National Fedration of Federal Employees, Local 1671 (Union) and Adjutant General, Arkansas, National Guard (Activity) 

 1 FLRA No. 11
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1671
 (Union)
 
 and
 
 ADJUTANT GENERAL, ARKANSAS
 NATIONAL GUARD
 (Activity)
 
                             FLRC No. 78A-151
 
                   DECISION ON NEGOTIABILITY ISSUES /1/
 
                                PROVISION I
 
    ARTICLE 25.6
 
    WHEN THE SELECTING OFFICIAL, FOR A VALID REASON, REQUESTS ADDITIONAL
 NAME(S) BE ADDED TO A
 
    REFERRAL AND SELECTION REGISTER BECAUSE AN EMPLOYEE NAMED ON THE
 ORIGINAL REGISTER CANNOT BE
 
    SELECTED, AND OTHER NAMES ARE ADDED, A COPY OF SELECTING OFFICIAL'S
 REASON(S) FOR WHICH THE
 
    INDIVIDUAL CANNOT BE SELECTED WILL BE MADE AVAILABLE TO THE UNION,
 UPON WRITTEN REQUEST OF THE
 
    EMPLOYEE.
 
                           AGENCY DETERMINATION
 
    THE AGENCY HEAD DETERMINED, WHILE REVIEWING THE ABOVE-QUOTED
 PROVISION OF A NEGOTIATED AGREEMENT PURSUANT TO SECTION 15 OF THE ORDER,
 /2/ THAT THE PROVISION IS NONNEGOTIABLE BECAUSE IT VIOLATES THE PRIVACY
 ACT OF 1974.  /3/
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE PROVISION VIOLATES THE PRIVACY ACT OF
 1974 AND THEREFORE WOULD NOT BE NEGOTIABLE UNDER SECTION 11(A) OF THE
 ORDER.  /4/
 
                                  OPINION
 
    CONCLUSION:  THE PROVISION DOES NOT CONFLICT WITH THE PRIVACY ACT OF
 1974.  THUS, THE AGENCY DETERMINATION THAT THE PROVISION IS
 NONNEGOTIABLE WAS IMPROPER AND, PURSUANT TO 5 C.F.R. 2411.28(1978), /5/
 IS SET ASIDE.  /6/
 
    REASONS:  THE DISPUTED PROVISION WOULD REQUIRE THAT WHEN "THE
 SELECTING OFFICIAL, FOR A VALID REASON, REQUESTS ADDITIONAL NAMES BE
 ADDED TO A REFERRAL AND SELECTION REGISTER BECAUSE AN EMPLOYEE NAMED ON
 THE ORIGINAL REGISTER CANNOT BE SELECTED, AND OTHER NAMES ARE ADDED, A
 COPY OF THE SELECTING OFFICIAL'S REASON(S) FOR WHICH THE EMPLOYEE CANNOT
 BE SELECTED WILL BE MADE AVAILABLE TO THE UNION, UPON WRITTEN REQUEST OF
 THE EMPLOYEE." THE AGENCY CLAIMS THAT SUCH REQUIREMENT VIOLATES THE
 PRIVACY ACT OF 1974.  WE FIND NO MERIT IN THE AGENCY'S CLAIM.
 
    IN PASSING THE PRIVACY ACT OF 1974, THE CONGRESS, HAVING SPECIFICALLY
 FOUND THAT "THE PRIVACY OF AN INDIVIDUAL IS DIRECTLY AFFECTED BY THE
 COLLECTION, MAINTENANCE, USE, AND DISSEMINATION OF PERSONAL INFORMATION
 BY FEDERAL AGENCIES," /7/ STATED THAT THE GENERAL "PURPOSE OF THIS ACT
 IS TO PROVIDE CERTAIN SAFEGUARDS FOR AN INDIVIDUAL AGAINST AN INVASION
 OF PERSONAL PRIVACY . . ." /8/ TO THIS END, THE ACT PROVIDES, AMONG
 OTHER THINGS, FOR ACCESS BY AN INDIVIDUAL TO RECORDS CONCERNING HIM
 WHICH ARE MAINTAINED BY GOVERNMENT AGENCIES;  THE ACT ALSO PREVENTS
 ACCESS TO SUCH RECORDS BY PARTIES OTHER THAN THAT INDIVIDUAL TO WHOM THE
 RECORD PERTAINS WITHOUT SUCH INDIVIDUAL'S CONSENT.  (THE ACT ALSO
 PROVIDES FOR EXEMPTIONS TO THESE REQUIREMENTS IN CERTAIN INSTANCES,
 WHICH ARE NOT RELEVANT HERE.)
 
