[ v59 p926 ]
59 FLRA No. 166
OF GOVERNMENT EMPLOYEES,
OFFICE OF PERSONNEL MANAGEMENT
DECISION AND ORDER
ON NEGOTIABILITY ISSUES
May 10, 2004
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of 2 proposals. The Agency filed a statement of position to which the Union filed a response. The Agency also filed a reply to that response.
For the reasons set forth below, we find that the proposals are outside the duty to bargain. Accordingly, we dismiss the petition for review. [n2]
The Agency issues photo identification (ID) cards to employees, each of which contains an electronic strip. Whenever employees enter the building, the strip is exposed to a "proximity reader." A photograph is taken of the employee and, if the identity of the employee is verified, the employee is granted access to the building. This same process is used when employees exit the building. The process also records the time employees have entered and exited the building.
The parties agree the agency will use this internal security system to protect personal information contained in this system from unauthorized use, modification, destruction or disclosure and safeguard personal information contained in the automated records, in order to prevent such information from being accessed or disclosed improperly.
The parties understand the union would have access to information contained in the agency security system within five days of its request for such information.
IV. Meaning of the Proposals
Proposal 1 relates to the protection of information contained in the Agency's photo ID system. At the post-petition conference, the Agency stated that "the proposal is intended to prevent the Agency from accessing the information in the system, and using it, unless such access and use is in connection with an emergency evacuation." Report of Post-Petition Conference (Report) at 3 (emphasis added). The Union agreed with the contents of the report. See Response at 1. The Union added that information in the system could also be used in connection with a "security-related disciplinary action." Report at 3. As the Union's explanation is consistent with the wording of the proposal, we adopt it. See Nat'l Education Ass'n, Overseas Education Ass'n, Laurel Bay Teachers Ass'n, 51 FLRA 733, 737 (1996) (Laurel Bay). Accordingly, we interpret Proposal 1 as allowing the Agency to access and use the information contained in the photo ID system only in situations involving an emergency evacuation or in connection with a security-related disciplinary action.
Proposal 2 would obligate the Agency to provide the Union with information contained in the system within 5 days of the Union's request for the information. The Union explained that the proposal is intended to operate only with respect for requests for information "that would be needed in connection with matters of employee safety covered by Article 16, Section 1 of the parties' collective bargaining agreement and would be used to monitor the effectiveness of the photo ID system and recommend improvements." Report at 3. As this [ v59 p927 ] explanation of the proposal comports with its wording, we adopt it for purposes of this decision. Laurel Bay, 51 FLRA at 737. Accordingly, we interpret Proposal 2 as requiring the Agency to provide information, within 5 days of the Union's request, that would be used in connection with matters covered by Article 16, Section 1 of the agreement concerning employee safety.
V. Positions of the Parties
The Agency argues that Proposal 1 is outside the duty to bargain because it would "preclude management from fully exercising its right to use any information retrieved from the security system for any legitimate purpose such as in connection with a law enforcement investigation, a potential disciplinary action, or an Agency emergency other than an evacuation." Statement of Position at 4. In terms of its management rights, the Agency contends that the proposal directly and excessively interferes with the right to discipline under § 7106(a)(2)(A) of the Statute, the right to determine internal security practices under § 7106(a)(1), the right to take whatever actions may be necessary to carry out the Agency's mission during an emergency under § 7106(a)(2)(D), and the right to assign work under § 7106(a)(2)(B).
The Agency further asserts that Proposal 1 is contrary to the Privacy Act because it would "impose a negotiated set of standards on the circumstances under which an agency can determine whether or not its officers and employees have a need for the record in the performance of their duties" and "result in an unlawful restriction on the Agency's unfettered authority to promulgate any routine use for this system of records." Id. at 6-7.
As for Proposal 2, the Agency asserts that it "has no viability." Id. at 17. The Agency explains that while the Union clarified Proposal 1 to prohibit disclosure of information except in cases of evacuation, Proposal 2 would permit the Union "unfettered access to the same information." Id. The Agency also claims that Proposal 2 is inconsistent with the Privacy Act, which prohibits the disclosure of records to any person "`unless disclosure of the record would be -- (1) to those officers and employees of the agency who have a need for the record in the performance of their duties.'" Id. (quoting 5 U.S.C. § 552a(b)(1)). The Agency states that Proposal 2 "effectively grants the [U]nion carte blanche access to this information regardless of the individual circumstances." Id. The Agency also argues that the proposal would impermissibly require the Agency to add disclosure to the Union to the only published routine use that exists for this particular system of records. The Agency states that it published a routine use consistent with 5 U.S.C. § 552a(b)(3) for "Law Enforcement Purposes" and that it did not include labor organizations as routine users of such information for such a purpose. Id. at 18.
