38:1410(110)NG - - FEMT Council and Navy, Mare Island Naval Shipyard, Vallejo, CA - - 1991 FLRAdec NG - - v38 p1410



[ v38 p1410 ]
38:1410(110)NG
The decision of the Authority follows:


38 FLRA No. 110

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

FEDERAL EMPLOYEES METAL TRADES COUNCIL

(Union)

and

U.S. DEPARTMENT OF THE NAVY

MARE ISLAND NAVAL SHIPYARD

VALLEJO, CALIFORNIA

(Agency)

0-NG-1695

DECISION AND ORDER ON NEGOTIABILITY ISSUES

January 11, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns four provisions of a collective bargaining agreement that were disapproved by the Agency head in the course of review under section 7114(c) of the Statute. (1)

Provision 1 limits supervision of employees to "officially designated" supervisors. Provision 2 bans the use of details when there are adequate registers of candidates for the positions in question. Provision 3 requires the Agency to provide the Union with copies of any information relied on by the Agency in proposing disciplinary and adverse actions against unit employees, as well as copies of notices of proposed action and copies of the decisions. Provision 4 provides for arbitration, under the negotiated grievance procedure, of certain temporary employees' terminations for cause.

We find that Provision 1 is nonnegotiable because it directly interferes with the Agency's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B). Provision 2 is nonnegotiable because it excessively interferes with the Agency's rights under section 7106(a)(2)(A) to assign employees and under 7106(a)(2)(C) to select. We find that Provision 3, not including the requirement implicit in part A, section 2 that drug test results be disclosed to the Union without employees' prior written consent, and with the exception of Section 5.a and b of Part A, is negotiable. The requirement that drug test results be released without written consent is nonnegotiable because it violates applicable law. Sections 5.a and b violate the Privacy Act and are nonnegotiable. Provision 4 violates applicable law. Consequently, that provision is nonnegotiable.

II. Provision 1

Article 16, General Working Conditions

Section 1. The Employer agrees that in the interest of providing incentives and opportunities, only officially designated supervisors shall supervise employees in their work.

A. Positions of the Parties

The Agency asserts that Provision 1 interferes with the right to assign work under section 7106(a)(2)(B) of the Statute. The Agency argues that the provision "would prevent, for example, a second-line supervisor, who was not officially designated as the employee's supervisor in the supervisor's absence, from assigning work to a particular employee." Statement of Position at 3. Thus, the Agency argues that Provision 1 "interferes with the right to determine what work will be performed and by whom." Id.

The Union describes the objective of Provision 1 in the following manner:

The [provision] simply requires that, if a person is to supervise an employee, the person supervising must be designated as being a supervisor. Nothing in the [provision] implies that the supervisor be designated as the supervisor of a specific individual. The purpose is [to] avoid the problems of self-styled supervisors acting without official authority. To prevent "leaders" from assuming authority not specifically authorized by the employer. And to avoid disciplinary problems when workers fail to follow the order of a fellow member of the bargaining unit who [sic] they do not recognize as being a supervisor.

Reply Brief at 2.

B. Analysis and Conclusions

We agree with the Union's assertion that the provision has been misconstrued by the Agency. As we read the provision, there is no requirement that supervision of an employee be limited to the person who is designated as that particular employee's immediate supervisor. Rather, under the terms of the provision, any person who has been officially designated a "supervisor" is authorized to direct the activities of employees in the bargaining unit. Thus, the Agency's interpretation of the provision is inconsistent with its plain wording. The "second-line" supervisor cited in the Agency's example would be authorized to supervise unit employees because he or she is a designated supervisor.

We conclude, however, that the provision is nonnegotiable because it directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Based on the record, we find that the intent of Provision 1 is to prevent an employee who is not a supervisor from directing the work of bargaining unit employees.

The Union points out that nothing in the provision "implies that the supervisor be designated as the supervisor of a specific individual." Reply Brief at 2. Thus, the provision is not intended merely to require management to inform employees of who will supervise their activities. The Authority has held such a requirement to be a negotiable procedure within the meaning of section 7106(b)(2). American Federation of Government Employees, AFL-CIO, Local 3511 and Veterans Administration Hospital, San Antonio, Texas, 12 FLRA 76, 91 (1983). Instead, Provision 1 prevents the assignment of supervisory responsibilities to any person who is not designated as a supervisor.

