42:1169(81)NG - - NFFE Local 858 and Agriculture, Federal Crop Insurance Corporation, Kansas City, MO - - 1991 FLRAdec NG - - v42 p1169



[ v42 p1169 ]
42:1169(81)NG
The decision of the Authority follows:


42 FLRA No. 81

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 858

(Union)

and

U.S. DEPARTMENT OF AGRICULTURE

FEDERAL CROP INSURANCE CORPORATION

KANSAS CITY, MISSOURI

(Agency)

0-NG-1892

DECISION AND ORDER ON NEGOTIABILITY ISSUES

October 25, 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 by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of two provisions of a negotiated agreement that were disapproved by the Agency head under section 7114(c) of the Statute. The Union did not file a response to the Agency's Statement of Position.

Provision 1 would limit the Agency's ability to place employees on sick leave restriction where improper use of sick leave is suspected. We find that the provision is nonnegotiable because it excessively interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute.

Provision 2 would require the Agency to submit certain forms contained in the Agency's Merit Promotion file to the Union following the completion of the selection process. We find that the provision is nonnegotiable under section 7117(a)(1) of the Statute because it is inconsistent with law.

II. Provision 1

Article 11.8 - Leave Restriction

When there is a sound reason to believe an employee is improperly using sick leave, the employee will be counseled and provided an opportunity to correct the perceived problem. If a problem exists and is not corrected based on the counseling, the employee may be issued a letter of warning. The letter of warning will not be placed in the Official Personnel Folder. This letter will include the evidence supporting the basis for a determination of improper leave use, what the employee must do to correct the problem, and the nature of leave restriction which may result if the problem is not corrected.

If after oral counseling and the letter of warning the problem has not been corrected, the employee may be placed on leave restriction. Such leave restriction will be fair, reasonable, and equitably applied to all employees. The leave restriction will explain the presentation of evidence in order to obtain the approval of subsequent leave requests in that category, the type(s) of acceptable evidence, and the consequences of not providing such evidence. [Only the underscored portion is in dispute.]

A. Positions of the Parties

1. Agency

The Agency "does not dispute that it is a good management practice to counsel an employee when leave abuse is suspected" and "agree[s] that a letter of warning is not inappropriate in some circumstances." Agency's Statement of Position at 3. The Agency contends, however, that Provision 1 directly and excessively interferes with its right to discipline employees under section 7106(a)(2)(A) of the Statute. The Agency argues that the provision requires it to institute a 3-step disciplinary process in those circumstances where employee sick leave abuse is suspected. According to the Agency, if such abuse is suspected, the provision would restrict the exercise of its right to discipline employees by requiring it to "(1) counsel the employee, (2) issue a warning letter, and (3) impose a leave restriction letter." Id. The Agency argues that the provision "prevents management from determining what, if any, discipline should be imposed upon an employee in a given situation." Id. at 4. In support of its position, the Agency cites Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521 (1990) (VAMC, Milwaukee) and National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491, (1987) (Bureau of Land Management), enforced in part and reversed in part as to other matters sub nom. Department of the Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505 (D.C. Cir. 1989).

2. Union

The Union contends that Provision 1 is "purely procedural in nature." Petition for Review at 1. According to the Union, the provision establishes "procedures by which [m]anagement exercises its rights, while protecting the employee in the exercise of those rights." Id. The Union claims that the provision does not directly or excessively interfere with management's rights or prevent the Agency from exercising its rights.

B. Analysis and Conclusions

We conclude that Provision 1 excessively interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute and, therefore, that the provision does not constitute an appropriate arrangement under section 7106(b)(3).

1. The Provision Directly Interferes with Management's Right to Discipline Employees

Provision 1 establishes certain conditions that would limit management's ability to place employees on sick leave restriction. The provision would permit the Agency to place employees suspected of improperly using sick leave on sick leave restriction only if the employees are first provided with oral counseling and a letter of warning.

Because the use of leave restrictions is, in practical terms, a precondition of an agency's decision to discipline employees for suspected misuse or abuse of sick leave, provisions or proposals that preclude an agency from imposing sick leave restrictions directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA No. 78 (1991), slip op. at 21-22 (Army Information Systems Command).

