13:0543(91)NG - NFFE Local 1745 and VA -- 1983 FLRAdec NG



[ v13 p543 ]
13:0543(91)NG
The decision of the Authority follows:


 13 FLRA No. 91
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1745
 Union
 
 and
 
 VETERANS ADMINISTRATION
 Agency
 
                                            Case No. 0-NG-479
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    This case comes before the Federal Labor Relations Authority pursuant
 to section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management
 Relations Statute (the Statute) and concerns the negotiability of two
 Union proposals.
 
                             Union Proposal 1
 
          The Union will appoint a participating member on the Rating
       Panel.  The Union Member will be allowed access to all personnel
       records of employees being evaluated by the Promotion Panel.
 
          If there are no qualified SME's available as a Union Member on
       the Rating Panel, then the Union Member will act as an Observer
       rather than a participating member.
 
          Neither a Panel Member nor an Observer can be an applicant for
       a position under consideration by the Panel.  Information
       discussed in Panel Meetings will be considered confidential and
       will not discussed outside these meetings.
 
                       Question Before the Authority
 
    The question is whether Union Proposal 1 is inconsistent with the
 Agency's rights under section 7106(a)(2)(C) of the Statute, as alleged
 by the Agency.
 
                                  Opinion
 
    Conclusion and Order:  Union Proposal 1 is inconsistent with section
 7106(a)(2)(C) of the Statute.  /1/ Accordingly, pursuant to section
 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the
 petition for review as to Union Proposal 1 be, and it hereby is,
 dismissed.
 
    Reasons:  Union Proposal 1 provides for Union Representation on, and
 participation in the functioning of, promotion or rating and ranking
 panels established by the Agency as a part of the selection process for
 filling vacant positions.  Applicable Agency regulations provide for
 such panels to be constituted by a representative of the Office of
 Personnel and two line officials who are familiar with the position to
 be filled.  /2/ The panel is responsible for developing a rating
 schedule which will set forth the factors to be used in evaluating
 candidates, a ranking plan which will establish the criteria to be used
 to rate candidates under each such factor, and a method for combining
 the ratings obtained to arrive at a ranking of candidates.  /3/ The
 panel also applies the rating schedule and ranking plan which it has
 developed to the applications of qualified candidates and establishes a
 promotion register for submission to the selecting official.  /4/
 
    In thus providing for a Union representative on a panel which, among
 other things, develops the selective factors to be used in a merit
 promotion plan or rating schedule, Union Proposal 1 herein is
 substantively to the same effect as Union Proposals 1 and 2 in National
 Federation of Federal Employees, Local 1497 and Headquarters, Lowry
 Technical Training Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA
 No. 92 (1983).  In that case, the Authority held that Union Proposals 1
 and 2, which established a joint labor-management panel to develop
 "promotion evaluation patterns," i.e., those aspects of a merit
 promotion plan involving both "selective factors" and a "crediting
 plan," were outside the duty to bargain because they involved the union
 in the agency's selection process and thereby directly interfered with
 management's rights under section 7106(a)(2)(C) of the Statute.
 Therefore, for the reasons set forth fully in Lowry Technical Training
 Center, Union Proposal 1 herein is outside the duty to bargain under
 section 7106(a)(2)(C) of the Statute.  /5/
 
                             Union Proposal 2
 
          Any employee is entitled to see any records used by the
       Promotion Panel as long as the employee's name was submitted to
       the Panel and the employee was not selected for promotion.
 
                       Question Before the Authority
 
    The question is whether Union Proposal 2 is inconsistent with Federal
 law, i.e., the Privacy Act (5 U.S.C. 552a), as alleged by the Agency.
 
                                 Opinion.
 
    Conclusion and Order:  Union Proposal 2 is inconsistent with 5 U.S.C.
 552a(b) /6/ and, thus, is outside the duty to bargain under section
 7117(a)(1) of the Statute.  /7/ Accordingly, pursuant to section 2424.10
 of the Authority's Rules and Regulations, IT IS ORDERED that the
 petition for review as to Union Proposal 2 be, and it hereby is,
 dismissed.
 
    Reasons:  Union Proposal 2 would require the Agency to disclose "any
 record" used by a promotion panel to "any employee" who was a candidate
 for a vacant position but was nonselected.  The term "record" as used in
 the proposal is not further defined therein, nor does the record
 otherwise reveal the Union's intent in using the term.  However, under
 the Agency regulations pertaining to promotion panels, the "records:
 used by such panels would include the applications of candidates for the
 position, rating schedules, ranking plans, rating sheets, and promotion
 registers or certificates.  Thus, Union Proposal 2 would require the
 Agency to disclose upon request all such "records" pertaining to
 candidates.
 
