39:1087(92)NG - - NFFE Local 1655 and DOD, Dept. of Military Affairs, Springfield, IL - - 1991 FLRAdec NG - - v39 p1087
[ v39 p1087 ]
The decision of the Authority follows:
39 FLRA No. 92
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF DEFENSE
DEPARTMENT OF MILITARY AFFAIRS
DECISION AND ORDER ON NEGOTIABILITY ISSUES
March 12, 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) by the Union. The dispute concerns the negotiability of eight proposals. Proposals 1 through 5 prescribe the conditions that will govern the Agency's response to Union requests for information under the Freedom of Information Act, 5 U.S.C. º 552 (FOIA). Proposals 6 through 8 provide immunity for unit employees from "personal liability" lawsuits arising out of their employment.
We find that Proposals 1 and 3 are nonnegotiable because they are inconsistent with law and that Proposal 4 is nonnegotiable because it does not concern the conditions of employment of bargaining unit employees. We dismiss the petition for review as to Proposal 2 because we are not able to determine its negotiability. We find that Proposal 5 is consistent with law and negotiable. We find that Proposals 6 and 8 are nonnegotiable because they concern matters that are excluded from the definition of "conditions of employment" under section 7103(a)(14)(C) of the Statute. We find that Proposal 7 is nonnegotiable because it is inconsistent with law.
II. Proposals 1-5
The Employer will furnish, upon request by the Union, data/information not prohibited by law. The Union retains its right as the exclusive representative, to obtain relevant data/information not withstanding [sic] the existence of the Privacy Act.
Data/information which could have possible adverse or harmful effects on an employee will be provided to the Union in a sanitized form, unless the employee agrees to it. When data/information is to be sanitized the Union will be informed of which data/information and why, in writing.
When identifiers are required, the Employer will provide them to the Union.
Any data/information provided to the Union will be at no cost.
Data/information that the Union could receive from an employee, does not relieve the Employer from providing that data/information to the Union.
A. Positions of the Parties
In the Agency's written allegation of nonnegotiability, the Agency states that Proposals 1 through 5 concern its compliance with the Freedom of Information Act, 5 U.S.C. º 552 (FOIA), and the Privacy Act, 5 U.S.C. º 552a, and that the Union's rights to information under section 7114(b)(4) of the Statute are not in question. Petition for Review, Attachment 1.
The Agency states that, "by the plain language of the proposals," it is clear that "they have the goal of obtaining information upon request without consideration to the FOIA, Privacy Act, and the privacy of employees." Agency's Statement of Position (Agency's Statement) at 1. The Agency also states that the proposals would permit the Union to obtain information about military personnel and that such information is not releasable. Id.
The Agency contends that Proposal 1 is inconsistent with the Privacy Act because it would require disclosure of information prohibited by that Act. Id. at 2. The Agency also contends that Proposal 2 is inconsistent with the Privacy Act because requiring the Agency "to inform the [U]nion of which data has been sanitized, and why[,]" is "tantamount to furnishing the sanitized data itself." Id.
The Agency asserts that Proposal 3 "lacks specificity as to what constitutes identifiers under the FOIA[,]" and notes that "identifiers" are "not needed by a requestor to obtain information." Id. The Agency also notes that the Union is required under section 7114 of the Statute and 5 C.F.R. º 297.201(d)(1) to specify the data it needs to fulfill its responsibilities. The Agency argues that it has "no obligation to tell the [U]nion what it wants by the furnishing of identifiers[,]" particularly because some identifiers are "covered by the Privacy Act, e.g., an individual's social security number and home address." Id.
The Agency contends that Proposal 4 is inconsistent with 5 C.F.R. Part 297 because, under the FOIA, "there must be an assessment of the public interest before a fee waiver can be made" and "the proposal does not permit this assessment." Id.
