30:0852(97)NG - Merit Systems Protection Board, Professional Association and Merit Systems Protection Board, Washington, DC -- 1988 FLRAdec NG
[ v30 p852 ]
The decision of the Authority follows:
30 FLRA NO. 97 30 FLRA 852 06 JAN 1988 MERIT SYSTEMS PROTECTION BOARD PROFESSIONAL ASSOCIATION Union and MERIT SYSTEMS PROTECTION BOARD WASHINGTON, D.C. Agency Case No. 0-NG-1333 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 five proposals. For the reasons more fully discussed below, we find Proposals 1, 2 and 4 to be negotiable and dismiss the petition for review of Proposals 3 and 5. II. Preliminary Matters After filing its Reply Brief, the Union submitted a letter withdrawing its appeal of a proposal identified in its Petition for Review as "item 4" and further described in the letter as "involving conflict of interest provisions." Thereafter, the Agency submitted a letter withdrawing its determination that Proposal 5 in its Statement of Position and further described in the letter as "concern(ing) a union observer on an awards committee," was nonnegotiable. Consequently, these two proposals are no longer in dispute and will not be considered further in this decision. III. Proposal 1 Article 5, Association Rights, Section 5.7. The Board will notify the Association of any formal study directly related to unit conditions of work unless the Board determines that such notification would adversely impact internal security or otherwise undermine the purpose of the study. A. Positions of the Parties The Agency characterizes Proposal 1 as "unduly vague and overbroad," making it "difficult" to ascertain what information the Union seeks. The Agency contends that, to the extent that the proposal seeks notice of a broad variety of managerial studies, it conflicts with management's right to confer and deliberate on a confidential basis. The Agency also asserts that the proposal violates section 7114(b)(4) of the Statute because it seeks information without any demonstration on an individual basis of the relevance and necessity for the particular information sought. The Union asserts that the proposal merely requests notice and identification of areas to be studied and does not seek negotiation or Union participation in the decision-making process. The Union also argues that section 7114(b)(4) does not limit the information the Agency may agree to furnish to the Union in a collective bargaining agreement. B. Analysis and Conclusion Contrary to the Agency's position, we do not find Proposal 1 vague or overbroad. The term "unit conditions of work" used in the proposal is synonymous, in our view, with "conditions of employment" as defined in section 7103(a)(14) of the Statute. Thus, the Agency has available both the statutory definition and Authority precedent to guide it in determining its obligations under the proposal. Furthermore, we find that the proposal is sufficiently self-limiting to negate the Agency's argument that it is an impermissible intrusion into the deliberative process. Contrary to the Agency's position, the Agency's obligation under this proposal would not extend to managerial explorations of possible areas of investigation. Rather, the proposal applies to "formal stud(ies)" only. Moreover, there is no obligation to notify the Union if such notification would affect internal security or would "otherwise undermine the purpose of the study." Further, the Union states that the proposal "merely requests notice and identification of the area to be studied." Reply Brief at 6. Finally, there is no basis in the record on which to conclude that the "notice and identification" would include information about [PAGE 2] the considerations leading to the conclusion that the study is necessary or appropriate or that the proposal would enable the Union to participate in the decision-making process. The Authority previously has held that proposals obligating management to notify the exclusive representative of studies concerning specific conditions of employment are within the duty to bargain. In American Federation of Government Employees, AFL - CIO, Local 3483 and Federal Home Loan Bank Board, New York District Office, 13 FLRA 446 (1983) (Proposal 3, section 9), the Authority found a proposal that the union be notified of all studies "bearing on performance appraisals" to be within the duty to bargain under section 7106(b)(2) because it "concern(ed) matters of a procedural nature." The Authority's finding in Federal Home Loan Bank Board relied principally on a prior case, American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217 (1981) (Proposal 4). The Authority in FDIC concluded that a proposal banning secret studies concerning performance appraisals dealt with procedural matters related to the development of a performance appraisal system. Because the proposal did not interfere with management's exercise of its rights, the proposal was held to be a negotiable procedure under section 7106(b)(2). The conclusion that proposals requiring disclosure of studies concerning performance appraisals are negotiable under section 7106(b)(2) was again followed in American Federation of Government Employees, AFL - CIO, General Committee of AFGE for SSA Locals and Social Security Administration, 23 FLRA 329 (1986) (Proposal 3), petition for enforcement filed as to other matters sub nom. FLRA v. Social Security Administration, No. 87-1118 (D.C. Cir. Mar. 9, 1987). Accordingly, we find that Proposal 1 in this case, requiring disclosure of "formal" studies "directly related to unit conditions of work," is negotiable under section 7106(b)(2) because it does not interfere with the Agency's exercise of its rights. The Agency's position that the proposal is nonnegotiable