National Treasury Employees Union and U.S. Department of the Treasury, U.S. Customs Service, Washington, D.C.

[ v55 p1174 ]

55 FLRA No. 191

NATIONAL TREASURY EMPLOYEES UNION
(Union)

and

U.S. DEPARTMENT OF THE TREASURY
U.S. CUSTOMS SERVICE
WASHINGTON, D.C.
(Agency)

0-NG-2356

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members. [n1] 

I.     Statement of the Case

      This case is before the Authority on a petition for review of negotiability issues filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute).

      The parties have filed exceptions to a recommended decision of an administrative law judge on the negotiability of six provisions of a collective bargaining agreement. The provisions were disapproved by the Agency head under section 7114(c) of the Statute.

      After the Agency head disapproved the provisions, the Union filed a negotiability appeal under section 7105(a)(2)(E) of the Statute. [n2]  Pursuant to section 7117(c)(5) of the Statute and section 2424.9 of the Authority's regulations, the Authority transferred the case to the Chief Administrative Law Judge for assignment to an administrative law judge (Judge) for a hearing to determine, among other things, the meaning and context of the provisions. [n3]  After a hearing, the Judge issued a decision, recommending that the Authority direct the Agency to withdraw its disapproval of certain provisions and that the Authority dismiss the Union's petition as to certain other provisions. Both the Agency and the Union filed exceptions to the Judge's recommended decision. The Agency included with its exceptions an opposition to the Union's exceptions. The Union did not file an opposition to the Agency's exceptions.

      For the reasons fully explained below, we conclude that Provisions 1, 2, and 8 are not contrary to law, and we direct the Agency to rescind its disapproval of these provisions. We also conclude that Provisions 6, 7, and 9 are contrary to law or Government-wide regulation, and we dismiss the Union's petition with respect to these provisions.

II.     Provision 1

Article 12, Section 16
The Employer will make other reasonable efforts, if appropriate and possible, in order to avoid a RIF.

A.     Judge's Recommendation

1.     Meaning of the Provision

      Although the Judge discussed the meaning of one word --"appropriate" -- in the provision, the Judge made no findings with respect to the meaning of the provision. With regard to the word "appropriate," the Judge concluded that he was "obliged" to find that the word had the same meaning in the provision as it has in the term "appropriate arrangement" in section 7106(b)(3) of the Statute because that was the Union's interpretation of the word in its post-hearing brief. Judge's Recommended Decision at 4.

2.     Recommended Decision

      The Judge found that the provision "is substantially similar" to proposals and provisions that the Authority found negotiable as appropriate arrangements in Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA 306, 306-11 (1987) (Congressional Research Service) and Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 842-44 (1991) (POPA). Judge's Recommended Decision at 6-7. Based on these decisions, the Judge concluded that the provision would not [ v55 p1175 ] excessively interfere with management's rights, and he recommended finding that the provision is within the duty to bargain. [n4] 

B.     Positions of the Parties

1.     Agency

      The Agency asserts that the provision would affect its "right to conduct a RIF." Agency's Exceptions at 2. The Agency also asserts that the Judge, in determining the meaning of the provision, erred by relying on the Union's post-hearing assertion that the word "appropriate" in the provision has the same meaning as "appropriate arrangement." According to the Agency, the assertion in the Union's post-hearing brief contradicted the sworn testimony of the Union's negotiator, who stated that the provision was not intended as an appropriate arrangement. Agency's Exceptions at 5. The Agency contends that the Authority should dismiss the Union's petition as to this provision because the Union has provided contradictory explanations of the term "appropriate."

      With respect to the merits, the Agency maintains that the provision is not intended to mitigate the effects of a RIF, but to prevent a RIF. In particular, the Agency argues that "[w]ithout the qualifying adjectives, 'reasonable,' 'appropriate' and 'possible,' the provision clearly states that management" will avoid a RIF. Id. at 2 n.2. The Agency asserts that the provision will result in the Agency being required to consider almost limitless possibilities for preventing a RIF, and thus that the provision excessively interferes with management's rights.

2.     Union

      The Union does not address this provision in its exceptions or opposition.

C.     Meaning of Provision 1

      As plainly worded, Provision 1 requires the Agency to make "reasonable" efforts to avoid a reduction in force. The provision limits the Agency's obligation to those "reasonable" efforts that are both "appropriate and possible." As our analysis of Provision 1, set forth below, does not depend on the meaning of the word "appropriate," we find it unnecessary to address the Agency's exception on this point.

D.     Analysis and Conclusions

      We construe the Agency's claim that Provision 1 would affect its "right to conduct a RIF" as an assertion that the provision would affect management's right to layoff employees under section 7106(a)(2)(A) of the Statute. Agency's Exceptions at 2. Because the Union does not dispute here, and did not dispute before the Judge, that the provision affects management's right to layoff employees, we find that the provision affects that right. See American Federation of Government Employees, Council of GSA Locals, Council 236 and General Services Administration, 55 FLRA 449, 452 (1999).

      With respect to whether the provision is an appropriate arrangement, the Agency does not dispute that it is an arrangement; the Agency argues only that the provision excessively interferes with management's rights. Determining whether a proposal or provision excessively interferes with management's rights is one aspect of resolving whether it is an appropriate arrangement. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 29-33 (1986) (KANG). As relevant here, the Authority determines whether a provision is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right, by weighing the "competing practical needs of employees and managers." KANG, 21 FLRA at 31-32.

      Provision 1 is substantially similar to the proposals in Congressional Research Service and the provision in POPA, cited by the Judge, which the Authority found did not excessively interfere with management's right to layoff employees. The proposals in Congressional Research Service required the Agency to "exhaust other methods of cutting costs prior to conducting a RIF whenever it was 'practicable' or 'possible' for the Agency to do so." Congressional Research Service, 25 FLRA at 308. The Authority found that the proposals did not excessively interfere with management's right because the benefit to employees outweighed the burden placed on management's exercise of its rights. In this respect, the Authority found that the proposals provided the agency with discretion to determine what means to use to avoid the RIF, and that the proposals would not prevent the agency from carrying out the RIF if other means were not practical or possible. The Authority reached the same conclusion with regard to the provision in POPA, which required the agency to "avoid RIF actions whenever possible by using attrition or other means." POPA, 41 FLRA at 843. [ v55 p1176 ]

      Consistent with the Authority's decisions in Congressional Research Service and POPA, we conclude that the benefit afforded by Provision 1 to employees, who would otherwise lose their jobs, outweighs the burden placed on management's exercise of its rights and, thus, that Provision 1 would not excessively interfere with management's right to layoff employees. [n5]  Accordingly, the provision constitutes an appropriate arrangement under section 7106(b)(3) and is not contrary to law.

