OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER,
NORTHPORT, NEW YORK
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL NO. 1843
Case No. BY-CA-21467
Christopher Wood, Esq.
For the Respondent
For the Charging Party
Verne R. Smith, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
Statement of the Case
This case arose under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
§ 7101, et seq.
(herein the Statute).
Upon an unfair labor practice charge having been filed by
the captioned Charging Party (herein the Union) against the
captioned Respondent, the General Counsel of the Federal Labor
Relations Authority (herein the Authority), by the Regional
Director for the Boston Regional Office, issued a Complaint and
Notice of Hearing alleging Respondent violated the Statute by
failing to furnish the Union with information it requested
concerning various employee awards.
A hearing on the Complaint was conducted in New York, New
York at which all parties were afforded full opportunity to adduce
evidence, call, examine and cross-examine witnesses and argue
orally. Briefs were filed by Respondent and the General Counsel and
have been carefully considered.
Upon the entire record in this case, my observation of the
witnesses and their demeanor and from my evaluation of the
evidence, I make the following:
Findings of Fact
At all times material the American Federation of Government
Employees, AFL-CIO (herein AFGE) has been the exclusive collective
bargaining representative of various of Respondent's employees and
AFGE Local No. 1843 has been the agent of AFGE for the purpose of
representing those employees at Respondent's Northport, New York
In early July 1992 Respondent conducted a ceremony at which
a number of employees received various types of awards from
Respondent. Later in July the Union sent Respondent the following
AFGE has been inundated with complaints from employees regarding not receiving monetary
performance awards, while other employees did. Please advise/provide the following information in
order for AFGE to determine whether . . . a grievance is
1. A listing of employees that received awards identifying;
b. Name/Job Title
c. Reason for award
d. Amount of monetary award or other type award received by each.
2. Specify the criteria used to decide which employees received a monetary vs which
employees received another type of award.
Your response within the specified time period is
By letter dated July 28, 1992 Respondent replied to the
Union as follows:
1. In response to your request for information, dated July 27, 1992, regarding monetary
performance awards, please be advised that the release of this information in an unsanitized format,
would be considered an unwarranted invasion of personal privacy, and cannot be accommodated.
A recent D.C. Circuit Court of Appeals decision (962 F.2d 10555) specifically upheld the right of
an Agency to protect the privacy rights of employees with regard to the release of unsanitized
performance appraisals. In addition, since the Master Agreement, Article 13, Section 2 specifically
excludes from the negotiated grievance procedure decisions on incentive awards, it is unclear how
this information is necessary or relevant. In a good faith attempt to respond to your legitimate concerns
and questions from bargaining unit employees, the following
information is provided to you:
a. All employees rated Highly Successful or Outstanding were invited to an awards ceremony
conducted July 8, 1992. These employees received performance award certificates and an engraved
desk size digital clock for their achievements.
b. While no specific local criteria were established to govern the dollar amount of awards given to
each employee, the award amounts did conform with agency policy as found in VA Manual MP-5,
Part I, Chapter 451. These regulations are attached for your review. In addition, there is no
requirement under the Master Agreement to give awards to employees rated Highly Successful. As
has been the practice for years, individual services were given the discretion to manage their awards
dollar budget within these parameters, while using different
criteria as appropriate.
3. If you would like to restate your request along more narrow lines we would be pleased to consider
On August 9, 1992 the Union sent Respondent the following
After further review and consideration of your July 28, 1992 response which answered the concerns
of several employees, there still remains the concern of these awards being given to employees based
on their performance under their individual performance plan.
Your statement that [decisions] on awards is (sic) not grievable under the grievance procedure [does
not] mean that the application of Article 32 in its entirely [is not grievable].
Accordingly, in order for AFGE to determine whether or not Article 32 has been fully complied with
concerning the 1991-1992 rating period as it applies to Section 3.A.,3.C. we request the following
information as it pertains specifically to Engineering Service:
1. Name/Section of each award recipient.
2. Type of award received.
3. A copy of the documentation used to justify each recipients award [unsanitized] as to the
[recommending] and [approving] official.
