53:0925(73)AR - - GSA and AFGE Council 236 - - 1997 FLRAdec AR - - v53 p925



[ v53 p925 ]
53:0925(73)AR
The decision of the Authority follows:


53 FLRA No. 73

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

GENERAL SERVICES ADMINISTRATION

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 236

(Union)

0-AR-2795

_____

DECISION

November 21, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

Decision by Member Wasserman for the Authority.

I. Statement of the Case

This matter is before the Authority on exceptions to a supplemental award of Arbitrator Charles A. Askins filed by both the Agency and the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. Neither the Agency nor the Union filed oppositions to the other's exceptions.

The Authority set aside a portion of the Arbitrator's original award, on the basis that the Arbitrator's determination that the Union was not entitled to notice of, and an opportunity to be present at, settlement negotiations and discussions (settlement negotiations) of a Merit Systems Protection Board (MSPB) appeal between the Agency and an employee and the employee's private attorney was inconsistent with section 7114(a)(2)(A) of the Statute. The Authority remanded the case to the parties to obtain a clarification of the award in several respects. General Services Administration, Region 9 and American Federation of Government Employees, Council 236, 48 FLRA 1348 (1994) (GSA). In his supplemental award, the Arbitrator determined, as relevant here, that as a remedy for its failure to provide the Union with notice of, and an opportunity for representation at, the disputed settlement negotiations, the Agency must post a notice advising employees that it will cease and desist from engaging in such conduct. The Arbitrator further concluded, as he had done in his original award, that the Union's Rehabilitation Act and Privacy Act claims were not properly before him based on the parties' collective bargaining agreement.

We conclude that both the Agency and the Union have failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny both the Agency's and the Union's exceptions.

II. Background

The Agency removed an employee for being under the influence of alcohol while on duty. The employee retained a private attorney and filed an appeal of the removal with the MSPB, instead of filing a grievance. As relevant here, the Agency and the employee executed a last chance agreement reinstating the employee in settlement of her MSPB appeal.(1) Subsequently, two agency supervisors held meetings with unit employees and discussed the return to work of the reinstated employee, including her alcohol problem and the program she would be required to attend as a condition of returning to work. The Union filed a grievance and claimed, as relevant here, that it had not been given the opportunity to attend any of the negotiations that resulted in the execution of the last chance settlement agreement. The Union also claimed that it was not given the opportunity to be represented at the meetings of employees conducted by the two agency supervisors concerning the return to work of the reinstated employee, including her alcohol problem, and that those meetings violated the Rehabilitation Act and the Privacy Act. The grievance was not resolved and was submitted to arbitration.

A. Original Award

In his original award dated June 15, 1993, the Arbitrator first determined that the Agency had no obligation to notify the Union about the disputed settlement negotiations with the removed employee. The Arbitrator further determined that the Agency was required to give the Union an opportunity to be present at meetings of employees conducted by the supervisors concerning the return to work of the reinstated employee and her alcohol problem but that the Rehabilitation Act and Privacy Act claims were not properly before him. In this regard, the Arbitrator stated that the Union first referenced 29 C.F.R. § 1614.203, which concerns, among other matters, confidentiality under the Rehabilitation Act, in its post-hearing brief and that it made only a general reference to Equal Employment Opportunity Commission regulations and the Privacy Act when it filed its grievance. The Arbitrator concluded that the Union's Rehabilitation Act and Privacy Act claims did not comply with the procedural requirements of Article 34, Section 6 of the parties collective bargaining agreement.(2) The Union filed exceptions to the Arbitrator's original award.

B. Authority Decision in GSA

In GSA, the Authority concluded that the award conflicted with section 7114(a)(2)(A) of the Statute to the extent that the Arbitrator ruled that the Union was not entitled to notification of, and an opportunity for representation at, settlement negotiations. In reaching that conclusion, the Authority found that the negotiations conducted by the Agency with the employee and her attorney satisfied the criteria set forth in section 7114(a)(2)(A) of the Statute insofar as they were discussions that were formal between a representative of the Agency and an employee in the bargaining unit. In so finding, the Authority relied on the purposes of that section as guidance. The Authority remanded this portion of the award to the parties for resubmission to the Arbitrator to fashion a remedy for the Agency's violation of section 7114(a)(2)(A). The Authority stated that "[i]n choosing to file a grievance, the Union chose the judgment and discretion of the Arbitrator, and we will not disturb that choice." GSA, 48 FLRA at 1356.

As to the Union's Rehabilitation Act and Privacy Act claims, the Authority determined that the Arbitrator "misapprehended" the undisputed fact that the "Union's first reference to 29 C.F.R. § 1614.203 was before the arbitration hearing in its March 2, 1993, letter, not in its post-hearing brief[.]" GSA, 48 FLRA at 1357-58. However, the Authority found that it was unable to ascertain whether the award was deficient because it was not clear that the Arbitrator would have found the Union's claims properly before him if he had understood that the citation was provided before the arbitration hearing.

The Authority noted the Agency's argument that the result reached by the Arbitrator would not have been any different had the Arbitrator not misapprehended when the citation was provided. According to the Agency, the Union was required, under Article 34, Section 6, to provide the citation when it filed its institutional grievance. In this regard, the Authority stated:

[W]e note that Section 6, as quoted by the Arbitrator, also provides that "[a]ny information (e.g. the provision(s) of law, regulations, or this Agreement) not contained in the final step of the grievance procedure must be presented to the other party prior to the arbitration hearing." Without the Arbitrator's interpretation and application of this language, we are not persuaded that the result necessarily would have been the same.

Id. at 1358. [citations omitted.]

The Authority also noted the Agency's arguments that the mere citation to 29 C.F.R. § 1614.203 was insufficient to satisfy the specificity requirements of Article 34, Section 6, and that it was not until the Union's post-hearing brief that the Union cited subsection (e)(4) of that regulatory provision and explained the basis for the claims. In this regard, the Authority stated:

[A]s the Arbitrator did not consider what specificity is required under Section 6 to satisfy the requirement to specify the provisions of law or regulation that have allegedly been violated, we are not persuaded, as asserted by the Agency, that the Arbitrator necessarily would have reached the same result because the Union did not specify subsection (e)(4) of 29 C.F.R. § 1614.203 until its post-hearing brief.

Id. at 1358.

Thus, the Authority remanded this portion of the award to the parties for resubmission to the Arbitrator to determine whether the Union's Rehabilitation Act and Privacy Act claims comply with the procedural requirements of Article 34, Section 6 of the parties' collective bargaining agreement.

C. Supplemental Award

In his supplemental award, the Arbitrator concluded that the appropriate remedy for the Agency's violation of section 7114(a)(2)(A) is to post a notice advising department employees that the Agency will cease and desist from engaging in such conduct. The Arbitrator directed that the terms of the notice be worked out by the parties, "based on FLRA case law." Supplemental Award at 9. The Arbitrator rejected the Union's argument that the appropriate remedy should be the result the Union would have sought had it been allowed to participate in the negotiations. The Arbitrator found that it was speculative that the Union would have achieved a better settlement had it participated in the negotiations.

The Arbitrator also determined that the Union's claims that the Agency violated the Rehabilitation Act and the Privacy Act were not properly before him because those claims did not comply with the procedural requirements of Article 34, Section 6 of the parties' collective bargaining agreement. The Arbitrator found that Article 34, Section 6 requires that when an institutional grievance is filed the "specific" provisions of law or regulations alleged to have been violated must be set forth. Id. at 7. The Arbitrator also found that the last sentence of that contractual provision was intended to apply to subsequently acquired information and not information known at the time of the filing of the grievance.

The Arbitrator concluded that the Union's general citations in the grievance to the Rehabilitation Act and the Privacy Act did not satisfy the specificity requirements of Article 34, Section 6 of the parties' collective bargaining agreement. The Arbitrator also concluded that the Union's general citation to 29 C.F.R. § 1614.203, without noting a subsection, in its March 2, 1993, letter also did not satisfy the specificity requirements of the parties' agreement.

III. Exceptions

A. Union's Contentions

The Union contends that the Arbitrator's failure to order the remedy requested by the Union is contrary to unspecified Authority precedent. The Union asserts that unspecified Authority precedent requires more than the Agency's posting of a notice to employees to remedy a violation of section 7114(a)(2)(A) of the Statute. The Union argues that the appropriate remedy in this case is the result it would have sought in the settlement negotiations -- compensation to the employee for the time period she was removed from work.

The Union also contends that the Arbitrator's determination not to address the merits of the Rehabilitation Act and the Privacy Act claims fails to draw its essence from the parties' agreement. The Union states that Article 34, Section 6 provides that a grievance may be "perfected" prior to the arbitration hearing, which it claims occurred in this case. Union's Exceptions at 2. The Union argues that the Arbitrator's finding that the last sentence of that contractual provision was intended to apply only to subsequently acquired information, and not to information known at the time of the filing of the grievance, is contrary to its clear and unambiguous language.

Finally, the Union contends that the supplemental award demonstrates that the Arbitrator is biased. Thus, the Union requests that the Authority remand the case to the parties so that they may select another arbitrator to resolve this dispute.

B. Agency's Contentions

The Agency contends that the Arbitrator's remedy for the violation of section 7114(a)(2)(A) of the Statute is contrary to law. The Agency maintains that GSA was overruled by General Services Administration, 50 FLRA 401 (1995) (General Services), in which the Authority stated:

Consideration of the intent and purpose of section 7114(a)(2)(A) does not constitute a separate element in the analytical framework. Rather, it is only a guiding principle that informs our judgments in applying the statutory criteria. To the extent that some Authority precedent sets forth that consideration as an independent element of the analytical framework, that precedent will no longer be followed.

50 FLRA at 404 n.3. Therefore, the Agency argues that GSA does not provide the appropriate legal basis for the remedy. The Agency also argues that in GSA the Authority failed to apply the "indicia of formality[,]" which must be present for discussions to qualify as formal discussions under section 7114(a)(2)(A) of the Statute. Agency's Exceptions at 1. The Agency adds that because the remedy is inconsistent with General Services, it fails to draw its essence from the parties' agreement, "which merely repeats the statutory language[]" of section 7114(a)(2)(A) of the Statute. Id.

The Agency also contends that the remedy is inconsistent with the Privacy Act. The Agency argues that Union attendance at MSPB appeals settlement negotiations would necessarily result in the disclosure of information in documents protected by the Privacy Act pertaining to disciplinary and health matters, and the terms of any resulting settlement agreement. The Agency adds that Union attendance at such negotiations would necessarily disclose sensitive information "not incorporated in the written [settlement] agreement[.]" Id. at 2.

The Agency also states that upon receipt of an appeal, MSPB directs the Agency to contact the appellant and discuss possible settlement. The Agency argues that affording the Union an opportunity to participate in such settlement negotiations would disclose the fact that an employee has appealed an adverse action to the MSPB and the fact that an adverse action had been taken against an identified employee.

In support of its position, the Agency cites Federal Aviation Administration, New York Tracon, Westbury, New York, 51 FLRA 115 (1995) (FAA, Westbury); and U.S. Department of Transportation, Federal Aviation Administration, New York Tracon, Westbury, New York, 50 FLRA 338 (1995) (FAA). The Agency notes that in FAA, Westbury, the Authority concluded that the disclosure of a copy of an Equal Employment Opportunity settlement agreement violated the Privacy Act. The Agency also notes that in FAA, the Authority concluded that the disclosure of unsanitized copies of performance appraisals violated the Privacy Act.

IV. Analysis and Conclusions

A. The Remedy Is Not Contrary to Law

Where a party's exception involves an award's consistency with law, the Authority must review the questions of law raised by the arbitrator's award and the party's exception de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)).

1. The Remedy Is Not Contrary to Authority Precedent

In General Services, issued subsequent to GSA, the Authority held that consideration of the intent and purpose of section 7114(a)(2)(A) does not constitute a separate element in the analytical framework for determining whether a meeting constitutes a "formal discussion" within the meaning of that statutory provision; rather, it is only a guiding principle that informs the Authority's judgments in applying the statutory criteria. 50 FLRA at 404 n.3. The Authority further held that, to the extent that some Authority precedent sets forth that consideration as an independent element of the analytical framework, that precedent will no longer be followed. Id.

We reject the Agency's contention that the Arbitrator's remedy for the violation of 7114(a)(2)(A) is contrary to law because GSA was overruled by General Services. In GSA, the Authority found that the negotiations conducted by the Agency with the employee and her attorney met the elements set forth in section 7114(a)(2)(A) insofar as they were discussions that were formal between a representative of the Agency and an employee in the bargaining unit. In so doing, the Authority did not consider the intent and purpose of section 7114(a)(2)(A) as an independent, separate element of the analytical framework. Rather, the Authority relied on the purposes of that section as guidance only. Therefore, we find that GSA is consistent with the Authority's decision in General Services and provides the appropriate legal basis for the remedy.

We also reject the Union's contention that the Arbitrator's failure to order the remedy requested by the Union is contrary to unspecified Authority precedent. In GSA, the Authority did not direct the Arbitrator to fashion a particular remedy for the violation of section 7114(a)(2)(A). Rather, the Authority remanded that portion of the award to the parties for resubmission to the Arbitrator to fashion a remedy. Furthermore, the remedy ordering the Agency to cease and desist from its unlawful acts and to post a notice is consistent with Authority precedent. Department of Veterans Affairs, Medical Center, Phoenix, Arizona, 52 FLRA 182, 184 (1996) (the Authority found that in the circumstances of the case a remedy beyond a cease-and-desist order and the posting of a notice was not necessary to remedy the violation of section 7114(a)(2)(A)).

2. The Remedy Is Not Contrary to the Privacy Act

In assessing whether the Union's presence at settlement negotiations of MSPB appeals would necessarily result in disclosure of information from a record protected under the Privacy Act, we are guided by our construction of section 7114 of the Statute and law that has been developed both by the Federal courts and by the Authority. See FAA, 50 FLRA at 346.

a. Applicable Statutory Provisions

Under section 7114(a)(2)(A) of the Statute, a union has the right to be represented at "any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment[.]" [Emphasis added.] In contrast, section 7114(b)(4) obligates an agency to furnish to the union, "to the extent not prohibited by law," data that meets the criteria set forth in that section. [Emphasis added.]

The Privacy Act, 5 U.S.C. § 552a, restricts the disclosure, and redisclosure, of personally identifiable records. 5 U.S.C. § 552a(b) provides, with certain exceptions, as follows:

No agency shall disclose 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[.]

The courts hold that a "disclosure" within the meaning of the Privacy Act is the actual retrieval of any information from a "record" within the meaning of that Act. See, e.g., Bartel v. Federal Aviation Administration, 725 F.2d 1403, 1408 (D.C. Cir. 1984) (Bartel). The leading case articulating this "actual retrieval" standard is Savarese v United States Department of Health, Education and Welfare, 479 F. Supp. 304 (N.D.Ga. 1979), aff'd mem. sub nom, Savarese v. Harris, 620 F.2d 298 (5th Cir. 1980), cert. denied, 449 U.S. 1078 (1981) where the court held that for disclosure to be covered by 5 U.S.C. § 552a(b) "there must have initially been a retrieval from the system of records which was at some point a source of the information." 479 F. Supp. at 308.(3) However, in Bartel the Court of Appeals for the District of Columbia Circuit held that the "actual retrieval" standard is inapplicable where a disclosure is made by agency personnel who had a role in creating the record that contains the released information. 725 F.2d at 1408-11; see also Wilborn v. Department of Health and Human Services, 49 F.3d 597, 601 (9th Cir. 1995) (Wilborn) (court held that "'independent knowledge,' gained by the creation of records, cannot be used to sidestep the Privacy Act").

b. The Award Is Not Inconsistent with the Privacy Act

We find that, based on the plain wording of section 7114(a)(2)(A), the remedy fashioned by the Arbitrator is not precluded by the Privacy Act, as contented by the Agency. The remedy affords the Union representation at settlement negotiations of MSPB appeals. As the Authority found in GSA, those negotiations constitute formal discussions under section 7114(a)(2)(A). Thus, the remedy appropriately affords the Union its statutory right to be present at formal discussions. In this regard, it is significant that section 7114(a)(2)(A) provides a union the right to be represented at "any formal discussion" concerning "any grievance or any personnel policy or practices" and thus places no legal conditions on a union's right to attend such discussions.(4) Therefore, under the plain wording of section 7114(a)(2)(A), a union has the right to be represented at a formal discussion without regard to the Privacy Act.

The Agency argues that affording the Union the opportunity to attend settlement negotiations of MSPB appeals would necessarily result in the disclosure of the fact that an employee has appealed an adverse action to MSPB and the fact that an adverse action had been taken against an identified employee. However, the Agency has not established that the Union's acquiring knowledge of those two events as a result of the Agency providing notice of, and the Union's attendance at, settlement negotiations would be related to information in, or retrieved from, a "record" within the meaning of the Privacy Act. The Agency also argues that sensitive information not incorporated into any resulting settlement agreement would be disclosed to the Union at such meetings. Similarly, the Agency has not shown that such sensitive information would be information contained in or retrieved from a "record" within the meaning of the Privacy Act. Thus, the Agency has not supported the expansive reading of the Privacy Act that it asserts overrides the requirements of section 7114(a)(2)(A). Cf. Naval Ordnance Station of Louisville, Kentucky and International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge 830, 34 FLRA 687, 689 (1990) (the union did not establish that a requirement that the grievant explain his reasons to support a request for relief from an overtime duty assignment would be maintained by the Activity in a "record" within the meaning of the Privacy Act from which the information could be retrieved).

The Agency further argues that Union attendance at settlement negotiations of MSPB appeals would necessarily result in the disclosure of information in documents protected by the Privacy Act pertaining to disciplinary and health matters, and the terms of any resulting settlement agreement. It is clear that the Agency's concern here relates to information in a "record" within the meaning of the Privacy Act. However, the Agency has offered nothing beyond its speculation about such future disclosures. As the remedy for the violation of section 7114(a)(2)(A) addressed in GSA provides for the Union to attend formal discussions, the Union's statutory right to be represented at such meetings cannot be nullified on the speculative grounds of potential privacy problems under the Privacy Act. Cf. Wright-Patterson Air Force Base, 38 FLRA at 333 (Proposal 3, which granted the union the right to be present when a last chance agreement is offered to an employee, did not violate the Privacy Act because it did not require the disclosure of "records" within the meaning of the Privacy Act).

To the extent the Agency's concern that information in a "record" within the meaning of the Privacy Act could be disclosed at such negotiations, we note that the Agency will be a full participant in the settlement negotiations and in charge of the records within its control. Thus, the Agency will be required to conduct those negotiations without prohibited disclosures. If problems arise within those negotiations, they can be dealt with at that time when the nature of particular documents and the ability to protect the employee's privacy interests in those documents will no longer be speculative and can be evaluated under Privacy Act precedent.(5)

Furthermore, we note that the Arbitrator directed the Agency to post a notice advising employees that the Agency would afford the Union an opportunity to participate in settlement negotiations and that the terms of that notice must be worked out by the parties, "based on FLRA case law." Supplemental Award at 9. As such, in addition to the fact that nothing in Authority case law requires the Agency to disclose prohibited information in the meetings encompassed by the notice, the parties are free to recognize that and tailor the notice to the employees accordingly.

The Agency's reliance on the Authority's decisions in FAA, Westbury and FAA is misplaced because the unions in those cases specifically sought the disclosure of "records" within the meaning of the Privacy Act. For the same reasons, this case is distinguishable from the Authority's decision in U.S. Department of Justice, Federal Correctional Facility, El Reno, Oklahoma and American Federation of Government Employees, Local 171, 51 FLRA 584 (1995) (the agency's refusal to provide the union a copy of a settlement agreement and the agency's written response to the employee's MSPB complaint did not violate the Statute because disclosure of the requested information is prohibited by the Privacy Act).

Accordingly, we deny this exception.

B. The Remedy Does Not Fail To Draw its Essence from the Collective Bargaining Agreement

The Agency contends that because the remedy is inconsistent with the Authority's decision in General Services, it fails to draw its essence from the parties' agreement, "which merely repeats the statutory language." Agency's Exceptions at 1. As we noted, GSA was not overruled by General Services, as claimed by the Agency, and provides the appropriate legal basis for the remedy. Furthermore, the Agency has not otherwise demonstrated that the remedy is inconsistent with section 7114(a)(2)(A) of the Statute. Consequently, the Agency has not demonstrated that the remedy fails to draw its essence from the parties' agreement. Accordingly, we deny this exception.

