[ v47 p311 ]
The decision of the Authority follows:
47 FLRA No. 23
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE NAVY
NAVAL AIR WARFARE CENTER
PATUXENT RIVER, MARYLAND
DECISION AND ORDER ON NEGOTIABILITY ISSUES
March 31, 1993
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of two provisions of a negotiated agreement that were disapproved by the Agency head under section 7114(c) of the Statute.(1)
For the reasons that follow, we conclude that Provision 1, which concerns the use of a supervisor's notes to support disciplinary action, excessively interferes with management's right to discipline and is nonnegotiable. We further conclude that Provision 2, which concerns the release of bargaining unit employees' home addresses, is not prohibited by law and is negotiable.
II. Provision 1
Article 3, section 1
c. Files documenting instances of misconduct retained in files not sanctioned by FPM Supplement 293-31 or supplements thereto may not be relied upon to support disciplinary action if the date of the previous action is more than three years old.
d. A supervisor's personal notes or records used as memory joggers are outside the scope of the Privacy Act so long as they are:
a. kept and maintained for the personal use of the supervisor;
b. shared with no other employee; and
c. retained and discarded at the discretion of the supervisor.
A supervisor's notes documenting instances of misconduct may not be relied upon to support disciplinary action if the date of the misconduct falls outside of the time frame found in section 1c.
[Only the underscored portions are in dispute.]
A. Positions of the Parties
1. The Agency
The Agency contends that Provision 1 is nonnegotiable because it interferes with management's right to discipline under section 7106(a)(2)(A) of the Statute. In this regard, the Agency cites, among others, American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187 (1991) (Kings Point) for the proposition that proposals precluding the Agency from using a supervisor's notes to support disciplinary or adverse actions interfere with management's right to discipline. The Agency argues that the decision to initiate disciplinary action based upon available evidence, whatever its quality, is committed to management's discretion. Consequently, the Agency asserts that it should not be precluded from using relevant information concerning past employee infractions merely because an arbitrarily established period of time has elapsed.
The Agency further contends that Provision 1 is not negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. The Agency asserts that the Authority's excessive interference test, set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG), is inconsistent with the Statute and should be reconsidered. The Agency claims that proposals having the effect of negating or frustrating the exercise of management's reserved rights cannot be arrangements within the meaning of the Statute because they would require management to change a decision or its timing, rather than mitigating the adverse consequences of the decision after it is implemented. The Agency asserts that if appropriate arrangements permitted substantive limitations on the exercise of management rights, the procedures clause of section 7106(b)(2) would be meaningless because the Authority would find a proposal negotiable under section 7106(b)(3) if the proposal was not negotiable as a procedure under section 7106(b)(2). The Agency argues that to be an arrangement under the Statute, a proposal must be intended to ameliorate the immediate and inevitable consequences of a specified management action. The Agency also asserts that the Authority should reconsider the analysis used to determine whether an arrangement is appropriate, which the Agency acknowledges was derived from the D.C. Circuit's decision in American Federation of Government Employees, AFL-CIO, Local 2782 v. FLRA, 702 F.2d 1183 (D.C. Cir. 1983) (AFGE, Local 2782).
Assuming the excessive interference test is a permissible interpretation of the Statute, the Agency contends that Provision 1 is not an appropriate arrangement. The Agency argues that the benefits to employees of avoiding the need to respond to adverse information more than three years old are outweighed by the burden on management's authority to discipline arising from its inability to use potentially relevant information. In support of its argument, the Agency relies on Kings Point, wherein the Authority stated that while old evidence may be entitled to less weight in a disciplinary proceeding, an outright ban on the use of such information excessively interfered with the right to discipline. Accordingly, the Agency claims that Provision 1 is nonnegotiable.
2. The Union
The Union states that sections c and d of Provision 1 are intended to address the use of unofficial notes kept by supervisors that are more than three years old. The Union explains that the files referred to by section c of the provision are not official records required by regulation or statute but, rather, are informal notes taken and retained by a supervisor. The Union maintains that the provision allows a supervisor to keep personal notes but prevents those notes from being used as evidence in a disciplinary proceeding.
The Union contends that Provision 1 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. The Union claims that the use of a supervisor's notes after three years is prejudicial to an employee's defense and that actions based on stale notes would constitute harmful error. The Union claims that the Agency can determine a penalty by considering an employee's work record based on official records. Therefore, the Union argues that the provision constitutes only a modest limitation on the Agency's ability to sustain its burden of proof in a disciplinary proceeding.
The Union maintains that the three year limitation on the use of a supervisor's notes is based on due process considerations. In this regard, the Union asserts that it is progressively more difficult for an employee to defend against accusations as the time between the occurrence and the presentation of charges or evidence lengthens. The Union claims that employees rarely keep comprehensive records of their daily conduct and must rely on after-the-fact and parol evidence, which are afforded less credibility as time passes, to counter charges of misconduct. Consequently, the Union argues that it is unfair to require employees to obtain evidence to defend against stale and unofficial personal notes.
Under the terms of the provision, the Union contends that management's right to discipline is affected only slightly, if at all. The Union claims that matters that are not formalized after three years are not of substantial value in processing a performance or disciplinary action against an employee. The Union further claims that informal notes that are not placed in formal records after one year should not be allowed as evidence in a disciplinary action. On the other hand, the Union contends that the provision offers substantial benefits to employees by reducing the burden of rebutting subjective and unsubstantiated notes. The Union also states that the provision does not preclude the use of informal notes to "jog" a supervisor's memory. In addition, the Union maintains that the provision would not prevent record keeping but would promote the practice of placing relevant information in official files with regulatory safeguards. The Union acknowledges that the Authority has decided cases involving similar proposals, but contends that the proposal in this case is different because it limits reliance on supervisory notes to three years, which it asserts is "an extraordinary length of time for informal notes, not necessarily ever shown to the employee, to be used in an evidentiary fashion . . . ." Response at 3.
The Union acknowledges the Agency's arguments regarding the viability of the Authority's excessive interference test but declines to address those arguments in the context of this case.
B. Analysis and Conclusions
The disputed portions of Provision 1 would preclude the Agency from using a supervisor's personal notes to support disciplinary action against an employee if the notes are more than three years old. Proposals that restrict the evidence on which an agency may rely to support a disciplinary action directly interfere with the agency's right to discipline employees under section 7106(a)(2)(A) of the Statute. See, for example, International Association of Machinists and Aerospace Workers, Lodge 39 and U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia, 41 FLRA 1452, 1454 (1991) (proposal prevented considering, as prior offenses, suspensions or reductions in grade or pay that occurred more than three years before the date of a proposed adverse action); National Association of Government Employees and U.S. Department of Veterans Affairs Medical Center, Brockton and West Roxbury, Massachusetts, 41 FLRA 529, 532-34 (1991) (proposal limiting retention of supervisory notes related to performance evaluations to one year or the duration of the rating process restricted the extent to which they could be used as evidence to support disciplinary action); Kings Point, 39 FLRA at 223-24 (proposal prevented the use of supervisory notes older than 18 months to support disciplinary actions). By limiting the use of informally maintained supervisory notes to substantiate disciplinary action, Provision 1 directly interferes with the Agency's right to discipline employees under section 7106(a)(2)(A) of the Statute.
Having found that the provision directly interferes with management's right to discipline, we must determine whether it is an appropriate arrangement under section 7106(b)(3) of the Statute. Under the framework established in KANG, we determine whether the proposal is intended as an arrangement for employees who may be adversely affected by the exercise of management's rights. If we find that the proposal is intended as an arrangement, we determine whether that arrangement is appropriate or whether it excessively interferes with the exercise of management's rights. KANG, 21 FLRA at 31-33.
Initially, we reject the Agency's argument that the excessive interference test should be reconsidered. The Authority and the courts have held that an arrangement proposed under section 7106(b)(3) is not invalid simply because it conflicts with a management right contained in section 7106(a). See, for example, U.S. Department of Justice, Immigration and Naturalization Service v. FLRA, 975 F.2d 218, 224-25 (5th Cir. 1992); Overseas Education Association, Inc. v. FLRA, 961 F.2d 36, 38-40 (2d Cir. 1992); U.S. Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1072-73 (D.C. Cir. 1992). The Agency's argument ignores the plain wording of section 7106 of the Statute. By its terms, section 7106 unequivocally establishes that management's rights under section 7106(a) are "[s]ubject to" the Union's right to negotiate appropriate arrangements under section 7106(b)(3). Thus, the literal wording and structure of section 7106 support a conclusion that a proposal that constitutes an appropriate arrangement under section 7106(b)(3) is negotiable notwithstanding "some constraints upon rights generally reserved (in other contexts) to management." AFGE, Local 2782, 702 F.2d at 1188. We also reject the Agency's argument that in order to constitute an arrangement, a proposal must ameliorate the immediate and inevitable consequences of a management action. Rather, a proposal need only address the reasonably foreseeable adverse effects that will flow from a management action and need not be limited to addressing harm that has already occurred. U.S. Department of Interior Minerals Management Service v. FLRA, 969 F.2d 1158, 1162-63 (D.C. Cir. 1992). Accordingly, we decline the Agency's request to abandon the excessive interference test, set forth in KANG, for determining whether a proposal constitutes an appropriate arrangement.