III.     Provision 2

Article 13, Section 32C
Employees will be excused on administrative leave for the following purposes.
C.     To participate voluntarily in the Customs Health Enhancement Program for up to three (3) hours per week, workload permitting, under locally negotiated procedures. To become eligible and to ensure safe participation, employees wishing to participate must complete Phase I, Health/Medical Screening; Phase II, Fitness Assessments, and Phase III, Individual Health and Fitness Improvement Program as described in Customs Directive 51410-011. Once cleared to participate in the program, an employee is required to keep a daily log of the date, duration, location, and type of exercise performed during each workout. Supervisory decisions denying leave for this purpose may be challenged only if the decision is arbitrary or capricious. This leave program will be reviewed by the Contract Administration Team one year after this Agreement becomes effective and may be extended thereafter only by agreement of the parties.

A.     Judge's Recommendation

1.     Meaning of Provision 2

      The Judge found that there was no dispute that the provision "entitles all bargaining unit employees up to three hours of administrative leave per week to participate voluntarily in a fitness program, if they meet certain medical and fitness criteria and if their workload permits." Judge's Recommended Decision at 9. The Judge also found that supervisory denial of administrative leave "may be challenged under an 'arbitrary and capricious' standard." Id. at 9-10.

2.     Recommended Decision

      The Judge found that Provision 2 would apply to employees whose jobs entail physical activity, as well as to those whose jobs entail no physical activity, and that the Agency does not require any of these employees to meet a physical fitness standard. Judge's Recommended Decision at 10. The Judge concluded that the provision was not an arrangement, and thus not an appropriate arrangement, because "the Union ha[d] not identified the management right . . . the exercise of which is expected to produce adverse effects[.]" Id. at 10 n.3. Therefore, although the Judge did not identify the management right affected by the provision, he recommended finding that the provision is outside the duty to bargain. [n6] 

B.     Positions of the Parties

1.     Agency

      The Agency contends that the Judge found correctly that the provision is not an appropriate arrangement. Agency's Exceptions at 9. According to the Agency, because no employees are required to meet physical standards, the provision would not mitigate an adverse effect stemming from the exercise of management's rights. The Agency also argues that the Authority should "modify the Judge's findings to find that this provision [affects] management's right to assign work." Id. at 9 n.6.

      The Agency also asserts that the provision is contrary to Comptroller General precedent and 5 U.S.C. § 7901. [n7]  According to the Agency, the Comptroller General found in 67 Comp. Gen. 126 (1987) that a short grant of administrative leave was consistent with federal law and regulations only because the leave was for [ v55 p1177 ] "humanitarian" reasons. Agency's Exceptions at 9-10. With respect to 5 U.S.C. § 7901, the Agency states that "[t]here is no authority under this statute authorizing the use of administrative leave for the purpose set forth in this provision." Id.

2.     Union

      The Union maintains that Provision 2 "does not directly interfere with management's right to assign work," and that it is a procedure and an appropriate arrangement. Union's Exceptions at 2. The Union also argues that the provision is consistent with Comptroller General decisions. According to the Union, 67 Comp. Gen. 126 (1987) demonstrates that, in determining the appropriateness of administrative leave, the Comptroller General examines the brevity of the administrative leave, not whether the leave is for humanitarian reasons. Union's Exceptions at 12.

      The Union argues that the Judge should have considered the assertion in its Response that Provision 2 is a "procedure by which management must exercise its authority to assign work." Id. at 3. According to the Union, the provision is similar to other provisions that the Authority has found to be procedures because they permit management to determine whether granting administrative leave at a particular time would affect the Agency's ability to accomplish its work.

C.     Meaning of the Provision

      Neither party disputes the Judge's determination of the meaning of the provision. Accordingly, we adopt the meaning recommended by the Judge.

D.     Analysis and Conclusions

1.     Provision 2 Does Not Affect Management's Right to Assign Work

      Provision 2 provides that administrative leave will be granted with supervisory approval. In National Federation of Federal Employees, Local 2119 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 49 FLRA 151 (1994) (Rock Island), the Authority found that a proposal that required supervisory approval for the use of administrative leave did not affect management's rights. The Authority explained that because the proposal preserved the Agency's right to approve the use of administrative leave, there was no effect on the right to assign work. Id. at 161. See also National Federation of Federal Employees, Local 1429 and U.S. Department of the Army, Letterkenny, Army Depot, 23 FLRA 117, 119 (1986) (Department of the Army) (provision permitting the Agency to deny administrative leave when the "time . . . would interfere with the Agency's work" did not affect management's right to assign work). Like the proposal in Rock Island, Provision 2 preserves the Agency's right to approve the use of administrative leave. In addition, Provision 2 specifically provides that administrative leave will be granted only when "workload permits."

      Based on the undisputed meaning of Provision 2, and consistent with Rock Island and Department of the Army, we find that Provision 2 does not affect management's right to assign work because it would provide administrative leave only with a supervisory determination that the grant of leave would not interfere with workload demands. Because we find that the provision does not affect management's rights, it is not necessary to examine the Union's assertions that the provision is a procedure or an appropriate arrangement.

2.     Provision 2 is Not Contrary to Comptroller General Precedent or Section 7901

      Contrary to the Agency's assertion, the Comptroller General did not hold in 67 Comp. Gen. 126 that agencies may grant brief periods of administrative leave only for humanitarian purposes. The Comptroller General held that a humanitarian purpose is one basis upon which agencies may grant administrative leave. Moreover, although the Comptroller General previously held that an agency could not grant 3 hours per week of administrative leave for physical fitness, see 64 Comp. Gen. 835 (1985), the Comptroller General concluded in 70 Comp. Gen. 190 that it would no longer follow that decision. [n8]  [ v55 p1178 ]

      Additionally, the Authority has specifically held that "there [is] no basis in either the F[ederal] P[ersonnel] M[anual] or Comptroller General decisions interpreting the FPM provisions to limit the ability of agencies to determine the appropriate uses of administrative leave." Department of Veterans Affairs Medical Center, Asheville, North Carolina, 51 FLRA 1572, 1579 n.10 (1996) (VAMC, Asheville). The Authority also held that agencies have discretion to grant administrative leave for brief periods, and that "management can negotiate over how it will exercise that discretion." Id. at 1578.

      Based on the foregoing, we reject the Agency's argument that, under Comptroller General precedent, it lacks discretion to approve the administrative leave required by Provision 2.

