FEDERAL LABOR RELATIONS AUTHORITY, Petitioner,
v.
UNITED STATES DEPARTMENT OF COMMERCE, National Oceanic and
Atmospheric Administration, National Weather
Service, Silver Spring, Maryland, Respondent,
National Weather Service Employees Organization, Intervenor.
No. 91-1175.
United States Court of Appeals,
District of Columbia Circuit.
Argued Jan. 21, 1992.
Decided April 24, 1992.
Rehearing Denied June 25, 1992.
James F. Blandford, Attorney, Federal Labor Relations Authority, with whom William E. Persina, Sol., William R. Tobey, Deputy Sol., and Arthur A. Horowitz, Associate Sol., were on the brief, for petitioner.
William G. Cole, Attorney, Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., and William Kanter, Attorney, were on the brief, for respondent.
Richard J. Hirn, for intervenor.
Before SILBERMAN, WILLIAMS, and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge:
The Federal Labor Relations Authority ("FLRA" or "Authority") seeks judicial enforcement of its order directing the National Weather Service ("NWS") to supply the National Weather Service Employees Organization ("Union") the names, duty stations, and locations of all bargaining unit employees who had received outstanding or commendable personnel evaluations. Attacking the merits of the оrder, the NWS asserts that it did not commit an unfair labor practice ("ULP") when it refused to provide the Union with the requested information. The FLRA argues that we have no jurisdiction to review the merits as the NWS did not timely petition for judicial review of the order. Concluding that we do have jurisdiction to consider the merits, we deny enforcement because disclosure of the requested infоrmation would violate the Privacy Act of 1974.
I. BACKGROUND
A. Facts
The NWS, a component of the Commerce Department's National Oceanic and Atmospheric Administration, uses a two-part evaluation form for its employees under the General Workforce Performance Appraisal System--the first part of the form requires the rater to give a narrative explanation of the worker's performance, and the second part characterizes the worker as outstanding, commendable, fully successful, marginal, or unsatisfactory. During the 1986 rating year, about 9% of NWS workers received outstanding ratings, 41% received commendable ratings, and the remaining 50% received fully successful, marginal, or unsatisfactory ratings.
In March of 1986, the Union's Western Region Chairman, Mr. Alan Olson, advised the NWS about the Union's concern with the NWS's performance appraisal system; specifically, the granting of awards and outstanding ratings. When the NWS did not address these concerns to Mr. Olson's satisfaction, he filed a grievance which was denied at the first and second steps of the grievance procedure. The Union invoked arbitration in September of 1986, but subsequently withdrew the invocation of arbitration.
In the meantime, Mr. Olson wrote to the Acting Regional Director of the Western Region of NWS requesting that he supply the Union with the "names and duty stations of bargaining unit employees in the Western Region who received ratings of commendable or outstanding based on the rating period of 1985-86." Brief of Petitioner at 5. He explained that the Union would use the information to understand better the rating system and to protect bargaining unit employees from inequities or improper administration. Citing concerns raised by the Privacy Act of 1974, the NWS refused to supply the names of employees receiving outstanding or commendable ratings, but offered to provide the names and duty stations of employees reсeiving awards. Finding this proposal unsatisfactory, the Union filed a ULP complaint with the FLRA.
B. The FLRA Proceedings
An FLRA Administrative Law Judge ("ALJ") considered the Union's ULP charge. Department of Commerce, National Weather Service and National Weather Service Employees Organization, OALJ-88-133 (Sept. 9, 1988) ("National Weather Service "), reprinted in Joint Appendix ("J.A.") 86. The Union argued that pursuant to § 7114(b) of the Federal Service Labor-Management Relations Statute ("FSLMRS"), the NWS had an obligation to disclose information that "is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining" if the release of such information is "not prohibited by law." Respondent's Post-Hearing Brief at 21-22 (quoting 5 U.S.C. § 7114(b)(4)(B)), rеprinted in J.A. at 63-64. The ALJ agreed that the information the Union requested met the criteria for release under § 7114(b), but noted that "there remains the question whether disclosure would conflict with the Privacy Act," 5 U.S.C. § 552a. National Weather Service, slip op. at 7.