Provision 1 interferes with the right to assign work in two ways. First, it prevents management from assigning the responsibility for supervising unit employees to persons other than those specified in the provision. Such a limitation on the Agency's authority to assign supervisory functions directly interferes with the right to assign work. Department of Defense, Office of Dependents Schools and Overseas Education Association, 28 FLRA 871, 874-75 (1987) (proposal prohibiting management from assigning supervisory duties to unit employees designated as grade level or department chairpersons held to be nonnegotiable under section 7106(a)(2)(B)). See also American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA 672 (1983) (Proposal 1).

Second, Provision 1 prevents the Agency from requiring unit employees to execute tasks assigned to them by individuals other than "officially designated" supervisors. This restriction also directly interferes with the right to assign work. See Defense Logistics Agency Council of AFGE Locals, AFL-CIO and Department of Defense, Defense Logistics Agency, 24 FLRA 367, 374-75 (1986) (proposal prohibiting agency from requiring unit employees to execute tasks assigned by individuals other than officers or employees of the Federal Government held to be nonnegotiable under section 7106(a)(2)(B)); and National Federation of Federal Employees, Local 29 and U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 20 FLRA 531, 532-34 (1985) (Proposal 2) (proposal allowing employees to refuse to recognize an official as a supervisor or manager, unless identified as specified in proposal, held to violate management's rights to direct employees and to assign work under section 7106(a)(2)(A) and (B)).

The Union does not contend that the provision is an appropriate arrangement under section 7106(b)(3). Accordingly, we find that Provision 1 is nonnegotiable because it directly interferes with the Agency's rights under section 7106(a)(2)(A) and (B) to direct employees and to assign work.

III. Provision 2

Article 22, Details

Section 3. The following restrictions apply to the use of details:

e. No employee will be detailed to a regular vacancy or a new position under the negotiated Merit Promotion Program if there is an adequate register for the position in question.

A. Positions of the Parties

The Agency contends that Provision 2 interferes with its rights to: (1) assign employees under section 7106(a)(2)(A) of the Statute; (2) assign work under section 7106(a)(2)(B); and (3) select from any appropriate source under section 7106(a)(2)(C). With regard to the right to assign employees, the Agency contends that, in prohibiting details where adequate registers exist, the provision prevents management from exercising its authority under section 7106(a)(2)(A) to decide which employees it wants to perform the work. Concerning the right to assign work, the Agency claims that the provision prevents detailing an employee to a vacancy, if an adequate register exists for the position in question, to perform work which cannot be postponed until the vacancy is filled. The Agency argues that the provision interferes with the right to select because it "would limit the source from which management may make selections to 'an adequate register for the position in question.' Thus, once a list of qualified candidates is prepared, the [A]gency must fill the vacancy with an employee from that list and is precluded from filling the vacancy from any other source." Statement of Position at 4-5.

The Union asserts that Provision 2 "has nothing to do with the employer's right to select from any appropriate source." Reply Brief at 2. Rather, the Union contends that the provision is "intended to require selection from an appropriate source, in this case, the merit promotion register, rather than detailing an employee, without change in pay and without competition, into a position which amounts to a promotion." Id. The Union further argues that the provision "is an appropriate arrangement to prevent the employer from 'preselecting' an employee, placing him in the position, grooming him for the job and, then having him compete for the position." Id. at 3.

B. Analysis and Conclusions

1. Provision 2 Directly Interferes with Management's Rights to Assign Employees and to Select

As the Union explains, the objective of Provision 2 is to prevent management from detailing employees to positions for which there are adequate promotion registers. The provision, therefore, limits management's authority under section 7106(a)(2)(A) of the Statute to assign employees because it prevents the Agency from using details temporarily to assign employees to certain positions. American Federation of Government Employees, AFL-CIO, Local 2024 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 30 FLRA 845, 846-47 (1987); American Federation of Government Employees, AFL-CIO, Local 1770 and Department of the Army, Fort Bragg Dependent Schools, Fort Bragg, North Carolina, 28 FLRA 493, 514-15 (1987).

In addition, Provision 2 requires the Agency to select from an "adequate register" if it wishes to have the work associated with a vacancy performed. This conclusion is based on the Union's statement that the provision's "language is intended to require selection from an appropriate source, in this case, the merit promotion register, rather than detailing an employee without change in pay and without competition, into a position which amounts to a promotion." Reply Brief at 2.