Under KANG, a proposal is intended as an arrangement if it seeks to mitigate the adverse effects on the employees of the exercise of a management right. Provision 1 would prevent the Agency from using a supervisor's informal notes to support disciplinary action if the notes are more than three years old. Thus, employees subject to a disciplinary or adverse action would be relieved of the burden of countering potentially stale and uncorroborated evidence. Therefore, we find that the disputed portions of Provision 1 constitute an arrangement for employees adversely affected by the exercise of management's right to discipline.
We next determine whether the benefits to employees flowing from the proposal outweigh the negative impact on management's right to discipline. The provision would benefit employees by assuring that they would not have to rebut in a disciplinary proceeding supervisory notes over three years old. As it is unlikely that the employees would have access to such notes before the disciplinary hearing and as memories are likely to fade over a three year period, employees could have difficulty in countering such evidence. Nonetheless, these benefits do not outweigh the burdens placed on management from a total ban on the introduction of all supervisory notes over three years old. Thus, the provision would preclude the Agency from introducing certain potentially relevant information for any evidentiary purpose in a disciplinary proceeding. The inability to use a supervisor's notes covering an earlier period to support disciplinary actions could, for example, negatively affect the Agency's ability to determine the appropriate discipline under a progressive discipline system.
In our view, Provision 1 affords a benefit to employees that is outweighed by the burden on management's ability to determine, based on all the available evidence, whether disciplinary action is appropriate and supportable. Although older evidence may be entitled to less weight in a disciplinary proceeding, we conclude that the outright ban on notes over three years old is nonnegotiable because it excessively interferes with the Agency's right to discipline under section 7106(a)(2)(A) of the Statute. Kings Point, 39 FLRA at 224.
III. Provision 2
Article 29, section 8
The employer will provide the Local with a listing of all bargaining unit employees, giving the name, occupational title and code, grade level, work center code and tenure status, if other than a permanent employee. This listing will be provided upon request, but no more than once semi-annually. Once annually, the Employer will provide the union with a listing of bargaining unit employees' home addresses, minus names or other information, sorted by zip code.
[Only the underscored sentence is in dispute].
A. Positions of the Parties
1. The Agency
The Agency contends that the release of employees' home addresses, as required by Provision 2, is inconsistent with Federal law. Specifically, the Agency claims that employees' home addresses are barred from release by the Privacy Act, codified at 5 U.S.C. § 552(a), and by the Freedom of Information Act (FOIA), codified at 5 U.S.C. § 552. Although FOIA authorizes the release of certain information covered by the Privacy Act, the Agency argues that the information sought by the Union is exempt from disclosure under 5 U.S.C. § 552(b)(6). According to the Agency, this exemption includes personnel, medical, and other files which if disclosed would constitute an unwarranted invasion of personal privacy.
In support of its contention, the Agency cites Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989) and FLRA v. Department of the Treasury, 884 F.2d 1446 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 864 (1990) for the proposition that the privacy interests of individuals must be balanced against the public interest in releasing information. In this regard, the Agency asserts that FOIA was intended to promote the public interest by permitting disclosure of information on how the government operates. The Agency argues that where the release of information would not further that purpose, disclosure is not required. Thus, the Agency claims that the release of employees' home addresses violates the Privacy Act because it would not further the public interest advanced under the FOIA and, therefore, the disclosure of such information does not constitute an approved routine use under Agency and Office of Personnel Management regulations.
The Agency further contends that Provision 2 is no less intrusive on the employees' privacy rights because it only provides for the release of home addresses. The Agency asserts that "federal employees have a privacy interest in avoiding an unwarranted barrage of mailings and personal solicitations[,]" regardless of whether the recipient is personally identified. Statement of position at 24-25. Moreover, the Agency claims that it would not be difficult for the Union to match names with home addresses once it has access to both pieces of information. Accordingly, the Agency maintains that Provision 2 is nonnegotiable.
