26:0273(34)NG - AFGE Local 12 and Labor -- 1987 FLRAdec NG



[ v26 p273 ]
26:0273(34)NG
The decision of the Authority follows:


 26 FLRA No. 34
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 12, AFL-CIO
 Union
 
 and
 
 DEPARTMENT OF LABOR
 Agency
 
                                            Case No. 0-NG-1045
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and concerns the
 negotiability of eight proposals in connection with the implementation
 of Office of Personnel Management (OPM) regulations, 5 CFR Parts 339,
 432, 752, and 831.
 
    Those regulations focus on the proper collection and use of medical
 information and medical examinations for decision-making in all
 personnel actions including disability, retirement, personnel actions
 based on deficient performance, conduct or attendance, and reassignment
 of injured or other qualified handicapped employees requiring reasonable
 accommodation.  The regulations reflect an employee's obligation to
 provide evidence about claimed medical conditions when that employee
 requests that such information be taken into account in certain
 personnel actions.  For example, in situations in which a benefit or
 special treatment is being requested or some adverse personnel action
 against that employee is proposed, the regulations state what is
 required in order for the employee to raise a health concern.
 
                 II.  Preliminary Issue:  Duty to Bargain
 
    The Agency states that the Union submitted its proposals in response
 to the implementation of the revised OPM regulations.  The Agency argues
 that it has no duty to bargain on all eight of the proposals because the
 implementation of the OPM final regulations do not constitute a change
 in the conditions of employment of bargaining unit employees.  In the
 alternative, the Agency argues that the implementation of those
 regulations would not have a substantive impact on the conditions of
 employment of bargaining unit employees, and, thus the Agency is under
 no duty to bargain on the disputed proposals.  The Agency also contends
 that the subject matter of the proposals relate to matters contained in
 the parties' collective bargaining agreement and, therefore, it has no
 duty to bargain.  The Agency further asserts that there is no nexus
 between the proposals and the implementation of the OPM regulations to
 create a duty to bargain.
 
    When a union files a negotiability appeal under section 7105(a)(2)(E)
 of the Statute, section 7117(c) entitles it to a decision on the
 negotiability issues in the appeal.  The record in this case fails to
 provide a basis for substantiating these Agency assertions that it has
 no duty to bargain.  To the extent that there are factual issues in
 dispute between the parties concerning the duty to bargain in the
 specific circumstances of the case, such issues should be raised in
 other appropriate proceedings.  See American Federation of Government
 Employees, AFL-CIO, Local 2736 and Department of the Air Force,
 Headquarters, 379th Combat Support Group (SAC), Wurtsmith Air Force
 Base, Michigan, 14 FLRA 302, 306 n. 6 (1984).
 
                          III.  Proposals 1 and 2
 
                                Proposal 1
 
          The employee shall be given a negotiated form from DOL to
       release specific information from the physician of the employee's
       choice.  This form will specify the actual information required.
       Such information shall be treated in a confidential manner, and
       shared only with other physicians.
 
                                Proposal 2
 
          Medical documentation shall be evaluated by other physicians,
       not by the immediate supervisor or other lay people.
 
                        IV.  Position of the Agency
 
    The Agency contends that Proposals 1 and 2 violate its right to
 assign work under section 7106(a)(2)(B) of the Statute.  The Agency
 argues that the proposals seek to limit the receipt of medical
 information by a supervisor and, thus, are related to duties assigned to
 an employee.  In addition, the Agency contends that it has no duty to
 bargain on Proposal 2 because it does not concern the conditions of
 employment of bargaining unit employees.
 
    The Union did not file a reply brief in this case.
 
                        V.  Analysis and Conclusion
 
    Proposal 1, in relevant part, would require that medical information
 concerning an employee would be available only to other physicians.
 Proposal 2 does not allow the Agenty to assign a supervisor the task of
 evaluating medical documents.  Proposals which preclude management from
 assigning specific tasks to particular individuals, including management
 officials, interfere with management's right to assign work under
 section 7106(a)(2)(B) of the Statute.  See International Organization of
 Masters, Mates and Pilots and Panama Canal Commission, 13 FLRA 508, 526
 (1983);  Laborers' International Union of North America, AFL-CIO-CLC,
 Local 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy,
 California, 14 FLRA 686, 691-92 (1984);  National Association of
 Government Employees, AFL-CIO, Local R14-87 and Department of the Army
 and the Air Force, Kansas Army National Guard, 19 FLRA No. 50 (1985).
 
