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 INTERNAL REVENUE SERVICE, WASHINGTON, D.C., AND INTERNAL REVENUE SERVICE, OMAHA DISTRICT, OMAHA, NEBRASKA Respondents and NATIONAL TREASURY EMPLOYEES UNION AND NTEU, CHAPTER 3 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 Decision) 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 grievance: (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 obtained. 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 action. 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 information. 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. ORDER 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 posted. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute. 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: A. 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. B. 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) months. (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 B. 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 A. 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 roster. (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 PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: 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 functions regarding the selection process for the GS-12 Revenue Officer position for which Vacancy Announcement 85-53 was posted. WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their rights assured by the Statute. WE WILL, 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 functions regarding the selection process for the GS-12 Revenue Officer position for which Vacancy Announcement 85-53 was posted. (Agency or Acitivity) Dated: By: (Signature) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region VII, Federal Labor Relations Authority, whose address is: 535 16th Street, Suite 310, Denver, Colorado 80202 and whose telephone number is: (303) 837-5224.