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The decision of the Authority follows:
26 FLRA No. 34 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12, AFL-CIO Union and DEPARTMENT OF LABOR Agency Case No. 0-NG-1045 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of eight proposals in connection with the implementation of Office of Personnel Management (OPM) regulations, 5 CFR Parts 339, 432, 752, and 831. Those regulations focus on the proper collection and use of medical information and medical examinations for decision-making in all personnel actions including disability, retirement, personnel actions based on deficient performance, conduct or attendance, and reassignment of injured or other qualified handicapped employees requiring reasonable accommodation. The regulations reflect an employee's obligation to provide evidence about claimed medical conditions when that employee requests that such information be taken into account in certain personnel actions. For example, in situations in which a benefit or special treatment is being requested or some adverse personnel action against that employee is proposed, the regulations state what is required in order for the employee to raise a health concern. II. Preliminary Issue: Duty to Bargain The Agency states that the Union submitted its proposals in response to the implementation of the revised OPM regulations. The Agency argues that it has no duty to bargain on all eight of the proposals because the implementation of the OPM final regulations do not constitute a change in the conditions of employment of bargaining unit employees. In the alternative, the Agency argues that the implementation of those regulations would not have a substantive impact on the conditions of employment of bargaining unit employees, and, thus the Agency is under no duty to bargain on the disputed proposals. The Agency also contends that the subject matter of the proposals relate to matters contained in the parties' collective bargaining agreement and, therefore, it has no duty to bargain. The Agency further asserts that there is no nexus between the proposals and the implementation of the OPM regulations to create a duty to bargain. When a union files a negotiability appeal under section 7105(a)(2)(E) of the Statute, section 7117(c) entitles it to a decision on the negotiability issues in the appeal. The record in this case fails to provide a basis for substantiating these Agency assertions that it has no duty to bargain. To the extent that there are factual issues in dispute between the parties concerning the duty to bargain in the specific circumstances of the case, such issues should be raised in other appropriate proceedings. See American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters, 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n. 6 (1984). III. Proposals 1 and 2 Proposal 1 The employee shall be given a negotiated form from DOL to release specific information from the physician of the employee's choice. This form will specify the actual information required. Such information shall be treated in a confidential manner, and shared only with other physicians. Proposal 2 Medical documentation shall be evaluated by other physicians, not by the immediate supervisor or other lay people. IV. Position of the Agency The Agency contends that Proposals 1 and 2 violate its right to assign work under section 7106(a)(2)(B) of the Statute. The Agency argues that the proposals seek to limit the receipt of medical information by a supervisor and, thus, are related to duties assigned to an employee. In addition, the Agency contends that it has no duty to bargain on Proposal 2 because it does not concern the conditions of employment of bargaining unit employees. The Union did not file a reply brief in this case. V. Analysis and Conclusion Proposal 1, in relevant part, would require that medical information concerning an employee would be available only to other physicians. Proposal 2 does not allow the Agenty to assign a supervisor the task of evaluating medical documents. Proposals which preclude management from assigning specific tasks to particular individuals, including management officials, interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See International Organization of Masters, Mates and Pilots and Panama Canal Commission, 13 FLRA 508, 526 (1983); Laborers' International Union of North America, AFL-CIO-CLC, Local 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 686, 691-92 (1984); National Association of Government Employees, AFL-CIO, Local R14-87 and Department of the Army and the Air Force, Kansas Army National Guard, 19 FLRA No. 50 (1985). Furthermore, the receipt of medical information would be withheld from supervisory personnel who must evaluate that information because of the review function included in their duties. As such, the proposals impose a limitation on the assignment of work to supervisory personnel and other employees. Thus, both proposals interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. In addition, insofar as the proposals apply to non-bargaining unit employees, they are not within the duty to bargain. See National Federation of Federal Employees, Local 1300 and General Services Administration, 18 FLRA No. 97 (1985) (Section (g)), petition for review filed sub nom. National Federation of Federal Employees, Local 1300 v. FLRA, No. 85-1541 (D.C. Cir. Aug. 27, 1985). VI. Proposal 3 No medical documentation shall be a part of an employee's personnel file, nor shall any medical documentation be shared with any other person or agency. A. Position of the Agency The Agency's position is that the content, retention and disposition of personnel records is controlled by regulations promulgated by the Office of Personnel Management (OPM), 5 CFR Section 293.304, which the Agency contends are Government-wide in effect. The Agency also contends that the proposal is inconsistent with that regulation. Furthermore, the Agency argues that the proposal is inconsistent with Federal Personnel Manual (FPM) Supplement 293-31. B. Analysis and Conclusion 5 CFR Part 293, Subpart C (5 CFR Section 293.301-311) concerns the Official Personnel Folder (OPF) which an agency is required to maintain on each employee. The OPF is the official repository of the records and reports of personnel actions effected during an employee's Federal service and the documents and papers required in connection with these actions. See FPM Supplement 293-31, subchapter S5-5. Subpart C applies to each executive department and independent establishment of the Federal Government, each corporation wholly owned or controlled by the United States, and with respect to positions subject to civil service rules and regulations, the legislative and judicial branches of the Federal Government. Thus, we conclude that 5 CFR Part 293, Subpart C is a Government-wide regulation within the meaning of section 7117(a)(1). See National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 747 (1980). According to 5 CFR Section 293.304, the OPF shall contain long-term records affecting the employee's status and service as required by OPM's instructions and as designated in FPM Supplement 293-31. FP Supplement 293-31, subchapter S1 states that FPM Chapter 293, subchapter 1 contains the complete list of records required to be maintained by agencies. Medical records are included in that list. Furthermore, FPM Chapter 293, subchapter 1 provides that medical lists are to be maintained as provided by FPM Chapter 339, subchapter 4 -- Filing, Use and Disposition of Medical Records. This subchapter, in relevant part, provides that when an employee is transferred to another agency certain medical documentation would be received by that agency. Hence, it is clear that an agency must maintain and submit certain medical documentation concerning an employee to the transferring agency. Proposal 3 would not allow any medical documentation to be shared with any other person or agency. Therefore, the proposal would prevent the Agency from complying with 5 CFR Part 293, Subpart C, a Government-wide regulation, which incorporates by reference the requirements of FPM Supplement 293-31. Accordingly, we conclude that Proposal 3 is inconsistent with 5 CFR Part 293, Subpart C and FPM Supplement 293-31, and is outside the duty to bargain under section 7117(a)(1) of the Statute. VII. Proposals 4 and 5 Proposal 4 The Union will receive notice of any requests made by the Department of Labor for medical documentation, providing the employees name, title, work station, and reason for request. Proposal 5 The union will receive notice of all medical examinations required or offered by the Department of Labor, providing the name of the employee and the examining physician. A. Position of the Agency The Agency contends that the proposals are inconsistent with Federal law: 5 U.S.C. Section 552, the Freedom of Information Act (FOIA); and 5 U.S.C. Section 552a, the Privacy Act of 1974 (Privacy Act). B. Analysis and Conclusion Proposal 4 provides that the Union would receive notice of all requests made by the Agency for medical documentation from its employees. It also requires that the Agency inform the Union of the employee's name, title, work station, and the reason for the Agency's request for the information. Proposal 5 requires the Agency to produce the name of the employee and the name of the examining physician if it requires or offers an employee a medical examination. Thus, the Union would be able to individually identify the specific employee when the Agency requests either medical documentation or when it requires or offers an employee a medical examination. The Privacy Act generally prohibits the disclosure of personal information about Federal employees without their consent. Section (b)(2) of the Privacy Act provides that the prohibition against disclosure is not applicable if disclosure of the information is required under the Freedom of Information Act (FOIA). Exemption (b)(6) of the FOIA provides that