Management's authority to fill positions includes the rights, under section 7106(a)(2)(C)(i), to make selections for appointments from among properly ranked and certified candidates or, under section 7106(a)(2)(C)(ii), to select from any other appropriate source. See Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO and Norfolk Naval Shipyard, 31 FLRA 131, 135 (1988) (Provision 3). A proposal restricting management's right, in filling positions, to making selections from an identified specific source, in this instance "an adequate register," and precluding resort to other appropriate sources directly interferes with management's right to select under section 7106(a)(2)(C). See Bremerton Metal Trades Council and Naval Supply Center Puget Sound, 32 FLRA 643, 654 (1988) (Provision 6) (provision requiring management to make a reasonable effort to fill available vacancies from a single source held to interfere with right to select from any appropriate source under section 7106(a)(2)(C)(ii)).

2. Provision 2 Does Not Constitute an Appropriate Arrangement

As described by the Union, Provision 2 is intended to prevent the Agency from detailing employees for the purpose of giving them an advantage in later competition for the vacancies they filled on a temporary basis and to forestall the Agency's use of details to avoid paying employees at levels commensurate with the work assigned. The Union argues that employees not selected for details are disadvantaged in later competition for the positions, and those selected for details are adversely affected because they are not paid at the appropriate levels for the work being performed. Applying the principles set out in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986) (Kansas Army National Guard), we find that Provision 2 is an "arrangement," within the meaning of section 7106(b)(3) of the Statute, to mitigate the adverse effects of management's exercise of its right to assign employees.

Next, in accordance with the Kansas Army National Guard principles, we examine whether the arrangement is appropriate, or whether it is inappropriate because it excessively interferes with the Agency's right to assign employees. Id. at 31-33. Provision 2 imposes a total prohibition on details when adequate registers for the vacancies involved exist. Consequently, in the circumstances described by the provision, management could not detail an employee to a vacant position when, for example, management wants the work of a position to be performed, but has decided not to fill the position permanently. In addition, the Agency could not detail an employee to a vacancy pending completion of a promotion action, even if management needed the work of the vacant position performed immediately, or for any other legitimate reason.

Provision 2, therefore, prevents use of details when adequate registers exist, regardless of management's need to use details in meeting work requirements. Comparing the breadth of the limitation imposed on management's right to assign employees by means of detail with the benefits sought by the provision, we find that the provision excessively interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute. Consequently, the provision does not constitute an appropriate arrangement under section 7106(b)(3). See Kansas Army National Guard, 21 FLRA at 32 (paragraph (3)). As Provision 2 excessively interferes with management's rights to assign employees and to select, it is nonnegotiable.

IV. Provision 3

Article 32, Disciplinary and Adverse Actions

A. Disciplinary Actions

Section 2.

Prior to initiating formal disciplinary action against an employee in the Unit, the immediate supervisor or other appropriate personnel will make a preliminary inquiry or investigation to assure himself of the facts in the case. If the findings of such inquiry or investigation indicate that disciplinary action may be warranted, a discussion will be held with the employee if he is in a duty status, prior to issuance of a proposed disciplinary action. If the employee so desires, he may be represented at this discussion by a [C]ouncil representative in accordance with Article 8, Section 3. Others who will be present at this discussion are the supervisor having authority to propose the disciplinary action and the supervisor requesting the disciplinary action. The supervisor having authority to propose the disciplinary action may have a Technical Advisor present. . . . The designated union representative, if any, will be furnished a copy of the information being relied upon. The supervisor conducting the informal discussion will be the proposing official if any action is taken.

Section 5.a.

When disciplinary action is proposed against an employee in the Unit, a copy will be sent to the Council at the same time the notice is delivered to the employee.

Section 5.b.

When disciplinary action is taken against an employee in the Unit, a copy of the decision will be sent to the Council.

B. Adverse Actions

Section 4.

If as a result of the preliminary investigation and discussion the Employer determines that adverse action is to be proposed against a Unit employee, the employee will be furnished, in writing, an advance notice of proposed action. An extra copy of this notice will be sent to the Council. A copy of all additional correspondence related to the notice or the action, addressed to the employee, will be provided the Council for his representative. . . .

Section 5.F.

The written decision will address, with specificity, the Deciding Official's conclusions and findings relating to elements in the written grievance as well as any additional relevant issues raised during the grievance discussion. The written decision will be structured to correspond to the format of the grievance form. Failure by the employee or Council to fully complete the elements of the written grievance will not negate the processing of the grievance. However, the Employer's obligation to address conclusions and findings relating to elements of the grievance will extend only to those elements which are appropriately raised in the grievance processing. It is expected that the essential elements of the grievance will be stated on the grievance form. A copy of the decision will be provided to the employee and a copy sent to the Council at the same time.

[The parts of the provision in dispute are underscored.]