4. A copy or statement of the criteria used to determine whether or not give an award to a
individual employee. . . .
On August 17 Respondent sent the Union the following
1. In response to your request for information transmitted via E-Mail on August 8, 1992, the following
is provided to allow you a more complete understanding of the appraisal/award process as implemented
in Engineering Service for the rating period which ended March 31, 1992. We note, however, that your
request did not articulate a rationale as to why information specific to non-bargaining unit employees
(supervisory and/or NFFE bargaining unit employees) would be required, so this information has not
been included in the following.
2. Names of employees receiving awards in Engineering Service by Section:
OFFICE OF THE CHIEF:
(10 named employees)
(24 named Employees)
3. Types and number of awards received by Engineering
Group Special Act: 6
Individual Special Act: 0
Performance Award (Monetary): 24
Performance Award (Honorary): 34 *
Quality Step Increase: 4
4. Criteria utilized for justifying each award:
Engineering Service received an allocation of $9,174 for awards. The Service allocated these funds
within the parameters established by VA regulation (see attached copy of MP-5, Part I, Chapter 451).
These criteria cover performance awards and also, a special act award with tangible and intangible
benefits. Ratings for employees assigned to the "Project Team", whose details expired in February
were extended to provide 90 days under performance standards. No member of the project team
received an individual performance award for his regular assignment; all members of the project team
received Group Special Act Awards for their work on various projects. All Service employees
receiving Highly Successful or Outstanding ratings received a monetary award of some sort
(Monetary Performance Award, Group Special Act, or Quality Step Increase) in recognition of their
5. I hope this information is helpful. Should you require further clarification, we will comply within
parameters established by the Privacy Act and Release of Information Act for release of said
On August 21, 1992 the Union notified Respondent that, since
it did not provide the information the Union requested, it would
proceed to file an unfair labor practice charge on the matter which
it did on September 8, 1992.
Agency regulations provide the following with regard to
(a) Special Act Awards may be
given as a cash payment or honor to an individual or a group and
are in recognition of actions of unusual merit or accomplishment in
a particular program. They are not directly related to an
employee's performance appraisal or proficiency rating. According
to the applicable regulation:
1. Special Achievement Awards for special contributions (cash, honor or both) may be granted
at any time during the appraisal period to an individual or a group of employees for a single
contribution. The act or achievement must be in the public interest, related to official employment
and deserving of special recognition. It may be an act of heroism or a special project of a "one-time"
nature, a series of acts unusual to a particular job, or some other significant contribution such as
outstanding achievement in the area of affirmative action. There is no limit on the number of Special
Contribution awards which may be granted to an employee in any given period, either as an individual
or as a member of a group, except that budgetary consideration may limit the number/amounts of
2. VA Form 5-4659 is used to nominate employees for special contribution awards. Justifications
will consist of a narrative to explain thoroughly the contribution and why it is considered to be of
sufficient merit to warrant an award. The justi-fication must include the tangible and/or intangible
benefits resulting from the special contribution. If the benefits are tangible (actual dollars can be
calculated), then the justification must specify those dollar savings. If the benefits are intangible, both
the value of the contribution to the organization and its extent of application must be clearly explained
as part of the narrative description of the contribution. (Tangible Benefits Table appears in Appendix B
of this CM.) If the Special Contribution Award is based on a group contribution, the information
requested on VA Form 5-4659 will be submitted for each
individual in the group.
3. Nominations are submitted to the Incentive Awards Officer (05C) for the technical review and
determination of the availability of funding. The Director, or designee, approves these discretionary
awards contingent upon funding and other management
4. Awards will be presented at the worksite by the Approving Official, whenever possible. It will be
the Approving Official's responsibility to arrange for photographs, if these are desired. To provide the
greatest motivational impact, awards should be recommended, approved and presented promptly
following the contribution. A cash award is payable from the appropriation current at the time the award
is approved. . . .