    Furthermore, the receipt of medical information would be withheld
 from supervisory personnel who must evaluate that information because of
 the review function included in their duties.  As such, the proposals
 impose a limitation on the assignment of work to supervisory personnel
 and other employees.  Thus, both proposals interfere with management's
 right to assign work under section 7106(a)(2)(B) of the Statute.
 
    In addition, insofar as the proposals apply to non-bargaining unit
 employees, they are not within the duty to bargain.  See National
 Federation of Federal Employees, Local 1300 and General Services
 Administration, 18 FLRA No. 97 (1985) (Section (g)), petition for review
 filed sub nom. National Federation of Federal Employees, Local 1300 v.
 FLRA, No. 85-1541 (D.C. Cir. Aug. 27, 1985).
 
                              VI.  Proposal 3
 
          No medical documentation shall be a part of an employee's
       personnel file, nor shall any medical documentation be shared with
       any other person or agency.
 
                        A.  Position of the Agency
 
    The Agency's position is that the content, retention and disposition
 of personnel records is controlled by regulations promulgated by the
 Office of Personnel Management (OPM), 5 CFR Section 293.304, which the
 Agency contends are Government-wide in effect.  The Agency also contends
 that the proposal is inconsistent with that regulation.  Furthermore,
 the Agency argues that the proposal is inconsistent with Federal
 Personnel Manual (FPM) Supplement 293-31.
 
                        B.  Analysis and Conclusion
 
    5 CFR Part 293, Subpart C (5 CFR Section 293.301-311) concerns the
 Official Personnel Folder (OPF) which an agency is required to maintain
 on each employee.  The OPF is the official repository of the records and
 reports of personnel actions effected during an employee's Federal
 service and the documents and papers required in connection with these
 actions.  See FPM Supplement 293-31, subchapter S5-5.  Subpart C applies
 to each executive department and independent establishment of the
 Federal Government, each corporation wholly owned or controlled by the
 United States, and with respect to positions subject to civil service
 rules and regulations, the legislative and judicial branches of the
 Federal Government.  Thus, we conclude that 5 CFR Part 293, Subpart C is
 a Government-wide regulation within the meaning of section 7117(a)(1).
 See National Treasury Employees Union, Chapter 6 and Internal Revenue
 Service, New Orleans District, 3 FLRA 747 (1980).
 
    According to 5 CFR Section 293.304, the OPF shall contain long-term
 records affecting the employee's status and service as required by OPM's
 instructions and as designated in FPM Supplement 293-31.  FP Supplement
 293-31, subchapter S1 states that FPM Chapter 293, subchapter 1 contains
 the complete list of records required to be maintained by agencies.
 Medical records are included in that list.  Furthermore, FPM Chapter
 293, subchapter 1 provides that medical lists are to be maintained as
 provided by FPM Chapter 339, subchapter 4 -- Filing, Use and Disposition
 of Medical Records.  This subchapter, in relevant part, provides that
 when an employee is transferred to another agency certain medical
 documentation would be received by that agency.  Hence, it is clear that
 an agency must maintain and submit certain medical documentation
 concerning an employee to the transferring agency.
 
    Proposal 3 would not allow any medical documentation to be shared
 with any other person or agency.  Therefore, the proposal would prevent
 the Agency from complying with 5 CFR Part 293, Subpart C, a
 Government-wide regulation, which incorporates by reference the
 requirements of FPM Supplement 293-31.  Accordingly, we conclude that
 Proposal 3 is inconsistent with 5 CFR Part 293, Subpart C and FPM
 Supplement 293-31, and is outside the duty to bargain under section
 7117(a)(1) of the Statute.
 
                          VII.  Proposals 4 and 5
 
                                Proposal 4
 
          The Union will receive notice of any requests made by the
       Department of Labor for medical documentation, providing the
       employees name, title, work station, and reason for request.
 
                                Proposal 5
 
          The union will receive notice of all medical examinations
       required or offered by the Department of Labor, providing the name
       of the employee and the examining physician.
 
                        A.  Position of the Agency
 
    The Agency contends that the proposals are inconsistent with Federal
 law:  5 U.S.C. Section 552, the Freedom of Information Act (FOIA);  and
 5 U.S.C. Section 552a, the Privacy Act of 1974 (Privacy Act).
 
                        B.  Analysis and Conclusion
 
    Proposal 4 provides that the Union would receive notice of all
 requests made by the Agency for medical documentation from its
 employees.  It also requires that the Agency inform the Union of the
 employee's name, title, work station, and the reason for the Agency's
 request for the information.  Proposal 5 requires the Agency to produce
 the name of the employee and the name of the examining physician if it
 requires or offers an employee a medical examination.  Thus, the Union
 would be able to individually identify the specific employee when the
 Agency requests either medical documentation or when it requires or
 offers an employee a medical examination.
 