In addition, the Agency argues that, by allowing the Union to obtain "blanket disclosure of information regarding the entry and exit times of any [Agency] employee working in its [building] regardless of bargaining unit status[,]" the Union has failed to establish a particularized need for the information within the meaning of § 7114(b)(4) of the Statute. Id. at 19. More specifically, the Agency claims that the Union has failed to explain how the information in the photo ID system "pertains in any way to occupational safety or health[,]" or to other matters contained in Article 16 of the parties' agreement. [n3] Id. at 20; Reply at 6.
The Union asserts that Proposal 1 is designed to protect information in the photo ID system from unauthorized access and improper disclosure and that it constitutes an appropriate arrangement to address management's right to discipline. The Union contends that "[t]his new requirement of having the employees to clock in and clock out is adverse because it takes away from them the responsibility of trust afforded the employees to fulfill their obligation of accounting for their basic work each pay period." Response at 12. The Union adds that the photo ID system has created concerns [ v59 p928 ] among employees regarding the use of information that may be generated by the system because "there are no safeguards on the use  of the information." Id. Additionally, the Union states that "[a]nother impact [of] the proposal" is to prevent unit employees "from being subjected to using the clock in and clock out system that violates the laws of Washington, DC." Id. [n4]
As for the additional management rights raised by the Agency, the Union states that the proposal does not define how the Agency will determine its internal security practices and does not limit access to information to authorized personnel. The Union further claims that the argument with respect to § 7106(a)(2)(D) is moot because "[i]n cases of emergency, the Agency would not require employees to use the Photo Identification System readers when exiting the building . . . ." Id. at 13.
As for the Agency's claim that Proposal 1 violates the Privacy Act, the Union asserts that the proposal "was not to exclude those who would otherwise be entitled to the information by law." Id.
The Union also disputes the Agency's claims that disclosure of information, as required under Proposal 2, violates the Privacy Act or fails to satisfy the particularized need requirement of § 7114(b)(4) of the Statute. The Union states that in order to meet its responsibilities under Article 16, Section 1 of the parties' agreement relating to safety and health, it needs the information "to monitor the effectiveness of the system and to propose recommendations for improvements." Petition for Review at 5. The Union further states:
Contract language, Article 16 and past practice has established the particularized need as it relates to emergencies and evacuations. Moreover, the agency has . . . established the nexus between evacuations and safety when it agreed to language in the Safety and Health Provision, Article 16, of the Collective Bargaining Agreement, specifically, Article 16, Section 4 - entitled Emergency Evacuation/Fire Safety[.]
Response at 16 (emphasis omitted).
VI. Analysis and Conclusions
A. Proposal 1 Is Outside the Duty to Bargain
The Authority has held that proposals that prevent management from using certain types of information in support of disciplinary action affect the right to discipline. See, e.g., AFGE, Local 1709, 56 FLRA 549 (2000) (Proposal 1); POPA, 47 FLRA 10, 63 (1993); AFGE, Local 3295, 44 FLRA 63, 68-69 (1992). The Agency claims that the proposal excessively interferes with its right to discipline employees by preventing management from using information retrieved from the photo ID system in connection with potential disciplinary actions. The Union does not dispute the Agency's claim that Proposal 1 affects the right to discipline under § 7106(a)(2)(B) of the Statute. Therefore, we find that the proposal affects that right. See NFFE, Local 1904, 57 FLRA 28, 29 (2001). We next address whether the proposal is negotiable as an appropriate arrangement under § 7106(b)(3).
In determining whether a proposal is an appropriate arrangement, the Authority uses the analysis set forth in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). The Authority first determines whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. See United States Dep't of the Treasury, Office of the Chief Counsel, IRS v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992); AFGE, Local 1900, 51 FLRA 133, 141 (1995). The claimed arrangement must also be sufficiently "tailored" to compensate employees suffering adverse effects attributable to the exercise of management's rights. See id. at 184. As the Authority has explained, relying on United States Dep't of the Interior, Minerals Mgmt. Serv., New Orleans, Louisiana v. FLRA, 969 F.2d 1158, 1162 (D.C. Cir. 1992), § 7106(b)(3) brings within the duty to bargain proposals that provide a balm only to the hurts arising as a consequence of the management actions under § 7106 giving rise to a bargaining obligation. AFGE, Nat'l Border Patrol Council, 51 FLRA 1308, 1319 (1996). See also NAGE, Local R14-23, 53 FLRA 1440, 1443 (1998).