    THE PROVISION AT ISSUE HERE REQUIRES, IN THE CONTEXT OF A
 SPECIFICALLY DEFINED AND LIMITED SET OF CIRCUMSTANCES, THAT CERTAIN
 INFORMATION (ASSUMED TO BE WITHIN THE CONTROL OF THE AGENCY) PERTAINING
 TO A PARTICULAR EMPLOYEE BE GIVEN TO THE UNION, UPON THE WRITTEN REQUEST
 OF THAT EMPLOYEE.  THUS THE PROVISION, ON ITS FACE, SATISFIES THE TWO
 BASIC REQUIREMENTS OF THE PRIVACY ACT ALLUDED TO ABOVE.  THAT IS, THE
 INFORMATION REQUIRED TO BE GIVEN TO THE UNION INVOLVES ONLY INFORMATION
 PERTAINING TO A PARTICULAR EMPLOYEE;  IT DOES NOT INVOLVE ANY
 INFORMATION ABOUT ANY OTHER EMPLOYEE.  MOREOVER, SUCH INFORMATION MUST
 BE GIVEN TO THE UNION ONLY WITH THE SPECIFIC CONSENT, I.E., THE WRITTEN
 REQUEST, OF THAT EMPLOYEE TO WHOM THE INFORMATION PERTAINS.  THUS, WE DO
 NOT FIND THAT THE PROVISION CONFLICTS IN ANY MANNER WITH THE PRIVACY ACT
 OF 1974.  /9/ ACCORDINGLY, WE CANNOT SUSTAIN THE AGENCY'S DETERMINATION
 THAT THIS PROPOSAL IS NONNEGOTIABLE.
 
                               PROVISION II
 
    ARTICLE 26.6
 
    TEMPORARY PROMOTION:  AN EMPLOYEE DETAILED TO A HIGHER GRADE POSITION
 FOR OVER SIXTY (60)
 
    DAYS WILL BE GIVEN A TEMPORARY PROMOTION ON THE 61ST DAY OF THE
 DETAIL.
 
                           AGENCY DETERMINATION
 
    THE AGENCY HEAD DETERMINED, WHILE REVIEWING THE ABOVE-QUOTED
 PROVISION OF A NEGOTIATED AGREEMENT PURSUANT TO SECTION 15 OF THE ORDER,
 /10/ THAT THE PROVISION INTERFERES WITH MANAGEMENT'S DISCRETION TO
 DETAIL EMPLOYEES TO HIGHER-GRADE POSITIONS UNDER SECTION 12(B)(2) OF THE
 ORDER AND THEREFORE IS NOT NEGOTIABLE.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE PROVISION VIOLATES SECTION 12(B)(2) OF
 THE ORDER AND THEREFORE IS NOT NEGOTIABLE.
 
                                  OPINION
 
    CONCLUSION:  THE PROVISION DOES NOT VIOLATE SECTION 12(B)(2) OF THE
 ORDER.  ACCORDINGLY, THE AGENCY'S DETERMINATION OF NONNEGOTIABILITY WAS
 IMPROPER AND, PURSUANT TO 5 C.F.R. 2411.28(1978), /11/ IS SET ASIDE.
 /12/
 
    REASONS:  THE AGENCY CLAIMS THAT THE REQUIRED TEMPORARY PROMOTION OF
 AN EMPLOYEE ASSIGNED TO A HIGHER-GRADE POSITION AFTER 60 DAYS VIOLATES
 MANAGEMENT'S RESERVED RIGHTS UNDER SECTION 12(B)(2) OF THE ORDER.  /13/
 WE CANNOT AGREE WITH THIS CONTENTION.
 
    IN OUR VIEW THERE IS NO MATERIAL DIFFERENCE BETWEEN THE INSTANT
 PROVISION AND A PROVISION CONSIDERED BY THE FEDERAL LABOR RELATIONS
 COUNCIL IN ITS VETERANS ADMINISTRATION, ATLANTA REGIONAL OFFICE DECISION
 /14/ (INSOFAR AS THAT PROVISION CALLED FOR A TEMPORARY PROMOTION UPON
 ASSIGNMENT FOR MORE THAN 60 DAYS TO A HIGHER-GRADE POSITION).  THERE, IN
 A DECISION PUBLISHED SUBSEQUENT TO THE FILING OF THE INSTANT APPEAL, THE
 COUNCIL, IN RESPONSE TO THE AGENCY'S CONTENTION THAT THE PROVISION
 VIOLATED SECTION 12(B)(2), STATED:  /15/
 