      We also reject the Agency's argument that the provision is inconsistent with 5 U.S.C. § 7901. See, supra note 7 for the text of section 7901. The Authority held in National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs, Medical Center, Newington, Connecticut, 47 FLRA 651, 656 (1993) (VAMC, Newington) that, under section 7901, "agencies may grant excused absence for participation in officially authorized programs for disease prevention and for promoting and maintaining health and fitness . . . . Absences of this nature are termed 'administrative leave' and may be granted in the discretion of each agency[.]" The Agency has provided no basis for concluding that administrative leave for physical fitness is contrary to law. Consistent with VAMC, Newington, we find that Provision 2 is not contrary to section 7901.

      In sum, the provision is not contrary to Comptroller General precedent or section 7901.

IV.     Provision 6

Article 36, Section 11D
D.     In processing or investigating disputes related to competitive selection actions filed through the provisions of this Article, the Employer will provide access to the evaluation material in unsanitized form as follows:
(1) the review will take place in the office of the port in which the vacancy is located in the presence of a management official;
(2) no more than two union representatives may conduct this review, either simultaneously or individually, and may take notes;
(3) the Employer will not be responsible for any travel and per diem expenses associated with this review process;
(4) the Union representatives may duplicate documents which do not refer to any individual;
(5) Union representatives are responsible for protecting the privacy of applicants and board members; and
(6) any information acquired from this review may only be used in the processing of that grievance.

A.     Judge's Recommendation

1.     Meaning of Provision 6

      The Judge found that Provision 6 provides that no more than two Union officials may have access to review unsanitized evaluation materials necessary for the preparation of grievances over competitive selection actions. The review, which would take place in the office of the port in which the vacancy is located, would permit Union officials to examine the materials, copy materials not referring to any individual, and take notes in the presence of a management official. Union officials would be responsible for maintaining the confidentiality of the materials, and they could use the information only to process grievances. The Judge found that "[t]here is no limit on the kind of evaluation material that would be available to the Union, and such material would identify individuals involved in the selection process, including applicants." Judge's Recommended Decision at 13. [ v55 p1179 ]

2.     Recommended Decision

      The Judge recommended a conclusion that Provision 6 is contrary to the Privacy Act because, under Authority precedent, disclosure of unsanitized material in disputes over promotions "constitutes an unwarranted invasion of privacy in violation of the Privacy Act." Judge's Recommended Decision at 13. The Judge rejected the Union's argument that because the provision requires only that the material be available to certain Union officials for viewing under strict conditions, and because it does not require the Agency to "furnish[]" the materials to the Union outside the Agency's premises, the provision does not violate the Privacy Act. Id. at 14. The Judge found that the Privacy Act's prohibition against disclosure does not differentiate between "furnishing" and "granting limited access." Id.

B.     Positions of the Parties

1.     Agency

      The Agency asserts that the Judge correctly concluded that the Privacy Act does not distinguish between furnishing material and granting access to materials and, thus, that the Judge correctly concluded that Provision 6 is inconsistent with the Privacy Act. In this respect, the Agency contends that the provision would require "blanket disclosure of private, personal information maintained in personnel files." Statement of Position at 10.

2.     Union

      The Union contends that the provision is not inconsistent with the Privacy Act because disclosure of the evaluative material encompassed by the provision is required by the Freedom of Information Act, 5 U.S.C. § 552. In particular, the Union contends that the Agency could not withhold disclosure pursuant to Exemption 6 of the Freedom of Information Act, 5 U.S.C. § 552(b)(6). [n9]  According to the Union, allowing Union officials access to materials would not constitute a "clearly unwarranted invasion of personal privacy," within the meaning of Exemption 6, because the provision requires Union officials to protect the privacy of identified employees. The Union maintains that the Authority should "weigh[] the public interest in the disclosure of the information against an individual's privacy interests." Union's Exceptions at 15. The Union argues that because the provision would require only that the Agency grant Union officials access to the materials, and not that the Agency furnish the materials to the Union, the "extent of the invasion of privacy is considerably less" than in similar proposals and provisions that the Authority has found contrary to the Privacy Act. Id. at 16. The Union asserts that the balance between the public interest and employee privacy interests weighs in favor of allowing Union officials to review the materials. The Union also claims that the provision "constitutes a negotiable procedure consistent with the Privacy Act." Id. at 18.

C.     Meaning of the Provision

      Neither party disputes the Judge's determination of the meaning of the provision. Accordingly, we adopt the meaning recommended by the Judge. We note that, although the exact nature of the material that would be provided to the Union under the provision is not defined, there appears to be no dispute that, as the Union states, the provision would give the Union access to "performance appraisals and other evaluation materials." Union's Exceptions at 17.

D.     Analysis and Conclusions

      In U.S. Department of Transportation, Federal Aviation Administration, New York TRACON, Westbury, New York, 50 FLRA 338, 345 (1995) (TRACON), the Authority established the framework for analyzing claims that the Privacy Act bars disclosure of information. Under that framework, an agency asserting a Privacy Act bar based on a claim that disclosure would result in a clearly unwarranted invasion of personal privacy under Exemption 6 of the FOIA is required to demonstrate: (1) that the information requested is contained in a "system of records" under the Privacy Act [n10] ; (2) that disclosure of the information would implicate employee privacy interests; and (3) the nature and significance of those privacy interests. See also Department of Health and Human Services, Social Security Administration, New York Region, New York, New York, 52 FLRA 1133, 1139-40 (1997) (SSA).

      If the agency makes the requisite showings, then the burden shifts to the party asserting that disclosure [ v55 p1180 ] would not result in a clearly unwarranted invasion of personal privacy under Exemption 6 -- here the Union -- to: (1) identify a public interest cognizable under the Freedom of Information Act (FOIA); and (2) demonstrate how disclosure of the requested information will serve that public interest. See SSA, 52 FLRA at 1139-40. The public interest that is cognizable under Exemption 6 and that, as a result, may be considered in balancing under TRACON is:

the extent to which disclosure of the information would shed light on the agency's performance of its statutory duties or otherwise inform citizens as to what their Government "is up to."

TRACON, 50 FLRA at 344 (citing United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 773 (1989)).

      Once the "respective interests have been articulated," the Authority "balance[s] the privacy interests against the public interest." TRACON, 50 FLRA at 345. The balance is weighted in favor of disclosure. Id. at 346. However, "the strength of the privacy interests may not be diminished by a requesting party's assurance that information will not be disseminated or made publicly available because every requester must be treated the same." Id.