(b) The Performance Award, more specifically termed a "special achievement award for superior performance," can be given as cash, honor or both. It is granted to an individual for the superior performance of duties over an extended period of time and is based upon the employee's annual performance appraisal of record. The regulation governing the Performance Award states:
. . . .
2. An employee must ordinarily have a highly successful or outstanding rating to be considered for a
superior performance award. An award may be given an employee with a fully successful rating when
a majority of all elements have been rated exceptional or when at least one critical element has been
3. Recommendations for superior performance awards will be considered at the end of the
performance rating period and will usually be initiated by the immediate supervisor, but may be
submitted by any supervisor or management official through appro-priate supervisory channels with
sufficient knowledge of the employee's work performance. Recommendations will be submitted utilizing
VA Form 5-4659, "Recommendation for Recognition of High Level Performance." A copy of the
employee's performance appraisal will be attached to VA Form 5-4659. CM 05-43 contains additional
. . . .
5. Processing will be done through supervisory channels. Service Chief will review the
recommendations for accuracy, adequacy of documentation and indicated concurrence. Comments
and recommendations are added and the complete file is forwarded to the Incentive Awards Officer
6. The entire case is then forwarded to the Director, or designee, for final decision, except for
employees in centralized positions and for awards above $3,000. These exceptions must be
forwarded through the Director to Central Office for
7. If disapproved, reasons will be entered in the file, which will be returned through the Incentive
Awards Officer [05C)] to the appropriate Service Chief. Such awards are not an entitlement; they are
granted at management's discretion and are based on established criteria. There must be funding
available to support them.
(c) Quality Step Awards are given only in conjunction with the employee's annual rating of record. These awards begin with a recommendation from the Agency's Professional Standards Board. Such recommendations are considered at the end of the annual performance rating period and are usually prepared by the employee's immediate supervisor to which is attached a copy of the employee's performance appraisal. This award is granted only to employees who receive "outstanding" annual ratings of record. The applicable regulation further provides:
. . . .
3. Recommendations for Quality Step Increases will be considered at the end of the annual
performance rating period. Recommendations will be submitted on VA Form 5-4659,
"Recommendation for Recognition of High Level Performance," usually prepared by the immediate
supervisor. Attached to the recommenda-tion will be a copy of the employee's performance
appraisal. The documentation must be sufficient to support the recommendation for the Quality Step
Increase or Special Advancement for Performance. Note that to be eligible for a Quality Step
Increase (QSI), an employee must be rated OUTSTANDING. Also, the Approving Official must
concur in both the outstanding rating and the recommendation for Quality Step Increase. Finally, the
Approving Official must certify he/she expects the employee's performance to continue at the same
high level of effectiveness and that the employee will remain with the VA in the same on equivalent
position for 60 days. [See CM 05-43 for any additional
4. Recommendations for Special Advancement for Performance are accomplished by sending
copies of the rating upon which recommendations are based and VA Forms 5-4659 and 5-4652 to
the appropriate Professional Standards Board after concurrence by the 2nd line rater. CM 05-43
contains additional information.
5. The entire case file is forwarded to the Incentive Awards Officer for review of technical accuracy
and then to the Director, or designees, for final decision, except for positions requiring Central Office
approval. These are forwarded through the Director to
Central Office for action.
6. If disapproved, reasons will be entered in the file which will be returned through the Incentive
Awards Officer (05C) to the appropriate Service Chief.
Additional Findings, Discussion and Conclusions
Section 7114(b)(4) of the Statute requires:
(4) in the case of an agency, to furnish to the exclusive representative involved, or its
authorized representative, upon request and, to the extent not prohibited by law, data-
(A) which is normally maintained by the agency in the regular course of business;
(B) which is reasonably available and necessary for full and proper discussion,
understanding, and negotiation of subjects within the scope of collective bargaining; and
(C) which does not constitute guidance, advice, counsel, or training provided for
management officials or supervisors, relating to
collective bargaining . . .