A. Positions of the Parties

1. The Agency

The Agency argues that: (1) the information sought in the disputed parts of Provision 3 is not the type required to be released to the Union by section 7114(b)(4)(B) of the Statute; (2) release of the information sought violates the Privacy Act, 5 U.S.C. § 552a; (3) release of the information could also violate section 503(e) of the Supplemental Appropriations Act of 1987, codified at 5 U.S.C. § 7301; and (4) release of the information is inconsistent with case law applicable to private sector labor relations.

a. Section 7114(b)(4)(B)

The Agency asserts that the information at issue is not disclosable under section 7114(b)(4)(B) of the Statute. It argues that section 7114 is "expressly and exclusively concerned with the duty of an agency and the union to negotiate in good faith, i.e., the collective bargaining process." Statement of Position at 9. Noting that "collective bargaining" as defined in section 7103(a)(12) "refer[s] only to the actual process of contract negotiations and agreement, not to subsequent representation or other activities by a union on behalf of its unit employees," the Agency asserts that section 7114(b)(4)(B) is inapplicable to the dispute. Id. Furthermore, in the Agency's view, the legislative history of section 7114(b) supports its position. The Agency specifically cites H.R. Rep. No. 95-1403, 95th Cong., 2d Sess. 48 (1978), which refers to "data necessary for the negotiations." Id.

b. The Privacy Act

The Agency notes that "[i]t has been ruled that [s]ection 7114(b)(4)(B) [of the Statute] authorizes disclosure of data only when not otherwise prohibited by law." Statement of Position at 9. The Agency contends that the information sought here is within the coverage of the Privacy Act (the Act), which prohibits agencies from disclosing any record contained in a system of records unless requested or authorized in writing by the individual to whom the record pertains. 5 U.S.C. § 552a(b). The Agency acknowledges that the Act contains a variety of exceptions to the prohibition on disclosure, including an exemption for information required to be disclosed by the Freedom of Information Act (FOIA). 5 U.S.C. § 552a(b)(2). However, the Agency argues that the information sought by the Union is not disclosable because the FOIA bars release of "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]" 5 U.S.C. § 552(b)(6). Finally, the Agency asserts, citing United States Department of Justice v. Reporters Committee for Freedom of the Press, 109 S. Ct. 1468 (1989), among other recent court decisions, that:

[t]he public interest in the automatic disclosure of disciplinary and adverse action materials on particular bargaining unit employees to whom the materials relate without the employee's written consent and without sanitization in any form is not the type of interest protected by the FOIA. The FOIA's full agency disclosure policy goes to official information that sheds light on the conduct of a Government agency. That purpose is not fostered by automatic disclosures of unsanitized disciplinary and adverse action materials about particular named bargaining unit employees that are stored in the agency's files.

Id. at 11. Therefore, the Agency argues that the information sought by Provision 3 is barred from disclosure to the Union under applicable law.

c. Section 503(e) of the Supplemental Appropriations Act of 1987

The Agency points out that disclosure of all disciplinary and adverse action materials may include the results of drug tests administered under Executive Order 12564. The Agency contends that such test results cannot be disclosed to the Union under section 503(e) of the Supplemental Appropriations Act of 1987. Section 503(e) provides, with some exceptions inapplicable here, that the results of a Federal employee's drug test may not be disclosed without the prior written consent of that employee. Therefore, the Agency argues that the automatic release of the test results without written employee consent is inconsistent with applicable law.

d. Private Sector Case Law

The Agency cites Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979) (Detroit Edison), in which the Supreme Court declined to require an employer to release tests and test scores, without employees' consent, to a union which was preparing for arbitration over the fairness of a new testing procedure. The Agency contends that "the Court's concern with the employer's interest in preserving employee privacy under private sector case law should not be ignored in the [F]ederal sector." Statement of Position at 14.

2. The Union

The Union emphasizes that the information sought by all but section 5.a and b of Part A of Provision 3 is limited to that which is necessary for adequate representation of an employee who has designated the Union as his or her representative in a grievance proceeding. The Union equates the situation covered by the provision with that of "discovery" in the judicial setting. It contends that the grievance procedure serves as "discovery" in the administrative setting, and that an employee, by authorizing the Union to represent him or her, also authorizes the Union to conduct "discovery" on his or her behalf. The Union points out that adverse actions may be appealed to the Merit Systems Protection Board (MSPB), and discovery of the information sought by Provision 3 is available under MSPB rules. Therefore, the Union suggests, "[t]he Agency's objection appears more related to the point in the process at which the information will be provided than in the privacy of the individual." Reply Brief at 4.