      The Judge did not make a specific finding with respect to whether the information is contained in a system of records. However, the Judge noted the Agency's assertion that the material that would be disclosed under Provision 6 "is part of a system (or systems) of record[s]." Judge's Recommended Decision at 13. In this regard, the Agency asserts, and the Union does not dispute, that the information is "personal information maintained in personnel files." Agency's Exceptions at 10. Accordingly, consistent with Authority precedent, we find that the information is contained in a system of records. See TRACON, 50 FLRA at 346 (Authority found that "performance appraisals of Federal employees are contained in a system of records" ).

      With respect to whether Provision 6 implicates privacy interests and the nature and significance of those interests, the provision states that the Agency will provide "access to the evaluation material in unsanitized form." In TRACON, the Authority stated that evaluation material in the form of unsanitized performance appraisals reveals details of supervisory assessment of individual work performance and, as such, is likely to contain information that is highly sensitive to employees, and that employees are likely to want to keep confidential. See id. at 347 (citing FLRA v. Department of Commerce, 962 F.2d 1055, 1060 (D.C. Cir. 1992) (Commerce); Ripskis v. Department of Housing and Urban Development, 746 F.2d 1, 3-4 (D.C. Cir. 1984) (Ripskis)). Based on this precedent, we conclude that the provision implicates employee privacy interests.

      The Union asserts that the provision would serve the public interest by "ensuring that merit promotions are not the product of nepotism or favoritism." Union's Exceptions at 17. The Authority has held, in this connection, that disclosure of employee evaluation material serves the public interest because "the public is served if [an agency] carries out its personnel functions fairly, equitably, and in accordance with laws, rules and regulations[.]" TRACON, 50 FLRA at 347 (citing Commerce, 962 F.2d at 1060; Ripskis, 746 F.2d at 3; Core v. United States Postal Service, 730 F.2d 946, 948 (4th Cir. 1984)). Accordingly, we find that the disclosure required by Provision 6 would serve a public interest.

      The Authority has also held, however, that the public interest served by disclosure of employee evaluative material is not enhanced by disclosure that includes the identities of affected employees. See TRACON, 50 FLRA at 349. In so doing, the Authority noted that although disclosure of unsanitized material might enhance the union's interest in disclosure, it did not enhance the public interest in disclosure. See id. See also Campbell v. United States Civil Service Commission, 539 F.2d 58, 62 (10th Cir. 1976) ("the public interest in efficient and lawful personnel management . . . is better served by disclosure of general agency performance rather than by specific revelation of individual problems . . . . Practically no public interest is advanced by disclosure of the latter.").

      We reject the Union's contention that the public interest outweighs the privacy interest here because: (1) the Union would merely be granted access to the disputed material; and (2) Union officials granted access to the materials would be required to protect the privacy of employees identified in the materials. With regard to the former contention, the Privacy Act protects disclosure of information resulting from mere access to information to the same extent as disclosure resulting from actually furnishing requested records. See 5 U.S.C. 552a(b) ("[n]o agency shall disclose any record which is contained in a system of records[.]") (emphasis added); Wilborn v. Department of Health and Human Services, 49 F.3d 597, 600 (9th Cir. 1995) ("Under a long line of cases interpreting the Privacy Act, courts have agreed that the Act covers more than the mere physical dissemination of records."). See also Savarese v. Department of Health, Education and Welfare, 479 F. Supp. 304, 306 (N.D. Ga. 1979) (the Privacy Act "forbids disclosure of [ v55 p1181 ] any record which is contained in a system of records by any means of communication to any person, or to another agency[.]").

      With regard to the latter contention, in Department of Defense v. FLRA, 510 U.S. 487 (1994) (Department of Defense), the Supreme Court held that determinations whether material may be released to the public under FOIA Exemption 6 are not properly made based on the identity of the requesting party. In this respect, the Court stated that:

Because 'Congress clearly intended' the FOIA 'to give any member of the public as much right to disclosure as one with a special interest [in a particular document],' except in certain cases involving claims of privilege, 'the identity of the requesting party has no bearing on the merits of his or her FOIA request.'

Department of Defense, 510 U.S. at 496 (citations omitted) (brackets in the original) (quoting Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 771 (1989)). Under Department of Defense, a party's assurance that it will not further disclose material that has been provided under FOIA Exemption 6 does not render otherwise undisclosable material disclosable.

      Based on the foregoing, we find that disclosure of the material required by Provision 6 would constitute a clearly unwarranted invasion of personal privacy, within the meaning of exemption 6 of the FOIA. As such, disclosure is not required by the FOIA and, in turn, is barred by the Privacy Act. Therefore, by requiring disclosure, Provision 6 is contrary to the Privacy Act. [n11]  Given this conclusion, we do not address the Union's assertions that Provision 6 is a procedure. A provision that is contrary to law or Government-wide regulation remains so regardless of whether it is a procedure or appropriate arrangement, within the meaning of section 7106(b)(2) and (b)(3) of the Statute. See National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 52 FLRA 1265, 1272 (1997) (Patent and Trademark Office).

V.     Provision 7

Article 36, Section 25E
Seniority for positions above the journey grade of an occupation (e.g., Inspector to Senior Inspector; Import Specialist to Import Specialist Team Leader; Team Leader to Field National Import specialist; Auditor to Senior Auditor, etc.) will be defined as length of service within the occupational series being applied for. Seniority for all other positions will be defined as length of service as a Customs employee. Other-than-full-time employees who are eligible to apply for selection under this Article will be credited for seniority in the same manner as experience is credited for qualifications determinations.
Staff specialists will credit all applicants for seniority (as a percentage of their initial score) as of the opening date of the vacancy announcement at the rate of 1% for at least 3-5 years, 2% for at least 6-10 years, and 5% for at least 21 or more years. All scores will be rounded off to two decimal places.

A.     Judge's Recommendation

1.     Meaning of Provision 7

      The Judge found that Provision 7 grants credit for seniority in competitive promotion procedures. Seniority crediting would not only break ties; it could give an otherwise lower-ranked candidate an advantage over "an applicant with a higher pre-seniority credit score." Judge's Recommended Decision at 16.