because it does not meet the requirements of section 7114(b)(4) also cannot be sustained. In National Treasury Employees Union and Department of Energy, 22 FLRA 131 (1986), the Authority found that section 7114(b)(4) created a statutory "floor" and not a "ceiling" on the type of information an agency may agree to release. The Authority stated that "nothing in section 7114(b)(4) prevents a union from negotiating with an agency for the disclosure of information concerning the conditions of employment of unit employees beyond what it is entitled to under the Statute," provided that the disclosure is otherwise not legally barred. Because the Agency here has failed to demonstrate that release of the information sought is prohibited by the Statute or other law, and for the above reasons, we find Proposal 1 to be negotiable. IV. Proposal 2 Article 14, Grievance Procedures Section 14.6(d). The Association shall be provided with copies of all grievances and decisions of pro se employees within the time frames set forth in this Article. A. Positions of the Parties The Agency asserts that Proposal 2 is nonnegotiable because it: (1) exceeds the scope of the Union's entitlement to information under section 7114(b)(4) of the Statute; and (2) may violate individual employees' rights under the Privacy Act of 1974, as amended. The Union contends that section 7114(b)(4) does not preclude negotiation over disclosing the type of information sought here. According to the Union, the release of such information to the exclusive representative is not barred by the Privacy Act. In support, the Union relies on National Treasury Employees Union and Department of Energy, 22 FLRA 131 (1986); American Federation of Government Employees v. FLRA, 793 F.2d 1360 (D.C. Cir. 1986); and American Federation of Government Employees, Local 1760 v. FLRA, 286 F.2d 554 (2d Cir. 1986). B. Analysis and Conclusion As we discussed at Proposal 1, section 7114(b)(4) imposes no limit on the information the Agency may agree to furnish to the exclusive representative under a collective bargaining agreement, provided that the information relates to working conditions within the bargaining unit and its disclosure is not prohibited by law. Here, the Union intends "grievances," as used in the proposal, to mean "contract grievances." Union Reply Brief at 9. The record also indicates that the Agency understands the proposal to concern those grievances filed by employees on their own behalf without Union participation under the negotiated grievance procedure. The Agency's understanding is consistent with the plain wording of the proposal, because the term "pro se" means "(f)or himself, in his own behalf(.)" Black's Law Dictionary 1099 (5th ed. 1979). Because the proposal calls for disclosure of information concerning grievances filed without Union participation under the negotiated procedure, we find that the information sought concerns conditions of employment. Release of the information sought by Proposal 2 is a negotiable matter, unless otherwise inconsistent with other laws, as is more fully explained in Department of Energy, 22 FLRA 131, discussed at Proposal 1. The Agency's position is that release of the information sought is barred by the Privacy Act (the Act). The Act generally prohibits disclosure of personal information about Federal employees without their consent. However, section (b)(2) of the Act, 5 U.S.C. 552a(b)(2), provides that the prohibition is inapplicable if disclosure of the information is required by the Freedom of Information Act (FOIA), 5 U.S.C. 552. Under Section 552(b)(6) of the FOIA, information contained in "personnel and medical files and similar files" may be withheld if disclosure of the information would be a "clearly unwarranted invasion of personal privacy." The Supreme Court held that the term "similar files," as used in exemption (b)(6), is to be interpreted broadly. Department of Air Force v. Rose, 425 U.S. 352, 372 (1976). "The common denominator in 'personnel and medical and similar files' is the personal quality of information in the file, the disclosure of which may constitute a clearly unwarranted invasion of personal privacy." Wine Hobby USA, Inc. v. U.S. Internal Revenue Service, 502 F.2d 133, 135 (3d Cir. 1974). See also Miami Herald Publishing Co. v. U.S. Small Business Administration, 670 F.2d 610, 615 (5th Cir. 1982). Thus, the criteria to be applied in determining whether or not information contained in "similar files," such as grievance files, may be disclosed are the same as those used in deciding whether the release of information in personnel and medical files is lawful. We have found that a decision on whether a request for release of information under section 7114(b)(4) of the Statute falls within exemption (b)(6) of the FOIA, and, therefore, may be released, involves a balancing test. The test requires that a balance be struck between the individual's right to privacy and the public's interest in having the information disclosed. Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788 (1986), petition for review filed sub nom. U.S. Department of Agriculture and the Farmers Home Administration Finance Office, St. Louis, Missouri v. FLRA, No. 86-2579 (8th Cir. Dec. 23, 1986). In that case, we applied the balancing test to a request for the names and home addresses of bargaining unit employees. We observed that striking the necessary balance requires taking into account the congressional finding, in section 7101 of the Statute, that collective bargaining is in the public interest and safeguards that interest. Because we found that the release of the names and home addresses was necessary for the union to exercise its statutory representational responsibilities and promoted important public interests, we held that the information sought was not exempt from disclosure under (b)(6) of the FOIA or (b)(2) of the Act. We again applied the balancing test to a union's request for all data relating to the removal for theft of two unit employees whom it had not been asked to represent in Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 25 FLRA 1060 (1987). In that case we found that the information sought was necessary and relevant to the union's representational responsibilities, noting, among other things, that the union "must . . . know the procedures followed and the policies implemented by management in bringing actions against employees." We observed that release of the information to the union served important public interests: "The release of this information to the unions will serve to ensure that Federal agencies observe statutory, regulatory, and collective bargaining agreement procedures in removing employees." We also found that the intrusion into the privacy of the former employees was minimized "by the limited access to this information, which will be released to the Union alone and for the limited purpose of performing its representational functions." Thus, we concluded that, on balance, the public interest in disclosure of the information sought outweighed the privacy concerns of the individuals involved. Therefore, disclosure of that information was not an unwarranted invasion of privacy within the meaning of exemption (b)(6) of the FOIA and was not prohibited by section (b)(2) of the Act. Based on AAFES, Fort Carson, we find that the Union's interest in protecting its own and its constituents' interests by being advised of contractual grievances presented by individuals under section 7121(b)(3)(B) of the Statute and of their resolution justifies the limited intrusion upon grievants' privacy rights. Moreover, the Union has pledged to protect the confidentiality of its unit members. Reply Brief at n.6. Consequently, we find that release to the Union of all grievances and decisions affecting employees who initiated grievances on their own behalf does not violate the FOIA or the Privacy Act. Proposal 2, therefore, is within the duty to bargain because it concerns conditions of employment and because release of the information sought by the proposal is not prohibited by law. See also Chamberlain v. Kurtz, 589 F.2d 827, 841-42 (5th Cir. 1979) (wherein the court found that release to a taxpayer of sanitized disciplinary reports concerning Internal Revenue Service employees was not barred by the (b)(6) exemption). V. Proposal 3 Analysis and Conclusion The text of Proposal 3, identified by the parties as Articles 14, 15, 22 and 22A, was submitted by the Union as four parts of Exhibit II attached to its Petition for Review. The Union's submission, however, appears to be a working copy of the proposed grievance procedure with handwritten revisions and comments. Some of the annotations indicate that certain parts of the grievance procedure are, or were, at impasse. Some of the handwritten notes are apparently revisions to the procedure, but are illegible on the copy of the proposal in the record. Under section 2424.4(a)(1) of our Rules and Regulations, a petition for review must contain a statement "setting forth the express language of the proposal sought to be negotiated as submitted to the agency(.)" Here, because of the condition of the document submitted, it is not possible to determine the precise language at issue. For example, it is not clear whether the notation that a part of the proposal is at impasse is intended to indicate that such part of the proposal was not, at the time of filing, part of the negotiability dispute. Moreover, in the absence of legible notations concerning other revised portions of the proposal, we cannot ascertain what those portions specifically provide. It appears, however, that the dispute centers on the inclusion of nonpreference eligible, excepted service employees within the coverage of the negotiated grievance procedure. To the extent that inclusion of such employees in the grievance procedure is at the core of the dispute, our decision in National Treasury Employees Union and Department of Health and Human Services, Region V, Chicago, Illinois, 25 FLRA 1110 (1987), petition for review filed sub nom. United States Department of Health and Human Services v. FLRA, No. 87-1595 (7th Cir. Apr. 13, 1987) is dispositive of the issue. There we held that including nonpreference eligible, excepted service employees within the coverage of a full scope negotiated grievance procedure was a negotiable matter. However, because the petition for review of Proposal 3 does not satisfy the requirements of section 2424.4(a) of our Rules and Regulations, it is dismissed. VI. Proposal 4 It is understood that the parties may engage in midterm bargaining and bargain supplemental chapter agreements, on matters not addressed in the National Agreement. A. Positions of the Parties Relying on the Authority's decision in Internal Revenue Service, 17 FLRA 731 (1985), the Agency argues that it is under no duty to bargain on proposals initiated by the Union during the term of the negotiated agreement. The Agency contends that since this proposal seeks to impose an obligation to bargain mid-term, the proposal is negotiable only at the Agency's election. Consequently, the Agency concludes that since it does not elect to bargain over the matter, the proposal is nonnegotiable. The Union contends that a reopener clause like the one in dispute here is within the bargaining obligation under the Statute. B. Analysis and Conclusion The decision on which the Agency relies, Internal Revenue Service, 