Further, the Union disputes the Agency's claim that the provision requires release of drug test results without the employee's written approval. Rather, the Union argues, "release of 'information relied upon' is limited, by the clear language of the [provision], to cases in which the employee has requested [U]nion representation and, thereby, authorized access to the results." Id. The Union asserts that denial of the information would impair its ability to determine how best to represent the affected employee. Moreover, the Union contends that management would certainly introduce the withheld information in an arbitration proceeding to support its action.

The Union advances a different argument concerning section 5.a and b of Provision 3, which requires disclosure of information to the Union as the representative of the bargaining unit rather than as an employee's designated representative. The Union points out that it is obligated to administer the negotiated agreement equitably. In order to establish whether management is properly exercising its right to discipline, the Union contends that it must have access to data concerning the discipline imposed on other employees. Id. at 7. Moreover, the Union asserts that, under the Statute, it has the right to be present during grievance proceedings challenging disciplinary actions, regardless of whether affected employees request Union representation.

In responding to an additional Agency contention that the provision is nonnegotiable because it contains no sanctions if the Union fails to keep the information confidential, the Union contends that contractual sanctions would be superfluous because penalties are prescribed by applicable law. The Union states that "[s]hould the material be used improperly by the [U]nion and, should the individual elect to pursue the matter, the sanction will be determined by the appropriate authority." Id. at 8.

B. Analysis

1. The Union's Entitlement to Information as an Employee's Designated Representative

The Union asserts that Provision 3, with the exception of section 5.a and b, obligates the Agency to provide certain information to the Union in its role as the designated representative of a bargaining unit employee against whom disciplinary or adverse action is proposed. We find that the Union's assertion is consistent with the plain wording of Provision 3. We also find that the assertion, as it pertains to the disputed sentence of section 5.F in B, which does not expressly identify the Union as a designated representative of a bargaining unit employee, is not inconsistent with that section's plain wording. Accordingly, we find that Provision 3, with the exception of section 5.a and b, applies to situations where the Union is an employee's designated representative.

Initially, we note that the Supplemental Appropriations Act of 1987, Pub. L. No. 100-71, § 503(e), 101 Stat. 468, 471 (1987), codified at 5 U.S.C. § 7301, prohibits disclosure of an employee's drug test results, except in certain circumstances not applicable here, "without the prior written consent of such employee[.]" Further, 5 U.S.C. § 7361(b) provides that 42 U.S.C. § 290ee-3 is applicable to the confidentiality of records maintained as part of drug abuse prevention, treatment, and rehabilitation programs for Federal employees. 42 U.S.C. § 290ee-3(a) authorizes the release of records, except in circumstances not relevant here, only "in accordance with the prior written consent of the patient with respect to whom such record is maintained[.]"

Section 2 of part A of Provision 3 requires the release to the designated Union representative "of the information being relied upon" in proposing a disciplinary action. As a disciplinary action may be proposed on the basis of drug abuse, "the information being relied upon" in such a situation could include the results of a drug test. Section 2 does not, as plainly worded or interpreted by the Union, encompass the statutory requirement that drug test results may be released only with prior written consent of the employees tested. Accordingly, we find that section 2 would obligate the Agency to release test results without the requisite consent. Consequently, to the extent that section 2 of part A of Provision 3 would require release of drug test results without prior written consent, it is inconsistent with Federal law and nonnegotiable under section 7117(a)(1) of the Statute, even when the Union is an employee's designated representative.

The Agency's position that Provision 3 is nonnegotiable because it does not meet the requirements of section 7114(b)(4) of the Statute cannot be sustained. Section 7114(b)(4) establishes a statutory "floor," not a "ceiling," on the type of information an agency may agree to release to a union. Merit Systems Protection Board Professional Association and Merit Systems Protection Board, Washington, D.C., 30 FLRA 852, 854-55 (1988). Concerning the 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." Id. As proposed disciplinary and adverse actions are matters concerning conditions of employment of unit employees, the Union is authorized to negotiate for release of such documents under section 7114(b)(4), provided, of course, that the release is not otherwise precluded by law. See, for example, National Treasury Employees Union, Chapter 237 and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 32 FLRA 62, 68-69 (1988) (Food and Nutrition Service). In this case, we find that the release of information concerning disciplinary and adverse actions proposed against employees represented by the Union is not barred by law, except to the extent that release of drug test results must legally be conditioned upon prior written consent.

