National Federation of Federal Employees, Local 858 and U.S. Department of Agriculture, Federal Crop Insurance Corporation, Kansas City, Missouri (Authority decision, October 25, 1991)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority resolving a negotiability appeal. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

A union challenged the Federal Crop Insurance Corporation's rejection of two negotiated provisions. One would require counseling and a warning before imposing a sick leave restriction; the Authority found it excessively limited the agency's discipline right. The other would automatically give the union promotion certificate and candidate evaluation forms after a selection. The Authority found that blanket disclosure inconsistent with the Privacy Act. It dismissed the petition on both provisions, while noting that the union could still make a specific lawful information request.

Decision snapshot

• Authority: Discipline under 5 U.S.C. § 7106(a)(2)(A); Privacy Act at 5 U.S.C. § 552a(b).
• Outcome: Petition dismissed; both provisions held nonnegotiable.
• Key point: A general contract clause cannot mandate disclosure of all candidate records when the cited privacy law bars that blanket release.

Full text (FLRA public release)

[ v42 p1169 ]

42:1169(81)NG

The decision of the Authority follows:

42 FLRA No. 81

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 858

(Union)

and

U.S. DEPARTMENT OF AGRICULTURE

FEDERAL CROP INSURANCE CORPORATION

KANSAS CITY, MISSOURI

(Agency)

0-NG-1892

DECISION AND ORDER ON NEGOTIABILITY ISSUES

October 25, 1991

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 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. The
Union did not file a response to the Agency's Statement of
Position.

Provision 1 would limit the Agency's ability to place
employees on sick leave restriction where improper use of sick
leave is suspected. We find that the provision is
nonnegotiable because it excessively interferes with
management's right to discipline employees under section
7106(a)(2)(A) of the Statute.

Provision 2 would require the Agency to submit certain
forms contained in the Agency's Merit Promotion file to the
Union following the completion of the selection process. We find that the provision is nonnegotiable under section
7117(a)(1) of the Statute because it is inconsistent with law.

II. Provision 1

Article 11.8 - Leave Restriction

When there is a sound reason to believe an
employee is improperly using sick leave, the
employee will be counseled and provided an
opportunity to correct the perceived problem.
If a problem exists and is not corrected based
on the counseling, the employee may be issued a
letter of warning. The letter of warning will
not be placed in the Official Personnel Folder.
This letter will include the evidence supporting
the basis for a determination of improper leave
use, what the employee must do to correct the
problem, and the nature of leave restriction
which may result if the problem is not
corrected.

If after oral counseling and the letter of
warning the problem has not been corrected, the
employee may be placed on leave restriction.
Such leave restriction will be fair, reasonable,
and equitably applied to all employees. The
leave restriction will explain the presentation
of evidence in order to obtain the approval of
subsequent leave requests in that category, the
type(s) of acceptable evidence, and the
consequences of not providing such evidence.
[Only the underscored portion is in dispute.]

A. Positions of the Parties

1. Agency

The Agency "does not dispute that it is a
good management practice to counsel an employee
when leave abuse is suspected" and "agree[s]
that a letter of warning is not inappropriate in
some circumstances." Agency's Statement of
Position at 3. The Agency contends, however,
that Provision 1 directly and excessively
interferes with its right to discipline
employees under section 7106(a)(2)(A) of the
Statute. The Agency argues that the provision
requires it to institute a 3-step disciplinary
process in those circumstances where employee
sick leave abuse is suspected. According to the
Agency, if such abuse is suspected, the
provision would restrict the exercise of its
right to discipline employees by requiring it
to "(1) counsel the employee, (2) issue a
warning letter, and (3) impose a leave
restriction letter." Id. The Agency argues
that the provision "prevents management from
determining what, if any, discipline should be
imposed upon an employee in a given situation."
Id. at 4. In support of its position, the
Agency cites Service and Hospital Employees
International Union, Local 150 and Veterans
Administration Medical Center, Milwaukee,
Wisconsin, 35 FLRA 521 (1990) (VAMC, Milwaukee)
and National Federation of Federal Employees and
Department of the Interior, Bureau of Land
Management, 29 FLRA 1491, (1987) (Bureau of Land
Management), enforced in part and reversed in
part as to other matters sub nom. Department of
the Interior, Bureau of Land Management v. FLRA,
873 F.2d 1505 (D.C. Cir. 1989).

2. Union

The Union contends that Provision 1 is
"purely procedural in nature." Petition for
Review at 1. According to the Union, the
provision establishes "procedures by which
[m]anagement exercises its rights, while
protecting the employee in the exercise of those
rights." Id. The Union claims that the
provision does not directly or excessively
interfere with management's rights or prevent
the Agency from exercising its rights.

B. Analysis and Conclusions

We conclude that Provision 1 excessively
interferes with management's right to discipline
employees under section 7106(a)(2)(A) of the
Statute and, therefore, that the provision does
not constitute an appropriate arrangement under
section 7106(b)(3).

1. The Provision Directly
   Interferes with Management's Right to Discipline
   Employees

Provision 1 establishes certain conditions
that would limit management's ability to place
employees on sick leave restriction. The
provision would permit the Agency to place
employees suspected of improperly using sick
leave on sick leave restriction only if the
employees are first provided with oral
counseling and a letter of warning.