The Agency contends that Proposal 5 precludes management from balancing the Union's need for the information against an employee's right to privacy. Id. The Agency notes that the fact that the information requested by the Union might be available from an employee is a factor to be weighed in balancing the interests of the Union and the employee. The Agency contends that, contrary to the requirements of the proposal, the Union must prove that alternate means of communication are insufficient before management is required to release information. Id. at 3. The Agency cites FLRA v. U. S. Department of the Treasury, Financial Management Service, 884 F.2d 1446 (D.C. Cir. 1989) (Financial Management Service), in support of its last argument.
In its Petition for Review, the Union states that "Proposals 1 through 5 are addressing Freedom of Information." Union's Petition for Review (Petition) at 1. In its conclusion regarding Proposals 1-5, the Union refers to the "Freedom of Information Act." Id. at 3. The Union also states that the Agency has an obligation to bargain on "Freedom of Information" because it is a matter "affecting working conditions." Id. at 1.
As to Proposal 1, the Union explains that it "is only requesting relevant data/information that would have significant and demonstrable bearing on the matter at hand, and affording evidence tending to prove or disprove the matter at issue which would bear upon a particular case[.]" Id. The Union also claims that the proposal would not require the Agency "to abdicate any legal responsibility as stated by law," that the proposal would not require any "blanket disclosures," and that the proposal requires "only relevant data/information" to be provided the Union "as the exclusive bargaining representative of employees within the bargaining unit." Id. at 2.
The Union states that, under Proposal 2, "if any data/information will have possible adverse or harmful effects on an employee," the Agency may "sanitize the form, unless the employee states they do not have to." Id. The Union explains further that the proposal is intended to prevent the "arbitrary sanitization of forms." Id.
The Union states that Proposal 3 is intended to address situations in which it "has requested information through the Freedom of Information [sic]," the Agency has insisted that the Union provide "identifiers," and the Union does not have any way of obtaining those "identifiers." Id. The Union states that the proposal would require the Agency, when "identifiers" are necessary, to provide the Union with "the way and means to obtain them." Id.
As to Proposal 4, the Union contends that the cost of providing information under "the Freedom of Information Act" is negotiable. Id. The Union explains that, under Proposal 5, any data or information that an employee could receive, but which the employee has not given to the Union for reasons such as the employee being sick, unavailable, on leave, or discharged, will be given to the Union by the Agency. Id.
The Union states that the proposals do not require the Agency to violate "any Act or Law" and that they "do not address the exceptions, as stated in the Act[.]" Id. at 3. The Union concludes that the proposals "are a matter of working conditions in the areas of grievances and/or arbitration[.]" Id.
B. Analysis and Conclusions
Based on the record in this case, we conclude that Proposals 1 through 5 are concerned with the manner in which the Agency will respond to Union requests under the FOIA for information concerning conditions of employment of unit employees. In particular, the Union consistently relates the effect of the proposals to the FOIA. Moreover, the Agency states in its declaration of nonnegotiability that the proposals concern the availability of information to the Union under the FOIA and not under section 7114 of the Statute. The Union does not dispute the Agency's interpretation of the proposals. Because that interpretation is consistent with both the wording and the Union's explanation of the proposals, we will adopt that interpretation for the purposes of this decision.
1. Proposal 1
The objective of the FOIA is full disclosure of information in records maintained by an agency unless that information is exempted from disclosure. See Department of the Air Force v. Rose, 425 U.S. 352, 360-61 (1976) (Rose). The FOIA authorizes agencies to refuse to disclose certain information described in the exemptions, but it does not prohibit the disclosure of that information. Thus, under the FOIA, there are two broad classes of information: (1) that which must be disclosed; and (2) that which may be disclosed or may be withheld from disclosure. Exemption (b)(6) of the FOIA provides that information contained in personnel files (as well as medical and other similar files) may be withheld if disclosure of the information would constitute a "clearly unwarranted invasion of personal privacy." 5 U.S.C. º 552(b)(6). See, for example, Merit Systems Protection Board Professional Association and Merit Systems Protection Board, Washington, D.C., 30 FLRA 852, 856-58 (1988).
