32:0062(8)NG - - NTEU Chapter 237 and Agriculture, Food and Nutrition Service, Midwest Region - - 1988 FLRAdec NG - - v32 p62



[ v32 p62 ]
32:0062(8)NG
The decision of the Authority follows:


32 FLRA No. 8

UNITED STATES OF AMERICA
BEFORE THE
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES
UNION, CHAPTER 237
Union

and 

U.S. DEPARTMENT OF
AGRICULTURE, FOOD AND
NUTRITION SERVICE
MIDWEST REGION
Agency

Case No. 0-NG-1470

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). The case presents issues concerning the negotiability of four provisions of a contract which were agreed to locally but disapproved during review of the agreement by the Agency head pursuant to section 7114(c) of the Statute.(1)

We conclude that: (1) the disputed portion of Provision 1 is outside the duty to bargain because it conflicts with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B), and it does not constitute an appropriate arrangement; (2) the disputed portion of Provision 7 is outside the duty to bargain because it conflicts with management's right to take disciplinary action under section 7106(a)(2)(A); and (3) Provisions 9 and 10 are within the duty to bargain. Accordingly, the Agency must rescind its disapproval of Provisions 9 and 10, and we will dismiss the Union's petition for review concerning Provisions 1 and 7.

II. Provision 1

Article 11, Application of Appraisal System Principles, Section 4

When rating employees or otherwise applying performance standards, the Employer shall consider factors which are beyond the control of the employee and will not hold employees responsible for meeting levels of performance affected thereby. [Only the underlined portion is in dispute.]

A. Positions of the Parties

The Agency contends that under Authority precedent, the disputed portion of Provision 1 is nonnegotiable because it (1) conflicts with management's rights to direct employees and assign work, and (2) is not an appropriate arrangement under section 7106(b)(3) of the Statute.

The Union contends that Provision 1 is negotiable because it is simply a restatement of the law under the Civil Service Reform Act which prohibits agency employers from acting arbitrarily. The Union argues that the provision: (1) embodies merit system principles requiring agencies to act reasonably in evaluating the performance of employees and the requirement of 5 U.S.C. º 4302 that a performance standard permit the accurate evaluation of job performance; (2) reflects the case law of the Merit Systems Protection Board (MSPB) which prohibits an agency from holding an employee responsible for factors beyond the employee's control; (3) is reasonable on its face; and (4) constitutes an appropriate arrangement for employees subject to adverse Agency action. The Union also argues that the Authority precedent cited by the Agency is either inapplicable to the provision in this case or is wrong because it ignores MSPB case law.

B. Analysis and Conclusions

We conclude that the disputed portion of Provision 1 is outside the duty to bargain because it (1) conflicts with management's rights to direct employees and assign work under sections 7106(a)(2)(A) and (B), and (2) does not constitute an appropriate arrangement under section 7106(b)(3).

The Union argues that the provision simply embodies the requirements of law and does not require the Agency to ignore employee performance. We disagree. We find that the provision is nonnegotiable because it imposes requirements which exceed those mandated by applicable law and regulation. See Newark Air Force Station and American Federation of Government Employees, Local 2221, 30 FLRA 616, 635 (1987).

Although the provision states that it concerns the application of standards, the provision precludes management from establishing standards which hold employees responsible to any degree when levels of performance are affected by matters beyond an employee's control. This restriction does not merely embody or implement the requirements of law. Instead, the provision precludes management from establishing performance standards which it is legally entitled to establish. See Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384 (1987) (Section 3.J.) (POPA), affirmed Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 30, 1988).

In POPA, 25 FLRA at 394, we found that a proposal which precluded consideration of, among other things, "matters not under the employee's control" was inconsistent with law. We found that the proposal did not merely embody the requirements of the Civil Service Reform Act. We recognized that Congress intended to provide agencies with flexibility in establishing standards and did not intend to produce rigid, mechanical standards which attempt to eliminate any subjective judgment. Id. at 393-94.