The General Counsel alleges Respondent violated section
7116(a)(1), (5) and (8) of the Statute by refusing to furnish the
Union, in an unsanitized form, with the information it requested
pertaining to the distribution of awards of bargaining unit
employees in Respondent's Engineering Service. Respondent denies
violating the Statute contending release of the requested
information to the Union would constitute a "clearly unwarranted
invasion of employees' privacy" which is prohibited by the Privacy
The Privacy Act, 5 U.S.C. § 552(a), generally prohibits
disclosure of personal information about Federal employees without
their consent unless the disclosure is required by the Freedom of
Information Act (FOIA), 5 U.S.C. 552. The FOIA requires disclosure
of information by the Federal government unless disclosure falls
within an enumerated exception. Exception (b)(6) provides that an
individual's privacy rights must be balanced against the public's
interest to have infor-mation concerning the person disclosed in
situations when disclosure "would constitute a clearly unwarranted
invasion of personal privacy." It is clear from the thrust of
Respondent's brief that Exception (b)(6) is the exception to the
FOIA that Respondent urges is applicable herein.
Recently, in U.S. Department of
Transportation, Federal Aviation Administration, New York Tracon,
Westbury, New York, 50 FLRA 338 (1995) (FAA-I), the
Authority, for the first time, addressed the holdings of the
Supreme Court in United States Department of
Justice v. Reporters Committee for Freedom of the Press, 489
U.S. 749 (1989) (Reporters Committee), and
United States Department of Defense v.
FLRA, 510 U.S. --, 114 S. Ct. 1006 (1994) (Department of Defense), regarding the interplay between
a union's right to information under the Statute and the
proscriptions imposed by the Privacy Act. Thus, the Authority held
in FAA-I at 343-344:
With respect to the public interest to be weighed, the Authority is guided by Reporters Committee
and Department of Defense. In Department of Defense, the Supreme Court rejected the Authority's
previous approach, which defined the public interest in terms of collective bargaining as embodied in
the Statute. 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 (quoting Reporters Committee,
489 U.S. at 773). In addition, the Court stated that "all FOIA requestors have an equal, and equally
qualified, right to information[.]" 114 S. Ct. at 1014. See also Reporters Committee, 489 U.S. at 771
("the identity of the requesting party has no bearing on the
merits of his or her FOIA request").
Although the case before the Court in Department of Defense involved only the disclosure of bargaining
unit employees' home addresses, we find no basis for determining the relevance of an asserted public
interest any differently in cases involving other information, including performance appraisals. We note
that courts reviewing claims under Exemption 6 of the FOIA consistently have analyzed the public
interest utilizing the same definition regardless of differences in the type of information sought.
Compare [FLRA v. United States Department of Commerce, 962 F.2d 1055, 1060 (D.C. Cir. 1992)
(Commerce)] (names and duty stations of unit employees who received certain performance
evaluations) with [National Association of Retired Federal Employees v. Horner, 879 F.2d 873, 879
(D.C. Cir. 1989)] (names and addresses of Federal annuitants). Accordingly, in balancing the interests
under Exemption 6, we will in this and future cases define the public interest in disclosure of information
in terms of 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."
Reporters Committee, 489 U.S. at
We adopt this definition of public interest because we conclude that Department of Defense
requires this result for all cases involving the FOIA, including those that have their genesis in a request
pursuant to section 7114(b)(4) of the Statute. . . .
In FAA-I the Authority also set forth the respective burdens
the parties bear in proceeding in a case such as herein. Thus, in
FAA-I at 345-346 the Authority stated:
. . . in cases where an agency defends a refusal to furnish requested information on the basis
that disclosure is prohibited by the Privacy Act because it would result in a clearly unwarranted
invasion of personal privacy within the meaning of FOIA Exemption 6, the agency bears the burden
of demonstrating: (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 the burdens set forth above, we will, where appropriate, consider matters
that are otherwise apparent.
