Department of Health and Human Services, Social Security Administration, Field Operations, New York Region and American Federation of Government Employees (Authority decision, May 20, 1987)

FLRA remand decision. After a federal appeals court reversed the Authority’s earlier ruling on four union information requests, the Authority returns the consolidated case to an administrative law judge for evidence about Privacy Act disclosure. Whether the records must be released remains unresolved. This decision does not present a final judicial-review period under 5 U.S.C. § 7123(a).

Plain-English summary

The union requested time and attendance records, performance reviews, and related employee records from several Social Security Administration offices. The Authority had dismissed the unfair labor practice complaint, but a federal appeals court held that the union sufficiently explained its need for the records and returned the case for a Privacy Act decision. The Authority found the existing record inadequate to determine whether disclosure was permitted. It remanded for evidence on the relevant record systems, their routine uses, and any labor agreement terms governing release.

Decision snapshot

• Authority: Information duty under 5 U.S.C. § 7114(b)(4) and Privacy Act disclosure under § 552a(b).
• Outcome: Consolidated cases remanded for findings on whether Privacy Act rules permit disclosure.
• Key point: The agency’s duty to provide needed information remained unresolved pending a record-system and routine-use inquiry.

Full text (FLRA public release)

[ v27 p48 ]

27:0048(12)CA

The decision of the Authority follows:

27 FLRA No. 12

DEPARTMENT OF HEALTH AND HUMAN
SERVICES, SOCIAL SECURITY
ADMINISTRATION AND SOCIAL SECURITY
ADMINISTRATION, FIELD OPERATIONS
NEW YORK REGION
Respondent

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Charging Party

Case Nos. 2-CA-40303
2-CA-40304
2-CA-40343
2-CA-40350
(21 FLRA No. 35)

DECISION AND ORDER REMANDING CASE

I. Statement of the Case

This consolidated case is before the Authority on remand from the United States Court of Appeals for the Second Circuit. American Federation of Government Employees v. FLRA, 811 F.2d 769 (2d Cir. 1987). The question before us is whether the information sought by the Charging Party is exempt from disclosure under the Privacy Act, 5 U.S.C. section 552a(b).

II. Background

The case involves a consolidated complaint alleging that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing and refusing to furnish the Charging Party with information it had requested pursuant to sections 7103(a)(9) and/or 7114(b)(4) of the Statute. The Charging Party requested the following information: (1) Case No. 2-CA-40303 -- unsanitized copies of the official time and attendance records for all employees in the East New York Office for the period of October 1, 1983 to March 13, 1984; (2) Case No. 2-CA-40304 -- unsanitized copies of progress reviews and performance appraisals for all bargaining unit employees in the Murray Hill Office for the period of January 1, 1983 to March 15, 1984; (3) Case No. 2-CA-40343 -- unsanitized copies of all progress reviews and performance appraisals for all Title II Claims Representatives in the Jamaica Office for the period of January 1, 1983 to March 20, 1984; and (4) Case No. 2-CA-40350 -- unsanitized copies of the following information related to Title II Claims Representatives in the Downtown District Office for the period of January 7, 1983 to February 29, 1984: (a) annual performance appraisals, (b) Claims Representative desk audits, (c) Claims Representative interview audits, (d) performance improvement plans, (e) interviewing time studies, (f) quality review deficiency flags (bounces), and (g) weekly DOWR statistics for each Title II breakdown.

III. Administrative Law Judge's Decision

The Judge issued a Decision and Order recommending dismissal of the consolidated complaint. He held that the Respondent did not violate the Statute by refusing to furnish the Charging Party with the requested data. He found that the Charging Party was entitled to information needed to enable it to effectively carry out its representational responsibility, provided that the information sought was necessary and relevant to discharging its duties. The Judge further found that the Charging Party never disclosed the reasons for seeking the information to the Respondent. The Judge also rejected the General Counsel's argument that the information being sought was presumptively relevant.

The Judge also addressed the applicability of the Privacy Act to the issue of whether the Respondent was obligated to release the information requested by the Charging Party under the Statute. The Judge concluded it was essential that an agency have sufficient information concerning a union's need for the data in order for the agency to determine its duties and obligations under the Privacy Act and the Statute.

IV. Previous Decision of the Authority

The General Counsel and the Charging Party filed exceptions to the Administrative Law Judge's decision. The Authority dismissed the complaint, finding that the General Counsel had not met the burden of proving that the Respondent failed to comply with section 7114(b)(4) of the Statute. Department of Health and Human Services, Social Security Administration and Social Security Administration, Field Operations, New York Region and American Federation of Government Employees, AFL-CIO, 21 FLRA No. 35 (1986). In reaching its conclusion, the Authority rejected the contention that the information sought was presumptively relevant and decided the case on the basis of the Charging Party's failure to communicate the necessity for the information to the Respondent. In view of the finding that the information sought by the Charging Party was not shown to be necessary within the meaning of section 7114(b)(4) of the Statute, the Authority found it unnecessary to pass either upon the contention that the information could be released to the Charging Party under the "routine use" exception in the Privacy Act or upon the findings of the Administrative Law Judge concerning the Privacy Act.

V. Decision of the Court of Appeals

The Charging Party petitioned for review of the Authority's decision in the Second Circuit. The Charging Party argued among other things that the Authority erred because it should have required the Respondent to furnish the information by using the "presumptive "relevance" doctrine developed under the National Labor Relations Act. The court rejected this argument, but went on to find that the Charging Party had "adequately conveyed to the (Respondent) its need for the information sought." AFGE v. FLRA, 811 F.2d at 774. While "agree(ing) with the Authority's finding that much of the (Charging Party's) conclusory representations to the (Respondent) . . . added little force to its request for information," the court stated "after careful review of the communications between the (Charging Party) and the (Respondent) in the four cases involved here, we find that the Authority's decision was based on too narrow an interpretation, on the record before it, of the agency's duty to provide information under section 7114(b)(4)." Id. The court concluded "in this case it was reasonably clear that the information the union sought was needed to evaluate an existing or potential grievance relating to (the information requested), and therefore was necessary for 'full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining'." Id. at 775. The court reversed the Authority's decision and, noting that the Authority had not previously addressed whether the information sought under section 7114(b)(4) of the Statute could be disclosed under the Privacy Act, remanded the case to us "for a determination of whether the information is exempt from disclosure under the Privacy Act." Id. at 775.

VI. Analysis and Conclusion

As the record in this case is currently constituted, we are unable to determine whether the information sought by the Charging Party is exempt from disclosure under the Privacy Act. In order to make the determination required by the court, we need additional information. Specifically, we need information concerning the entire period pertinent to the complaint as well as the present, to include: (1) the notices of the system(s) of records maintained by the Office of Personnel Management and the Department of Health and Human Services/Social Security Administration containing the information sought; (2) the effective dates of these systems of records; (3) the routine use statement(s) for each applicable system of records; and (4) any applicable collective bargaining agreement provisions which address release of information from a system of records to the exclusive representative.

Accordingly, we must remand the consolidated case to the Administrative Law Judge to reopen the record for receipt of the information described above and any other information he deems relevant; and to make findings as to whether the information sought by the Charging Party is exempt from disclosure under the Privacy Act.

ORDER

The consolidated case is remanded to the Administrative Law Judge for action consistent with the above.

Issued, Washington, D.C., May 20, 1987.

/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
/s/ Jean McKee
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY