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The decision of the Authority follows:
13 FLRA No. 91 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1745 Union and VETERANS ADMINISTRATION Agency Case No. 0-NG-479 DECISION AND ORDER ON NEGOTIABILITY ISSUES This case comes before the Federal Labor Relations Authority pursuant to section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of two Union proposals. Union Proposal 1 The Union will appoint a participating member on the Rating Panel. The Union Member will be allowed access to all personnel records of employees being evaluated by the Promotion Panel. If there are no qualified SME's available as a Union Member on the Rating Panel, then the Union Member will act as an Observer rather than a participating member. Neither a Panel Member nor an Observer can be an applicant for a position under consideration by the Panel. Information discussed in Panel Meetings will be considered confidential and will not discussed outside these meetings. Question Before the Authority The question is whether Union Proposal 1 is inconsistent with the Agency's rights under section 7106(a)(2)(C) of the Statute, as alleged by the Agency. Opinion Conclusion and Order: Union Proposal 1 is inconsistent with section 7106(a)(2)(C) of the Statute. /1/ Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review as to Union Proposal 1 be, and it hereby is, dismissed. Reasons: Union Proposal 1 provides for Union Representation on, and participation in the functioning of, promotion or rating and ranking panels established by the Agency as a part of the selection process for filling vacant positions. Applicable Agency regulations provide for such panels to be constituted by a representative of the Office of Personnel and two line officials who are familiar with the position to be filled. /2/ The panel is responsible for developing a rating schedule which will set forth the factors to be used in evaluating candidates, a ranking plan which will establish the criteria to be used to rate candidates under each such factor, and a method for combining the ratings obtained to arrive at a ranking of candidates. /3/ The panel also applies the rating schedule and ranking plan which it has developed to the applications of qualified candidates and establishes a promotion register for submission to the selecting official. /4/ In thus providing for a Union representative on a panel which, among other things, develops the selective factors to be used in a merit promotion plan or rating schedule, Union Proposal 1 herein is substantively to the same effect as Union Proposals 1 and 2 in National Federation of Federal Employees, Local 1497 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA No. 92 (1983). In that case, the Authority held that Union Proposals 1 and 2, which established a joint labor-management panel to develop "promotion evaluation patterns," i.e., those aspects of a merit promotion plan involving both "selective factors" and a "crediting plan," were outside the duty to bargain because they involved the union in the agency's selection process and thereby directly interfered with management's rights under section 7106(a)(2)(C) of the Statute. Therefore, for the reasons set forth fully in Lowry Technical Training Center, Union Proposal 1 herein is outside the duty to bargain under section 7106(a)(2)(C) of the Statute. /5/ Union Proposal 2 Any employee is entitled to see any records used by the Promotion Panel as long as the employee's name was submitted to the Panel and the employee was not selected for promotion. Question Before the Authority The question is whether Union Proposal 2 is inconsistent with Federal law, i.e., the Privacy Act (5 U.S.C. 552a), as alleged by the Agency. Opinion. Conclusion and Order: Union Proposal 2 is inconsistent with 5 U.S.C. 552a(b) /6/ and, thus, is outside the duty to bargain under section 7117(a)(1) of the Statute. /7/ Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review as to Union Proposal 2 be, and it hereby is, dismissed. Reasons: Union Proposal 2 would require the Agency to disclose "any record" used by a promotion panel to "any employee" who was a candidate for a vacant position but was nonselected. The term "record" as used in the proposal is not further defined therein, nor does the record otherwise reveal the Union's intent in using the term. However, under the Agency regulations pertaining to promotion panels, the "records: used by such panels would include the applications of candidates for the position, rating schedules, ranking plans, rating sheets, and promotion registers or certificates. Thus, Union Proposal 2 would require the Agency to disclose upon request all such "records" pertaining to candidates. The Privacy Act, however, in particular 5 U.S.C. 552a(b), with certain enumerated exceptions, precludes an agency from disclosing to any person or agency any record which it maintains as a part of a system of records absent a request by, or the written