Provision 1 requires the Agency to counsel and provide a letter of warning to an employee suspected of improperly using sick leave before placing that employee on sick leave restriction. Specifically, under Provision 1, management would not be able to place an employee on sick leave restriction based on the initial incidents giving rise to "a sound reason to believe" that an employee is "improperly using sick leave[.]" Instead, the provision substitutes counseling and a letter of warning for the imposition of sick leave restriction for those incidents. Because sick leave restriction is, as a practical matter, a preconditon of management's decision to impose discipline for improper use of sick leave, Provision 1 would effectively preclude management from responding to the employee's improper use of sick leave through discipline until management had counseled and provided a letter of warning to the employee. See id., slip op. at 21-22 (because "the [a]gency would not be able to place an employee in a restricted leave use category based on previously approved leave, . . . management would be precluded from responding to an employee's inappropriate use of leave through discipline").

Consequently, consistent with Army Information Systems Command, we find that Provision 1 directly interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. In view of our determination that Provision 1 directly interferes with management's right to discipline employees, we reject the Union's argument that the provision is purely procedural. Provision 1 is nonnegotiable, therefore, unless it is an appropriate arrangement within the meaning of section 7106(b)(3).

2. The Provision Is Not an Appropriate Arrangement under Section 7106(b)(3)

The Union contends that Provision 1 does not excessively interfere with management's rights. We interpret the Union's contention as an argument that the provision constitutes an appropriate arrangement. Therefore, we will consider whether the provision is negotiable under section 7106(b)(3) of the Statute.

In order to determine whether a proposal constitutes an appropriate arrangement, we must determine whether the proposal is: (1) intended to be an arrangement for employees adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of management's rights. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard). In determining whether a proposal excessively interferes with the exercise of a management right, we weigh the benefits conferred on employees by the proposal against the burden imposed on the exercise of management's rights. Id.

As to whether Provision 1 is an arrangement for employees adversely affected by the exercise of a management right, we find that the provision would benefit employees suspected of leave abuse by providing those employees with counseling assistance and a warning instead of the imposition of sick leave restriction as a prelude to disciplinary action. The provision would protect employees where grounds exist for imposing leave restriction, by precluding leave restriction unless and until employees have received counseling and been warned. We find, therefore, that Provision 1 constitutes an arrangement for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3).

As to whether Provision 1 constitutes an appropriate arrangement, we note that, under the provision, where incidents occur that give rise to a "strong reason to believe" an employee is "improperly using sick leave," management will counsel and warn the employee rather than place the employee on sick leave restriction for those initial incidents. We noted above that, by precluding management from placing an employee on sick leave restriction, the provision effectively precludes disciplinary action against the employee for certain suspected incidents of improper use of sick leave. We find that, by thus precluding disciplinary action for the initial incidents of suspected sick leave abuse, the burden placed on management's ability to discipline employees by the provision outweighs the benefit to employees under the provision. We find, therefore, that the provision excessively interferes with management's right to discipline employees. See, for example, American Federation of Government Employees, Local 1156 and U.S. Department of the Navy, Navy Ships Parts Control Center, Mechanicsburg, Pennsylvania, 42 FLRA No. 79 (1991) (provision requiring agency to caution employees prior to imposing sick leave restriction found to excessively interfere with management's right to discipline employees under section 7106(a)(2)(A)). Consequently, we conclude that Provision 1 does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute and that the provision is nonnegotiable.

III. Provision 2

Article 13.5(G) - Merit Promotion, Evaluation of Candidates

The Promotion Certificate and AD-735's will be submitted to the Exclusive Representative when the Merit Promotion Process has been completed.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 2 is nonnegotiable because it is inconsistent with the Privacy Act, 5 U.S.C. §552a(b). According to the Agency, the issue presented by the provision concerns "the privacy rights of individuals who applied for a position and either did not make the best qualified list or, if they did make the list, were not selected." Agency's Statement of Position at 6.

The Agency argues that Federal Personnel Manual (FPM) chapter 335, subchapter 1-4, Requirement 5 and FPM Supplement 335-1, subchapter 5.2c require management to ensure that employees' rights to privacy are protected. The Agency states that, subject to an exemption permitting disclosure to agency officials and employees who have a need for a record in the performance of their duties, the Privacy Act prohibits the disclosure of "any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains." Id. at 6-7. According to the Agency, therefore, the Privacy Act prohibits the disclosure of the Promotion Certificate and Form AD-735.

The Agency also argues that the Union has confused the Privacy Act with the Freedom of Information Act (FOIA), 5 U.S.C. §552. The Agency notes that Exemption 6 to the FOIA exempts the disclosure of personnel and medical files from the requirements of the FOIA where such disclosure would constitute a clearly unwarranted invasion of personal privacy.