The Privacy Act, on the other hand, generally prohibits the disclosure of personal information about Federal employees without their consent. 5 U.S.C. º 552a(b). Section (b)(2) of the Privacy Act provides, however, that the prohibition against disclosure is not applicable if disclosure of the information would be required under the FOIA. 5 U.S.C. º 552a(b)(2).
Thus, if information is of the type that could be exempted from disclosure by FOIA Exemption (b)(6), that information would not be required to be disclosed under the FOIA, and, therefore, section (b)(2) of the Privacy Act would not apply. Accordingly, that information would be subject to the general Privacy Act prohibition of the disclosure of personal information about Federal employees without their consent. 5 U.S.C. º 552a(b).
Proposal 1 would require the Agency to furnish information to the Union under the FOIA to the extent that providing the information is not prohibited by law. The proposal also states, however, that the Union retains its right as the exclusive representative to obtain relevant data/information notwithstanding the existence of the Privacy Act. Inasmuch as the FOIA does not prohibit the disclosure of information, the effect of the first and second sentences of the proposal, read together, would be to require the Agency to release information to the Union under the FOIA that would otherwise be precluded from release by the Privacy Act. For example, the proposal would require the release of information for which disclosure was barred by the Privacy Act because, under the FOIA, that disclosure would result in a clearly unwarranted invasion of personal privacy.
In our view, the plain wording of the proposal--"not withstanding [sic] the existence of the Privacy Act"--is inconsistent with the Union's statement that the proposal would not require the Agency "to abdicate any legal responsibility." Because the proposal would require the Agency to provide the Union with information that may not be released under the Privacy Act without an employee's consent, we find that the proposal is inconsistent with law and nonnegotiable under section 7117(a)(1) of the Statute. See National Federation of Federal Employees, Local 1745 and Veterans Administration, 13 FLRA 543, 547-48 (1983) (Veterans Administration), affirmed as to other matters sub nom. NFFE, Local 1745 v. FLRA, 828 F.2d 834 (D.C. Cir. 1987).
2. Proposal 2
Proposal 2 provides, as relevant here, that information which could have "possible adverse or harmful effects on an employee" will be provided to the Union in a "sanitized" form. In other words, when the release of the information would have a "possible adverse or harmful" effect on an employee, the Agency would be required to sanitize the information before it is released to the Union. The proposal does not distinguish among the types of information pertaining to employees that may be included among the systems of records subject to the FOIA that are maintained by Government agencies. Consequently, we interpret the proposal as encompassing the "sanitization" of all of the types of information that may be contained in such systems of records, including information pertaining to employees--"personal" information--that is also subject to the Privacy Act.
The FOIA provides that agencies may, where a portion of the information requested is exempt from disclosure and "reasonably segregable," release the nonexempt information and refuse to disclose the portion of the information that is exempt. 5 U.S.C. º 552(b). See Rose, 425 U.S. at 373-76. In particular, an agency can refuse to release a "reasonably segregable" portion of requested information that would constitute a "clearly unwarranted invasion of personal privacy" within the meaning of Exemption 6, while releasing the remainder of the information sought. See, for example, Carter v. United States Department of Commerce, 830 F.2d 388 (D.C. Cir. 1987), Ripskis v. Department of Housing and Urban Development, 746 F.2d 1 (D.C. Cir. 1984). Proposal 2 concerns the "sanitization" of information requested by the Union and we interpret the proposal as concerning the Agency's decision, under 5 U.S.C. º 552(b), to segregate and refuse to disclose any portion of that information that would be exempt, for example, under Exemption 6.
The negotiability of Proposal 2 depends upon the interpretation of the scope of the requirement that the Agency "sanitize" requested information. The Union does not explain what it intends by the use of the phrase "possible adverse or harmful effects" as the criterion governing the "sanitization" of requested information. Consequently, we are unable to determine whether that phrase is intended to merely restate the "clearly unwarranted invasion of personal privacy" standard of Exemption 6 of the FOIA. Because we are unable to determine the scope of the proposal's "sanitization" requirement, we are unable to determine the negotiability of the proposal.
