25:0181(13)CA - IRS, Washington, DC and IRS, Omaha District, Omaha, NE and NTEU and NTEU Chapter 3 -- 1987 FLRAdec CA

[ v25 p181 ]
The decision of the Authority follows:

 25 FLRA No. 13
 Charging Party
                                            Case No. 7-CA-60098
                            DECISION AND ORDER
                         I.  Statement of the Case
    This unfair labor practice case is before the Authority, in
 accordance with section 2429.1(a) of the Authority's Rules and
 Regulations, based upon a stipulation entered into by the Respondents,
 the Charging Party and the General Counsel.  The case involves an
 alleged violation of section 7116(a)(1), (5) and (8) of the Federal
 Service Labor-Management Relations Statute (the Statute) when the
 Respondents refused to provide information the Charging Party had
 requested pursuant to section 7114(b)(4) of the Statute.
         II.  Background (Footnotes appear in the Appendix to this
    At all times relevant the National Treasury Employees Union (NTEU or
 Union) held exclusive representation for a consolidated bargaining unit
 which included employees in the Omaha District of the Internal Revenue
 Service (IRS or Agency).  A collective bargaining agreement (NORD II),
 covering the consolidated unit, had become effective on May 27, 1985.
    By letter dated October 4, 1985, the Union filed a grievance,
 pursuant to the negotiated grievance procedure in NORD II, concerning a
 recent promotion action (Vacancy Announcement 85-53) for a GS-12 Revenue
 Agent position in the IRS Lincoln, Nebraska, office.  In the letter the
 Union indicated that it would be requesting "various documents" in
 connection with the grievance.  The Union steward who filed the
 grievance had been a nonselected candidate on the Best Qualified (BQ)
 list in the promotion action being grieved.  By letter dated Ocotber 9
 the Union requested the following documents in connection with the
          (1) the promotion appraisal used for Michael Kinnison, the
       selected candidate;
          (2) a copy of the annual appraisal for Michael Kinnison;  and
          (3) copies of documents (workload reviews, on the job visits,
       etc.) maintained on Michael Kinnison which were used to justify
       any changes made to the annual appraisal for purposes of the
       promotion appraisal.
    Pursuant to Article 12 of NORD II the annual appraisal is a
 performance appraisal made annually as a basis for personnel actions.
 Under that same article, a "revalidated" appraisal is one that is more
 than 6 months old that has been determined by the Agency to reflect
 accurately an employee's performance at the time of revalidation.
 Neither NORD II nor the parties define the term "promotion appraisal."
 However, it appears that the parties use the term to mean a performance
 appraisal used in connection with a promotion action.  The term appears
 to include, but is not limited to, the annual appraisal and a
 "revalidated" appraisal.
    In response to the Union's request, the Agency provided a copy of the
 promotion appraisal used in rating Mr. Kinnison for the promotion action
 being grieved.  However, it refused to provide the other items requested
 citing Mr. Kinnison's right to privacy.  On or about November 1, 1985,
 the Union reiterated its request for the documents which it had been
 denied arguing that under section 7114(b) of the Statute the Agency was
 obliged to furnish information necessary to the processing of a
 grievance.  By memorandum dated November 14, 1985, the Union made a
 final request for the document.  In support, it stated:
          The information . . . is needed so we can determine whether a
       grievance is necessary.  It is our understanding that in
       accordance with Articles 13 & 12 of NORD II an employee's annual
       evaluation is to be used in promotion actions.  Mr. Kinnison was
       given an annual evaluation subsequent to the effective date of
       NORD II, yet that evaluation was not used in the promotion action.
        Therefore, it is necessary for the union to compare Mr.
       Kinnison's annual evaluation to the one used in the promotion
       action to determine if the changes affected the rank order of the
       BQ list.  Additionally we need the evaluation, case reviews etc.
       in his performance folder which reflects the basis for the
       evaluation changes.
    The Agency again denied the request stating that the documents
 requested were not part of the promotion package and, in accordance with
 the Privacy Act, could not be released from Mr. Kinnison's Employee
 Performance File without his written permission which had not been
    Article 13, section 4, of NORD II addresses how the annual appraisal
 is to be used in connection with promotion actions.  /1/ It provides
 that an annual appraisal may be revalidated for use as a promotion
 appraisal if it is more than 6 months old.  The parties have stipulated
 that none of the candidates for the disputed promotion, other than Mr.