Once the respective interests have been articulated, we will, as we have in the past, balance the
privacy interests against the public interest. . . In striking this balance, we must be mindful that the
"clearly unwarranted" language in Exemption 6 weights the scales in favor of disclosure. . . .
The specific issue the Authority addressed in FAA-I was an agency's obligation to furnish its
employees' collective bargaining representative with unsanitized
employee performance appraisals which it requested. When
considering the strong privacy interests employees have in their
performance appraisals, the Authority stated at 346-347:
In assessing the privacy interests identified by the Respondent, we are guided by the substantial
body of law that has been developed, both by the Federal courts and by the Authority. . . . Consistent
with this precedent, it is clear that bargaining unit employees have significant privacy interests in
information that reveals supervisory assessments of their work performance. As the Supreme Court
has observed, "Congress' primary purpose in enacting Exemption 6 was to protect individuals from
the injury and embarrassment that can result from the unnecessary disclosure of personal information."
United States Department of State v. Washington Post Co., 456 U.S. 595, 599 (1982). That privacy
interest may be heightened with respect to derogatory information in an appraisal, Gilbey, but it also
extends to disclosure of favorable information that might embarrass an individual or incite jealousy in his
or her co-workers. See, for example, Commerce, 962 F.2d
at 1059; Ripskis, 746 F.2d at 3.
Specifically, unsanitized performance appraisals reveal details of supervisory assessment of
individual work performance and, as such, are likely to contain information that is highly sensitive to
employees, which employees may wish to keep confidential. See Stern v. Federal Bureau of
Investigation, 737 F.2d 84, 91 (D.C. Cir. 1984) (addressing employee privacy interest in "diverse bits
and pieces of information, both positive and negative, that the government, acting as an employer, has
obtained and kept in the employee's personnel file"). We note that unsanitized performance appraisals
rarely have been subject to disclosure by courts because of the strong privacy interests of the affected
employees. CompareCommerce, 962 F.2d at 1060; Ripskis, 746 F.2d at 3-4; Gilbey; and Church of
Scientology, 816 F. Supp. at 1156 with Columbia Packing and Celmins. Indeed, we are unaware of
any judicial precedent issued subsequent to Reporters Committee in which disclosure of unsanitized
employee performance appraisals was mandated under Exemption
The Authority then examined in FAA-I the "public interest"
involved and stated, in part at 347-348:
With respect to the public interest asserted by the General Counsel, we similarly are guided
by precedent recognizing that the public is served if the Respondent carries out its personnel functions
fairly, equitably, and in accordance with laws, rules and regulations, Commerce, 962 F.2d at 1060;
Ripskis, 746 F.2d at 3; Core v. United States Postal Service, 730 F.2d 946, 948 (4th Cir. 1984)
(Core), and otherwise fulfills its statutory and regulatory obligations. The Respondent is engaged in air
traffic control activities, which clearly affect aviation safety for the general public. Disclosure of
unsanitized performance appraisals would shed light on the ability of employees to perform their air
traffic control duties and on the manner in which those duties are performed, which furthers the public
interest in knowing how "public servants" are carrying out their Government functions. NLRB v.
Robbins Tire and Rubber Co., 437 U.S. 214, 242 (1978) (a basic purpose of the FOIA is to ensure
an informed citizenry needed to "hold the governors
accountable to the governed"). (Footnote omitted).
The Authority went on to say in FAA-I, however, that, contrary to some earlier
decisions when defining the public interest under FOIA Exception b,
it would not be appropriate to consider the benefits disclosure to
a union would yield, such as the early resolution of grievances,
the proper administration of a collective bargaining agreement,
generally, or any other interest that was specific to the union and
not a concern of the general public at large. The identity of the
requestor and a commitment not to disclose would similarly be
irrelevant. Thereupon the Authority in FAA-I balanced the articulated privacy interests
against the public interests and concluded that disclosure of the
unsanitized employee performance appraisals the union requested was
prohibited by law and the complaint was dismissed.