Contrary to the Agency's position, the Privacy Act does not preclude release of the information sought by the Union as an employee's representative. The Privacy Act generally prevents disclosure of personal information about Government employees without their written consent. In accordance with section (b)(2) of the Privacy Act, 5 U.S.C. § 552a(b)(2), information must be released if so required by the FOIA, 5 U.S.C. § 552. Exemption (b)(6) of FOIA, 5 U.S.C. § 552(b)(6), requires withholding of information in "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." Under circumstances where the employee who is the subject of the records has designated the Union as his or her representative, we find that the Union's access to the relevant records would not be a clearly unwarranted invasion of personal privacy. Accordingly, Provision 3's requirement that the Union, as an employee's designated representative, be provided with documents concerning a proposed disciplinary or adverse action does not conflict with the Privacy Act. Provision 3, therefore, is negotiable to the extent it concerns the Union as the designated representative of a unit employee, but not to the extent that section 2 of part A would compel release of drug test results without the affected employee's prior written consent.

2. Section 5.a and b

We now examine section 5.a and b of the provision's Part A, which, based on the Union's arguments and explanation, pertains to circumstances where employees have not designated the Union as their representative. Reply Brief at 4-5. It is well established that a union is entitled to information concerning disciplinary and adverse actions even where it is not designated as the personal representative of the employees involved. Such information is necessary for the exclusive representative to exercise its representation functions and, therefore, is disclosable under section 7114(b)(4) of the Statute. Food and Nutrition Service, 32 FLRA at 68-69.

The question here is whether the Agency is precluded by law from furnishing unsanitized information which would include personal data identifying employees who do not seek Union representation. Stated differently, the question is whether blanket release of information identifying such employees is barred by section 7114(b)(4) of the Statute because disclosure is prohibited by law, specifically the Privacy Act. See Department of the Air Force v. Rose, 425 U.S. 352, 380-81 (1976) (Rose) (wherein the Court explained that the FOIA authorizes release of segregable portions of a record with other portions deleted).

As noted previously, the Privacy Act generally prohibits disclosure of personal information about Federal employees, absent the employees' written consent. 5 U.S.C. § 552a(b). In addition, information must be withheld, under exemption (b)(6) of the FOIA, if it is contained in "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."

In determining whether requested information is barred from disclosure by FOIA exemption (b)(6), an individual's right to privacy must be balanced against the public interest in having the information disclosed. The same balancing test must be applied in cases involving the review of negotiated provisions as is applied in resolving disputes resulting from a request for data under section 7114(b)(4) of the Statute. See U.S. Department of Justice and U.S. Immigration and Naturalization Service and American Federation of Government Employees, National Border Patrol Council, 37 FLRA 1346, 1362 (1990) (INS). Moreover, the public interest to be examined, when applying the balancing test required by exemption (b)(6), is that embodied in the Statute. Id.

Applying the balancing test here, we find that employees' privacy interests in proposed and final disciplinary and adverse actions and the public's interest in disclosure of the information to the Union are significant. On balance, however, we find that the public interest in blanket, unsanitized disclosure of all proposed and final disciplinary and adverse actions to the Union, without an expressed, particularized need for the information, is insufficient to outweigh the employees' strong privacy interests. See id. at 1362. Accordingly, we conclude that the disclosure required by Provision 3 would constitute a clearly unwarranted invasion of the affected employees' personal privacy within the meaning of exemption (b)(6) of the FOIA, 5 U.S.C. § 552(b)(6). As such, disclosure of information identifying the affected employees is prohibited by the Privacy Act, 5 U.S.C. § 552a.

Consequently, Section 5.a and b is nonnegotiable to the extent that it would require blanket disclosure of documents relating to proposed and final disciplinary and adverse actions without deletion of identifying data, when the employees involved have declined Union representation. Release of such unsanitized documents conflicts with applicable law. Further, as previously noted, release of drug test results without prior written consent of the concerned employees also conflicts with applicable law.

We emphasize that, under our decision, the Union is not foreclosed from requesting specific information, including information that is unsanitized and that concerns employees who have not designated the Union as their representative, under section 7114(b)(4) of the Statute. In the event that such a request were disputed, the Authority would then balance the competing interests in determining whether disclosure of the information is consistent with law. See INS, 37 FLRA at 1364-65 and cases cited there.

C. Conclusions

For the reasons set out above, we conclude that section 2 of part A of Provision 3, to the extent that it might concern release of drug test results without prior written consent of the affected employees, is nonnegotiable because it is inconsistent with section 503(e) of the Supplemental Appropriations Act of 1987. To the extent that the provision requires the Union to be provided with information concerning disciplinary and adverse actions proposed and taken against employees designating the Union as their representative, it is negotiable under section 7114(b)(4) of the Statute. We also conclude that section 5.a and b is nonnegotiable under the Privacy Act because it would require release of unsanitized information concerning all proposed and final disciplinary and adverse actions, including those involving employees who have not designated the Union as their representative.