    The Privacy Act generally prohibits the disclosure of personal
 information about Federal employees without their consent.  Section
 (b)(2) of the Privacy Act provides that the prohibition against
 disclosure is not applicable if disclosure of the information is
 required under the Freedom of Information Act (FOIA).  Exemption (b)(6)
 of the FOIA provides that information contained in personnel files (as
 well as medical and other similar files) may be withheld if disclosure
 of the information would constitute a "clearly unwarranted invasion of
 personal privacy(.)"
 
    In determining whether material may be properly withheld in
 accordance with exemption (b)(6) of the FOIA, the Federal courts balance
 the individual's privacy interest and the possible adverse or harmful
 effects on the individual which could result from disclosure against the
 importance of the public interest in having the information made
 available.  See, for example, Department of the Air Force v. Rose, 425
 U.S. 352 (1976).  In this case, applying the balancing test developed by
 the Federal courts in cases concerning the (b)(6) exemption to the FOIA,
 we will weigh the public interest which would be served by providing the
 Union with the information requested in these two proposals against the
 employees' interest in privacy.
 
    Proposal 4 would identify the individual employee from whom the
 Agency requests medical documentation.  It would require the Agency to
 state its reason for requesting the medical documentation.  In those
 circumstances, an employee who is suspected of alcoholism or believed to
 suffer from an emotional disorder, for example, would suffer a high
 degree of intrusion into his personal privacy simply by the disclosure
 of the Agency's investigation.  Similarly, Proposal 5 would require the
 Agency to notify the Union when a medical examination is required or
 offered to an employee.  In this regard, if an employee is required to
 undergo a psychiatric examination the Union would be no notified.
 Therefore, we conclude that Proposal 5 would result in a clear invasion
 of employees' personal privacy.
 
    The next question is whether the invasion of personal privacy is
 clearly unwarranted.  To decide this question, it is necessary to
 determine whether the disclosure would harm the individual's privacy
 interests more than it would benefit the public.  In this case, the
 record does not disclose, nor can we discern any public benefit that
 would result if the Union obtained this information.  Independent of the
 record we also cannot discern any public interest in disclosure of such
 information to the Union.
 
    We conclude in this case that the balance favors the employees'
 strong privacy interest, and that disclosure of the information would be
 a clearly unwarranted invasion of that privacy within the meaning of
 exemption (b)(6) of the FOIA.  The Privacy Act therefore bars the
 release of information proposed by the Union.  Thus, Proposals 4 and 5
 are inconsistent with the Privacy Act, and are outside the duty to
 bargain under section 7117(a)(2) of the Statute.
 
                             VIII.  Proposal 6
 
          No agency shall impose any leave restrictions on any employee,
       except as provided elsewhere in the DOL-Local 12 Agreement.
 
                        A.  Position of the Agency
 
    The Agency does not contend that this proposal is nonnegotiable but
 only that it has no duty to bargain over it.  Since we previously
 analyzed this argument in Section II it will not be considered here.
 
                        B.  Analysis and Conclusion
 
    This proposal prohibits the Agency from imposing any leave
 restrictions except as otherwise provided in the parties' collective
 bargaining agreement.  The Union, however, did not submit a copy of the
 pertinent portions of that agreement in this case.  Thus, without
 knowledge of the nature and extent of the leave restrictions contained
 in the parties' agreement we cannot establish whether this proposal is
 negotiable.
 
    It is well established that the parties bear the burden of creating a
 record upon which the Authority can make a negotiability determination.
 National Federation of Federal Employees, Local 1167 v. Federal Labor
 Relations Authority, 681 F.2d 886, 891 (D.C. Cir. 1982), aff'g National
 Federation of Federation Employees, Local 1167 and Department of the Air
 Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air
 Force Base, Florida, 6 FLRA 574 (1981).  See also American Federation of
 Government Employees, Local 12, AFL-CIO and Department of Labor, 17 FLRA
 550 (1985).  The Union in this case has not satisfied its burden of
 creating a record upon which the Authority can make a negotiability
 determination with respect to Proposal 6.  Because this proposal does
 not set forth sufficient information to enable us to determine whether
 it is within the duty to bargain, the petition for review as to the
 proposal must be dismissed.
 
