30:0852(97)NG - Merit Systems Protection Board, Professional Association and Merit Systems Protection Board, Washington, DC -- 1988 FLRAdec NG



[ v30 p852 ]
30:0852(97)NG
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 bar