    THE "TEMPORARY PROMOTION" CALLED FOR BY THE DISPUTED PROVISION IS
 SIMPLY A MINISTERIAL ACT
 
    WHICH IMPLEMENTS THE DECISION AND ACTION TAKEN BY THE AGENCY ITSELF
 IN SELECTING AND ASSIGNING
 
    THE PARTICULAR EMPLOYEE TO THE HIGHER-GRADE POSITION.  NOTHING IN THE
 PROVISION INTERFERES IN
 
    ANY MANNER WITH THE RIGHT OF THE AGENCY TO MAKE SUCH DECISION OR
 ACCOMPLISH SUCH ACTION, AND
 
    THUS NOTHING IN THE PROVISION IMPAIRS THE AGENCY'S RIGHT TO DETERMINE
 WHETHER AND WHOM
 
    TEMPORARILY TO PROMOTE.  ACCORDINGLY, WE FIND THAT THE DISPUTED
 PROVISION IS NOT VIOLATIVE OF
 
    SECTION 12(B)(2) OF THE ORDER.
 
    SINCE THE PROVISIONS ARE MATERIALLY INDISTINGUISHABLE, WE FIND, BASED
 UPON THE ANALYSIS IN THE VETERANS ADMINISTRATION, ATLANTA REGIONAL
 OFFICE CASE, THAT THE INSTANT PROVISION DOES NOT VIOLATE SECTION
 12(B)(2) OF THE ORDER.  ACCORDINGLY, WE CANNOT SUSTAIN THE AGENCY'S
 DETERMINATION OF NONNEGOTIABILITY AS TO THE PROVISION.
 
                            RONALD W. HAUGHTON
 
                                 CHAIRMAN
 
                           HENRY B. FRAZIER III
 
                                  MEMBER
 
    ISSUED:  MARCH 29, 1979
 
    /1/ IN ACCORDANCE WITH SECTION 2400.4 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS (44 FED. REG. 5(1979)), WHICH ARE CURRENTLY IN
 EFFECT UNDER SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (92 STAT. 1215), THIS DECISION IS RENDERED UNDER THE
 RULES AND REGULATIONS SET FORTH IN 5 C.F.R. PART 2411, ET SEQ. (1978).
 FURTHER, IN ACCORDANCE WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM
 ACT OF 1978 (92 STAT. 1224), THIS CASE IS DECIDED SOLELY ON THE BASIS OF
 E.O. 11491, AS AMENDED, AND AS IF THE STATUTE "HAD NOT BEEN ENACTED." IN
 THIS REGARD, THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE IF THE
 CASE HAD ARISEN UNDER THE STATUTE RATHER THAN THE ORDER.
 
    /2/ SECTION 15 OF E.O. 11491, AS AMENDED, PROVIDES:
 
    SEC. 15.  APPROVAL OF AGREEMENTS.  AN AGREEMENT WITH A LABOR
 ORGANIZATION AS THE EXCLUSIVE
 
    REPRESENTATIVE OF EMPLOYEES IN A UNIT IS SUBJECT TO THE APPROVAL OF
 THE HEAD OF THE AGENCY OR
 
    AN OFFICIAL DESIGNATED BY HIM.  AN AGREEMENT SHALL BE APPROVED WITHIN
 FORTY-FIVE DAYS FROM THE
 
    DATE OF ITS EXECUTION IF IT CONFORMS TO APPLICABLE LAWS, THE ORDER,
 EXISTING PUBLISHED AGENCY
 
    POLICIES AND REGULATIONS (UNLESS THE AGENCY HAS GRANTED AN EXCEPTION
 TO A POLICY OR
 
    REGULATION) AND REGULATIONS OF OTHER APPROPRIATE AUTHORITIES.  AN
 AGREEMENT WHICH HAS NOT BEEN
 
    APPROVED OR DISAPPROVED WITHIN FORTY-FIVE DAYS FROM THE DATE OF ITS
 EXECUTION SHALL GO INTO
 
    EFFECT WITHOUT THE REQUIRED APPROVAL OF THE AGENCY HEAD AND SHALL BE
 BINDING ON THE PARTIES
 
    SUBJECT TO THE PROVISIONS OF LAW, THE ORDER AND THE REGULATIONS OF
 APPROPRIATE AUTHORITIES
 
    OUTSIDE THE AGENCY.  A LOCAL AGREEMENT SUBJECT TO A NATIONAL OR OTHER
 CONTROLLING AGREEMENT AT
 
    A HIGHER LEVEL SHALL BE APPROVED UNDER THE PROCEDURES OF THE
 CONTROLLING AGREEMENT, OR, IF
 
    NONE, UNDER AGENCY REGULATIONS.
 