In the case herein, the Union basically wished to obtain the
unsanitized materials which Respondent used in its decision to
grant particular individuals an employee award. In the request made
by the Union on August 9, 1982, its last request, the Union sought:
the name, employment section, and type of award of each award
recipient; the unsanitized documentation, including recommendations
and comments from approving officials, used to "justify" or support
each award; and the "criteria" used to determine whether or not to
give an award to an individual employee. Respondent's reply of
August 17 named the employees who received awards but did not
identify what specific award or the amount of the award each
employee received, did not give the "justification" supporting each
individual award, nor did Respondent's reply supply the "criteria"
used for each individual award except to give general criteria
applied in the award process. In any event, Ramona Sears, a Union
steward called as a witness by counsel for the General Counsel, and
the only witness to testify at the trial, testified that although
the Union did not request performance appraisals from Respondent,
the Union was seeking to obtain the "criteria" for each of these
awards, explaining that the Union wished to obtain information that
would reveal ". . . how the engineering services went about . . .
approving these people for highly satisfactory and outstanding. How
they were rated." The record reveals that Performance Awards and
Quality Step Increases are based upon an individual's performance
appraisal. Accordingly, employee performance appraisals were
obviously used to "justify" these awards and I find were indeed
what the Union was requesting of Respondent.
In U.S. Department of Transportation,
Federal Aviation Administration, Jacksonville Air Traffic Control
Tower, Jacksonville, Florida, 50 FLRA No. 388 (1995)
(FAA-II), the Authority also considered an employer's refusal to
provide the collective bargaining representative with copies of
employees' performance appraisals, unsanitized except for social
security numbers. In that case the Authority applied the
principle's it enunciated in FAA-I and
dismissed the complaint, finding disclosure would constitute a
clearly unwarranted invasion of personal privacy and therefore
prohibited by the Privacy Act. The Authority stated, at 393:
We find, in agreement with the Respondent, and for reasons discussed more fully in FAA, that
employees have substantial privacy interests in shielding their individual performance evaluation
information from public view. The Union's request encompasses all 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 the
Interior, 1990 WL 174889 (D.D.C. 1990). However, such interests exist even as to favorable
information. See FLRA v. United States Department of Commerce, National Oceanic and
Atmospheric Administration, National Weather Service, 962 F.2d 1055, 1059 (D.C. Cir. 1992);
Ripskis, 746 F.2d at 3.
In FAA-II, as in FAA-I, the Authority went on to review the public
interest served by releasing unsanitized performance appraisals to
the requestor, i.e., permitting review of the ways in which the
Respondent administers its performance appraisal system and
monitoring the quality of the work products generated in fulfilling
its statutory mission. FAA-II at 6-7.
However, the Authority found it had not been established that
disclosure of the names and other identifiers related to the
specific appraisal "enhances" the public interest articulated by
the General Counsel.(2) After
acknowl- edging the "limited public interest" derived from possibly
facilitating the investigation of government efforts to enforce
certain laws though a review of the requested information, the
Authority concluded in FAA-II at 7-8 that,
"on balance," the public interest served by disclosure of the
requested information was outweighed by the substantial invasion of
employees' privacy that would result from disclosure.