If a proposal is determined to be an arrangement pertaining to the exercise of management's rights, then the Authority determines whether it excessively interferes with the relevant management right. The Authority reaches this determination by weighing the "competing practical needs of employees and managers." KANG, 21 FLRA at 31-32. [ v59 p929 ]
The Union claims that employees are adversely affected by the requirement to "clock in and clock out[.]" Response at 12. The adverse effects identified relate to concerns about the use of information that may be generated by the photo ID system and to the Union's view that the photo ID system "takes away . . . the responsibility of trust afforded the employees to fulfill their obligation of accounting for their basic work each pay period." Id. Even assuming that the proposal constitutes an arrangement for adversely affected employees, we find that it is not appropriate because it would excessively interfere with management's right to discipline.
There is no dispute that, under the proposal, the Agency is authorized to access and use information in the photo ID system for emergency evacuation purposes. However, with one limited exception, the proposal would prevent the Agency from accessing the system and using information with respect to any matters other than emergency evacuations. The only exception is for "security-related disciplinary action." However, the Union has not explained what this phrase means or how it would operate. By definition, security-related disciplinary action would exclude disciplinary action that is not "security-related."
The Union does not expressly articulate the benefits that would be afforded employees under Proposal 1. However, it is reasonable to conclude that limiting the circumstances in which the Agency could use information from the photo ID system in connection with disciplinary actions would benefit those employees who are the subject of the discipline. However, by limiting the Agency's ability to access and use information from the photo ID system only for security-related disciplinary action, the proposal places too great an intrusion on the exercise of management's right. In this connection, the Agency argues, and the Union does not dispute, that the Agency may be required to take disciplinary action resulting from falsification of time and attendance records, law enforcement investigations or internal audits -- matters that do not necessarily involve security-related concerns.
On balance, we find that the intrusion on the exercise of management's right to discipline outweighs any benefits the proposal might afford unit employees. See POPA, 56 FLRA 69, 106-07 (2000) (proposal that would prevent agency from using information developed through electronic monitoring found to excessively interfere with the right to discipline). Consequently, we conclude that Proposal 1 is outside the duty to bargain. [n5]
B. Proposal 2 Is Outside the Duty to Bargain
By its express terms, Proposal 2 would provide the Union with "information contained in the agency security system within five days of its request for such information." The Agency claims that the proposal conflicts with the Privacy Act, 5 U.S.C. § 552a. In particular, the Agency states that disclosure of the information to the Union would not be authorized under either § 552a(b)(1) or § 552a(b)(3).
The Authority previously has recognized that the Privacy Act restricts the disclosure, and redisclosure, of personally identifiable records. See, e.g., GSA, 53 FLRA 925, 933 (1997). [n6] With certain enumerated exceptions, the Privacy Act provides that:
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[.]
There is no dispute in this case that information contained in the Agency's photo ID system constitutes a "record" that is contained in a "system of records" as those terms are defined in the Act, see 5 U.S.C. §§ 552a(a)(4) and (5), and that the Privacy Act applies in this case. Thus, absent written consent by an employee, disclosure of records contained in a system of records is prohibited unless one of the exceptions enumerated in the Privacy Act itself applies. See United States Dep't of Defense v. FLRA, 510 U.S. 487, 498 (1994) ("Disclosure of [specified information] is prohibited by the Privacy Act unless an exception to that Act applies."). [n7]
Among the relevant exceptions in the Privacy Act, pursuant to which disclosure of records may properly be made, are the following:
(1) to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties; [ v59 p930 ]
(2) required under section 552 of this title;
(3) for a routine use . . . .
The Union does not dispute the Agency's claim that the information encompassed by the proposal may not be disclosed under § 552a(b)(1) or § 552a(b)(3). The only argument made by the Union is that "[t]he Privacy Act requirement is not in violation of the Privacy Act if the information is disclosed for the union in performing its duty as outlined in the collective bargaining agreement, Article 16, Section 1 and 29 CFR 1960.40." Response at 15. By stating that the information would be used by the Union for collective bargaining purposes, it is clear that disclosure is not authorized under § 552a(b)(1), which pertains to disclosure of records to officers and employees of the agency who maintain such records and who have a need for the records in the performance of their duties.