Contrary to the Union's argument, Provision 1 does not merely require management to consider matters outside the control of the employee in applying performance standards. The provision would prohibit the Agency from holding employees responsible for performance which has been affected by such matters. As a result, this provision would require that employees be absolved of accountability and responsibility for their work performance in situations where that performance has been affected by matters outside the employee's control. As such, the provision would prevent management from evaluating an employee's ability to adapt and perform their assignments in unforeseen circumstances. Therefore, Provision 1 conflicts with management's right to direct employees and assign work. See, for example, American Federation of Government Employees, AFL-CIO, Local 1409 and Department of the Army, U.S. Army Adjutant General Publications Center, Baltimore, Maryland, 28 FLRA 109 (1987); American Federation of Government Employees, Local 32 and Office of Personnel Management, 26 FLRA 612 (1987), petition for review filed as to other matters sub nom. OPM v. FLRA, No. 87-1268 (D.C. Cir. June 18, 1987); see also HHS v. FLRA, 791 F.2d 324, 327 (4th Cir. 1986), reversing National Federation of Federal Employees, Council of Consolidated SSA Locals and Department of Health and Human Services, Social Security Administration, 17 FLRA 657 (1985) (where the court held that management's rights to direct employees and assign work include the right to know which employees have the flexibility, the ability, and the motivation to respond promptly and accurately to change and new directions).

None of the MSPB cases cited by the Union supports the Union's argument that employees are not responsible for meeting performance levels whenever the employee's performance is affected by matters beyond the employee's control. Consequently, because the provision does not merely implement existing legal and regulatory requirements for the establishment of performance standards, the provision directly interferes with management's rights to direct employees and assign work.

Since Provision 1 directly interferes with management's rights to direct employees and assign work, it is nonnegotiable unless it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. We have held that management's determinations of the content of performance standards and the job requirements of employees do not adversely affect employees. See POPA, 25 FLRA at 396. Consequently, because Provision 1 concerns the content of performance standards and the job requirements of employees in relation to matters beyond an employee's control, the provision does not concern an arrangement for adversely affected employees within the meaning of section 7106(b)(3) of the Statute.

Finally, we disagree with the Union that the reasonableness of the provision is dispositive. As we recognized in POPA, 25 FLRA at 386, the reasonableness of a proposal does not determine whether or not it is negotiable. See NTEU v. FLRA, 767 F.2d 1315, 1317 (9th Cir. 1985) ("Nor is the reasonableness of these proposals the issue; to specify any criterion, however reasonable, is to invade management's exclusive statutory preserve.").

Accordingly, the disputed portion of Provision 1 is outside the duty to bargain.

III. Provision 7

Article 40, Disabled Employees

Employees temporarily unable to do their regularly assigned tasks due to medical reasons, as verified by medical certification, will be given other assignments where reasonably possible, so as to avoid losing compensation. If the employee refuses to accept another assignment, appropriate leave will be charged to the individual. [Only the underlined portion is in dispute.]

A. Positions of the Parties

The Agency contends that the last sentence of this provision is nonnegotiable because it infringes on management's rights to direct and discipline employees and to assign work. The Agency claims that the provision infringes on management's right to assign work because it would entitle an employee to sick leave, annual leave, or leave without pay when the employee refused to perform assigned work. The Agency also maintains that the disputed sentence would prevent management from charging an employee with being absent without leave (AWOL) when the employee does not report for duty due to medical reasons. The Agency argues that by preventing management from charging an employee with being AWOL, the provision prevents management from taking appropriate disciplinary action against the employee for refusing to perform assigned work.

The Union maintains that if management believes that the employee may reasonably be charged with being AWOL, then AWOL would be the "appropriate leave" under the provision. Thus, the Union claims that the provision does not infringe on any management rights.

B. Analysis and Conclusions

We conclude that the disputed sentence of Provision 7 conflicts with management's right to take disciplinary action under section 7106(a)(2)(A) of the Statute.

We find, contrary to the statement of the Union, that Provision 7 requires the Agency to grant leave to employees who fail to report for duty or refuse to perform assigned work. The term "leave" does not encompass AWOL. Federal Personnel Manual, chapter 630, subchapter 1-6. Therefore, the Union's statement that the provision does not preclude the Agency from charging an employee with being AWOL is inconsistent with the clear wording of the disputed provision.

Under Provision 7, an employee must be granted leave and could not be charged with being AWOL. By requiring the Agency to grant leave, the proposal requires the Agency to pprove the employee's absence from or refusal to perform work. As a result, the employee's failure to report for duty or refusal to perform assigned work could not be the basis for discipline. The disputed portion of Provision 7, therefore, conflicts with management's right to take disciplinary action and is outside the duty to bargain.(2) See National Federation of Federal Employees, Local 15 and U.S. Army Armament Munitions and Chemical Command, Rock Island Arsenal, Illinois, 19 FLRA 48 (1985).

IV. Provisions 9 and 10

Provision 9

Article 47, Disciplinary Actions, Section 5

A copy of the decision letter will be sent to the Union.

Provision 10

Article 48, Adverse Actions, Section 5

A copy of the decision letter will be sent to the Union.