As stated by the Authority, and applicable herein, "the
public is served if Respondent carries out its personnel functions
fairly, equitably, and in accordance with laws, rules and
regulations." FAA-I at 347. In the case
herein data requested would shed light on Government operations and
open for inspection the manner in which Respondent administers its
employee awards programs which would ultimately "permit review of
the ways in which the Respondent administers its performance
appraisal system and monitors the quality of the work products
generated in fulfilling its statutory mission." FAA-II at 6. The public interest is thus served by
Clearly, with regard to Performance Awards and Quality Step
Awards, the underlying determinative vehicle for an employee being
selected to receive such an award is the individual employee's
performance appraisal and performance rating. It is also clear that
the information sought by the Union centered on individual
employee's performance appraisals and supervisory comments
regarding the employee's performance necessary to "justify" the
award, and ascertaining the specific "criteria" used to determine
whether the individual would receive an award. However, in order to
be producible, the public interest must be served by providing this
information to the requestor. But the appraisals were not the end
of the Agency's actions which are to receive public scrutiny. The
appraisals in the case of those receiving awards are the foundation
for Respondent's ultimately granting monetary awards involved
herein. Surely the public interest served is stronger when an
agency is called upon to reveal how its funds are spent and to
assure the public that such funds are spent in an honest and
prudent manner. It would seem obvious and not require any specific
urging by a party that the public has a significant interest in
ascertaining whether special financial awards bestowed by an agency
on a Government employee are distributed in a fair and impartial
manner without individual favoritism or hostility.
On the other hand, applying the principles set forth by the
Authority in FAA-I and FAA-II, I find the employees involved have a
substantial privacy interest in Performance Awards and Quality Step
Awards, to the extent such awards are dependent upon employee's
underlying performance evaluations and details concerning their
performance ratings and supervisory comments with respect thereto.
I also find that a substantial privacy interest similarly attaches
to the fact that a specific employee received a Performance Award
or Quality Step Award. I have further considered the "adverse
consequences" the Authority recognizes as being inherent from
disclosure, i.e., inducing unhealthy comparisons among employees
thereby breeding discord in the workplace and the possibility that
disclosure might cause supervisors to withhold in the future
positive or negative comments about an employee in the appraisal or
recommendation, if such comments should become public. See FAA-I at 349-350 and
FAA-II at 6. Prior disclosure of some of
this information as herein, does not support disclosure of
additional information. Id. Indeed, it
could be argued that the public interest in the information has
already been adequately served by the information already disclosed
to the Union by Respondent in its correspondence of July 28 and
August 17, above. See FAA-II at 7 and see Ripskis, 46
F.2d at 3-4.
Since the data sought by the Union with regard to the
Performance Awards or Quality Step Awards is essentially the
employee appraisals and ratings, with supporting supervisory and
managerial recommendations and comments on each individual
employee's performance as it relates to the specific award, I
conclude that the substantial invasion of employees' privacy
recognized by the Authority and the courts outweigh the public
interest served by disclosure of the data sought by the requestor.
Accordingly, having balanced the competing interest involved, I
conclude that disclosure of the requested data, to the extent not
already disclosed, would constitute a clearly unwarranted invasion
of personal privacy within the meaning of Exemption 6 of the FOIA
and is therefore prohibited by the Privacy Act. In these
circumstances Respondent was not obligated to further provide the
Union with the additional data it requested under section
7114(b)(4) of the Statute and its failure to do so did not violate
However, balancing the public interest with employees'
privacy rights when considering Special Achievement Awards, awards
designated as Group Special Act Awards by Respondent, I reach a
different result. While the public interest involved as expressed
above relative to the granting of Performance Awards and Quality
Step Awards remains the same when considering Special Achievement
Awards, the employee privacy rights involved are considerably less.
Thus the Agency's regulations provide that such awards are not
directly related to the employee's performance appraisal or
proficiency rating as are Performance and Quality Step Awards.
Apparently little or no part of an employee's performance appraisal
or rating plays any part in selecting an individual separately or
to partake with others in the receipt of a Special Achievement
Award. What must be included to justify receipt of such an award,
according to Respondent's regulations, is an explanation of the
contribution, its merit, and a specific description of the tangible
or intangible benefits of the action or activity of the individual
or group of employees. Special recognition as used in the
regulations obviously encompasses publication of the award. The
regulations specifically encourage publicizing the awards by
presenting the award at the worksite whenever possible and
photographing the presentation. In these circumstances,
"stigmatizing" or derogatory elements are most likely not present.