To the extent that the standard in the proposal would require the Agency to release information which it would be authorized to withhold under the FOIA and which, in turn, would be prohibited from disclosure under the Privacy Act, the proposal is inconsistent with law. However, to the extent that the "possible adverse and harmful effects" standard in the proposal would require the Agency to release only the information that it would be required to release under the FOIA, the proposal merely means that the Union is proposing to receive only the information that it would be entitled to receive under law. Under that interpretation, the proposal would be consistent with law.
Because we are unable to determine the meaning of the "possible adverse or harmful effects" standard of the first sentence of Proposal 2, we find that the record is insufficient for us to make a negotiability determination. Consequently, we will dismiss the petition for review as to Proposal 2.
3. Proposal 3
The Privacy Act applies to the disclosure of "any record which is contained in a system of records . . . ." 5 U.S.C. º 552a(b). "Record" is defined as "any item, collection, or grouping of information about an individual that is maintained by an agency . . . ." and "system of records" is defined as "a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual[.]" (Emphasis supplied.) 5 U.S.C. º 552a(a)(5). See U.S. Department of Defense, Maxwell Air Force Base, Maxwell Air Force Base, Georgia and American Federation of Government Employees, Local 997, 36 FLRA 110, 111 (1990).
Within the meaning of the Privacy Act, therefore, an "identifier" is a term, number, or symbol that can be used to retrieve information concerning a person from an agency's system of records. As noted above, agencies are precluded by the Privacy Act from releasing any record contained in a system of records to any person, or another agency, without a written request by, or the written consent of, the person to whom the record pertains unless, as relevant here, disclosure would be required under the FOIA.
Proposal 3 requires the Agency to provide the Union with any "identifiers" that are necessary to retrieve requested information. We note in this connection that "identifiers" are not required for requests for information under the FOIA. The only requirement under the FOIA is that the request "reasonably describe" the record being sought. See, for example, Marks v. United States, 578 F.2d 261 (9th Cir. 1978). As noted above, the term "identifiers" has a clear meaning under the Privacy Act. The Union, however, does not define the term "identifiers." The Agency interprets the term "identifiers" as encompassing personal information such as employee Social Security numbers and home addresses, however, and the Union does not dispute that interpretation. Consequently, we interpret the proposal as requiring the disclosure under the FOIA of information in employee personnel files that would identify the particular employee who is the subject of the information disclosed, for example, employee Social Security numbers.
Disclosure of employee Social Security numbers may constitute a "clearly unwarranted invasion of privacy" within the meaning of Exemption (b)(6) of the FOIA. See International Brotherhood of Electrical Workers Local Union No. 5 v. United States Department of Housing and Urban Development, 852 F.2d 87, 89 (3d Cir. 1988) ("[W]e must conclude that the release of the Social Security numbers would constitute a clearly unwarranted invasion of privacy and is therefore barred by Exemption 6."). See also Swisher v. Department of the Air Force, 495 F. Supp. 337 (W.D. Mo. 1980), affirmed, 660 F.2d 369 (8th Cir. 1981).
The proposal requires the Agency to disclose any and all "identifiers." In our view, the term "identifiers" in the proposal encompasses Social Security numbers. Therefore, insofar as the proposal requires the Agency to disclose Social Security numbers, the proposal is inconsistent with law. The fact that the term "identifiers" might include some information the disclosure of which would be consistent with law does not make the proposal negotiable. The broad wording of the proposal exceeds the scope of what is disclosable under law. As the court stated in Overseas Education Association, Inc. v. FLRA, 827 F.2d 814 (D.C. Cir. 1987):
If a proposal is facially overbroad in that it includes, along with matters that are negotiable, matters that the Employer cannot lawfully agree to, then the Employer has no obligation to negotiate over it. The fact that the scope of the proposal could be narrowed in the bargaining process is immaterial. The Union should have attempted to bring the proposal within the duty to bargain by narrowing its breadth prior to the bargaining process.