A. Positions of the Parties

The Agency contends that since Provisions 9 and 10 require an unsanitized copy of adverse and disciplinary decisions to be provided to the Union, these provisions violate the Privacy Act, 5 U.S.C. º 552a. The Agency asserts that the Union has not: (1) qualified its demand by providing that all personal identifiers be removed, or sanitized, from the requested documents; (2) limited its information request to situations where the Union is acting as an employee's representative; and (3) provided any reason why it should receive a copy of such documents which might outweigh the personal privacy rights of employees mentioned in the requested documents. Finally, the Agency argues that the requested information is not necessary and relevant under section 7114(b)(4) of the Statute.

The Union maintains that the Statute, the Freedom of Information Act, and the Privacy Act have all been held to require unions to be provided with information more extensive than the decision letters involved in these provisions. The Union notes, in particular, that in Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 25 FLRA 1060 (1987) (AAFES), the Authority found that the agency was obligated under section 7114(b)(4) to furnish the union with data relating to the removal of two bargaining unit employees for theft. The Union points out that the Authority held that the disclosure of the information was not prohibited by the Privacy Act. The Union argues that the decision letters are relevant and necessary for its functions as an exclusive representative and that providing the letters does not significantly intrude on the personal privacy of bargaining unit employees. The Union also recognizes its obligation to control the dissemination of the information.

B. Analysis and Conclusions

The issue is whether the release of name-identified decision letters to the Union, which we view to be required under the wording of the provisions, is negotiable. The Agency argues that the release of name-identified decision letters is outside the duty to bargain because the release (1) is prohibited by Privacy Act; (2) would apply regardless of whether the Union represents the employee; and (3) has not been shown to be relevant and necessary under section 7114(b)(4) of the Statute. For the following reasons, we reject these arguments and conclude that Provisions 9 and 10 are negotiable.

The duty to bargain under the Statute extends to the release and disclosure of information concerning the conditions of employment of unit employees to the extent that the release or disclosure is not contrary to law or regulation. See Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO and Norfolk Naval Shipyard, 31 FLRA 131, 144 (1988). Clearly, the information concerning disciplinary and adverse actions concerns the conditions of employment of unit employees. In addition, we find that the release of the decision letters (1) is within the duty to bargain without regard to whether the information is relevant and necessary under section 7114(b)(4) or whether the Union represents the affected employee, and (2) does not conflict with the Privacy act.

In negotiability cases concerning the release of information, section 7114(b)(4) has been identified as a statutory "floor," not a "ceiling." National Treasury Employees Union and Department of Energy, 22 FLRA 131, 134 (1986). Section 7114(b)(4) establishes the minimum information which must be disclosed to a union. Nothing in section 7114(b)(4) prevents a union from negotiating with an agency for the release of information concerning the conditions of employment of unit employees beyond that which the union is entitled to under the Statute. Id. Thus, contrary to the Agency's argument, the information encompassed by Provisions 9 and 10 does not need to be relevant and necessary in order for the provisions to be negotiable.

We note, however, that the court in AFGE v. FLRA, 793 F.2d 1360, 1363-64 (D.C. Cir. 1986), concluded that all the data relating to the removal of two bargaining unit employees were clearly necessary for and relevant to the representational functions of the union. The court recognized that an exclusive representative has greater responsibilities than merely processing individual employee grievances. Id. at 1364. As the representative of all unit employees, the union must be provided with information germane to the administration of the collective bargaining agreement and to future negotiations. Id. The union institutionally must also have information that affects its role as exclusive representative in order to properly assess its representational responsibilities. Id. The court concluded that in view of these broad responsibilities, the fact that an individual employee who has been disciplined may decline union representation did not require a conclusion that the union was not entitled to the information concerning the disciplinary action. Id. at 1365.

Consistent with AFGE v. FLRA, we conclude that the fact that a unit employee may decline the representation of the Union in a disciplinary action does not mean that Provisions 9 and 10 are contrary to law. Accordingly, the Agency's argument that the Union is not entitled to the information because employees are given an opportunity to provide a copy of the decision letter to the Union if they request Union representation is rejected.

In AFGE v. FLRA, the court remanded the case to the Authority to consider whether the disclosure of all data relating to the removal of two unit employees for theft would conflict with the Privacy Act. In our decision on remand, we found that the release of the information was permitted under the exception to the Privacy Act's bar to the disclosure of personal information set forth in 5 U.S.C. º 552a(b)(2), relating to the Freedom of Information Act (FOIA). AAFES, 25 FLRA 1060.