consent of, the person to whom the record pertains. /8/ Therefore, under 5 U.S.C. 552a(b) candidates nonselected for a position may not have access to records pertaining to candidates other than themselves without obtaining the written consent of those candidates. Clearly, the materials encompassed by Union Proposal 2, as outlined above, are "records" covered by the Privacy Act. See Local 2047, American Federation of Government Employees v. Defense General Supply Center, 423 F.Supp. 481, 482, n. 1 (E.D. Va. 1976), affirmed 573 F.2d 184 (4th Cir. 1978). Since, as discussed above, the proposal would unconditionally require disclosure of those records to any nonselected employee, /9/ the proposal clearly is inconsistent with the restrictions imposed by Sec. 552a(b) of the Privacy Act on an agency's disclosure of information contained in its records. Hence, it is outside the duty to bargain under section 7117(a)(1) of the Statute. /10/ Issued, Washington, D.C., December 22, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7106(a)(2)(C) of the Statute provides as follows: Sec. 7106. Management rights (a) Subject to subsection (b) of this section, nothing in the chapter shall affect the authority of any management official of any agency-- * * * * (C) with respect to filling positions, to make selections for appointments from-- (i) among properly ranked and certified candidates for promotion; or (ii) any other appropriate source).) /2/ Veterans Administration (VA) Manual MP-5, Part 1, Chapter 335, Change 2, Appendix C, Section 6.a. Because of the disposition herein of Union Proposal 1, it is unnecessary to consider the Agency's additional contention that a "compelling need" exists for the Agency's regulation to bar negotiations. /3/ VA Manual MP-5, Part 2, Chapter 335, Change 2, Appendix C, Sections 6.b. and c. For a more detailed discussion of merit promotion procedures see National Treasury Employees Union and NTEU Chapters 153, 161 and 183 and U.S. Customs Service, Region II, 11 FLRA No. 47 (1983) (Union Proposals 1 and 2). /4/ VA Manual MP-5, Part 1, Chapter 335, Change 2, Appendix C, Section 6.d. /5/ Cf. National Federation of Federal Employees, Local 1497 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA No. 92 (1983) (Union Proposals 5 and 6) (Joint labor-management panels to develop crediting plans are within the duty to bargain). /6/ 5 U.S.C. 552a(b) provides, in pertinent part, as follows: Sec. 552a. Records maintained on individuals. * * * * (b) Conditions of disclosure.-- 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, unless disclosure of the record would be-- * * * * (3) for a routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D) of this section(.) /7/ Section 7117(a)(1) of the Statute provides as follows: Sec. 7117. Duty to bargain in good faith; compelling need; duty to consult (a)(1) Subject to paragraph (2) of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation. /8/ Cf. Federal Personnel Manual, chapter 335, subchapter 1-4, Requirement 5; FPM Supplement 335-1, subchapter S5-2.c. (Administration of an agency's promotion system must ensure protection of an individual's privacy rights and an employee's rating or score must not be made known to anyone who does not have an official need to know the score.) /9/ The Authority also notes that the proposal at issue herein does not provide, as a condition precedent to disclosure, for the deletion from any records to be disclosed of any and all information pertaining to persons other than the person making the request for the records, i.e., "sanitizing" the records. Such a proposal would present a different set of issues which need not be addressed in this section. See National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 9 FLRA No. 138 (1982) at 5 of decision. See also Bureau of Alcohol, Tobacco and Firearms, National Office and Western Region, San Francisco, California and National Treasury Employees Union, 8 FLRA No. 108 (1982). /10/ 5 U.S.C. 552a(b)(3) provides that an agency may disclose records within its control to persons or agencies without the written consent of the person(s) to whom the records pertain if such disclosure is for a "routine use" within the meaning of 5 U.S.C. 552a(7), i.e., the use of a record for a purpose which is compatible with the purpose for which it was collected. Disclosure of records used by a promotion panel in the process of selecting a candidate for appointment to a position, particularly applications and/or rating sheets, to other candidates for that position is not such a routine use which is compatible with the purpose for which those records were collected by the agency. See Local 2047, American Federation of Government Employees, at 484, in which the court held that disclosure to a union pursuant to a collective bargaining agreement of copies of, e.g., referral lists for promotion and lists of persons promoted, does not fall within the "routine use" exception under the Privacy Act and its implementing regulations.