Id. at 818. Because Proposal 3 constitutes a "blanket" requirement for the disclosure of personal identifiers such as employee Social Security numbers, we find that the proposal would require the release of that information without regard to whether release would constitute a "clearly unwarranted invasion of privacy" within the meaning of Exemption (b)(6).
Consequently, because Proposal 3 would require the release of "personal identifiers" within the meaning of the Privacy Act, we find that the proposal would require the disclosure of "personal" information that is exempt from disclosure under the FOIA and, thus, is barred by the Privacy Act. See Proposal 2 above. We conclude, therefore, that Proposal 3 is inconsistent with the Privacy Act and nonnegotiable under section 7117(a)(1) of the Statute. See Department of Defense, Office of Dependents Schools and Overseas Education Association, 28 FLRA 871, 881-83 (1987) (interest arbitration award imposing a provision requiring the release of "personally or name-identified performance ratings" held to be deficient because award constituted "blanket" disclosure requirement that made no allowance for instances where disclosure would be contrary to the Privacy Act).
4. Proposal 4
Proposal 4 requires the Agency to waive any fees under the FOIA that would be necessary to cover the costs of providing requested information. See 5 C.F.R. º 297.206.
An agency's policy regarding fees for FOIA requests is not a matter pertaining to the conditions of employment of unit employees within the meaning of section 7103(a)(14) of the Statute. See United States Forces Korea, Eighth United States Army and National Federation of Federal Employees, Local 1363, 15 FLRA 373, 374 (1984) (Eighth United States Army). Specifically, an agency's "policy regarding fees for FOIA requests did not become a condition of employment simply because the [union], having itself elected to seek information under the FOIA and consequently been treated as part of the general public, also happens to have been the exclusive representative for a unit of the [agency's] employees." Id. at 374. In this respect, therefore, the Union herein stands in no different relationship to the Agency under the FOIA than any other member of the public requesting information under that statute. Consequently, consistent with Eighth United States Army, because Proposal 4 constitutes a waiver of fees on the part of the Agency for the costs of information provided to the Union under the FOIA, we conclude that the proposal does not concern conditions of employment of unit employees and is nonnegotiable.
5. Proposal 5
Proposal 5 provides that the Agency is not relieved of its obligation to provide information to the Union simply because the Union could also obtain that information from employees. The Union explains the proposal as requiring the Agency to give the Union information that the employee could receive but has not given the Union because the employee is sick, on leave, or otherwise unavailable. The Agency interprets the proposal as requiring it to provide information to the Union regardless of whether other means are available to the Union to obtain that information.
As worded, the proposal would require the Agency to provide to the Union information regardless of whether that information might also be available to the Union from the employee who is the subject of the information. In other words, consistent with the Agency's interpretation, which is not disputed by the Union, the proposal would simply preclude the Agency from asserting an "alternative means" defense to a FOIA request. Interpreting Proposal 5 in this manner, we find that the proposal is negotiable.
Nothing in the language of section 7114(b) of the Statute or its legislative history indicates that Congress intended a union's right to information under that provision to be dependent on whether the information is reasonably available from an alternative source. U.S. Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 38 FLRA 3, 7 (1990). See also U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515, 519 (1990) (Portsmouth Naval Shipyard); Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA 788, 796-97 (1986). In any event, as noted above, this case does not involve questions relating to information requests under section 7114(b)(4) of the Statute.
Moreover, the Authority has rejected the claim that information must be provided a union under the "routine use" exception to the Privacy Act, 5 U.S.C. º 552a(b)(3), only where adequate means of communication are unavailable. See Portsmouth Naval Shipyard, 37 FLRA at 537-41. Consequently, the Authority has declined to follow the court's opinion in Financial Management Service, relied on by the Agency. Finally, the Agency has provided no other basis for concluding that the absence of "alternative means" of obtaining information is a condition precedent to the release of information under the FOIA or the Privacy Act and we are not aware of any other support for that conclusion.
Accordingly, we conclude that by requiring the Agency to provide the Union with information that the Union might otherwise obtain from an employee, Proposal 5 is consistent with law and negotiable under section 7117(a)(1) of the Statute.