2. The Union
The Union contends that Provision 2 is negotiable based on Authority precedent. The Union claims that in Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire and Federal Employees Metal Trades Council, AFL-CIO, 24 FLRA 209 (1986), the Authority found that the release of employees' names and home addresses to exclusive representatives was not prohibited by law, was necessary for the unions to fulfill their duties under the Statute, and met all of the other requirements established by section 7114(b)(4) of the Statute.
The Union states that because Provision 2 requires only the release of employees' home addresses, there would not be any Privacy Act concerns that the employees will be identified. In this regard, the Union contends that the information sought is available in the phone book or "to passers[-]by walking down a street" and, therefore, cannot constitute a substantial invasion of privacy. Opposition at 12. Moreover, the Union asserts that it has legitimate business to conduct as the exclusive representative and that lists of employees and their work stations, classifications, grades and other work-related data are legally and readily available to the exclusive representative. Accordingly, the Union argues that the provision is negotiable.
B. Analysis and Conclusions
We reject the Agency's contention that the information sought by the Union is barred from release by the Privacy Act and by the FOIA. For the reasons fully set forth in 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) (Portsmouth Naval Shipyard)(2), we continue to believe that the appropriate public interest to be applied in these cases should be the facilitation of the collective bargaining process in the Federal sector. In our view, when this definition is applied, it is clear that the public interest outweighs the relatively minor privacy interest of employees in the release of their names and home addresses to their exclusive representative.
We note that we do not find that proposals or provisions are significantly less intrusive on the privacy interest of employees because they are limited to the release of their home addresses. Although it may be harder to determine the names of the employees from a list of addresses, often there are local directories organized by street addresses through which a union could obtain the names of occupants. More importantly, a list of addresses still allows a union access to employees' homes either through mailings or personal visits. Therefore, the analysis applied in Portsmouth Naval Shipyard is equally applicable in this case. Based on that analysis, we conclude that the bargaining unit employees' home addresses are not exempt from disclosure under section 552(b)(6) of the FOIA.
In Department of Veterans Affairs, Medical and Regional Office Center Fargo, North Dakota, 46 FLRA 1243 (1993) (VA Fargo), we concluded that we would no longer follow Portsmouth Naval Shipyard insofar as that decision held that disclosure of unit employees' names and home addresses was authorized under exception (b)(3) of the Privacy Act. Accordingly, based on the Authority's decision in Portsmouth Naval Shipyard, as modified by VA Fargo, we conclude that Provision 2 is negotiable.
The Agency shall rescind its disapproval of Provision 2.(3) The Union's petition for review with regard to Provision 1 is dismissed.
(If blank, the decision does not have footnotes.)
1. The petition originally included five provisions. Subsequently, the Union withdrew its appeal with regard to three of the provisions, and they will not be considered further.
2. Authority decisions based on Portsmouth Naval Shipyard have been enforced in U.S. Courts of Appeals for the Third, Fifth, and Ninth Circuits. FLRA v. U.S. Department of the Navy, Navy Ships Parts Control Center, 966 F.2d 747 (3d Cir. 1992) (en banc); FLRA v. United States Department of Defense, Department of the Navy, Washington, D.C., 975 F.2d 1105 (5th Cir. 1992), petition for cert. filed, -- U.S.L.W. -- (U.S. Jan. 21, 1993) (No. 92-1223); 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). A panel of the court of Appeals for the Fourth Circuit also enforced a decision based on Portsmouth Naval Shipyard; the court subsequently vacated the panel's decision and granted a petition for rehearing en banc. FLRA v. Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Service, 954 F.2d 994 (4th Cir. 1992), vacated, petition for reh'g en banc granted (4th Cir. Apr. 22, 1992). However, applications for enforcement of such decisions were denied by U.S. Courts of Appeals for the Second, Sixth, Seventh, and Tenth Circuits. 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 (2d Cir. 1992); FLRA v.
U.S. Department of Naval Resale Activity, Naval Air Station-Memphis, Millington, Tennessee, 963 F.2d 124 (6th Cir. 1992); FLRA v. United States Department of the Navy, Navy Exchange, Naval Training Station, Naval Hospital, Great Lakes, Illinois, 975 F.2d 348 (7th Cir. 1992); FLRA v. United States Department of Defense, Army and Air Force Exchange Service, Dallas, Texas, Nos. 90-9561, 90-9569 (10th Cir. Jan. 20, 1993). As stated above, we respectfully adhere to our decision in Portsmouth Naval Shipyard that agencies are required to provide exclusive representatives with requested home addresses of unit employees under section 7114(b)(4) of the Statute.
3. In finding that this provision is negotiable, we make no judgments as to its merits.