2.     Recommended Decision

      The Judge concluded that Provision 7 is contrary to 5 C.F.R. § 300.103, a Government-wide regulation, [n12]  because the provision would take into account a factor not identified as necessary in a job analysis. The Judge also concluded that the Agency has no obligation to demonstrate that the provision would affect the Agency's ability to accord the appropriate significance to the qualifications identified in a job analysis. Judge's Recommended Decision at 17. [ v55 p1182 ]

B.     Positions of the Parties

1.     Agency

      The Agency asserts that the Judge correctly concluded that Provision 7 conflicts with 5 C.F.R. § 300.103. The Agency argues that section 300.103 requires that in order for a factor to be considered in competitive selection, a job analysis must show a connection between that factor and the job to be performed. According to the Agency, in the absence of a showing that seniority is a relevant factor in the performance of a particular job, seniority cannot be used as a factor in selection for that position.

2.     Union

      The Union contends that Provision 7 is consistent with 5 C.F.R. § 300.103 because the provision is "rational[ly] relat[ed to] performance in the position to be filled . . . and the employment practice used." Union's Exceptions at 19 (quoting 5 C.F.R. § 300.103(b)(1)). The Union asserts that the rational relationship between the provision and potential positions to be filled is demonstrated by the parties' agreement to this provision during interest-based negotiations. According to the Union, these negotiations "constitute a job analysis of the knowledge, skills, and abilities required to succeed in positions" in the Agency. Id. at 20. Additionally, the Union maintains that the provision is a procedure and an appropriate arrangement for "employees adversely affected by the Agency's failure to consider their longevity of service in the competitive selection process." Id. at 21.

C.     Meaning of the Provision

      Neither party disputes the Judge's determination of the meaning of the provision. Accordingly, we adopt the meaning recommended by the Judge. We note that neither the Judge nor the parties discusses the fact that the provision establishes different ways of calculating seniority for different positions: for full-time employees, [n13]  seniority is calculated on the basis of "length of service within the occupational series being applied for" for positions above the journey grade, and seniority is calculated on the basis of "length of service as a customs employee" for all other positions.

D.     Analysis and Conclusions

      The Authority has found that a provision requiring the Agency to add points to candidates' scores under a crediting plan based on seniority alone is inconsistent with 5 C.F.R. § 300.103(a). See The Montana Air Chapter of Association of Civilian Technicians and U.S. Department of the Air Force, Montana Air National Guard, 19 FLRA 946 (1985) (Montana Air Chapter). In so doing, the Authority relied on a decision by the U.S. Court of Appeals for the District of Columbia Circuit, Department of the Treasury v. FLRA, 762 F.2d 1119 (D.C. Cir. 1985) (Department of the Treasury). In Department of the Treasury, the court held that a proposal establishing a crediting plan for all unit positions was contrary to 5 C.F.R. § 300.103 because it did not satisfy the regulatory requirement that job requirements "be based on a job analysis to identify . . . [t]he factors that are important in evaluating candidates." Id. at 1122 (citing 5 C.F.R. § 300.103(a), emphasis in the original). The court stated that the proposal could not constitute the equivalent of a job analysis because "the proposal establishes the number of points to be awarded for each level of the various factors without any reference to the demands of specific occupations." Id. at 1123 (emphasis in original).

      Provision 7 provides two groups of employees with credit based on seniority in promotions. First, employees applying for specific "above the journey grade" promotions are awarded credit based on seniority in the same occupational series. Second, employees seeking all other promotions are awarded credit based on total length of service with the Agency. With respect to the second group, we find that the provision does not [ v55 p1183 ] satisfy the regulatory requirement for a job analysis, because the proposal has no "reference to the demands of specific occupations." Department of the Treasury, 762 F.2d at 1122. The credit is not tailored to a position or "group of positions," see 5 C.F.R. 300.103(a), and the general nature of the seniority credit indicates that there is no "rational relationship" between the employment practice and the particular position. 5 C.F.R. § 300.103(b). Accordingly, consistent with Authority and judicial precedent, we find that the provision is contrary to 5 C.F.R. § 300.103. [n14] 

      As we noted supra, in connection with Provision 6, a provision that is contrary to law or Government-wide regulation remains so regardless of whether it is a procedure or appropriate arrangement. See Patent and Trademark Office, 52 FLRA at 1272. Thus, we have not examined the Union's section 7106 (b)(2) and (b)(3) arguments.

VI.     Provision 8

Article 41, General Section
General: Normally, the Office of Internal Affairs (IA) is responsible for conducting investigative interviews of employees involving criminal matters while other representatives of the Employer (not necessarily IA) are responsible for conducting interviews involving administrative misconduct (non-criminal)[.]
An employee being interviewed by a representative of the Employer in connection with either a criminal or non- criminal matters [sic] has certain entitlements/rights regardless of who is conducting the interview. This article sets forth those rights as well as the procedures that must be followed by the Employer representative conducting the interview.

A.     Judge's Recommendation

1.     Meaning of Provision 8

      The Judge found that Provision 8 is a preamble to rights set forth in Article 41. The provision states that rights set forth in Article 41 would apply no matter who conducts an employee interview, provided the interviewer is acting as a representative of the employer.

2.     Recommended Decision

      The Judge concluded that the provision "recognizes no specific rights" for unit employees. Judge's Recommended Decision at 19. The Judge found that the provision's reference to a "representative[] of the Employer" includes an official of the Office of the Inspector General (OIG) only if the OIG is, as a matter of law, acting as a representative of the Agency or if the Agency designates the OIG as its representative. Thus, the Judge found the provision within the duty to bargain.

B.     Positions of the Parties

1.     Agency

      The Agency asserts that the provision is contrary to law because it would bind the OIG to the collective bargaining agreement, even though the OIG is not a party to the agreement. Additionally, the Agency asserts that Provision 8 is contrary to Department of Justice v. FLRA, 39 F.3d 361 (D.C. Cir. 1994) (Justice v. FLRA), in which the U.S. Court of Appeals for the District of Columbia Circuit held that an OIG official is not a representative of the Agency, within the meaning of section 7114(a)(2)(B) of the Statute, and that an OIG [ v55 p1184 ] investigation does not confer a right to Union representation under that section.

2.     Union

      The Union does not address this provision in its exceptions or opposition.

C.     Meaning of the Provision

      Neither party disputes the Judge's determination of the meaning of the provision. Accordingly, we adopt the meaning recommended by the Judge.

D.     Analysis and Conclusions

      The Judge found that the provision is a preamble, and confers no right to Union representation in an OIG investigation, unless the OIG constitutes a representative of the Agency as a matter of law, or unless the Agency designates the OIG as its representative. The Agency argues that Provision 8 would confer a right to union representation in an OIG investigation, contrary to Justice v. FLRA. The Judge found, and there is no dispute, that the provision confers no rights itself and, instead, is merely a preamble to rights set forth in other parts of Article 41. Moreover, in NASA v. FLRA, 119 S. Ct. 1979 (1999), the Supreme Court reversed Justice v. FLRA and held that, for purposes of determining whether an employee has a right to union representation under section 7114(a)(2)(B) of the Statute, an Inspector General can constitute a representative of an agency. Therefore, even if, as the Agency asserts, Provision 8 confers a right to union representation in an OIG investigation when the OIG official is a representative of the Agency, it is not contrary to law.