C. The Union's Challenge to the Arbitrator's Determination Not to Address the Merits of the Union's Rehabilitation Act and the Privacy Act Claims Is Not Properly Before the Authority

Awards resolving questions of procedural arbitrability are subject to challenge only on grounds other than those that directly challenge the determination of procedural arbitrability itself. American Federation of Government Employees, Local 2921 and U.S. Department of the Army, Army & Air Force Exchange Service, Dallas, Texas, 50 FLRA 184, 185 (1995). Such grounds include bias on the part of the arbitrator or a showing that the arbitrator exceeded his authority. Id. at 186.

The Union's contention that the Arbitrator's determination not to address the merits of the Rehabilitation Act and Privacy Act claims fails to draw its essence from the parties' agreement constitutes a challenge to the Arbitrator's determination on the procedural arbitrability of those claims. We note that in GSA the Authority did not remand this portion of the supplemental award to the parties for resubmission to the Arbitrator to address specifically the merits of the Rehabilitation Act and Privacy Act claims. Rather, the Authority remanded this portion of the award to the parties for resubmission to the Arbitrator to determine whether those claims comply with the procedural requirements of Article 34, Section 6 of the parties' collective bargaining agreement. The exception directly challenges the Arbitrator's resolution of this procedural arbitrability issue. Accordingly, we deny this exception.

D. The Arbitrator was Not Biased

To demonstrate that an award is deficient because of bias on the part of an arbitrator, it must be shown that the award was procured by improper means, that there was partiality or corruption on the part of the arbitrator, or that the arbitrator engaged in misconduct that prejudiced the rights of the party. E.g., U.S. Department of Veterans Affairs, Medical Center, North Chicago, Illinois and American Federation of Government Employees, Local 2107, 52 FLRA 387, 398 (1996). The specific facts and evidence presented by the Union to support its exception fail to establish bias on the part of the Arbitrator. Accordingly, we deny this exception.

V. Order

The Agency's and the Union's exceptions are denied.




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

1. In general, a "last chance agreement" is a contract between an employee and an employer that gives the employee an opportunity to conform his/her conduct or performance to meet the employer's requirements in exchange for the retraction of disciplinary or adverse actions. American Federation of Government Employees, Council 214 and U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 309, n.1 (1990) (Wright-Patterson Air Force Base) enforced sub nom. U.S. Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio v. FLRA, 949 F.2d 475 (1992).

2. Article 34, Section 6 of the parties' collective bargaining agreement provides, in pertinent part, as follows:

All [institutional] grievances MUST set forth the following . . . when filed . . . .

. . . .

B. If appropriate, the provision(s) of law, regulation, or this Agreement which allegedly have been misinterpreted, misapplied, or violated.

. . . .

Any information (e.g. the provision(s) of law, regulations, or this Agreement) not contained in the final step of the grievance procedure must be presented to the other party prior to the arbitration hearing.

GSA, 48 FLRA at 1351.

3. Thus, under the courts' prevailing "actual retrieval" standard, if a party discloses information obtained independently of any records, such a disclosure does not violate the Privacy Act even if identical information is contained in records protected by the Act. See e.g. Kline v. Department of Health and Human Services, 927 F.2d 522 (10th Cir. 1991) (disclosed information had been previously disclosed to the recipient by the employee); Doyle v. Behan, 670 F.2d 535 (5th Cir. 1982) (there was no evidence that the manager's disclosure was drawn from an examination of a record that was created by other personnel, as opposed to her memory and personal knowledge as the case unfolded).

4. In contrast, section 7114(b)(4) places conditions on an agency's obligation to furnish data to a union by providing that an agency will furnish requested data "to the extent not prohibited by law."

5. The courts' decisions in Bartel and Wilborn have limited applicability because those cases did not concern, as here, a prospective remedial order. Rather, those cases concerned information that had already been disclosed and, therefore could be assessed under the standards set forth in the Privacy Act. They would, however, be applicable in determining whether information is disclosed at a particular negotiation where the management official negotiating the settlement is the same as the one who imposed the discipline. <