[ v45 p1346 ]
The decision of the Authority follows:
45 FLRA No. 134
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF DEFENSE
DEFENSE MAPPING AGENCY
DECISION AND ORDER ON NEGOTIABILITY ISSUES
September 30, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The case concerns the negotiability of two proposals involving cash awards for outstanding and highly successful performance.(1)
For the following reasons, we conclude that Proposals A and B, except for the disputed portion of the last paragraph of Proposal B, are nonnegotiable because they are inconsistent with 5 C.F.R. § 430.504(d). The disputed portion of the last paragraph of Proposal B is negotiable.
The Employer will follow the procedure in either
item A or B. Once the election is made the procedure (either A. or B.) will be effective for the duration of the negotiated agreement.
A. Seniority in Cash Awards:
The past practice that existed prior to Dec[.] 1990
on the amount of cash employees receive with outstanding performance appraisals will remain in effect.
If some, but not all, employees in the office, who have outstanding performance appraisals are to receive cash awards, then the most senior employees will receive the cash awards. Seniority will be determined by the employee[']s service computation date.
If some, but not all, employees in the office, who have highly successful performance appraisals are to receive cash awards, then the most senior employees will receive the cash awards. Seniority will be determined by the employee[']s service computation date.
B. Past Practice and Documentation:
The past practice that existed prior to Dec[.] 1990 on the granting of cash awards to employees with [an] overall rating of outstanding will remain in effect. The past practice that existed proior [sic] to Dec[.] 1990 on the amount of cash employees receive with outstanding performance appraisals will remain in effect.
The amount of cash that employees receive withhighly successful ratings, for those employees who receive cash, will be the amount in section 47-17 of the 1989 negotiated agreement.
If some, but not all, employees who had overallratings of highly successful do not receive cash awards, the following procedure will be followed: The Employer will provide written, objective, job related reasons for not granting a cash award for each employee. The written document will be provided to the employee within 30 calendar days of receiving the rating. The Employer will maintain a file of these responses and the Union will have access to the file at any time. The file will be maintained for one year. The Union will receive copies of the file upon written request, within 30 calendar days of the request.
[With respect to the last paragraph, only the underscored portion is in dispute.]
A. Positions of the Parties
The Agency contends that Proposal A and the first two paragraphs of Proposal B conflict with 5 C.F.R. § 430.504(d) because they "preempt" management's authority to approve or disapprove, and determine the amount of, performance awards.(2) Statement of Position at 6, 8. In addition, the Agency asserts that the disputed portion of the last paragraph of Proposal B is nonnegotiable because it would require the Agency "to turn over information protected by the Privacy Act to the Union . . . ." Id. at 11.
The Union asserts that the Agency may choose to follow either Proposal A or B for the term of the collective bargaining agreement. According to the Union, these proposals, except for the disputed portion of the last paragraph of B, are negotiable procedures under section 7106(b)(2) of the Statute. The Union also argues that, under Article 1-3(c) of the parties' agreement, 5 C.F.R. § 430.504(d) does not apply here because that regulation went into effect after the parties' agreement.(3) Further, the Union asserts that even if 5 C.F.R. § 430.504(d) applied, it would conflict with Article 1-3(e) of the parties' agreement which, according to the Union, requires the Agency to follow past practices concerning cash awards.(4) Alternatively, the Union argues that 5 C.F.R. § 430.504(d) constitutes a "restatement" of management's right to determine its budget under section 7106(a)(1) of the Statute and that its proposals are intended as arrangements for employees adversely affected by the exercise of that management right. Reply Brief at 4.
Finally, the Union contends that the disputed portion of the last paragraph of Proposal B presents a "7114(b)(4) issue" rather than a Privacy Act issue. Id. at 7. Specifically, the Union asserts that it needs a written explanation of the reasons for not granting cash awards in order to meet its obligation to represent employees effectively. The Union contends that its need for this information "outweighs" any employee privacy interest. Id.
B. Analysis and Conclusions
1. Preliminary Issues
The Union argues that Article 1-3(c) of the parties' agreement precludes the application of 5 C.F.R. § 430.504(d) because that regulation went into effect after the parties' agreement. Further, the Union argues that even if 5 C.F.R. § 430.504(d) was effective, it "conflict[s] with"
Article 1-3(e) of the parties' agreement. Reply Brief at 3. These arguments raise issues concerning the effect of an existing collective bargaining agreement. Under part 2424 of the Authority's Regulations, our review is limited to questions of whether a matter proposed for negotiation is inconsistent with law, rule, or regulation. The issues raised by the Union should be resolved in other appropriate proceedings. See, for example, National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, Chicago, Illinois, 38 FLRA 1605, 1611 (1991).
2. 5 C.F.R. § 430.504(d)
Section 430.504(d), which is a Government-wide regulation, requires agency officials to review and approve determinations to grant cash awards as well as the amount of such awards. National Association of Government Employees, Local R1-144 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 43 FLRA 47, 51-52 (1991).