VII.     Provision 9

Article 41, Section 8
When the Employer makes an audio or videotape recording or causes a stenographic record to be made of an employee interview under the Article, the employee may receive a copy of the tape-recording and the transcript, if necessary, to review the contents of the interview, unless pursuant to law, disclosure may be denied to protect the integrity of the investigation. The employee may elect to tape record the interview, unless, pursuant to law, disclosure of the contents of the interview may be denied to protect the integrity of the investigation. If denied, the Employer must provide citation to the legal authority relied on to deny the request. Nothing in this section shall expand or diminish the rights an employee possesses under the Privacy Act.

A.     Judge's Recommendation

1.     Meaning of Provision 9

      The Judge found that Provision 9 requires the Agency to provide an interviewed employee with a tape recording of his/her interview at the conclusion of the interview or, if a stenographic record of the interview is made, to provide the interviewee with the stenographic record as soon as it is available.

2.     Recommended Decision

      The Judge stated that, under Authority precedent, an agency's right to determine its internal security practices includes "the right to determine the nature and extent of the information concerning an investigation that it would disclose, and to whom it would disclose that information." Judge's Recommended Decision at 24 (citing American Federation of Government Employees, AFL-CIO, Local 1738 and Veterans Administration Medical Center, Salisbury, North Carolina, 27 FLRA 52, 55-56 (1987); National Federation of Federal Employees, Local 1300 and General Services Administration, 18 FLRA 789, 795-97 (1985)). According to the Judge, agencies are accorded "wide latitude regarding their assessments of the efficacy of the internal security practices they select," and an agency need show only "a link, or reasonable connection" between a practice and internal security consideration to establish that a proposal conflicting with that practice affects management's right. Id. at 23-24 (citations omitted).

      Before the Judge, the Agency argued that Provision 9 affected its right to determine its internal security [ v55 p1185 ] practices by preventing it from determining on a case-by-case basis whether "an employee's receipt of a tape or transcript prior to the conclusion of the investigation would compromise either investigative techniques or the integrity of the investigation." Id. at 21-22. The Judge agreed, concluding:

Even if reasonable people might disagree as to the efficacy of withholding or delaying release of tapes and transcripts, it is difficult to dispute the existence of a link between that practice and "internal security considerations."

Id. at 24.

      The Judge rejected the Union's reliance on the Authority's decision in American Federation of Government Employees, AFL-CIO, National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 8 FLRA 347 (1982), rev'd as to other matters sub nom. United States Department of Justice v. FLRA, 709 F.2d 724 (D.C. Cir. 1983) (INS). The Judge noted the Authority's statement in INS that a proposal reflecting the agency's current security practice would have been negotiable. However, according to the Judge, the "actual holding" in INS -- that the union's proposal was outside the duty to bargain -- was consistent with his conclusions regarding Provision 9. Judge's Recommended Decision at 23 (emphasis in original).

      The Judge also rejected the Union's argument that Provision 9 is an appropriate arrangement under section 7106(b)(3) of the Statute. The Judge concluded:

Provision 9 would prevent management from exercising its right to determine how to avoid unauthorized disclosure, rather than ameliorating an adverse effect of the exercise of that right. Thus, it cannot be regarded as an appropriate arrangement.

Id. at 24 (citation omitted). The Judge also stated that the provision did not constitute an appropriate arrangement because it would, in effect "abrogate" the Agency's right to determine its internal security practices. Id. at 24 n.5.

B.     Positions of the Parties

1.     Agency

      The Agency asserts that the Judge correctly concluded that this provision would affect management's right to determine its internal security practices because "premature disclosure of information obtained through these interviews can have adverse effects on the ability to conduct an investigation, including affecting the truthfulness of the responses." Agency's Exceptions at 14. The Agency also argues that the Judge found correctly that the provision does not constitute an appropriate arrangement.

2.     Union

      The Union maintains that the Judge erred in finding that Provision 9 affects the Agency's right to determine its internal security practices. According to the Union, the Authority has found that a provision "virtually identical" to Provision 9 constituted a negotiable procedure. Union's Exceptions at 23 (citing NTEU and Department of the Treasury, U.S. Customs Service, 9 FLRA 983, 986 (1982) (Customs Service)). The Union also argues that Provision 9 should be found not to affect the Agency's right under INS because it reflects the Agency's current practice and is "substantially similar" to a provision in the parties' 1990 collective bargaining agreement. Union's Exceptions at 25 n.37.

      The Union contends that the Agency's concerns that Provision 9 would compromise the integrity of investigations are "unfounded." Id. at 26. The Union argues that "[t]he release . . . to the questioned employee prior to the completion of the investigation does not increase the risk that the integrity of an investigation will be compromised." Id. at 26-27. According to the Union, if a "questioned employee seeks to tip off the subject of the investigation or another witness, he or she can do this without the transcript or tape recording." Id. at 27.

      The Union also asserts that the provision is an appropriate arrangement. The Union argues that because the provision would help "ensure the accuracy of . . . testimony[,]" the provision would mitigate the adverse effects on an employee facing criminal liability for false statements made in an interview. Id. at 28.

C.     Meaning of the Provision

      Neither party disputes the Judge's determination of the meaning of the provision. Accordingly, we adopt the meaning recommended by the Judge. We note that neither the Judge nor the parties discusses the portion of the provision providing that "pursuant to law, disclosure may be denied to protect the integrity of the investigation." They also do not discuss the portion of the provision that permits employees to tape record certain interviews. [ v55 p1186 ]

D.     Analysis and Conclusions

1.     The Provision Affects Management's Right to Determine its Internal Security

      Management's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the authority to determine the policies and practices that are part of its plan to secure or safeguard its personnel, physical property or operations against internal and external risks. See, e.g., American Federation of Government Employees, Federal Prison Council 33 and U.S. Department of Justice, Federal Bureau of Prisons, 51 FLRA 1112, 1115 (1996). As the Judge stated, where management shows a link, or reasonable connection, between its objective of safeguarding its personnel, property, or operations and a practice designed to implement that objective, a proposal or provision that conflicts with the practice affects management's right under section 7106(a)(1). The right includes the authority to determine the investigative techniques management will employ to attain its internal security objectives. See National Association of Government Employees, Locals R14-22 and R14-89 and U.S. Department of the Army, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, 45 FLRA 949, 960 (1992) (Fort Bliss).