Further, the Agency states that it "suggested to the [U]nion that sanitization of the Promotion Certificate and Form AD-735 to protect the privacy rights of nonselected individuals would remove any question of negotiability." Id. at 7. The Agency notes that the Union did not modify Provision 2. The Agency argues that the language of the provision does not indicate that "the Union is willing to accept sanitized documents." Id. In support of its position, the Agency relies on National Federation of Federal Employees, Local 1745 and Veterans Administration, 13 FLRA 543 (1983) (Veterans Administration), affirmed sub nom. NFFE, Local 1745 v. FLRA, 828 F.2d 834 (D.C. Cir. 1987).

2. Union

In its petition for review, the Union contends that Provision 2 is consistent with law. The Union argues that disclosure of the requested forms is permitted under Exemption 6 to the FOIA and, therefore, is not prohibited from disclosure under the Privacy Act. The Union states that "[t]he point of Exception 6 (FOIA) is that the Privacy Act never prohibits a disclosure that is required by the FOIA." Petition for Review at 2. The Union also points out that, in applying Exemption 6 of the FOIA, courts "have held that the [u]nion's interest in obtaining such information, outweighs the employees' privacy interest in protecting the information." Id.

The Union also argues that the Promotion Certificate and Form AD-735: (1) are available to the Union in accordance with section 7114(b)(4) of the Statute; and (2) have been previously disclosed by the Agency at the Union's oral request and pursuant to the Statute. The Union asserts that the information is requested in order to protect unit employees' rights under the parties' agreement "to fair consideration for positions advertised through the Merit Promotion Plan[.]" Id.

B. Analysis and Conclusions

We conclude that Provision 2 is inconsistent with the Privacy Act and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute.

Provision 2 requires the Agency to provide the Union with copies of the Promotion Certificate (Form FCIC-473) and Form AD-735 when the merit promotion process has been completed. The Agency claims, and the Union does not dispute, that the Agency agreed to the disclosure of sanitized copies of Forms FCIC-473 and AD-735. There is no indication in the record that the Union is willing to accept sanitized copies of the requested forms. Consequently, in the absence of evidence to the contrary, we will interpret the provision as requiring unsanitized copies of Forms FCIC-473 and AD-735.

Form AD-735 is used by a rating and ranking panel to evaluate the qualifications of applicants for a merit promotion position. Form AD-735 includes, among other things, the comments of the rating panel members in arriving at an applicant's rating and the numerical rating given to each applicant. At the completion of the merit promotion process, the Agency compiles a master copy of Form AD-735 that indicates: (1) the names and rating of each applicant for the position; and (2) the names of those applicants who were found to be best qualified for the position. The Promotion Certificate (Form FCIC-473) is a listing of the best qualified applicants for a position. Form FCIC-473 also indicates whether an applicant was selected for, not selected for, or declined the position. Provision 2, therefore, requires the Agency, following completion of the merit promotion process, to provide the Union with unsanitized copies of forms listing the names and relative ranking of all applicants for a promotion, the rating for each applicant, and whether or not an applicant was selected for the position.

The Privacy Act regulates the disclosure of any information contained in an agency "record" within a "system of records" that is retrieved by reference to an individual's name or some other personal identifier. 5 U.S.C. §552a(a)(4), (5) (1982). The Privacy Act defines "record" as "any item, collection, or grouping of information about an individual that is maintained by an agency . . . ." and "system of records" 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[.]" 5 U.S.C. §552a(a)(5). See also National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, Department of Military Affairs, Springfield, Illinois, 39 FLRA 1087, 1094-96 (1991) (Department of Military Affairs). Forms FCIC-473 and AD-735 are records within a "system of records" under the Privacy Act. See Veterans Administration, 13 FLRA at 545-46.

With certain enumerated exceptions, the Privacy Act precludes an agency from disclosing to any person or agency any record which it maintains as a part of a system of records absent a request by, or the written consent of, the person to whom the record pertains. Section (b)(2) of the Privacy Act provides that the prohibition against disclosure is not applicable if disclosure of the information would be required under the FOIA. 5 U.S.C. §552a(b)(2). Exemption (b)(6) of the FOIA provides that information contained in personnel files, in addition to 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. §552(b)(6). Therefore, if the release of Forms FCIC-473 and AD-735 would not constitute a clearly unwarranted invasion of personal privacy, disclosure of those forms to the Union would not be barred by the Privacy Act.

The question, therefore, is whether disclosure of unsanitized copies of Forms FCIC-473 and AD-735 would constitute a clearly unwarranted invasion of privacy. In determining whether disclosure of the requested forms, including the names of individuals not selected for a position, would constitute a clearly unwarranted invasion of personal privacy, the employee's right to privacy must be balanced against the public interest in disclosure. See U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990) (Portsmouth), application for enforcement denied sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st Cir. Oct. 1, 1990).