Similarly, disclosure is not authorized under § 552a(b)(3). Although the Agency promulgated a routine use for the information in a system of records identified as OPM/Internal 14, the Union is not identified as a routine user. As such, the information may not be disclosed pursuant to OPM/Internal 14. Cf. United States Dep't of Veterans Affairs, Veterans Affairs Med. Ctr., Dallas, Tex., 51 FLRA 945, 959 (1996) (information not disclosable under § 552a(b)(3) as agency's routine use statement "d[id] not include a routine use that provides for disclosure of information to officials of labor organizations").
Finally, we note that the Union makes no other claim that the information may lawfully be disclosed consistent with the Privacy Act. For example, the Union makes no claim that disclosure of the information is required under 5 U.S.C. § 552a(b)(2), which requires disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. § 552.
However, even if we were to view the Union as raising a claim under FOIA Exemption 6, see, e.g., AFGE, Nat'l Border Patrol Council, 39 FLRA 675, 685-87 (1991) (addressing disclosure of time and attendance reports under that FOIA Exemption), we would find that the use of information for representational purposes is not a sufficient justification for requiring the Agency to disclose information from the photo ID system. As the Authority stated in TRACON, "we will no longer . . . define the public interest to be weighed under the FOIA in terms of collective bargaining as embodied in the Statute." 50 FLRA at 344 n.6. Rather, the public interest to be weighed is defined "in terms of the extent to which disclosure of the information would shed light on the agency's performance of its statutory duties or otherwise inform citizens as to what their Government `is up to.'" Id. at 344 (quoting United States Dep't of Justice v. Reptrs. Comm. For Freedom of the Press, 489 U.S. 749, 773 (1989) (footnote omitted). The Union makes no showing that disclosure of the information in this case would serve that purpose.
In sum, and based on the foregoing, we find that disclosure of the information encompassed by Proposal 2 is prohibited by law. Accordingly, the proposal is outside the duty to bargain. [n8]
The petition for review is dismissed. [ v59 p931 ]
Member Carol Waller Pope, concurring:
I agree with the majority that the petition should be dismissed. I write separately because, in three respects, the majority errs with respect to Proposal 2.
First, the majority is clearly wrong in holding that the Union does not dispute the Agency's claim that the disputed information may not be disclosed under Privacy Act exception (b)(1), which provides for disclosures to employees "who have a need for the record in the performance of their duties[.]" Majority Opinion at 11. The Union responds directly to the claim by arguing that the requested information may be disclosed to the Union for the purpose of "performing its duty as outlined in the collective bargaining agreement, Article 16, Section 1 and 29 CFR 1960.40." Response at 15. However, in determining whether exception (b)(1) authorizes disclosure, a requestor must demonstrate a "need" to examine requested information in order to perform "duties." Bigelow v. DOD, 217 F.3d 875, 877 (D.C. Cir. 2000), cert. denied, 532 U.S. 971 (2001). Even if the Union's contractual responsibilities constitute "duties," the Union provides no explanation why it "need[s]" the information in order to perform those duties. Accordingly, the Union has not demonstrated that § 552a(b)(1) authorizes disclosure.
Second, the majority notes, correctly, that the Union does not dispute the Agency's claim that the disputed information may not be disclosed under exception (b)(3), which encompasses disclosure pursuant to a "routine use." See Majority Opinion at 11. As such, it is unnecessary to address the exception further. Nevertheless, the majority holds that disclosure is not authorized under exception (b)(3) because the Agency had not identified the Union as a routine user. See id. at 12. What the majority fails to note, however, is that an Agency may exercise its discretion to issue a routine use statement identifying the Union as such a user. Army and Air Force Exchange Service, Waco Distribution Center, Waco, Texas, 53 FLRA 749, 758 (1997). If an unnecessary issue is addressed, then it should at least be addressed fully.
