). The Respondent and the General Counsel filed briefs on this issue. The General Counsel also filed a brief concerning whether the requested information is necessary, within the meaning of section 7114(b)(4) of the Federal Service Labor-Management Relations Statute (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. One exception to this prohibition is relevant here. 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 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.
3. Article 21, Section 4 provides: "The Parties at the facility level agree to meet annually to discuss the recognition and awards program at the local level."
4. As no exceptions were filed to this aspect of the Judge's decision, we will not address it further except to adopt the recommended order and notice to employees.
5. In this regard, the General Counsel relies on Authority precedent issued prior to U.S. Department of Transportation, Federal Aviation Administration, New York TRACON, Westbury, New York, 50 FLRA 338 (1995) (FAA, New York TRACON), and, specifically, on those portions of the decisions in which an alternative analysis under United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989) (Reporters Committee) was made.
6. We note that the Union could have requested the performance appraisals with the names of employees deleted, but coded in a manner that indicates the employees' unit status, in order to fulfill its stated needs. Disclosure of sanitized and coded performance appraisal information presumably would not identify particular employees and their performance appraisals and, thereby, would protect against a clearly unwarranted invasion of employees' privacy, within the meaning of FOIA Exemption 6.
7. We also reject the General Counsel's argument that the early resolution of grievances is a public interest within the meaning of FOIA Exemption 6. In FAA, New York TRACON, we found that such an interest is not a proper consideration in assessing the public interest in disclosure under FOIA Exemption 6. See FAA, New York TRACON, 50 FLRA at 348.
8. We interpret the Union's request for "letters of commendation" as encompassing "notices of commendation" contained in OPM/GOVT-2. 57 Fed. Reg. at 35710.
9. See also SSA, 51 FLRA at 63; U.S. Department of Justice, Office of Justice Programs, 50 FLRA 472, 479-80 (1995) (Office of Justice Programs); FAA, Jacksonville, 50 FLRA 388 (1995).
10. 5 C.F.R. § 293.311, entitled "Availability of information[,]" provides in pertinent part:
(a) The following information from both the [Official Personnel Folder] and employee performance file system folders, their automated equivalent records, and from other personnel record files that constitute an agency record within the meaning of the FOIA . . ., about most present and former Federal employees, is available to the public:
(1) Name;
(2) Present and past position titles and occupational series;
(3) Present and past grades;
(4) Present and past annual salary rates (including performance awards or bonuses, incentive awards, merit pay amount, Meritorious or Distinguished Executive Ranks, and allowances and differentials);
(5) Present and past duty stations . . .; and
(6) Position descriptions, identification of job elements, and those performance standards (but not actual performance appraisals) that the release of which would not interfere with law enforcement programs or severely inhibit agency effectiveness. Performance elements and standards (or work expectations) may be withheld when they are so intertwined with performance appraisals that their disclosure would reveal an individual's performance appraisal.
(b) The [OPM] or agency will generally not disclose information where the data sought is a list of names, present or past position titles, grades, salaries, performance standards, and/or duty stations of Federal employees which, as determined by the official responsible for custody of the information:
(1) Is selected in such a way that would reveal more about the employee on whom information is sought than the six enumerated items, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; or
(2) Would otherwise be protected from mandatory disclosure under an exemption of the FOIA.
. . . .
11. The Judge found that there was no dispute that this information is normally maintained by the Respondent, is reasonably available, and does not constitute guidance, advice, counsel or training within the meaning of section 7114(b)(4)(C).
12. Member Wasserman did not participate in IRS, Kansas City and, as it is unnecessary to the disposition of this case, he expresses no opinion as to whether section 7114(b)(4) requires the Authority to take into account an agency's countervailing anti-disclosure interests when determining whether information is "necessary."
13. The Respondent presented no evidence to support its position that bargaining unit and non-bargaining unit positions are not similar enough for comparison purposes.
14. Our finding of particularized need for name-identified award information is not dependent on the availability of the name-identified performance rating information which we have found not disclosable under the Privacy Act (see IV.B, supra). The Union has established a particularized need for the awards information by showing that the information is needed to compare awards with what the Union knows about employees' performance (based on its independent observations of employees in the workplace) to determine whether there has been disparate treatment of bargaining unit employees.
15. In this regard, information may be found necessary within the meaning of section 7114(b)(4)(B) when it is required to determine whether to file a grievance. United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas, 51 FLRA 768, 776 (1996).
ALJ's Footnotes Follow:
1. The nonbargaining unit employees who are covered by PMS are those who are GS-13 or below who are non-supervisory. These employees include: three clericals; one Planning and Procedures Specialist; one Training Specialist for the Radar Room; one Training Specialist for the Tower; three Traffic Manager Coordinators; one Data Systems Specialist; and one Quality Assurance Specialist.
2. Those nonbargaining unit employees who perform air traffic work are: ten Supervisory Air Traffic Control Specialists; one Planning and Procedures Specialist; one Radar Room Training Specialist; one Tower Training Specialist; one Quality Assurance Specialist; and three Traffic Management Coordinators. The nonbargaining unit employees who do not perform air traffic work are: one Air Traffic Manager; one Assistant Air Traffic Manager; one Area Manager for Programs; three Area Managers; one Data Systems Specialist; and three clericals.
3. Article 20, Section 1 of the FAA/NATCA agreement provides, "Performance evaluations will be made under the provisions of applicable law and Agency directives and a copy shall be given to the employee."
4. As noted, one of the reasons the Union sought the unsanitized performance evaluation data was to provide input to a national committee on performance standards set up by the FAA pursuant to Article 20, Section 5 of the NATCA/FAA agreement. I would not find the data to be necessary for this purpose alone inasmuch as Article 20, Section 5 merely provides for NATCA to appoint unit employees to serve on this Committee. The committee provides the FAA with recommenda- tions for performance standards and critical elements.
5. Respondent argued that the positions are not similar for comparison purposes, but presented no evidence to support its position.