    The Privacy Act, however, in particular 5 U.S.C. 552a(b), with
 certain enumerated exceptions, precludes an agency from disclosing to
 any person or agency any record which it maintains as a part of a system
 of records absent a request by, or the written consent of, the person to
 whom the record pertains.  /8/ Therefore, under 5 U.S.C. 552a(b)
 candidates nonselected for a position may not have access to records
 pertaining to candidates other than themselves without obtaining the
 written consent of those candidates.  Clearly, the materials encompassed
 by Union Proposal 2, as outlined above, are "records" covered by the
 Privacy Act.  See Local 2047, American Federation of Government
 Employees v. Defense General Supply Center, 423 F.Supp. 481, 482, n. 1
 (E.D. Va. 1976), affirmed 573 F.2d 184 (4th Cir. 1978).  Since, as
 discussed above, the proposal would unconditionally require disclosure
 of those records to any nonselected employee, /9/ the proposal clearly
 is inconsistent with the restrictions imposed by Sec. 552a(b) of the
 Privacy Act on an agency's disclosure of information contained in its
 records.  Hence, it is outside the duty to bargain under section
 7117(a)(1) of the Statute.  /10/
 
    Issued, Washington, D.C., December 22, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7106(a)(2)(C) of the Statute provides as follows:
 
          Sec. 7106.  Management rights
 
          (a) Subject to subsection (b) of this section, nothing in the
       chapter shall affect the authority of any management official of
       any agency--
 
                                  * * * *
 
          (C) with respect to filling positions, to make selections for
       appointments from--
 
          (i) among properly ranked and certified candidates for
       promotion;  or
 
          (ii) any other appropriate source).)
 
 
    /2/ Veterans Administration (VA) Manual MP-5, Part 1, Chapter 335,
 Change 2, Appendix C, Section 6.a.  Because of the disposition herein of
 Union Proposal 1, it is unnecessary to consider the Agency's additional
 contention that a "compelling need" exists for the Agency's regulation
 to bar negotiations.
 
 
    /3/ VA Manual MP-5, Part 2, Chapter 335, Change 2, Appendix C,
 Sections 6.b. and c.  For a more detailed discussion of merit promotion
 procedures see National Treasury Employees Union and NTEU Chapters 153,
 161 and 183 and U.S. Customs Service, Region II, 11 FLRA No. 47 (1983)
 (Union Proposals 1 and 2).
 
 
    /4/ VA Manual MP-5, Part 1, Chapter 335, Change 2, Appendix C,
 Section 6.d.
 
 
    /5/ Cf. National Federation of Federal Employees, Local 1497 and
 Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force
 Base, Colorado, 11 FLRA No. 92 (1983) (Union Proposals 5 and 6) (Joint
 labor-management panels to develop crediting plans are within the duty
 to bargain).
 
 
    /6/ 5 U.S.C. 552a(b) provides, in pertinent part, as follows:
 
          Sec. 552a.  Records maintained on individuals.
 
                                  * * * *
 
          (b) Conditions of disclosure.-- No agency shall disclose any
       record which is contained in a system of records by any means of
       communication to any person, or to another agency, except pursuant
       to a written request by, or with the prior written consent of, the
       individual to whom the record pertains, unless disclosure of the
       record would be--
 
                                  * * * *
 
          (3) for a routine use as defined in subsection (a)(7) of this
       section and described under subsection (e)(4)(D) of this
       section(.)
 
 
    /7/ Section 7117(a)(1) of the Statute provides as follows:
 
          Sec. 7117.  Duty to bargain in good faith;  compelling need;
       duty to consult
 
          (a)(1) Subject to paragraph (2) of this subsection, the duty to
       bargain in good faith shall, to the extent not inconsistent with
       any Federal law or any Government-wide rule or regulation, extend
       to matters which are the subject of any rule or regulation only if
       the rule or regulation is not a Government-wide rule or
       regulation.
 
 
    /8/ Cf. Federal Personnel Manual, chapter 335, subchapter 1-4,
 Requirement 5;  FPM Supplement 335-1, subchapter S5-2.c.
 (Administration of an agency's promotion system must ensure protection
 of an individual's privacy rights and an employee's rating or score must
 not be made known to anyone who does not have an official need to know
 the score.)
 
 
    /9/ The Authority also notes that the proposal at issue herein does
 not provide, as a condition precedent to disclosure, for the deletion
 from any records to be disclosed of any and all information pertaining
 to persons other than the person making the request for the records,
 i.e., "sanitizing" the records.  Such a proposal would present a
 different set of issues which need not be addressed in this section.
 See National Treasury Employees Union and Department of the Treasury,
 U.S. Customs Service, 9 FLRA No. 138 (1982) at 5 of decision.  See also
 Bureau of Alcohol, Tobacco and Firearms, National Office and Western
 Region, San Francisco, California and National Treasury Employees Union,
 8 FLRA No. 10