FEDERAL LABOR RELATIONS AUTHORITY OALJ 16-17 Office of Administrative Law Judges WASHINGTON, D.C. 20424
DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FCC PETERSBURG, VA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL OF PRISON LOCALS 33, LOCAL 2052, AFL-CIO
Case No. WA-CA-15-0045
In connection with grievances objecting to performance evaluations given to two employees, the employees’ union asked the Agency for sanitized copies of performance appraisals and supporting documents for most, if not all, bargaining unit employees in the past two years. The Union explained that it needed the information to determine whether “multiple” complaints it had received about unfair ratings were accurate, and to prove the contract violations alleged in the grievances. It said it needed two years’ worth of information in order to identify and show a pattern of misconduct. The Union also asserted that disclosing the information would not violate the Privacy Act, because the names and other identifying information of bargaining unit employees (but not the names of supervisors) would be redacted.
The Agency denied the request, asserting that the information was not reasonably available and that the Union had failed to establish a particularized need for the information. Subsequently, the parties stipulated (among other things) that the Agency maintains the requested information in electronic form.
There are three questions before me. The first is whether the Union established a particularized need for the requested information. The Union’s request was long and detailed (albeit repetitive), explaining that it would use the information to prove contract violations in connection with two specific grievances, which were slated for arbitration. Moreover, the Union said that it was investigating similar complaints from other bargaining unit employees and therefore needed information from across the bargaining unit in order to demonstrate at the arbitration hearings that the Agency was applying its performance standards disparately and unfairly, in violation of the collective bargaining agreement. Further, the Union showed that it needed two years’ worth of information in order to prove that the Agency had engaged in a pattern of misconduct. Because the Union explained in detail its need for the requested information, it established a particularized need.
The second question is whether the requested information was reasonably available. Although the Union sought a large number of documents, the information was stored electronically and thus was easily obtainable. Moreover, the Agency failed to demonstrate that redacting the documents would require extreme or excessive means. Accordingly, the answer to this question is yes.
The third question is whether the Privacy Act bars disclosure of the performance appraisals of bargaining unit employees, as requested by the Union. Because all identifying information of bargaining unit employees would be redacted, and because the appraisals would not contain any personal information about the supervisors who prepared the appraisals, disclosure would not involve a clearly unwarranted invasion of personal privacy. Accordingly, the answer to the third question is no.
STATEMENT OF THE CASE
This is an unfair labor practice proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. §§ 7101-7135 (the Statute), and the Rules and Regulations of the Federal Labor Relations Authority (the Authority or FLRA), 5 C.F.R. part 2423.
On October 9, 2014, the American Federation of Government Employees, Council of Prison Locals 33, Local 2052, AFL-CIO (the Charging Party or Union), filed an unfair labor practice (ULP) charge against the Department of Justice, Federal Bureau of Prisons, FCC Petersburg, VA (the Agency, Respondent or FCC Petersburg). Jt. Ex. 1(a). After investigating the charge, the Regional Director of the FLRA’s Washington Region issued a Complaint and Notice of Hearing on March 10, 2015, on behalf of the FLRA’s General Counsel (GC), alleging that the Agency violated § 7116(a)(1), (5), and (8) of the Statute by failing to furnish the Union with information it had requested. GC Ex. 1(b). The Respondent filed its Answer to the Complaint on April 6, 2015, denying that it violated the Statute. GC Ex. 1(c).
A hearing in the matter was scheduled for May 7, 2015, but the hearing was canceled when the parties filed a Consent Motion for Leave to File Stipulations of Fact in Lieu of Hearing, which was accompanied by a Joint Stipulations of Fact and Joint Exhibits 1 through 12. The motion was granted, and June 8, 2015, was set as the date for filing briefs. Both the General Counsel and Respondent filed briefs, which I have fully considered.
Based on the record in this case, I make the following findings of fact, conclusions of law, and recommendations.
FINDINGS OF FACT
The Respondent is an agency within the meaning of § 7103(a)(3) of the Statute. Stip. ¶1. The American Federation of Government Employees, Council of Prison Locals 33, AFL-CIO (Council), is the exclusive representative of a nationwide bargaining unit of employees at the Federal Bureau of Prisons. Id. ¶2. The Union, a labor organization within the meaning of § 7103(a)(4) of the Statute, is an agent of the Council for the purpose of representing bargaining unit employees at FCC Petersburg. Id. ¶4. The Council and the Federal Bureau of Prisons are parties to a collective bargaining agreement, known as the Master Agreement. Id. ¶3.
This case pertains to an information request that the Union submitted in connection to grievances filed on behalf of two employees: Jawan Banks, a Unit Secretary in FCC Petersburg’s Unit Management department, and Kelly Blankenship, a Senior Officer Specialist in the Correctional Services department. Id. ¶¶9-10, 13-14.
The Union filed the Banks grievance on April 3, 2014, alleging that the Agency violated Articles 6(b)(2) and 14(b) of the Master Agreement with regard to Banks’s quarterly progress review and annual performance evaluation, for the rating period ending on March 31, 2014. Jt. Ex. 2; Stip. ¶9. (Banks’s performance evaluation is based on the performance standards for office support staff.) Stip. ¶10. The Union claimed that Banks’s supervisor had stated in an informal meeting that she had been “instructed by my higher ups to marginalize my staff in relation to performance evaluations,” and that “according to the standards no employee should be able to receive an overall outstanding rating on their performance evaluation.” Jt. Ex. 2 at 1-2 (emphasis omitted). At the same time, the same supervisor allegedly acknowledged that “upwards of 200 staff throughout the FCC Petersburg Complex” receive an overall rating of outstanding on their performance evaluations each year. Id. at 2. The Agency denied Banks’s grievance, and the Union invoked arbitration. As of May 2015, the arbitration hearing was still pending. Jt. Exs. 3, 4; Stip. ¶12.