V. Provision 4

Article 32, Disciplinary and Adverse Actions

B. Adverse Actions

Section 7. Temporary employees, who are terminated or separated, may have the right, under certain limited conditions, to appeal their termination actions directly to arbitration through the negotiated grievance procedure as specified in Article 33, Section 4.

Article 33, Grievance Procedure

Section 4. This grievance procedure shall be the sole procedure available to the Council, the Employer, and Unit employees for the adjustment of issues within its coverage, except as provided under CSRA [Civil Service Reform Act], Section 7116(d). Matters excluded from this procedure by the provisions of the CSRA and agreement of the Council and the Employer are those concerning:

H. Termination for cause of employees serving under temporary appointments during the first year of such employment. (Note: The Council may invoke arbitration in the case of a temporary employee terminated for cause if such employee is serving on a second or successive temporary appointment, provided there has not been a break in service of more than ten (10) days between the first and second or successive temporary appointments).

[The underscored portions of Provision 4 are in dispute.]

A. Positions of the Parties

The Agency contends that giving temporary employees access to the negotiated grievance procedure to contest termination actions is inconsistent with applicable law and Government-wide regulations. The Agency points out that 5 U.S.C. § 7511(a)(1)(A) defines an "employee," for purposes of the Civil Service Reform Act (CSRA), as "an individual in the competitive service who is not serving a probationary or trial period under an initial appointment or who has completed 1 year of current continuous employment under other than a temporary appointment limited to 1 year or less[.]" The Agency also cites the statement in Federal Personnel Manual Chapter 752, subchapter 2-1.b.(3) that "employees in temporary appointments limited to one year or less are not covered by the provisions of adverse action law and regulation even when their appointments may inadvertently be extended past one year or when they have served more than a year in two or more temporary appointments." The Agency asserts that the Authority's decision in National Federation of Federal Employees, Local 29 and U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 20 FLRA 788 (1985) (Kansas City District), that a proposal including the termination of temporary employees under the coverage of the parties' negotiated grievance procedure was negotiable should be reversed. The Agency cites Horner v. Lucas, 832 F.2d 596 (Fed. Cir. 1987) (Lucas), in support of its argument.

In the Agency's view, reversal of Kansas City District is required because the court in Lucas found that Lucas, holding a temporary appointment at the time of his separation, was not an "employee" under the CSRA and, consequently, was not entitled to the CSRA's procedural protections, even though he previously had held six temporary and one career-conditional appointment. In Lucas, the Agency notes, the U.S. Court of Appeals for the Federal Circuit described a temporary appointment as comparable to a probationary or trial period during which an employee is not entitled to the procedural protections of the CSRA. Accordingly, the Agency points out, the court reversed an arbitration award ordering the employee's reinstatement.

The Union contends that the provision constitutes "an appropriate arrangement to protect workers from the unfair application of regulations." Reply Brief at 9. The Union points out that the Agency "routinely" hires and retains temporary employees "for 3 or 4 years yet they never have the right to appeal unjust actions by the employer." Id. at 10. The Union also argues that "[t]emporary employees on their second consecutive appointment have served their 'probationary' period." Id.

B. Analysis and Conclusions

The disputed portions of Provision 4 apply when certain temporary employees are terminated for cause. Consequently, the negotiability of the disputed parts turns on whether the negotiated grievance procedure provided for in section 7121 of the Statute can be used to contest adverse actions against employees serving a second or successive temporary appointment.

Section 7121(f) of the Statute governs judicial review of arbitration awards concerning adverse actions issued under the terms of a negotiated grievance procedure. Section 7121(f) states that "section 7703 of this title pertaining to judicial review shall apply to the award of an arbitrator in the same manner and under the same conditions as if the matter had been decided by the [Merit Systems Protection] Board." In examining the relationship between arbitral proceedings and those of the MSPB, the Supreme Court has observed that "Congress clearly intended that an arbitrator would apply the same substantive rules as the Board does in reviewing an agency disciplinary decision." Cornelius v. Nutt, 472 U.S. 648, 660 (1985).

In accordance with its responsibility under 5 U.S.C. § 7703(b)(1) to review arbitrators' awards and MSPB decisions on adverse actions initiated by agencies, the U.S. Court of Appeals for the Federal Circuit has ruled that an arbitrator is without authority to decide the appropriateness of the termination of a temporary employee based on an alleged failure to afford the employee the protections of 5 U.S.C. §§ 7511(a)(1) and 7513. Lucas, 832 F.2d 596. In particular, the court held that the temporary employee, who had successfully grieved his termination, was not an "employee" within the meaning of section 7511(a)(1)(A) and, therefore, was not entitled to the protections afforded to a statutory "employee" by the CSRA. Id. at 597.