The Union asserts that, if the Agency chooses to give awards, Proposal A requires that "employees with outstanding ratings . . . will receive cash awards of a minimum of 2.5% of their annual salary." Reply Brief at 4. According to the Union, Proposal A also requires that employees with highly successful ratings who receive cash awards will receive "a minimum of 1% of their salary . . . ." Id. at 6. Where management is unable to grant cash awards to all employees with outstanding and highly successful ratings, Proposal A requires that such awards be granted to the most senior employees. Based on the Union's statement of intent, which is consistent with the plain wording of Proposal A, we find that this proposal dictates a formula for determining award amounts and a method for determining which employees will receive cash awards without permitting the review and approval required by 5 C.F.R. § 430.504(d).
The Union asserts that Proposal B requires the Agency to give cash awards to "all employees with outstanding ratings" at "a minimum of 2.5% of their salary." Id. (emphasis added). Proposal B, according to the Union, does not require that employees with highly successful ratings receive cash awards. However, when the Agency decides to grant awards to such employees, Proposal B requires that the amount of the awards be the amount provided in the parties' 1989 agreement. Based on the Union's explanation, we conclude that Proposal B mandates that awards be granted to all employees with outstanding ratings and dictates the amount of cash awards for employees with outstanding and highly successful ratings without regard to the review and approval mandated by 5 C.F.R. § 430.504(d).
Proposals A and B would effectively preempt the authority of the reviewing official by requiring, in certain circumstances, that employees receive cash awards and by establishing percentages of salary as cash awards. Accordingly, we conclude that Proposals A and B, excluding the last paragraph of Proposal B, are nonnegotiable under section 7117 of the Statute because they are inconsistent with 5 C.F.R. § 430.504(d), a Government-wide regulation. General Services Administration, National Capital Region and Journeyman Pipefitters and Apprentices, Local Union No. 602, 42 FLRA 121, 130 (1991). In view of our conclusion, it is unnecessary to consider the Union's contention that Proposal A and all but the last paragraph of Proposal B constitute negotiable procedures and/or appropriate arrangements. For example, National Association of Government Employees, Federal Union of Scientists and Engineers, Local R1-144 and U.S. Department of the Navy, Naval Underwater System Center, Newport, Rhode Island, 42 FLRA 730, 756 (1991); National Association of Government Employees, Local R1-109 and Veterans Administration, Veterans Administration Medical Center, Newington, Connecticut, 37 FLRA 448, 456-57 (1990).
3. Privacy Act
If some, but not all, employees rated highly successful receive cash awards, the disputed portion of the last paragraph of Proposal B would require the Agency to provide the Union with access at any time to employee documents containing reasons why individual employees, also rated highly successful, did not receive cash awards. Although the Union asserts that certain information about employees could be omitted from the documents, the Union specifically states that the documents must include employees' names.
The Privacy Act generally prohibits disclosure of personal information about Federal employees, absent the employees' written consent. 5 U.S.C. § 552a(b). The Privacy Act also provides that the prohibition against disclosure is not applicable if disclosure of the information would be required under the Freedom of Information Act (FOIA). 5 U.S.C. § 552a(b)(2). However, exemption (b)(6) of the FOIA provides that information contained in personnel, medical, and other similar files may be withheld if disclosure of the information would constitute a "clearly unwarranted invasion of personal privacy[.]" 5 U.S.C. § 552(b)(6).
In determining whether disclosure of the requested information would constitute a clearly unwarranted invasion of personal privacy under 5 U.S.C. § 552(b)(6), the employee's right to privacy must be balanced against the public interest in having the information disclosed. For example, National Federation of Federal Employees, Local 858 and U.S. Department of Agriculture, Federal Crop Insurance Corporation, Kansas City, Missouri, 42 FLRA 1169, 1177 (1991) (Federal Crop Insurance Corporation). The same balancing test must be applied in cases involving the review of negotiated provisions as is applied in resolving disputes resulting from a request for data under section 7114(b)(4) of the Statute. Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410, 1424-25 (1991).
In applying the balancing test, we look to the public interest embodied in the Statute. Federal Crop Insurance Corporation, 42 FLRA at 1177. The "'public interest'" identified in the Statute is "'the facilitation of the collective bargaining process . . . .'" Id. (quoting U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515 (1990), enforcement denied sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 941 F.2d 49 (1st Cir. 1991).(5)
Although the Agency argues that these employee documents are protected by the Privacy Act, it has not identified any particular employee privacy interest. However, it is reasonable to conclude that affected employees have such interests in the disputed documents. We note, in this regard, that although the affected employees have received highly successful ratings, the Agency's reasons for not giving them cash awards may contain negative or embarrassing comments. Moreover, even if the Agency's reasons include favorable comments, an employee has a privacy interest in nondisclosure of such comments. For example, Ripskis v. Department of Housing and Urban Development, 746 F.2d 1, 3 (D.C. Cir. 1984). By requiring blanket disclosure of this information to the Union, the disputed part of Proposal B, the last paragraph, clearly implicates these privacy interests.