There are approximately 513 bargaining unit employees in the various departments at FCC Petersburg. Stip. ¶21. The information request sought performance appraisals of all bargaining unit employees subject to the performance standards for nonsupervisory correctional officers, office support staff, professionals, wage board employees, and technician assistants. Id. ¶17. These positions have different performance elements, though they have some elements in common. Jt. Exs. 11(a)-(e). Although employees are rated outstanding, excellent, successful, minimally satisfactory, or unacceptable on each element, the standards simply describe the performance criteria for outstanding, successful, and unacceptable. Jt. Exs. 11(a) at 1, 12 at 6. The Union asked for performance appraisals from July 1, 2012, to July 21, 2014, a period covering two annual performance cycles. Stip. ¶¶17, 20.
The Union asserted in its information request that it was justified under § 7114(b)(4) of the Statute. As an initial matter, the Union stated that the requested information was normally maintained, was reasonably available, and did not constitute guidance, advice, counsel, or training relating to collective bargaining. Jt. Ex. 8 at 1.
The Union then turned its attention to two arguments: (1) the requested information was necessary within the meaning of § 7114(b)(4) of the Statute; and (2) the Privacy Act did not bar the Agency from providing the Union with the requested information.
With regard to need, the Union argued that it would use the information as evidence, at the Banks and Blankenship arbitration hearings, to “establish and prove . . . disparate treatment in the application of the . . . Performance Standards[,]” as well as the failure of supervisors to apply the performance standards “in a fair and equitable manner as prescribed by the Master Agreement. Jt. Ex. 8 at 4, 6-7, 9-10. In this regard, the Union stated that Article 6(b)(2) provides that employees have the right “to be treated fairly and equitably in all aspects of personnel management.” Id. at 7. The Union also argued that it needed the requested information to show “discriminatory behavior” and violations of “29 CFR 1614.” Id. at 6-7. Further, the Union elaborated that it would use the performance appraisals “to prove that some bargaining unit members are being held to a higher standard than other bargaining unit members at FCC Petersburg” (id. at 7) and that “[s]ome bargaining unit members are being ‘rigidly’ [held] to those standards while others are not, thus creating disparity.” Id. at 4. In addition, the Union contended that disparate treatment could “only be demonstrated by comparing how the standards in question were applied to the grievant[s] as compared to how the standards were applied to other bargaining unit members at FCC Petersburg.” Id. at 10. Similarly, the Union contended that it was necessary to see the names of supervisors on the documents so that the Union would be able to “differentiate one supervisor . . . from another . . . to prove that our bargaining unit members are being treated in a disparate manner.” Id. at 3.
The Union argued that the request was based not just on the Banks and Blankenship grievances, but also on “multiple complaints in relation to the lack of equal application of the performance standards among bargaining unit staff . . . at FCC Petersburg.” Id. at 7. The Union argued that it therefore needed the requested performance appraisals to “ascertain whether . . . disparate treatment of the bargaining unit is occurring,” and to “demonstrate that the Agency was applying the . . . performance standards in a disparate manner to all bargaining unit employees.” Id. at 8, 10.
With regard to its representational responsibilities, the Union asserted that “it is the responsibility of the Union to monitor [the performance evaluation] program and ensure equal and fair treatment of the members we represent.” Id. at 6. In this regard, the Union cited Article 14(d) of the Master Agreement, which states: “The Employer agrees to provide information requested by the Union regarding the performance evaluation program and distribution of ratings if a valid request is made under the provisions of 5 USC, Chapter 7114(b)(4).” Jt. Ex. 10 at 16.
As for the scope of its request, the Union argued that the scope was limited to bargaining unit employees at FCC Petersburg. Jt. Ex. 8 at 5. In addition, the Union asserted that the “time period” for the request was “reasonable” given the Union’s “need . . . to establish a pattern of behavior and practice by the Agency . . . .” Id.
With regard to the Privacy Act, the Union asserted that “[n]o privacy rights of the bargaining unit employees would be affected” by the request, “because . . . the documents will be sanitized and unidentifiable.” Id. at 4. The Union further asserted that it “will not know, or be able to identify which document is related to which staff member.” Id. The Union further argued that it was acceptable not to redact the names of supervisors on the performance appraisals, because the appraisals rated the work of bargaining unit employees and did not contain any personal information pertaining to supervisors. Id. at 3, 11.
Associate Warden Richard Engel responded to the request on September 8, 2014. Jt. Ex. 9; Stip. ¶23. After summarizing the Union’s request, Engel asserted that it was “lacking the required particularized need and specificity in many areas.” Jt. Ex. 9 at 2. Engel also stated, “You are requesting an enormous amount of information which is not reasonably available and would require man power which is also not available.” Id. He further noted that bargaining unit employees “have access to their individual performance appraisals” in electronic form. Id. For all these reasons, the Agency denied the Union’s request. Jt. Ex. 9.
As of June 8, 2015, when this case was submitted to me, the Agency had not provided the Union with any of the requested information.
POSITIONS OF THE PARTIES