III. Proposals 6-8
Employees who carry out policies will have immunity from personal liability law suits.
Employees acting within their discretion and within their line of duty are immune from suits, alleging violations of constitutional rights, if they are in the day-to-day operation, not in the planning or policy considerations.
Immunity applies to Federal and State levels.
A. Positions of the Parties
The Agency contends that the subject matter of the proposals, namely, employee immunity from any personal liability lawsuit, is covered by the Federal Tort Claims Act (FTCA), 28 U.S.C. º2671 et seq.
The Agency claims that Proposals 6 through 8 do not "relate to, or stem from, the actual employer/employee relationship." Agency's Statement at 4. Rather, the Agency argues, the proposals "relate to actions taken by those outside the relationship in response to the actions effected by the members of the bargaining unit in the furtherance of their work." Id. The Agency concludes that because "the proposals have no direct effect upon the working conditions of the members of the bargaining unit, they do not constitute conditions of employment within the meaning of the Statute[.]" Id.
The Agency also contends that "[e]ven if the proposals did not concern a topic which is totally controlled by [s]tatute, and did therefore concern a condition of employment within the meaning of the Statute, their scope exceeds the discretion of the [A]gency, and moves them outside the bargaining obligation." Id. The Agency argues that the proposals "far exceed the authority of the [A]gency" because the "[A]gency is totally without any authority to either request or recommend that any local, state or judicial body to replace [sic] the name of a private defendant in any proceeding with that of an agency of the Federal Government." Id.
The Union states that Proposal 6 would apply only "when the employee is required to carry out the [Agency's] policy in the performance of his/her dut[ies]." Union's Petition at 3. The Union contends that the proposal concerns the conditions of employment of bargaining unit employees because it concerns the Agency's direction of those employees in the implementation of policies where the employees have not been involved in "the policy making process." Id.
As to Proposal 7, the Union states that "[n]o employee on his/her own can violate anyone's constitutional rights, but can be directed to do so" by the Agency and that "if the employee does not follow the [Agency's] policy, disciplinary action can be taken against him/her." Id. According to the Union, Proposal 7 provides that when employees carry out an Agency policy and lawsuits "arise from the policy," the lawsuits should be brought against the Agency. Id.
The Union explains Proposal 8 as providing that the Agency "can ask the court to relieve the employee of all responsibility, and the [Agency] will assume all liability for the suit, if the employee was acting within the [Agency's] policy." Id.
The Union concludes that "[w]hen an employee must carry out the [Agency's] policy, and this policy violates someone's rights, the employee should not be held responsible for anyone's rights being violated by the [Agency's] policy." Id.
B. Analysis and Conclusions
Proposals 6 and 8 establish the conditions under which unit employees will be immune from lawsuits for actions taken in the course of their employment and the scope of that immunity. We find that these proposals concern matters that are excluded from the definition of conditions of employment under section 7103(a)(14)(C) of the Statute because they are specifically provided for by Federal statute, namely, the FTCA. Proposal 7 provides employees with immunity, under certain conditions, from suits alleging violations of an individual's constitutional rights. We find that Proposal 7 is inconsistent with law and therefore nonnegotiable under section 7117(a)(1) of the Statute.
In response to the Supreme Court's decision in Westfall v. Erwin, 484 U.S. 292 (1988), Congress enacted the Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub. L. 100-694, 102 Stat. 4563, which amended section 2679 of the FTCA. Prior to Westfall, the general rule was that Federal employees were immune from personal liability in state common law tort actions for harm that resulted from activities within the scope of their employment. See H.R. Rep. No. 700, 100th Cong., 2d Sess. 2 (1988), reprinted in 1988 U.S. Code Cong. & Admin. News 5945, 5946. The legal basis for the immunity was the general doctrine of sovereign immunity. Id. (citing Barr v. Mateo, 360 U.S. 564 (1959)). In Westfall, the Supreme Court required, as a condition precedent to personal immunity for Federal employees, not only that employees must be acting within the scope of their employment, but also that they must have exercised governmental discretion in so acting. 484 U.S. at 300.
