[ 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. Order
The Agency must upon request, or as otherwise agreed to by the
parties, bargain concerning Proposals 7a, 7b, and 7c. /2/ The Union's
petition for review on Proposals 1, 2, 3, 4, 5, 6, 7d, 7e, 7f, and 8 is
dismissed.
Issued, Washington, D.C., March 18, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) See Overseas Education Association, Inc. and Department of
Defense, Office of Dependents Schools, 22 FLRA No. 34 (1986), petition
for review filed sub nom. Overseas Education Association, Inc., v. FLRA,
No. 86-1991 (D.C. Cir. Sept. 3, 1986).
(2) In finding these proposals within the duty to bargain the
Authority makes no judgment as to their merits.