Some of the considerations which support privacy interests of those
receiving these awards may still be present, e.g., an assessment of
an employee's or group of employees' work will undoubtedly be
present in the narrative supporting the justification for the award
and the favorable information supporting the award might embarrass
an individual or incite jealousy in a co-worker. However, I find
such considerations to be minor compared to those present when
dealing with unsanitized performance appraisals.
Having balanced the identifiable public interests with the
identifiable employees' privacy interests involved,(3) I conclude, noting particularly that
Exception 6 of the FOIA weighs the scales in favor of disclosure
(see FAA-I at
345-346), that disclosure of the information requested concerning
the six Group Special Acts awards received by Respondent's
employees would not constitute an unwarranted invasion of personal
privacy within the meaning of Exemption 6 of the FOIA and is not
precluded by the Privacy Act. Therefore, I conclude Respondent was
obligated to provide the Union with all the data it requested under
section 7114(b)(4) of the Statute relative to the six Group Special
Act Awards and Respondent's failure to do so violated section
7116(a)(1) and (5) of the Statute.(4) Accordingly I recommend the Authority issue
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 Department of Veterans Affairs
Medical Center, Northport, New York, shall:
1. Cease and desist from:
(a) Failing and refusing to furnish Local No. 1843,
American Federation of Government Employees, AFL-CIO, (the Union)
the agent of the exclusive representative of certain of its
employees, unsanitized copies of data requested by the Union on
August 9, 1992 concerning the Group Special Act Awards given to
bargaining unit employees.
(b) 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
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 Union unsanitized copies of data it
requested on August 9, 1992 concerning the Group Special Act Awards
given to bargaining unit employees.
(b) Post at its facilities in the Northport, New
York Medical Center 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 Medical Center Director and
shall be posted and maintained for 60 consecutive days thereafter,
in conspicuous places, including all bulletin boards and other
places where notices to employees are customarily posted.
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 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, July 28, 1995
SALVATORE J. ARRIGO
Administrative Law Judge
NOTICE OF 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 Local No. 1843, American
Federation of Government Employees, AFL-CIO, the agent of the
exclusive representative of certain of our employees, unsanitized
copies of data it requested on August 9, 1992 concerning the Group
Special Act Awards given to bargaining unit employees.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of rights assured
by the Federal Service Labor-Management Relations Statute.
WE WILL furnish Local No. 1843, American Federation of
Government Employees, AFL-CIO, the agent of the exclusive
representative of certain of our employees, unsanitized copies of
data it requested on August 9, 1992 concerning the Group Special
Act Awards given to bargaining unit employees.
Date: __________________________________ By: ___________________________
This Notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced or covered by any
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 Region, whose address is: 99 Summer Street, Suite
1500, Boston, MA 02110-1200 and whose telephone number is: (617)
1. In its Answer to the Complaint Respondent admitted the data sought by the Union was normally maintained, reasonably available and did not constitute guidance, advice, counsel, etc. within the meaning of section 7114(b)(4) of the Statute. Although Respondent denied the allegation in the Complaint that the information sought was necessary for full and proper discussion, etc., it did not raise or support such a contention in its brief.
2. I find it difficult to understand how a party could review the administration of a performance appraisal system and monitor work products generated without knowing the specific identity of the individual appraisal so that the agency's processes could be validated.
3. Although the authority has set forth the parties' respective burdens when proceeding in a case such as herein, including the burden of establishing the nature and extent of the public and private interests involved, some interests are generic to particular types of information requests and, in my view, may be presumed to exist.
4. It appears Respondent has abandoned its denial that the data sought is "necessary" within the meaning of section 7114(b)(4) of the Statute. In any event, based upon the record herein including the reasons set forth by the Union when making its request, I would conclude that the information sought was "necessary" within the meaning of section 7114(b)(4) of the Statute.