The ALJ explained that the Privacy Act incorporates the bar contained in exemption 6 of the Freedom of Information Act ("FOIA") against disclosure of information which "would constitute a clearly unwarranted invasion of personal privacy." Id. at 7-8 (citing 5 U.S.C. § 552(b)(6)). After balancing the Union's need for the information against the rated employees' privacy interests, the ALJ concluded that "disclosure of unsanitized data would have resulted in a clearly unwarranted invasion of privacy." Id. at 9 (citations and footnote omitted). As such, disclosure would violate the Privacy Act, and the ALJ determined that under § 7114(b), the Union could not receive the names of bargaining unit employees who had received outstanding or commendable ratings. Id.
The Authority reversed the ALJ's decision on November 13, 1990. United States Dep't of Commerce, National Weather Service, Silver Spring, Maryland and National Weather Service Employees Organization,
On the disclosure side of the balance, the Authority found that the Union's desire to use the requested information to better represent bargaining unit employees comprised a substantial public interest. Id. (citing Department of the Navy, Portsmouth Naval Shipyard,
Thereafter, the NWS had difficulty complying fully with the FLRA order. First, the NWS discovered that it maintained ratings information for only three years; thus, the 1985-86 information had been discarded prior to the FLRA's 1990 order. When advised of this, the Union requested the names of workers receiving a commendable or outstanding rating for the 1989-90 period. After it provided this information, however, the NWS declаred it would deny any future requests for similar information. Brief of Respondent at 10-11. Additionally, when the NWS posted the ULP notice, it did not use official FLRA forms as ordered by the Authority. The notice posted by the NWS was of a different size than the official form and did not provide the address and telephone number of the FLRA, which employees might call if they had questions about the notice. In resрonse to this noncompliance and the NWS's declaration regarding future requests for ratings information, the FLRA petitioned this Court under 5 U.S.C. § 7123(b) for enforcement of its order.
II. ANALYSIS
A. Jurisdiction Under 5 U.S.C. § 7123
At the outset, the FLRA asserts that the period in which the NWS could challenge the merits of the 1990 order under the judicial review provision of the FSLMRS, 5 U.S.C. § 7123, has lapsed. The FLRA explains that pursuant to § 7123(a), "any person aggrieved" by an FLRA order may file a petition for judicial review, but must do so "during the 60-day period" after the order was issued. 5 U.S.C. § 7123(a). In contrast, § 7123(b), under which the FLRA brought this action, enables the FLRA to seek judicial enforcement of its orders without any temporal limitations. Id. § 7123(b). From this statutory scheme, the FLRA asserts that the NWS had but 60 days to bring before this Court its attack on the merits of the order. Because that 60-day period elapsed before the initiation of this enforcement action under § 7123(b),1 the FLRA claims that we have no jurisdiction to consider the NWS's arguments.
As the FLRA correctly insists, the jurisdiction of federal courts "is defined by Article III of the Constitution and by the federal statutes enacted thereunder." Karcher v. May,
Specifically, § 7123(c) provides that when a party seeks review under § 7123(a) or enforcement under § 7123(b), "the court ... shall have jurisdiction of the proceeding and of the question determined therein ... and may make and enter a decree affirming and enforcing, modifying and enforcing as so modified, or setting aside in whole or in part the order of the Authority." 5 U.S.C. § 7123(c). Nothing in § 7123(c) commands or implies that the scope of our jurisdiction changes depending on whether an action is brought under § 7123(a) or (b). Thus, whether a party comes before us under § 7123(a) or (b), we have jurisdiction to review the "question determined" in the FLRA order and to issue whatever remedy our review determines appropriate, including the "setting aside" of the FLRA order.