In applying the balancing test, we look to the public interest embodied in the Statute. Id. at 525-35. The "public interest" identified in the Statute is "the facilitation of the collective bargaining process . . . ." Id. at 531. We conclude that there is a strong public interest in the disclosure of the requested information. The Union argues that the information is necessary in order to ensure that the Agency adheres to the provisions of the parties' agreement, thereby "protecting the bargaining unit employees' right to fair consideration for positions advertised through the Merit Promotion Plan[.]" Petition for Review at 2. Because the Union requested the information for this purpose, we find that the disclosure of the names and relative standings of all employees contained in the Forms FCIC-473 and AD-735 would serve a strong public interest. The disclosure of information needed to ensure that the Agency complies with its responsibilities in administering the selection process is a matter of public concern. See, for example, Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 38 FLRA 120, 132 (1990), application for enforcement filed sub nom. FLRA V. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, MD, No. 91-1175 (D.C. Cir. Apr. 12, 1991) (disclosure of the names and duty stations of unit employees receiving commendable or outstanding performance ratings was found to serve an important public interest).

Even using only the public interest identified by the Supreme Court in United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 773 (1989) (Reporters Committee), and taking into account "the nature of the requested document and its relationship to the basic purpose of the FOIA 'to open agency action to the light of public scrutiny,'" Dunkelberger v. Department of Justice, 906 F.2d 779, 781 (D.C. Cir. 1990), quoting Reporters Committee, we find that there is a clear public interest in the disclosure of the information requested by the Union in this case. Disclosing copies of forms listing the names and relative ranking of all applicants for a promotion, the rating for each applicant, and whether or not an applicant was selected for the position, would open to public scrutiny the manner in which the Agency administers its selection process and whether the Agency's selection process is administered in a fair and evenhanded manner. See, for example, Department of the Air Force, Scott Air Force Base, Illinois, 38 FLRA 410, 419 (1990), petition for review filed sub nom. Department of the Air Force, Scott Air Force Base, Illinois v. FLRA, No. 91-1042 (D.C. Cir. Jan. 24, 1991) (disclosing the nature of a disciplinary action taken against a supervisor for an alleged assault on an employee found to concern the public interest in the agency's compliance "with its responsibilities [for] administering its disciplinary system in a fair and evenhanded manner.").

The information required by the proposal pertains to the decisions the Agency makes and the actions the Agency takes in selecting among candidates for a vacant position. Disclosure of that information would open to "public scrutiny" what the Agency is "up to" in its hiring and promotion practices. See Reporters Committee, 489 U.S. at 772-73. Disclosure of the information would enable the public to assess, for example, whether the Agency is hiring and promoting candidates for a vacancy consistent with applicable law, regulation, and the collective bargaining agreement.

Employees, however, have significant privacy interests in records concerning their relative standing in the Agency's selection process. In this regard, FPM chapter 335, subchapter 1-4, Requirement 5 and FPM Supplement 335-1, subchapter S5-2.c. provide that an agency, in administering its promotion system, must ensure the protection of an individual's privacy rights and an employee's rating or score must not be made known to anyone who does not have an official need to know an individual's score.

Applying the balancing test to this case, we find that the personal privacy interests of employees whose records are disclosed outweigh the public interest in the blanket disclosure to the Union in its representational capacity of unsanitized documents generated in the promotion process. In Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410 (1990) (Mare Island Naval Shipyard), petition for review filed sub nom. Federal Employees Metal Trades Council v. FLRA, No. 91-70168 (9th Cir. Mar. 5, 1991), the Authority found 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" constituted an unwarranted invasion of personal privacy and did not outweigh "the employees' strong privacy interests." Id. at 1425. The Authority found that the information requested in Mare Island Naval Shipyard was prohibited from disclosure under the Privacy Act. See also U.S. Department of Justice and Immigration and Naturalization Service, 37 FLRA 1346, 1364 (1990) (INS), petition for review filed sub nom. U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, No. 90-1613 (D.C. Cir. Dec. 27, 1990) (provision requiring respondent to provide the union with unsanitized copies of notices of proposed disciplinary actions, final actions taken, and decisions on subsequent appeal constituted an unwarranted invasion of personal privacy and, therefore, was prohibited from disclosure under the Privacy Act).

Here, Provision 2 requires the blanket release of unsanitized information concerning each applicant's individual rating, selection, nonselection, and relative ranking in the Agency's selection process for promotions. O