On the other hand, the parties do not dispute the negotiability of the requirement that the Agency give employees written reasons when some, but not all, employees who are rated highly successful receive cash awards. Permitting the Union access to these reasons would further the collective bargaining process by enabling the Union to monitor the Agency's compliance with the parties' agreement. In this regard, disclosure under the disputed part of the proposal would be made to only the Union and there is no indication in this record that the Union would disclose the information further. Moreover, the disputed portion of the last paragraph of Proposal B applies to only a limited group of employees, those rated highly successful, and only if all employees so rated do not receive cash awards. On balance, we conclude that the public interest inherent in the Union's discharge of its obligations under the Statute outweighs the employees' privacy interests in preventing disclosure of the information to the Union.
Even if, in the alternative, we apply the public interest test identified by the Supreme Court in United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 772 (1989), which requires that we examine the requested document and its relationship to the basic purpose of the FOIA "to open agency action to the light of public scrutiny[,]" we find that the public interest in the disclosure of the information encompassed by the disputed part of Proposal B outweighs the effect of the proposal on employees' privacy interests. Information about the Agency's decisions not to grant cash awards to certain employees when others have been granted awards furthers the public interest in promoting the fair and equitable treatment of Federal employees. Similarly, disclosure of the information would facilitate the assessment of the Agency's compliance with its contractual obligations. Finally, disclosure of the information encompassed by the disputed part of the last paragraph of Proposal B would assist the public in determining the extent to, and manner in, which the Agency rewards superior performance. In our view, these are important public interests, which outweigh the effect of the proposal on employees' privacy interests. See also U.S. Department of Treasury, Internal Revenue Service, Helena District, Helena, Montana, 39 FLRA 241, 253 (1991) (disclosing certain standards, objectives, and performance appraisals of three managers found to further the public interest in promoting the fair and equitable treatment of Federal employees, the absence of illegal discrimination, and the application of merit system principles).
Based on the foregoing, we conclude that disclosure to the Union of the written reasons why employees rated highly successful did not receive cash awards would not constitute a clearly unwarranted invasion of personal privacy under 5 U.S.C. § 552(b)(6). Accordingly, the disputed part of the last paragraph of Proposal B, which requires such disclosure, is not inconsistent with the Privacy Act, 5 U.S.C. § 552a. As no other basis for finding this part of the proposal nonnegotiable is argued or apparent, we conclude that it is negotiable.
The Union's petition for review of Proposals A and B, except for the disputed portion of Proposal B, is dismissed. The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning the disputed portion of Proposal B.(6)
(If blank, the decision does not have footnotes.)
1. The Union filed an unfair labor practice charge asserting that the Agency violated section 7116(a)(1) and (5) of the Statute by the manner in which it changed the method for awarding cash performance awards. In Defense Mapping Agency, Hydrographic/Topographic Center, Louisville Office, Case No. 4-CA-10615 (1992), an Administrative Law Judge concluded that the Agency had not engaged in the unfair labor practice alleged in the complaint. As no exceptions were filed to the Administrative Law Judge's decision, the decision was adopted by the Authority.
2. 5 C.F.R. § 430.504(d) provides:
[t]he decision to grant a performance award, including the amount of such award, shall be reviewed and approved by an official of the agency who is at a higher level than the official who made the initial decision, unless there is no official at a higher level in the agency.
3. The Union refers to Article 1-3(c) which provides, as relevant here, that:
Government-wide rules and regulations prescribed prior to the effective date of this Agreement shall take precedence over any provisions of this Agreement which are in conflict with such government-wide rules and regulations.
Petition for Review, Enclosure 1.
4. As relevant here, Article 1-3(e) provides:
[T]his Agreement shall be controlling with regard to matters which constitute conditions of employment affecting bargaining unit employees . . . . To the extent that such matters are not addressed by this Agreement, they shall be subject to established policies and practices in existence at the time this Agreement becomes effective.
Petition for Review, Enclosure 1.
5. Although the First Circuit denied the Authority's petition for enforcement of Portsmouth Naval Shipyard, other Courts of Appeals have enforced Authority decisions based on Portsmouth Naval Shipyard: FLRA v. U.S. Department of the Navy, 966 F.2d 747 (3rd Cir. 1992) (en banc); FLRA v. U.S. Department of the Navy, Navy Resale and Services Support Office, Field Support Office, Auburn, Washington, 958 F.2d 1490 (9th Cir. 1992), petition for rehearing and suggestion for rehearing en banc pending; FLRA v. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, 954 F.2d 994 (4th Cir. 1992), petition for rehearing en banc granted. The following Courts of Appeals have denied enforcement of such decisions: FLRA v. United States Department of the Navy, Navy Exchange, Naval Training Station, Naval Hospital, Great Lakes, Illinois, No. 90-3178 (7th Cir. Sept. 16, 1992); FLRA v. United States Department of Veterans Affairs, Washington, D.C. and United States Department of Veterans Affairs Medical Center, Newington, Connecticut, 958 F.2d 503 (2nd Cir. 1992); FLRA v. Department of the Navy, Naval Resale Activity, Naval Air Station-Memphis, Millington, Tennessee, 963 F.2d 125 (6th Cir. 1992). We respectfully adhere to our decision in Portsmouth Naval Shipyard.
6. In finding the disputed portion of Proposal B to be negotiable, we make no judgment as to its merits.