Third and finally, the majority insists on addressing an argument that it concedes is not raised by either party: whether the disputed information is encompassed by exception (b)(2), which includes disclosures required by the FOIA. See Majority Opinion at 12-13. Then, doing so, it misapplies the law. In particular, the majority holds, applying TRACON, that the Union has not identified a sufficient public interest in the information encompassed by the proposal to justify its disclosure. Id. at 12, citing 50 FLRA at 344. This ignores that, under TRACON, an examination of an asserted public interest is not necessary unless an agency has first established that "th[e] disclosure of the information would implicate employee privacy interests . . . ." 50 FLRA at 345. Here, as the Agency makes no claim that the disputed information implicates privacy interests, there would be no need to examine the public interests. I note that the majority emphasizes, in connection with exception (b)(1), that the Agency was not obligated to establish privacy interests. See Majority Opinion at 11 n.7. What the majority refuses to acknowledge is that, if exception (b)(2) were properly before us, then the Agency would be obligated to do so. The majority's decision will undoubtedly create confusion -- an especially unfortunate outcome since it arises from an issue that neither party has raised.
In sum, I would find that the Union has not demonstrated that the disputed information may be disclosed pursuant to exception (b)(1) to the Privacy Act. As that is the Union's sole claim before the Authority, I would dismiss the petition for review as to Proposal 2 on that basis.
Footnote # 1 for 59 FLRA No. 166 - Authority's Decision
Footnote # 2 for 59 FLRA No. 166 - Authority's Decision
We also deny the Union's request for a hearing because nothing in the request or the record raises a factual issue that needs to be resolved to determine the negotiability of the proposals at issue. See 5 C.F.R. § 2424.31 (a hearing is appropriate "[w]hen necessary to resolve disputed issues of material fact").
Footnote # 3 for 59 FLRA No. 166 - Authority's Decision
Section 1 - Overview
The Employer agrees to continue to provide a safe and healthful place of employment for all employees consistent with the provisions contained in 29 C F R Part 1960, and applicable laws. The Union agrees to cooperate with and assist the Employer in meeting this responsibility.
. . . .
Section 4 - Emergency Evacuation/Fire Safety
(a) The Employer will maintain in good working order the fire alarms, fire extinguishers and all other emergency evacuation/ fire safety equipment in accordance with applicable regulations.
(b) Management will provide adequate training for Hall Monitors upon appointment and keep them abreast of equipment usage, evacuation plans, assisting the physically challenged and procedures to follow in case of an emergency.
Statement of Position, Exh. 7.
Footnote # 4 for 59 FLRA No. 166 - Authority's Decision
The Agency asserts that "[t]o the extent the Union seeks redress for an alleged violation of 5 U.S.C. § 610, the Authority is not the proper forum for such a dispute." Reply at 4. Under 5 U.S.C. § 6106, "[a] recording clock may not be used to record time of an employee of an Executive Department in the District of Columbia, except that the Bureau of Engraving and Printing may use such recording clocks." We do not view the Union's claim in this proceeding as an assertion that the Agency's underlying conduct in implementing the photo ID system violated law. Rather, the Union sought to explain the impact of its proposal, a matter that is appropriately raised before the Authority in a negotiability appeal.
Footnote # 5 for 59 FLRA No. 166 - Authority's Decision
Footnote # 6 for 59 FLRA No. 166 - Authority's Decision
The purpose of the Privacy Act "is to balance the government's need to maintain information about individuals with the rights of individuals to be protected against unwarranted invasions of their privacy stemming from federal agencies' collection, maintenance, use, and disclosure of personal information about them." Freedom of Information Act Guide & Privacy Act Overview (May 2002) at 779.
Footnote # 7 for 59 FLRA No. 166 - Authority's Decision
We find that the Agency was not obligated to demonstrate that disclosure of the information in the photo ID system implicates employee privacy interests. That requirement is applied when an agency defends a refusal to furnish information on the basis that disclosure is prohibited by the Privacy Act because it would result in a clearly unwarranted invasion of personal privacy under FOIA Exemption 6. See United States Dep't of Transportation, FAA, New York TRACON, Westbury, NY, 50 FLRA 338, 345 (1995) (TRACON). As explained below, this case does not involve FOIA Exemption 6. We also note that the Authority's statement in TRACON, 50 FLRA at 342 n.5, that the Privacy Act would not apply if disclosure "would implicate no privacy interests," is an obvious reference to an obligation under FOIA Exemption 6, as the Authority's reliance therein on National Association of Retired Federal Employees v. Horner, 879 F.2d 873 (D.C. Cir. 1989), cert. denied, 494 U.S. 1078 (1990), indicates.
Footnote # 8 for 59 FLRA No. 166 - Authority's Decision