 Kinnison, were reappraised specifically for the promotion action in lieu
 of using an existing, current annual appraisal.
    The parties also stipulate that the information sought exists, is
 normally maintained by the IRS in the regular course of business and is
 reasonably available.  Moreover, they agree that it does not constitute
 guidance, advice, counsel, or training for management officials or
 supervisors relating to collective bargaining.
                       III.  Position of the Parties
    The Respondents argue that the information requested and which they
 refused to provide is not relevant and necessary for full and proper
 discussion, understanding, and negotiation of subjects within the scope
 of collective bargaining.  In support they assert that, of the documents
 originally requested by the Union, they provided the only one to which
 the Union was entitled under NORD II and which was relevant to its
 grievance, i.e., the promotion appraisal of Mr. Kinnison relied upon in
 the promotion action.  As to the other documents they contend that under
 the terms of NORD II, they had no relevance to the Union's grievance.
 /2/ In this regard, they assert that these documents (1) are not among
 those which Article 13, section 13, requires be made available to the
 Union in the processing of grievances related to promotion actions, and
 (2) have no relevance to the circumstances specified in section 14 in
 which relief may be provided an employee aggrieved by a promotion
    The Respondents also argue that disclosure of the denied documents is
 prohibited by the Privacy Act.  In support, they contend that Mr.
 Kinnison's right to privacy outweighs the Union's need for the
    The Union asserts that the information requested was relevant and
 necessary to its ability to the processing of a grievance.  In support,
 it contends that the grievance involved the issue of the "new" appraisal
 which had been given selected candidate Kinnison in lieu of his existing
 annual appraisal and its effect on his ranking relative to that of
 other, non-selected, candidates such as the grievant.  Additionally, it
 disputes the Respondents' contention that the Privacy Act prohibited
 disclosure of the documents.  It argues, contrary to the Respondents,
 that under the circumstances the documents came within two of the
 exceptions provided under the Privacy Act to its general prohibition on
 the disclosure of records -- specifically those found at 5 U.S.C.
 Section 552a(b)(2) and (3).  Consequently, it argues that Respondents'
 refusal to provide the requested documents violated section 7116(a)(1),
 (5) and (8) of the Statute.
    The General Counsel's arguments are not materially different from
 those presented by the Union and will not be repeated here.
                               IV.  Analysis
    A.  The Documents Denied Are Necessary to the Union's
 Representational Functions
    The Union requested the disputed documents in the context of its
 representational functions -- specifically the processing of a grievance
 over a promotion action.  We find that the record establishes that the
 documents were necessary to enable the Union to determine whether the
 selection process involved in the promotion was fair and in accordance
 with established procedures.  Based on its interpretation of the
 contract, it questioned the use of a performance appraisal other than
 Mr. Kinnison's regular, annual appraisal in the promotion action.  It
 sought to determine whether use of his regular, annual appraisal would
 have produced a different result in terms of the composition of the BQ
 list.  Additionally, it sought to determine whether any differences
 between that appraisal and the one actually used were justified.
    The Respondents contend that they have no obligation to provide the
 disputed documents because they do not relate to an issue or remedy
 cognizable under the negotiated grievance procedure and, consequently,
 were not relevant or necessary to a valid grievance.  Questions over the
 interpretation of a contract, including whether something is grievable,
 are issues legitimately resolved through the negotiated grievance
 procedure.  Therefore, an assertion that a grievance is nongrievable
 does not negate an agency's obligation under section 7114(b)(4) to
 provide information relating to that grievance.  U.S. Customs Service,
 Region VII, Los Angeles, California, 10 FLRA 251 (1982).
    B.  Dislcosure of the Documents Would Not Violate the Privacy Act
    We conclude that the disputed documents fall within two of the
 exceptions to the Privacy Act's general prohibition on the disclosure of
 employee records -- specifically those found at 5 U.S.C. Section
 552a(b)(2) and (3).