The Privacy Act does not preclude disclosures required by the FOIA. 5 U.S.C. º 552a(b)(2). The FOIA provides that unless the disclosure of information would constitute a clearly unwarranted invasion of personal privacy, the information must be disclosed. 5 U.S.C. º 552(b)(6). In determining whether the disclosure of personal information would constitute a clearly unwarranted invasion of personal privacy, the employee's right to privacy must be balanced against the public interest in disclosure.

In unfair labor practice cases involving union requests for information under section 7114(b)(4), we have stated that in view of the Congressional findings in section 7101 that collective bargaining is in the public interest and safeguards that interest, release of information which is necessary for a union to perform its statutory functions promotes important public interests. For example, AAFES, 25 FLRA at 1062. In AAFES, we concluded that the public interest in the disclosure of all the data relating to the removal of two employees outweighed the invasion of privacy resulting from the disclosure. We stated that in order to perform its representational functions, the union must know the identities of the unit employees who have been removed and the basis for the removals. 25 FLRA at 1063. We also stated that the intrusion into the privacy of these individuals was minimized by the limited access to this information, which would be released to the union alone and for the limited purpose of performing its representational functions. We noted that there was no reason to believe that the identities of the employees who were removed would become generally known as a result of the release of the information. Id.

Based on our decision in AAFES, we find that the release of decision letters in removal actions is not barred by the Privacy Act. We find no basis to conclude otherwise for lesser disciplinary actions. Furthermore, the Union has specifically recognized its obligations as an exclusive representative in protecting this information from any wider dissemination than is necessary to perform its representational functions. Union's Statement of Position at 23-24. There is no reason to believe that the identities of disciplined employees will become generally known as a result of the release of this information. Accordingly, we find that the release of decision letters in disciplinary and adverse action cases is not barred by law.

It is clear that information in disciplinary and adverse action letters may be stigmatizing to the affected employee. However, the public interest in disclosure of this information to the Union is compelling. As the court recognized in AFGE v. FLRA, 793 F.2d at 1364, and as we recognized in AAFES, 25 FLRA at 1063, the representational functions of a union in connection with the discipline of unit employees promotes important public interests. For example, the exclusive representative serves to ensure that Federal agencies observe statutory, regulatory, and collective bargaining agreement procedures in disciplining and removing employees.

We find that the public's interest in ensuring that Federal agencies comply with their responsibilities in disciplining and removing employees outweighs an individual employee's privacy interests. As the U.S. Supreme Court noted in Cornelius v. Nutt, 472 U.S. 648 (1985), one of the central tasks and public purposes of the Civil Service Reform Act was to "[a]llow civil servants to be able to be hired and fired more easily, but for the right reasons." 472 U.S. at 662. (quoting S. Rep. No. 969, 95th Cong., 2d Sess. 4 (1978)). In our view, the Union's compelling interests in receiving this information are comparable to the compelling interests of exclusive representatives in receiving the names and home addresses of unit employees. For example, Department of Health and Human Services, Social Security Administration v. FLRA, 833 F.2d 1129, 1132-33 (4th Cir. 1987), affirming Department of Health and Human Services, Social Security Administration, 24 FLRA 543 (1986); Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, New York Region, 24 FLRA 583 (1986); Department of Health and Human Services, Social Security Administration, 24 FLRA 600 (1986).

The instant case is distinguishable from Department of Defense, Office of Dependents Schools and Overseas Education Association, 28 FLRA 871 (1987) (OEA). In OEA, an interest arbitrator directed that the parties' collective bargaining agreement contain a provision requiring the release to the union of name-identified performance ratings granted to all unit employees. In contrast to the instant case, the union's interest in name-identified performance ratings was not clearly established. As a result, we concluded in OEA that the provision was contrary to the Privacy Act because it made no allowances for instances where disclosure would be prohibited. 28 FLRA at 883.

On the record in this case, no such allowances are necessary. Release of the name-identified decision letters required by these provisions is not barred by the Privacy Act. Accordingly, Provisions 9 and 10 do not conflict with law and are within the duty to bargain.

V. Order

The Agency must rescind its disapproval of Provisions 9 and 10.(3) The Union's petition for review concerning Provisions 1 and 7 is dismissed.

Issued, Washington, D.C.,

____________________________
Jerry L. Calhoun, Chairman
Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Union has withdrawn its petition for review as to Provisions 2, 3, 4, 5, 6 and 8 and these provisions will not be considered further.

2. In view of this decision, it is unnecessary to address the Agency's other contentions