    /3/ THE PRIVACY ACT OF 1974, 5 U.S.C. 552A(1976).  THE AGENCY DID NOT
 REFER TO ANY PARTICULAR SECTION OF THE ACT AS DIRECTLY APPLICABLE TO THE
 PROVISION AT ISSUE.
 
    /4/ SECTION 11(A) OF E.O. 11491, AS AMENDED, PROVIDES IN PART:
 
    SEC. 11.  NEGOTIATION OF AGREEMENTS.  (A) AN AGENCY AND A LABOR
 ORGANIZATION THAT HAS BEEN
 
    ACCORDED EXCLUSIVE RECOGNITION, THROUGH APPROPRIATE REPRESENTATIVES,
 SHALL MEET AT REASONABLE
 
    TIMES AND CONFER IN GOOD FAITH WITH RESPECT TO PERSONNEL POLICIES AND
 PRACTICES AND MATTERS
 
    AFFECTING WORKING CONDITIONS, SO FAR AS MAY BE APPROPRIATE UNDER
 APPLICABLE LAWS . . .
 
    /5/ SEE NOTE 1, SUPRA.
 
    /6/ THIS DECISION SHOULD NOT BE CONSTRUED AS EXPRESSING OR IMPLYING
 ANY OPINION OF THE AUTHORITY AS TO THE MERITS OF THE PROVISION.  WE
 DECIDE ONLY, AS AGREED UPON BY THE PARTIES AT THE LOCAL LEVEL AND BASED
 UPON THE RECORD BEFORE THE AUTHORITY, THAT THE PROVISION WAS PROPERLY
 SUBJECT TO NEGOTIATION BY THE PARTIES UNDER THE ORDER.
 
    /7/ THE PRIVACY ACT OF 1974, 5 U.S.C. 552A NOTE (1976).
 
    /8/ ID.
 
    /9/ SEE ALSO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 2928 AND GENERAL SERVICES ADMINISTRATION, NATIONAL PERSONNEL
 RECORDS CENTER, FLRC NO.  78A-7 (DEC. 29, 1978), REPORT NO. 168.
 
    /10/ SEE NOTE 2, SUPRA.
 
    /11/ SEE NOTE 1, SUPRA.
 
    /12/ THIS DECISION SHOULD NOT BE CONSTRUED AS EXPRESSING OR IMPLYING
 ANY OPINION OF THE AUTHORITY AS TO THE MERITS OF THE PROVISION.  WE
 DECIDE ONLY, AS AGREED UPON BY THE PARTIES AT THE LOCAL LEVEL AND BASED
 UPON THE RECORD BEFORE THE AUTHORITY, THAT THE PROVISION WAS PROPERLY
 SUBJECT TO NEGOTIATION BY THE PARTIES UNDER THE ORDER.
 
    /13/ SECTION 12(B)(2) OF E.O. 11491, AS AMENDED, PROVIDES IN PART:
 
    SEC. 12.  BASIC PROVISIONS OF AGREEMENTS.  EACH AGREEMENT BETWEEN AN
 AGENCY AND A LABOR
 
    ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
 
   .          .          .          .
 
 
    (B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
 ACCORDANCE WITH APPLICABLE LAWS
 
    AND REGULATIONS--
 
   .          .          .          .
 
 
    (2) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN
 POSITIONS WITHIN THE
 
    AGENCY, AND TO SUSPEND, DEMOTE, DISCHARGE, OR TAKE OTHER DISCIPLINARY
 ACTION AGAINST
 
    EMPLOYEES.  . . .
 
    /14/ NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 122 AND VETERANS
 ADMINISTRATION, ATLANTA REGIONAL OFFICE, ATLANTA, GEORGIA, FLRC NO.
 77A-94 (NOV. 8, 1978), REPORT NO. 159, AT 8-10 OF COUNCIL DECISION.  THE
 PROVISION AT ISSUE PROVIDED IN RELEVANT PART:
 
    TEMPORARY PROMOTION:  AN EMPLOYEE TEMPORARILY PLACED IN A HIGHER
 GRADE POSITION . . . WILL
 
    BE TEMPORARILY PROMOTED, IF THE ASSIGNMENT IS TO EXCEED 60 DAYS.
 
    /15/ ID. AT 10.