36:0110(13)CA - - DOD, Maxwell AFB, Maxwell AFB, GA and AFGE Local 997 - - 1990 FLRAdec CA - - v36 p110

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[ v36 p110 ]
The decision of the Authority follows:

36 FLRA No. 13










(Charging Party)



June 21, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding that the Respondent had violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) as alleged. He concluded that the Respondent had refused to furnish certain data requested by the Union that is required to be furnished under section 7114(b)(4) of the Statute.

The Respondent filed exceptions to the Judge's decision and order. The General Counsel filed an opposition to the Respondent's exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm those rulings. Upon consideration of the Judge's Decision and the entire record, we adopt as modified below, the Judge's findings, conclusions, and recommended order.

We agree with the Judge that insofar as the Respondent relies on 5 U.S.C. § 552b(C)(2), that provision is inapposite to its contention that disclosure of the questions is prohibited by the Privacy Act, 5 U.S.C. § 552a. In its exceptions to the Judge's decision, however, the Respondent also appears to contend that the information is not disclosable under "5 U.S.C. 552(a)(b)(3)" [sic] because "the disclosure of records used by a promotion panel in the process of selecting a candidate to a position . . . [is] not a routine use which is compatible with the purpose for which those records were collected by the Air Force." Brief in Support of Exceptions at 3-4. The Respondent also cites National Federation of Federal Employees, Local 1745 and Veterans Administration, 13 FLRA 543 (1983). The cited case involved a proposal that would have entitled any nonselected employee to see any records used by the promotion panel. The Authority found this proposal to be inconsistent with 5 U.S.C. § 552a(b) and therefore nonnegotiable because the Privacy Act does not permit the disclosure of any records maintained as a part of a system of records absent a request by, or the written consent of, the person to whom the record pertains. Id. at 547. The Authority also noted that such disclosure would not be a routine use under the Privacy Act. Id. at 548 n.10.

The Privacy Act applies to disclosure of "any record which is contained in a system of records . . . ." 5 U.S.C. § 552a(b). Further, "record" is defined as "any item, collection, or grouping of information about an individual that is maintained by an agency . . . ." and "system of records" is defined 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[.]" (Emphasis supplied.) By the Respondent's own admission, the Judge's decision requires the disclosure only of the questions used in the ranking of a unit employee. Brief in Support of Exceptions at 1. Indeed, the Judge expressly stated that "[t]he refusal to provide the ratings of other individuals was not litigated in this case." Judge's Decision at 3. Therefore, it is clear, and we so hold, that the Privacy Act does not apply to the disclosure at issue in this case, which involves solely a list of questions that neither pertains to nor identifies any individual employee. Accordingly, we need not reach the issue of whether the disclosure involves a routine use under that Act.

II. Order

Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we order that the Department of Defense, Maxwell Air Force Base, Maxwell Air Force Base, Georgia, shall:

1. Cease and desist from:

(a) Failing and refusing to furnish, upon request by the American Federation of Government Employees, Local 997, AFL-CIO, the exclusive representative of its employees, a copy of interview questions requested by such representative in connection with the processing of a grievance.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Furnish to the American Federation of Government Employees, Local 997, AFL-CIO, the employees' ex