17 FLRA 731 (1985), was set aside and remanded to the Authority by the District of Columbia Circuit Court of Appeals. National Treasury Employees Union v. FLRA, 810 F.2d 295 (D.C. Cir. 1987). In our decision on remand, Internal Revenue Service, 29 FLRA 162 (1987), application for enforcement filed sub nom. FLRA v. IRS, No. 87-1695 (D.C. Cir. Nov. 20, 1987) we reached the following conclusions: (W)e conclude that the duty to bargain in good faith imposed by the Statute requires an agency to bargain during the term of a collective bargaining agreement on negotiable union proposals concerning matters which are not contained in the agreement unless the union has waived its right to bargain about the subject matter involved. Such a waiver of bargaining rights may be established by (1) express agreement, or (2) bargaining history. Further, any such waiver must be clear and unmistakable, and our determination in this regard will be made on a case-by-case basis. (Footnote omitted. 29 FLRA at 166.) Under the holding in Internal Revenue Service, the Union's proposal reiterates a right the Union has under the Statute. Accordingly, the proposal is negotiable. National Treasury Employees Union and Internal Revenue Service, 3 FLRA 693 (1980) (Proposals II and III). VII. Proposal 5 If negotiations fail to achieve a settlement by the expiration date, provisions of this Agreement shall, consistent with applicable law, remain in full force and effect until a new Agreement becomes effective. A. Positions of the Parties The Agency argues that, because it has a statutory right not to bargain on nonmandatory subjects at the outset of negotiations, it is under no obligation to bind itself to adhere to provisions outside the required scope of bargaining after the agreement's expiration. The Union states that its proposal concerns the term of the parties' agreement. According to the Union, under this proposal, the duration of the agreement would be effective until it is superseded by a newly negotiated agreement and, consequently, the agreement's terms and conditions would remain in force until that event occurred. The Union claims that there is no statutory or regulatory limitation on the duration of a negotiated agreement, and that the duration of the agreement is a negotiable matter. B. Analysis and conclusion Contrary to the Union's position, we find that Proposal 5 does not concern the agreement's duration. Rather, the proposal seeks to bind the Agency to a course of conduct after the expiration of the agreement. The record indicates that the parties have agreed that the contract will be effective for a term of years. Upon expiration of the agreed upon period, in the absence of a superseding agreement, the parties would be obliged to adhere to all the terms of the old agreement until such time as the parties negotiated and agreed on a new one. Unlike an automatic renewal clause, neither party would have the authority to terminate unilaterally their obligations under the old accord. In fact, either party could contrive unilaterally to extend the terms of the prior agreement by engaging in lengthy negotiations. For these reasons, we find that the proposal does not have the effect suggested by the Union. The Union cites Department of the Army, Corpus Christi Army Depot. Corpus Christi, Texas, 16 FLRA 281 (1984) in support of its position. We do not find that that decision provides such support. The question of whether an agency is obligated to bargain over an indefinite extension of an agreement for the purpose of negotiating a new agreement was neither raised nor addressed by the Authority in that case. Nor were the obligations under such an extension examined. The Authority has previously addressed the question of what provisions of a negotiated agreement remain effective after the agreement's expiration. Provisions concerning matters over which an agency is required by the Statute to bargain continue to bind the agency after expiration of the agreement in the absence of an express agreement to the contrary or a modification of those provisions in a manner consistent with the Statute. Federal Aviation Administration, Northwest Mountain Region, Seattle, Washington, and Federal Aviation Administration, Washington, D.C., 14 FLRA 644, 647 (1984). However, neither party is required, upon an agreement's expiration, to continue adherence to provisions concerning matters which are negotiable only at the election of either party. That is, either party has the right unilaterally to discontinue the practice embodied in a provision which is negotiable only at the agency's election under section 7106(b)(1) of the Statute or which is outside the required scope of bargaining under the Statute. Federal Aviation Administration, 14 FLRA at 648. Proposal 5 would require continued adherence to agreement terms over which the Agency was obligated to bargain, a requirement already imposed on the Agency by the Statute. But the proposal would also bind the Agency to provisions covering permissive subjects of bargaining. The proposal, therefore, constitutes a waiver of the Agency's right to terminate unilaterally such provisions of the expired agreement. The Agency is not obligated to waive such a right but may elect to do so. Accordingly, because the Agency has chosen not to bargain over Proposal 5, it is nonnegotiable. VIII. Order The Agency must, upon request, or as otherwise agreed to by the parties, bargain concerning Proposals 1, 2 and 4. 1 The petition for review of Proposals 3 and 5 is dismissed. Issued, Washington, D.C., January 6, 1988. Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES Footnote 1 In finding these proposals to be negotiable, we make no judgment as to their merits.