                              IX.  Proposal 7
 
          Any time medical documentation is requested/required the
       following procedure shall be used.
 
          a.  The employee shall be informed in writing of reasons.
 
          b.  The employee shall be informed in writing of the specific
       document required, i.e., which parts of 339.102a-j.
 
          c.  The employee shall be provided the approved medical
       protocols referred to in 339.302c.
 
          d.  The medical documentation shall go to the physician
       designated by the agency per 339.302b, not to the agency
       management.
 
          e.  Any documentation supplied to, or developed by, the
       designated physician shall be shared with the employee.
 
          f.  The physician shall only report to the supervisor the
       medical conclusions, i.e., whether there is a medical
       justification for the relief sought by the employee.
 
                        A.  Position of the Agency
 
    The Agency does not argue that sections a, b, c, and e of Proposal 7
 are nonnegotiable.  It argues only that it has no duty to bargain over
 them.  Since we previously dealt with this argument in Section II of
 this decision we will not consider it here.  The Agency does contend
 that sections d and f are inconsistent with management's right to assign
 work under section 7106(a)(2)(B) of the Statute.
 
                        B.  Analysis and Conclusion
 
    Section a requires the Agency to inform the employee in writing of
 its reason for requesting or requiring medical documentation.  Section b
 requires the Agency to inform the employee of the specific medical
 documentation required.  Section c requires the Agency to provide the
 employee with a copy of the approved medical evaluation protocol.  These
 sections concern only providing certain information to an employee.  In
 fact, consistent with section a of this proposal, 5 CFR part 339,
 Subpart B Section 339.302(a) requires that the applicant or employee be
 informed in writing of an agency's reasons when it orders or offers a
 medical examination and the consequences of failure to cooperate.  As
 the Agency has provided no basis for concluding otherwise, we find that
 these sections concern conditions of employment and are within the duty
 to bargain under the Statute.  The record in this case does not disclose
 any reason to decide otherwise.
 
    Section e grants an employee the right to receive medical
 documentation supplied to or developed by the designated physician
 concerning that employee.  5 CFR Section 294.106(d), a Government-wide
 regulation, /1/ prohibits an agency from disclosing medical information
 "concerning a mental or other condition of such a nature that a prudent
 physician would hesitate to inform a person suffering from it of its
 exact nature and probable outcome(.)" Section e is clearly inconsistent
 with this regulation by providing an employee total access, regardless
 of its nature, to their own medical documentation.  As such, Section e
 is inconsistent with a Government-wide regulation and is outside the
 duty to bargain under section 7117(a) of the Statute.
 
    Section d requires that medical documentation be forwarded to the
 physician designated by the Agency but not to Agency management.
 Section f requires the physician to report his/her medical conclusion to
 the supervisor only.  The Authority held in American Federation of
 Government Employees, AFL-CIO, Local 32 and Office of Personnel
 Management, 14 FLRA 278 (1984), aff'd sub nom. Local 32, AFGE v. FLRA,
 762 F.2d 138 (D.C. Cir. 1985) that a proposal which prescribed specific
 duties which non-bargaining unit personnel in the agency would perform
 directly interfered with management's right to assign work under section
 7106(a)(2)(B).  Similarly, sections d and f concern the assignment of
 work to non-bargaining unit personnel and interfere with management's
 right to assign work under section 7106(a)(2)(B).  Secondly, sections d
 and f concern management action with respect to persons outside the
 bargaining unit and not conditions of employment of unit employees
 within the meaning of section 7103(a)(14) of the Statute.
 
    In conclusion, we find that sections a, b, and c are within the duty
 to bargain.  We also find that Sections d and f do not concern the
 conditions of employment of bargaining unit employees and that these
 sections interfere with management's right to assign work.  Section e is
 inconsistent with a Government-wide regulation under section 7117(a)(1).
  Thus, sections d, e and f are outside the duty to bargain.
 
                              X.  Proposal 8
 
          Within sixty (60) days of the signing of this agreement, the
       Department and Local 12 shall meet to negotiate a standard medical
       reporting form to satisfy the criteria in 7f above.
 
                        A.  Position of the Agency
 
    The Agency contends that the proposal interferes with management's
 right to assign work under section 7106(a)(2)(B) of the Statute.
 
                        B.  Analysis and Conclusion
 
    The proposal would require the Agency and the Union to specifically
 negotiate over a standard medical reporting form for use in conjunction
 with Proposal 7f.  We have concluded that Proposal 7f concerns
 management action with respect to persons outside the bargaining unit
 and, thus, does not concern the conditions of employment of unit
 employees within the meaning of section 7103(a)(14) of the Statute.  In
 addition, we have concluded that Proposal 7f is inconsistent with
 management's right to assign work.  Therefore, to the extent that
 Proposal 8 would attempt to negotiate over the restrictions set out in
 Proposal 7f, it also is outside the duty to bargain.
 
                                XI.