    1.  The Exception Found at 5 U.S.C. Section 552a(b)(2)
    This exception permits disclosure of information which would be
 available under the Freedom of Information Act (FOIA).  Under the FOIA
 requested information must be disclosed unless it falls within one of
 the enumerated exemptions.  The exemption pertinent to this case is that
 found at 5 U.S.C. Section 552(b)(6) which authorizes withholding
 information in" personnel and medical files and similar files the
 disclosure of which would constitute a clearly unwarranted invasion of
 personal privacy(.)"
    In making a determination as to whether requested information falls
 within exemption (b)( 6), it is necessary to balance the competing
 interests of an employee's privacy against the public interest in
 disclosure.  See Farmers Home Administration Finance Office, St. Louis,
 Missouri, 23 FLRA No. 101 (1986).  In balancing Michael Kinnison's
 privacy interest against the Union's need for the documents in the
 circumstances of this case, we note that there has been no allegation,
 nor does the record reflect, that the documents sought contain any
 "stigmatizing" information.  See Celmins v. United States Department of
 the Treasury, 457 F. Supp. 13, 15-16 (D.D.C. 1977).  There is no
 indication or reason to believe that the contents of the documents would
 become generally known.  Based on the circumstances, we conclude that
 the intrusion into Mr. Kinnison's privacy is limited.
    On the other hand, as noted above, the documents are necessary and
 relevant to the processing of the grievance which had been filed over
 the promotion action in which Mr. Kinnison was the successful candidate.
  Moreover, disclosure of the documents serves two important public
 interests:  it insures that the Government fairly follows its own merit
 promotion procedures and encourages the use of non-disruptive grievance
 procedures.  See Celmins v. United States Department of the Treasury,
 supra. 457 F. Supp. at 16.  We find, on balance, that disclosure of the
 disputed documents does not constitute a clearly unwarranted invasion of
 Mr. Kinnison's privacy.
    2.  The Exception Found at 5 U.S.C. Section 552a(b)(3)
    This exception permits disclosure of information for a "routine use."
 As noted in Farmers Home Administration, the Office of Personnel
 Management (OPM) has determined that a "routine use" of personnel
 records is disclosure to "officials of labor organizations . . . when
 relevant and necessary to their duties as exclusive representation(.)"
 The Respondents, here, acknowledge that the Agency has made the
 disclosure of personnel records to the Union pursuant to a 5 U.S.C.
 Section 7114 request a routine use.  /3/ However, they contend that the
 same balancing test applicable to 5 U.S.C. Section 552(b)(6) must be met
 before disclosure of such material may actually be made.
    As discussed earlier, we conclude that disclosure of the disputed
 documents is necessary within the meaning of section 7114(b)(4) of the
 Statute for the Union to discharge its statutory obligations.
 Consistent with that conclusion, we find that disclosure of the
 information sought falls within the routine use established by OPM and
 the IRS.  Even assuming, for the sake of argument, that the same
 balancing test required for disclosure pursuant to 5 U.S.C. Section
 552a(b)(2) applies to disclosure under 5 U.S.C. Section 552a(b)(3), /4/
 we conclude, for the same reasons as set forth above in Section
 IV(B)(1), that on balance disclosure is warranted.
                              V.  Conclusion
    Based on the stipulated record, the analysis of the facts and the
 precedent cited above, we conclude that the Respondents violated section
 7116(a)(1), (5) and (8) of the Statute by failing to provide information
 to the Union as required under section 7113(b)(4) of the Statute.  In
 this regard, we find that the documents sought are necessary for the
 Union to fulfill its duties under the Statute and that disclosure of
 them is not prohibited by the Privacy Act.
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute, it is ordered that the Internal Revenue Service and its Omaha
 District shall:
    1.  Cease and desist from:
    (a) Refusing to provide the National Treasury Employees Union and
 NTEU Chapter 3, the exclusive representative of a unit of its employees,
 with copies of documents which are necessary for full and proper
 performance by the National Treasury Employees Union and NTEU Chapter 3
 of its representational function regarding the selection process for the
 GS-12 Revenue Officer position for which Vacancy Announcement 85-53 was
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
    (a) Upon request by the National Treasury Employees Union and NTEU
 Chapter 3, the exclusive representative of a unit of its employees,
 furnish it with copies of the documents, previously denied, which are
 necessary to its representational function regarding the selection
 process for the GS-12 Revenue Officer position for which Vacancy
 Announcement 85-53 was posted.