      The Judge found that the Agency established a sufficient link between its practice of determining case-by-case whether to withhold or delay releasing tapes and its plan to secure or safeguard its personnel, physical property or operations against internal and external risks. In this connection, an Agency witness testified at the hearing that releasing video or audio tapes of interviews prior to the conclusion of the interview process could compromise the Agency's internal security by disclosing not only the "essence" of the investigation but also such matters as "the tempo of the interviews, the thrust of the actual questions, indeed, what questions are not asked . . . ." Transcript (Tr.) at 101-02.

      The Agency's testimony indicates that releasing a tape or transcript before the completion of an investigation could result in a future witness becoming aware of the tempo of the questioning, the exact wording of a particular question, and the type of questions to expect. The Union contends that regardless of whether the Agency releases a tape or transcript a future witness may become aware of the content of the interview and that releasing the tape or transcript does not increase the risk of disclosure. Although it is clear that a questioned employee could disclose information he or she recalls regarding the interview without a tape or transcript, that fact does not render unreasonable the connection asserted by the Agency between release of a tape or transcript and the risk of compromising the integrity of an investigation.

      It is reasonable to conclude that the potential for disclosing aspects of the interview is increased if interviewees are provided with tapes or transcripts of the interviews showing the actual content of the interview. The Union's bare assertion, in this regard, that disclosure of the tape or transcript would not increase the risk of disclosure does not support a conclusion to the contrary. Accordingly, we find in agreement with the Judge, that the Agency has demonstrated a sufficient link between its goal of safeguarding its personnel, property, or operations and its practice of determining case-by-case whether to release tapes or transcripts of interviews before the completion of an investigation. The prospect that the risk of disclosure may exist, even without a tape or transcript being released, does not, in our view, provide a basis to find that the connection drawn by the Agency is not reasonable. [n15] 

      The Union's reliance on Customs Service and INS to support its claim that Provision 9 does not affect the Agency's right to determine its internal security practices is misplaced. With regard to Customs Service, the Union acknowledges that the Authority's decision did not address the subsection of the disputed provision that is similar to Provision 9. While the Union is correct that "the Authority could have reviewed the subsection sua sponte," Union's Exceptions at 23, the fact remains that the Authority did not do so. With regard to INS, the Authority stated, in dicta, that a proposal merely incorporating into the parties' agreement an existing practice [ v55 p1187 ] -- which the agency did not challenge on the basis of its right to determine its internal security practices -- would not affect the agency's right. See INS, 8 FLRA at 364. Even assuming that this dicta is a correct construction of the law, [n16]  the Agency here, unlike the agency in INS, specifically asserts that the practice sought to be established in the parties' agreement affects its right to determine its internal security practices. Thus, INS does not support the Union's position.

      Based on the foregoing, we conclude that Provision 9 affects the Agency's right to determine its internal security practices. [n17] 

2.     The Provision is Not an Appropriate Arrangement

      As explained in our discussion of Provision 1, the test for determining whether a proposal or provision is within the duty to bargain under 7106(b)(3) is set out in KANG. Under that test, the Authority initially determines whether the proposal or provision is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. An arrangement must seek to mitigate adverse effects "flowing from the exercise of a protected management right." United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). To establish that a proposal or provision is an arrangement, a union must identify the effects or reasonably foreseeable effects on employees that flow from the exercise of management's rights and how those effects are adverse. See KANG, 21_FLRA_at_31. Proposals or provisions that address speculative or hypothetical concerns do not constitute arrangements. See, e.g., National Federation of Federal Employees, Local_2015 and U.S. Department of the Interior, National Park Service, Washington, D.C., 53_FLRA 967, 973 (1997).

      In addition, an arrangement must be tailored to compensate or benefit employees suffering those adverse effects. See, e.g., NTEU, Chapter 243, 49 FLRA at 184. That is, section 7106(b)(3) brings within the duty to bargain proposals that provide "balm" to be administered "only to hurts arising from" the exercise of management rights. See, e.g., United States Department of the Interior, Minerals Management Service v. FLRA, 969 F.2d 1158, 1162 (D.C. Cir. 1992). Section 7106(b)(3) does not bring within the duty to bargain proposals that are so broad in their sweep that the "balm" afforded would be applied to employees indiscriminately without regard to whether the group as a whole is likely to suffer adverse effects as a consequence of management action under section 7106. See, e.g., NTEU, Chapter 243, 49 FLRA at 184.

      Provision 9 is intended as an arrangement for employees who may be adversely affected by management's right to determine its internal security by conducting investigations. The adverse effect, according to the Union, would arise from a misrepresentation, intentional and/or unintentional, of an employee's testimony. We conclude that the adverse effect that the Union seeks to mitigate is speculative. The Union has not demonstrated that there is any reasonable likelihood that Agency representatives would misrepresent testimony. In addition, Provision 9 would require the Agency to provide tape recordings or stenographic records to all employees whose testimony is tape recorded or transcribed, whether or not those employees are ever charged with wrongdoing or whether or not their testimony is ever used. Accordingly, even if the adverse effects were not speculative, the provision is not sufficiently tailored to ameliorate those adverse effects.

      Based on the foregoing, we find that the provision is not an arrangement, within the meaning of section 7106(b)(3). As a result, Provision 9 is not an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

VIII.     Order

      The Agency shall rescind its disapproval of Provisions 1, 2, and 8. The petition for review is dismissed with respect to Provisions 6, 7, and 9. The parties' motion to withdraw the petition with respect to Provisions 3, 4, 5, and 10 is granted.


File 1: Authority's Decision in 55 FLRA No. 191
File 2: Opinion of Member Wasserman


Footnote # 1 for 55 FLRA No. 191 - Authority's Decision

   The opinion of Member Wasserman, dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 55 FLRA No. 191 - Authority's Decision

   The Union's petition for review originally contained 10 provisions. Before the Judge issued his recommended decision, the Union moved to withdraw its petition as to Provisions 3, 4, 5, and 10. Consistent with the Judge's recommendation, we grant the Union's motion to withdraw.


Footnote # 3 for 55 FLRA No. 191 - Authority's Decision

   The Authority's regulations governing negotiability appeals were revised effective April 1, 1999. See 63 Fed. Reg. 66,413 (1998). The revised regulations apply to petitions filed after April 1, 1999. As this petition was filed before that date, we apply the prior regulations.