information contained in personnel files (as well as medical and other similar files) may be withheld if disclosure of the information would constitute a "clearly unwarranted invasion of personal privacy(.)" In determining whether material may be properly withheld in accordance with exemption (b)(6) of the FOIA, the Federal courts balance the individual's privacy interest and the possible adverse or harmful effects on the individual which could result from disclosure against the importance of the public interest in having the information made available. See, for example, Department of the Air Force v. Rose, 425 U.S. 352 (1976). In this case, applying the balancing test developed by the Federal courts in cases concerning the (b)(6) exemption to the FOIA, we will weigh the public interest which would be served by providing the Union with the information requested in these two proposals against the employees' interest in privacy. Proposal 4 would identify the individual employee from whom the Agency requests medical documentation. It would require the Agency to state its reason for requesting the medical documentation. In those circumstances, an employee who is suspected of alcoholism or believed to suffer from an emotional disorder, for example, would suffer a high degree of intrusion into his personal privacy simply by the disclosure of the Agency's investigation. Similarly, Proposal 5 would require the Agency to notify the Union when a medical examination is required or offered to an employee. In this regard, if an employee is required to undergo a psychiatric examination the Union would be no notified. Therefore, we conclude that Proposal 5 would result in a clear invasion of employees' personal privacy. The next question is whether the invasion of personal privacy is clearly unwarranted. To decide this question, it is necessary to determine whether the disclosure would harm the individual's privacy interests more than it would benefit the public. In this case, the record does not disclose, nor can we discern any public benefit that would result if the Union obtained this information. Independent of the record we also cannot discern any public interest in disclosure of such information to the Union. We conclude in this case that the balance favors the employees' strong privacy interest, and that disclosure of the information would be a clearly unwarranted invasion of that privacy within the meaning of exemption (b)(6) of the FOIA. The Privacy Act therefore bars the release of information proposed by the Union. Thus, Proposals 4 and 5 are inconsistent with the Privacy Act, and are outside the duty to bargain under section 7117(a)(2) of the Statute. VIII. Proposal 6 No agency shall impose any leave restrictions on any employee, except as provided elsewhere in the DOL-Local 12 Agreement. A. Position of the Agency The Agency does not contend that this proposal is nonnegotiable but only that it has no duty to bargain over it. Since we previously analyzed this argument in Section II it will not be considered here. B. Analysis and Conclusion This proposal prohibits the Agency from imposing any leave restrictions except as otherwise provided in the parties' collective bargaining agreement. The Union, however, did not submit a copy of the pertinent portions of that agreement in this case. Thus, without knowledge of the nature and extent of the leave restrictions contained in the parties' agreement we cannot establish whether this proposal is negotiable. It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. National Federation of Federal Employees, Local 1167 v. Federal Labor Relations Authority, 681 F.2d 886, 891 (D.C. Cir. 1982), aff'g National Federation of Federation Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). See also American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 17 FLRA 550 (1985). The Union in this case has not satisfied its burden of creating a record upon which the Authority can make a negotiability determination with respect to Proposal 6. Because this proposal does not set forth sufficient information to enable us to determine whether it is within the duty to bargain, the petition for review as to the proposal must be dismissed. IX. Proposal 7 Any time medical documentation is requested/required the following procedure shall be used. a. The employee shall be informed in writing of reasons. b. The employee shall be informed in writing of the specific document required, i.e., which parts of 339.102a-j. c. The employee shall be provided the approved medical protocols referred to in 339.302c. d. The medical documentation shall go to the physician designated by the agency per 339.302b, not to the agency management. e. Any documentation supplied to, or developed by, the designated physician shall be shared with the employee. f. The physician shall only report to the supervisor the medical conclusions, i.e., whether there is a medical justification for the relief sought by the employee. A. Position of the Agency The Agency does