    (b) Post at all of its facilities in its Omaha District where
 bargaining unit employees represented by the National Treasury Employees
 Union and NTEU Chapter 3 are located, 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 District 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, Region VII, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply.
    Issued, Washington, D.C. January 14, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier, III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  FOOTNOTES$ ---------------
    (1) Article 13, section 4, of NORD II provides in relevant part:
          Each employee who has applied for and meets the basic
       eligibility requirements and any selective placement factors
       previously announced for a vacancy shall be ranked as described
       below, using Form 6850, Job Element Appraisal, as prepared in
       accordance with the provisions of Article 12 of this Agreement.
          In promotion actions, a Form 6850 may be used for a period of
       six (6) months.  When the appraisal is more than six (6) months
       old, on or before the date of a vacancy announcement, it may be
       revalidated if accurate, and be used for an additional six (6)
    (Article 12, section 5, of NORD II states that annual appraisal will
 be made on Form 6850.)
    (2) The Respondents rely on sections 13 and 14 of Article 13 which
 provide in relevant part:
                                ARTICLE 13
                    Promotion/Other Competitive Actions
                                Section 13
          1.  In the processing of grievances related to actions taken
       under the terms of this article, a steward representing an
       employee will, upon request, be furnished the "evaluative
       material" generated or utilized by the ranking official in
       assessing the qualifications of the eligible candidates in regard
       to a grieved promotion action, subject to the following criteria:
          (a) The aforementioned material consisting of the panel's
       evaluation, supervisor appraisals, and records related to
       experience, training and awards will be provided to the grieving
       employee's steward subject to the Employer's legal responsibility
       and obligations to protect the privacy of the eligible
       candidate(s) involved in the promotion in question:
          (b) If the grievance is confined to "best qualified"
       candidates, only the evaluative material of such candidates will
       be provided;
          (c) If the grievance involves "highly qualified" candidates,
       only the evaluative material of all highly qualified and best
       qualified candidates will be provided;  and
          (d) If the grievance involves questions of basic eligibles,
       evaluative material of all candidates will be provided.
          2.  Challenges to the Employer's action in the implementation
       of subsection B.1 above, if any, may be grieved and finally
       resolved by an arbitrator making as "in camera" inspection of the
       entire promotion file to either confirm the material provided or
       to amend same, subject to the "privacy" protection cited in
       subsection B.1.a. above.
                                Section 14
          In the absence of an adjustment satisfactory to an aggrieved
       employee of any merit promotion action involving an employee of
       the unit which is determined to have been in violation of the
       provisions of this Agreement, and which has had the effect of
       denying the grievant proper consideration, corrective action will
       be taken as follows:
          1.  Employees on the best qualified list who did not receive a
       fair and an objective rating from the ranking panel, ranking
       official or immediate supervisor shall be entitled to priority
       consideration if their rank order on the best qualified list is
       improved as a result of an increased score.
          2.  If an employee was improperly or erroneously omitted from a
       best qualified list, the employee shall receive priority
       consideration for the next appropriate vacancy for which the
       employee is qualified.
          3.  If the employee was erroneously omitted from or improperly
       ranked on a roster created as a result of a roster announcement,
       but does not otherwise qualify for relief under subsection A.1. or
       2. above, the employee will be ranked in proper order on such a
    (3) Respondents' Brief at 13.  Also, 50 Fed. Reg. 29816, 19844-45
 (1985);  and 50 Fed. Reg. 49493 (1985).
    (4) See Andrews v. Veterans Administration, 613 F. Supp. 1404,
 1413-14 (D. Wyo. 1985).
                          NOTICE TO ALL EMPLOYEES
    WE WILL NOT refuse to provide the National Treasury Employees Union
 and NTEU Chapter 3, the exclusive representative of a unit of our
 employees with copies of documents which are necessary for full and
 proper performance by the National Treasury Employees Union and NTEU
 Chapter 3 of its representational func