Furthermore, in deciding that the affected employee was not an "employee" for purposes of protection under the CSRA, the court examined the applicable law, legislative history, and regulations. The court concluded that past employment history had no bearing on whether or not the employee was entitled to statutory protections. Rather, the court held that "[t]o be an 'employee' the Statute mandates that he be serving in continuous employment in a non-temporary appointment at the time of the adverse action." Id. (emphasis in the original).

Consistent with the court's decision in Lucas, temporary employees are not afforded the statutory protections, and appeal rights, of 5 U.S.C. §§ 7511-7513. As such, the status of temporary employees is identical to that of nonpreference eligible excepted service employees before passage of the Civil Service Due Process Amendments, Pub. L. No. 101-376, 104 Stat. 461 (1990) (the Amendments), which extended to such excepted service employees--but not to temporary employees--the same statutory protections and rights provided to employees in the competitive service. Like temporary employees, nonpreference eligible excepted service employees, prior to enactment of the Amendments, were expressly denied access to the procedural protections of the CSRA. It is significant to note that both categories of employees were denied access to procedural protections, including administrative and judicial review, by the same provisions of the CSRA. See 5 U.S.C. §§ 4303(f)(2) and (3) and 7511(a)(1)(A).

The significance of the denial of statutory protections, as it applies to the permissible scope of negotiated grievance procedures, was examined by several courts in the context of challenges to Authority decisions finding that proposals enabling nonpreference eligible excepted service employees to grieve their terminations were negotiable. These courts noted that Congress, in the CSRA, established a comprehensive scheme of rights and remedies for Federal employees, but intentionally denied nonpreference eligible excepted service employees those rights and remedies. Consequently, the courts found that affording nonpreference eligible excepted service employees access to negotiated grievance procedures was inconsistent with applicable law.

For example, in U.S. Department of Health and Human Services v. FLRA, 858 F.2d 1278, 1284 (7th Cir. 1988), the court stated that permitting nonpreference eligible excepted service employees to challenge adverse actions before an arbitrator "would upset the balance that Congress struck[.]" Similarly, in Department of the Treasury, Office of Chief Counsel v. FLRA, 873 F.2d 1467, 1472 (D.C. Cir. 1989), the court stated that the CSRA "establishes a comprehensive remedial framework governing the civil service. Congress carefully constructed a scheme that would ensure uniformity in personnel decisions and promote efficiency of administration." By authorizing access to the negotiated grievance procedure for nonpreference eligible excepted service employees, the court found that "the FLRA's position would undermine the structure of the CSRA." See also Department of Health and Human Services, Region IX, San Francisco, California v. FLRA, 894 F.2d 333 (9th Cir. 1990) (per curiam).

The cited decisions precluded access to negotiated grievance procedures by a category of employees who, like temporary employees, were excluded from the procedural protections of the CSRA prior to enactment of the Amendments. Accordingly, in view of the holding in Lucas that temporary employees are not entitled to the procedural protections of the CSRA, and as temporary employees are not covered by the Amendments, we find that Provision 4 is nonnegotiable under section 7117(a)(1) of the Statute. The provision violates applicable law, specifically, the CSRA, because it seeks to include the termination for cause of employees serving under second or successive temporary appointments within the coverage of the parties' negotiated grievance procedure. (2)

In view of our conclusion that the provision violates applicable law, it is unnecessary to consider the Union's argument that Provision 4 is an appropriate arrangement under section 7106(b)(3) of the Statute. Section 7106(b)(3) is inapplicable when it is determined that a proposal is inconsistent with Federal law. See National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, National Guard Bureau, Department of Military Affairs, Illinois Air National Guard, 35 FLRA 740, 750 (1990).

VI. Order

The petition for review of Provisions 1, 2, and 4 is dismissed. The petition for review of Provision 3, part A, section 2 is dismissed, to the extent that the section would require disclosure of drug test results without the prior written consent of the affected employees. The petition for review, as it pertains to Section 5.a and b of Part A of Provision 3, is also dismissed. The Agency must rescind its disapproval of the balance of Provision 3. (3)




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

1. The Agency withdrew its disapproval of a fifth provision, designated Article 12, section 8, "Annual Leave," based on a clarification of the provision contained in the Union's Reply Brief. In addition, a sixth provision, identified as Article 31, "S