not argue that sections a, b, c, and e of Proposal 7 are nonnegotiable. It argues only that it has no duty to bargain over them. Since we previously dealt with this argument in Section II of this decision we will not consider it here. The Agency does contend that sections d and f are inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. B. Analysis and Conclusion Section a requires the Agency to inform the employee in writing of its reason for requesting or requiring medical documentation. Section b requires the Agency to inform the employee of the specific medical documentation required. Section c requires the Agency to provide the employee with a copy of the approved medical evaluation protocol. These sections concern only providing certain information to an employee. In fact, consistent with section a of this proposal, 5 CFR part 339, Subpart B Section 339.302(a) requires that the applicant or employee be informed in writing of an agency's reasons when it orders or offers a medical examination and the consequences of failure to cooperate. As the Agency has provided no basis for concluding otherwise, we find that these sections concern conditions of employment and are within the duty to bargain under the Statute. The record in this case does not disclose any reason to decide otherwise. Section e grants an employee the right to receive medical documentation supplied to or developed by the designated physician concerning that employee. 5 CFR Section 294.106(d), a Government-wide regulation, /1/ prohibits an agency from disclosing medical information "concerning a mental or other condition of such a nature that a prudent physician would hesitate to inform a person suffering from it of its exact nature and probable outcome(.)" Section e is clearly inconsistent with this regulation by providing an employee total access, regardless of its nature, to their own medical documentation. As such, Section e is inconsistent with a Government-wide regulation and is outside the duty to bargain under section 7117(a) of the Statute. Section d requires that medical documentation be forwarded to the physician designated by the Agency but not to Agency management. Section f requires the physician to report his/her medical conclusion to the supervisor only. The Authority held in American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 14 FLRA 278 (1984), aff'd sub nom. Local 32, AFGE v. FLRA, 762 F.2d 138 (D.C. Cir. 1985) that a proposal which prescribed specific duties which non-bargaining unit personnel in the agency would perform directly interfered with management's right to assign work under section 7106(a)(2)(B). Similarly, sections d and f concern the assignment of work to non-bargaining unit personnel and interfere with management's right to assign work under section 7106(a)(2)(B). Secondly, sections d and f concern management action with respect to persons outside the bargaining unit and not conditions of employment of unit employees within the meaning of section 7103(a)(14) of the Statute. In conclusion, we find that sections a, b, and c are within the duty to bargain. We also find that Sections d and f do not concern the conditions of employment of bargaining unit employees and that these sections interfere with management's right to assign work. Section e is inconsistent with a Government-wide regulation under section 7117(a)(1). Thus, sections d, e and f are outside the duty to bargain. X. Proposal 8 Within sixty (60) days of the signing of this agreement, the Department and Local 12 shall meet to negotiate a standard medical reporting form to satisfy the criteria in 7f above. A. Position of the Agency The Agency contends that the proposal interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. B. Analysis and Conclusion The proposal would require the Agency and the Union to specifically negotiate over a standard medical reporting form for use in conjunction with Proposal 7f. We have concluded that Proposal 7f concerns management action with respect to persons outside the bargaining unit and, thus, does not concern the conditions of employment of unit employees within the meaning of section 7103(a)(14) of the Statute. In addition, we have concluded that Proposal 7f is inconsistent with management's right to assign work. Therefore, to the extent that Proposal 8 would attempt to negotiate over the restrictions set out in Proposal 7f, it also is outside the duty to bargain. XI. Order The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning Proposals 7a, 7b, and 7c. /2/ The Union's petition for review on Proposals 1, 2, 3, 4, 5, 6, 7d, 7e, 7f, and 8 is dismissed. Issued, Washington, D.C., March 18, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) See Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA No. 34 (1986), petition for review filed sub nom. Overseas Education Association, Inc., v. FLRA, No. 86-1991 (D.C. Cir. Sept. 3, 1986). (2) In finding these proposals within the duty to bargain the Authority makes no judgment as to their merits.