Footnote # 4 for 55 FLRA No. 191 - Authority's Decision

   Because this case concerns provisions, not proposals, the proper inquiry is whether the provisions are contrary to law, rather than whether they are within the duty to bargain. As a result, the focus of our analysis, and the conclusions we draw, differ in this respect from the Judge's recommendations.


Footnote # 5 for 55 FLRA No. 191 - Authority's Decision

   The Judge noted that the Authority's "most recent approach" to resolving whether a provision is an appropriate arrangement under section 7106(b)(3) of the Statute was set forth in Department of Commerce, 53 FLRA 572 n.14 (1997). See Decision at 5 n.2. There, the Authority stated that "the inquiry for determining whether negotiated provisions, in contrast to bargaining proposals, are appropriate may more properly involve whether the management right(s) at issue have been 'abrogated,' rather than whether the provision excessively interferes with the management rights." Department of Commerce, 53 FLRA at 572 n.14 (emphasis added). As the provision is not contrary to law under the excessive interference test, it is not necessary to determine whether this provision would be contrary to law under a more stringent standard.


Footnote # 6 for 55 FLRA No. 191 - Authority's Decision

   The Judge stated that because the Union did not reiterate in its post-hearing brief its previous claim that the provision is a procedure, he would not examine that claim.


Footnote # 7 for 55 FLRA No. 191 - Authority's Decision

   Section 7901 provides in pertinent part that:

(a) The head of each agency of the Government of the United States may establish . . . a health service program to promote and maintain the physical and mental fitness of employees . . . .
. . . .
(c) A health service program is limited to--
(1) treatment of on-the-job illness and dental conditions requiring emergency attention;
(2) preemployment and other examinations;
(3) referral of employees to private physicians and dentists; and
(4) preventive programs relating to health.
. . . .

Footnote # 8 for 55 FLRA No. 191 - Authority's Decision

   70 Comp. Gen. 190 does not specifically address administrative leave. However, it does state that, based on 5 U.S.C. § 7901, agencies may expend funds for physical fitness matters.


Footnote # 9 for 55 FLRA No. 191 - Authority's Decision

   Under exemption 6, an agency is not required to disclose:

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).


Footnote # 10 for 55 FLRA No. 191 - Authority's Decision

   The Privacy Act defines "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).


Footnote # 11 for 55 FLRA No. 191 - Authority's Decision

   No party addresses whether the Agency has discretion to promulgate a routine use statement permitting disclosure of the information required by Provision 6 to the Union, which would remove the Privacy Act bar. See 5 U.S.C. § 552a(a)(7), (b)(3) (an agency may disclose a record under a routine use if the disclosure of the record would constitute a purpose compatible with the purpose for which the information in the record was collected); see generally, e.g., U.S. Department of Transportation, Federal Aviation Administration, Little Rock, Arkansas and National Air Traffic Controllers Association, MEBA/NMU, AFL-CIO, 51 FLRA 216, 223 (1995) (in resolving complaint alleging that the agency refused to release information to the union, the Authority discussed principles applied in determining whether a routine use exception applies). Accordingly, we do not address this matter here.


Footnote # 12 for 55 FLRA No. 191 - Authority's Decision

   5 C.F.R. § 300.103 states in pertinent part:

(a) Job analysis. Each employment practice of the Federal Government generally, and of individual agencies, shall be based on a job analysis to identify:
(1) The basic duties and responsibilities;
(2) The knowledges, skills, and abilities required to perform the duties and responsibilities; and
(3) The factors that are important in evaluating candidates. The job analysis may cover a single position or group of positions, or an occupation or group of occupations, having common characteristics.
(b) Relevance (1) There shall be a rational relationship between performance in the position to be filled (or in the target position in the case of an entry position) and the employment practice used. The demonstration of rational relationship shall include a showing that the employment practice was professionally developed. . . .

Footnote # 13 for 55 FLRA No. 191 - Authority's Decision

   For other-than-full-time employees, seniority is calculated "in the same manner as experience is credited for qualifications determinations." As neither party contends that the different method of calculation for other-than-full-time employees is relevant to determining whether Provision 7 is contrary to law, we do not address it further.


Footnote # 14 for 55 FLRA No. 191 - Authority's Decision

   The Union has not requested that we sever and separately address the two portions of the provision. Accordingly, because we find the second, general seniority credit for promotion to "other positions" to be contrary to the regulation, we need not address whether the first, more limited seniority credit for "above journey level positions" is contrary to the regulation.

      Although Member Wasserman agrees that the second portion of the provision is contrary to the regulation, for the reason stated above, he notes that the first sentence of the provision does not appear to be subject to the same infirmity. Based on its wording, and the Union's explanation, awarding credit based on length of service in a particular occupation when applying for a position in the same occupational series constitutes an assessment of an employee's ability to perform in the job and satisfies the showing of a rational relationship between the use of seniority and the position to be filled. However, in the absence of a request to sever, Member Wasserman agrees that Provision 7, in its entirety, is contrary to law.


Footnote # 15 for 55 FLRA No. 191 - Authority's Decision

   We do not agree with our dissenting colleague's view that because Provision 9 concerns the disclosure of information, and because "[s]ection 7106 by any reading does not prohibit the disclosure of anything," the Agency's right under section 7106(a) to determine its internal security practice does not provide a basis for finding that the provision is contrary to law. Dissent at 2 (quoting National Labor Relations Board Union v. FLRA, 842 F.2d 483, 486 (D.C. Cir. 1988) (NLRBU v. FLRA). Nothing in NLRBU v. FLRA suggests that contract provisions are insulated from the constraints of section 7106(a) simply on the ground that they concern the release of information held by an agency. The court held in NLRBU v. FLRA that, in resolving an asserted statutory entitlement to information, the "prohibited by law" exception to disclosure under section 7114(b)(4) of the Statute encompasses only disclosure laws, not section 7106. Provision 9 does not concern whether the Union is entitled to information under section 7114(b)(4), and the Agency has not relied on the "prohibited by law" exception as a basis for disapproving the provision at issue. Rather, the Agency relies on the connection between information about its investigative interviews and its right to determine its internal security practices. In doing so, the Agency is not asserting that it is prohibited from disclosing the information, but that it has a right to make a judgment call whether to do so.


Footnote # 16 for 55 FLRA No. 191 - Authority's Decision

   The Authority has long held, in an analogous situation, that proposals incorporating into a collective bargaining agreement regulatory provisions concerning the exe