The 1988 amendments to the FTCA established "standards to govern the immunity of Federal employees who have allegedly committed state common law torts." See H.R. Rep. No. 700, 100th Cong., 2d Sess. 2, 4 (1988), reprinted in 1988 U.S. Code Cong. & Admin. News 5945, 5947. The effect of the amendments was "to return Federal employees to the status they held before the Westfall decision. That is, Federal employees will be immune from personal liability for actions taken in the course and scope of their employment." Id. at 4, 1988 U.S. Code Cong. & Admin. News at 5947.
Under the 1988 amendments, the sole remedy for state common law torts which occur as a result of the actions of a Federal employee acting within the scope of his or her employment is a suit against the United States, not the employee. As amended, section 2679(b)(1) of the FTCA states:
(b)(1) The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim against the estate of such employee. Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee or the employee's estate is precluded without regard to when the act or omission occurred.
By providing that the exclusive remedy for injuries arising from an employee's alleged negligence or wrongful act or omission is a suit against the United States, Congress has effectively provided employees with immunity, in every jurisdiction, from personal lawsuits based on alleged common law torts.
Proposal 6 prescribes the conditions under which bargaining unit employees would be immune from suit for acts performed at the direction of the Agency. Proposal 8 requires that unit employees be immune from suit at both the state and Federal levels. Section 2679 of the FTCA specifically provides the conditions governing personal liability for Federal employees with respect to state common law torts. Proposals 6 and 8 attempt to cover the same matters. Because Proposals 6 and 8 establish the conditions under which bargaining unit employees will be immune from suit for actions in the course of their employment, and the scope of that immunity, they pertain to matters that are specifically provided for by section 2679 of title 28 of the United States Code and are thus excluded from the definition of conditions of employment under section 7103(a)(14)(C) of the Statute. Accordingly, we find that the proposals are nonnegotiable.
As to lawsuits alleging constitutional torts, the Supreme Court, in Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) (Bivens), held that Federal employees could be liable for money damages for any injuries that result from the violation by those employees of an individual's constitutional rights. Bivens at 397.
The 1988 amendments to the FTCA codified the distinction that the Federal courts had drawn between common law torts arising from negligence and "constitutional" torts. H.R. Rep. No. 700, 100th Cong., 2d Sess. 6 (1988), reprinted in 1988 U.S. Code Cong. & Admin. News 5945, 5949-50 (citing Bivens). As amended, section 2679(b)(2) states:
(2) Paragraph (1) does not extend or apply to a civil action against an employee of the Government--
(A) which is brought for a violation of the Constitution of the United States, or
(B) which is brought for a violation of a statute of the United States under which such action against an individual is otherwise authorized.
Our analysis of the 1988 amendments to the FTCA, and the House Report accompanying those amendments, leads us to conclude that Congress has not extended to Federal employees immunity from suit for alleged constitutional torts. In the 1988 amendments to the FTCA, Congress clearly waived sovereign immunity as to common law torts, so that suits alleging such torts may be lodged against the Government in lieu of suits against Federal employees. Congress declined, however, to waive sovereign immunity as to the constitutional torts of employees and thus provided that relief for such torts must be obtained from the employees themselves. Under the FTCA, that is, Federal employees are liable, as established in Bivens, for money damages for any injury that results from a violation by those employees of an individual's constitutional rights. Proposal 7 would grant immunity to unit employees from suits alleging violations of constitutional rights. Because Proposal 7 would afford Federal employees immunity as to matters for which, under Federal law, they are liable, we find that Proposal 7 is inconsistent with law and, therefore, nonnegotiable under section 7117(a)(1) of the Statute.
The petition for review as to Proposals 1, 2, 3, 4, 6, 7, and 8 is dismissed. The Agency shall upon request, or as otherwise agreed to by the parties, bargain on Proposal 5.(*)
(If blank, the decision does not have footnotes.)
*/ In finding Proposal 5 to be negotiable, we make no judgment as to its merit