The FLRA contends that if we allow the NWS to obtain "indirect review" of the 1990 order, we would "defeat the intent of Congress to impart finality into the [FLRA's] proceedings." Brief of Petitioner at 22. This argument ignores the distinction between a court's role in reading statutes and Congress' role in writing them. Addison v. Holly Hill Co.,
Indeed, Congress has shown in other judicial review provisions that it knows precisely how to ensure the type of finality urged by the FLRA. For example, the judicial review provision of the Occupational Safety & Health Act of 1970, 29 U.S.C. § 660, provides that if a "person adversely affected" by an Occupational Safety & Health Commission order does not petition for review within 60 days, then the order "shall be conclusive in connection with any petition for enforcement which is filed" by the Commission. 29 U.S.C. § 660(b), construed in United States v. Howard Elec. Co.,
In any event, the FLRA's complaint that our plain-language reading of § 7123(c) saps the significance of § 7123(a)'s 60-day time limit is incorrect. If a charging party loses before the Authority, thereby leaving nothing for the FLRA to enforce under § 7123(b), then the charging party must file its petition for review within the 60-day time limit of § 7123(a) or suffer the jurisdictional consequences. Hence, this Court's interpretation does not reduce to surplusage any part of § 7123, and it respects the terms and structure used by Congress to define our jurisdiction to review decisions of the FLRA. K Mart Corp. v. Cartier, Inc.,
B. The Merits of the FLRA's 1990 Order
In ordering release of the names and duty stations of those bargaining unit employees who earned commendable or outstanding ratings, the FLRA made the following findings: (1) the NWS normally maintained this information; (2) the information was reasonably available and necessary for a full and proper understanding or discussion of subjects within the scope of collective bargaining; and (3) no оther provision of law, such as the Privacy Act, barred release of the information. National Weather Service Employees Organization,
The Privacy Act prevents the government from releasing personal information except as required by the FOIA. 5 U.S.C. § 552a(b)(2). In turn, the FOIA allows agencies to withhold information in personnel files the "disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Id. § 552(b)(6). This limitation on release, known as exemption 6, requires a balance of the "harm to the individual whose privacy is breached against the public interest served by disclosure." Department of Treasury,
In its assessment of the harm to individual privacy, the Authority simply observed that it had previously approved the release of similar information and declared it found nothing "stigmatizing" in identifying employees with high ratings.
The Authority also erred by finding relevant the Union's assertion that it would not disseminate the information.
On the disclosure side of the balance, the Authority construed the "public interest to be examined" as "that embodied in the [FSLMRS]."
In defining the exemption 6 public interest as incorporating values enshrined in the FSLMRS, the Authority misread the FOIA. The Department of Treasury court addressed precisely this issue, and explained that the "colleсtive bargaining values" contained in the FSLMRS have no place in the exemption 6 balance.
A recent First Circuit decision highlights the Authority's mistake. As noted above, the Authority cited its Portsmouth decision for the propositiоn that the interests embraced by the FSLMRS are incorporated in the exemption 6 public interest. National Weather Service Employees Organization,
Nevertheless, we acknowledge that this case differs from Department of Treasury and Department of the Navy, in that the Authority found that the information sought here may shed light on the NWS's operation of its rating system.
As in Ripskis, however, we do not believe that the public interest served by release of identifying information overcomes the substantial invasion of privacy that would result. A mandatory personnel evaluation, whether favorable or not, is intensely personal, and counsel has not demonstrated that ratings have traditionally been subject to disclosure, unlike performance awards. Consequently, employees have a substantial interest in keeping this information private, and we are not convinced that the public interest in disclosure found by the FLRA outweighs this interest.2III. CONCLUSION
For the reasons disсussed above, we conclude that the FLRA misapplied the balancing test required by exemption 6 of the FOIA by slighting the substantial privacy interest employees have in their ratings and by freighting the balance with interests not encompassed by the FOIA. Accordingly, we set aside the Authority's order of November 13, 1990, and hold that the NWS did not violate § 7114(b) of the FSLMRS when it refused to provide identifying information regarding those bargaining unit employees who received outstanding or commendable ratings. The petitioner's request for enforcement is therefore
Denied.
Notes
The Authority issued its order on November 13, 1990, and invoked our jurisdiction to enforce the order on April 12, 1991
Although not an essential part of our analysis, we note that the Union has alternative means for obtaining rating information аbout the employees it represents: it may distribute questionnaires or conduct confidential face-to-face interviews. See Painting and Drywall,