Because the use of leave restrictions is, in
practical terms, a precondition of an agency's
decision to discipline employees for suspected
misuse or abuse of sick leave, provisions or
proposals that preclude an agency from imposing
sick leave restrictions directly interfere with
management's right to discipline employees under
section 7106(a)(2)(A) of the Statute. National
Federation of Federal Employees, Local 405 and
U.S. Department of the Army, Army Information
Systems Command, St. Louis, Missouri, 42 FLRA
No. 78 (1991), slip op. at 21-22 (Army
Information Systems Command).

Provision 1 requires the Agency to counsel
and provide a letter of warning to an employee
suspected of improperly using sick leave before
placing that employee on sick leave restriction.
Specifically, under Provision 1, management
would not be able to place an employee on sick
leave restriction based on the initial incidents
giving rise to "a sound reason to believe" that
an employee is "improperly using sick leave[.]"
Instead, the provision substitutes counseling
and a letter of warning for the imposition of
sick leave restriction for those incidents.
Because sick leave restriction is, as a
practical matter, a preconditon of management's
decision to impose discipline for improper use
of sick leave, Provision 1 would effectively
preclude management from responding to the
employee's improper use of sick leave through
discipline until management had counseled and
provided a letter of warning to the employee.
See id., slip op. at 21-22 (because "the
[a]gency would not be able to place an employee
in a restricted leave use category based on
previously approved leave, . . . management
would be precluded from responding to an
employee's inappropriate use of leave through
discipline").

Consequently, consistent with Army
Information Systems Command, we find that
Provision 1 directly interferes with
management's right to discipline employees under
section 7106(a)(2)(A) of the Statute. In view
of our determination that Provision 1 directly
interferes with management's right to discipline
employees, we reject the Union's argument that
the provision is purely procedural. Provision 1
is nonnegotiable, therefore, unless it is an
appropriate arrangement within the meaning of
section 7106(b)(3).

2. The Provision Is Not an
   Appropriate Arrangement under Section
   7106(b)(3)

The Union contends that Provision 1 does not
excessively interfere with management's rights.
We interpret the Union's contention as an
argument that the provision constitutes an
appropriate arrangement. Therefore, we will
consider whether the provision is negotiable
under section 7106(b)(3) of the Statute.

In order to determine whether a proposal
constitutes an appropriate arrangement, we must
determine whether the proposal is: (1)
intended to be an arrangement for employees
adversely affected by the exercise of a
management right; and (2) appropriate because it
does not excessively interfere with the exercise
of management's rights. See National
Association of Government Employees, Local
R14-87 and Kansas Army National Guard, 21 FLRA
24 (1986) (Kansas Army National Guard). In
determining whether a proposal excessively
interferes with the exercise of a management
right, we weigh the benefits conferred on
employees by the proposal against the burden
imposed on the exercise of management's rights.
Id.

As to whether Provision 1 is an arrangement
for employees adversely affected by the exercise
of a management right, we find that the
provision would benefit employees suspected of
leave abuse by providing those employees with
counseling assistance and a warning instead of
the imposition of sick leave restriction as a
prelude to disciplinary action. The provision
would protect employees where grounds exist for
imposing leave restriction, by precluding leave
restriction unless and until employees have
received counseling and been warned. We find,
therefore, that Provision 1 constitutes an
arrangement for employees adversely affected by
the exercise of a management right within the
meaning of section 7106(b)(3).

As to whether Provision 1 constitutes an
appropriate arrangement, we note that, under the
provision, where incidents occur that give rise
to a "strong reason to believe" an employee is
"improperly using sick leave," management will
counsel and warn the employee rather than place
the employee on sick leave restriction for those
initial incidents. We noted above that, by
precluding management from placing an employee
on sick leave restriction, the provision
effectively precludes disciplinary action
against the employee for certain suspected
incidents of improper use of sick leave. We
find that, by thus precluding disciplinary
action for the initial incidents of suspected
sick leave abuse, the burden placed on
management's ability to discipline employees by
the provision outweighs the benefit to employees
under the provision. We find, therefore, that
the provision excessively interferes with
management's right to discipline employees.
See, for example, American Federation of
Government Employees, Local 1156 and U.S.
Department of the Navy, Navy Ships Parts Control
Center, Mechanicsburg, Pennsylvania, 42 FLRA No.
79 (1991) (provision requiring agency to caution
employees prior to imposing sick leave
restriction found to excessively interfere with
management's right to discipline employees under
section 7106(a)(2)(A)). Consequently, we
conclude that Provision 1 does not constitute an
appropriate arrangement under section 7106(b)(3)
of the Statute and that the provision is
nonnegotiable.

III. Provision 2

Article 13.5(G) - Merit Promotion, Evaluation of
Candidates

The Promotion Certificate and AD-735's will be
submitted to the Exclusive Representative when
the Merit Promotion Process has been completed.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 2 is
nonnegotiable because it is inconsistent with
the Privacy Act, 5 U.S.C. §552a(b). According
to the Agency, the issue presented by the
provision concerns "the privacy rights of
individuals who applied for a position and
either did not make the best qualified list or,
if they did make the list, were not selected."
Agency's Statement of Position at 6.

The Agency argues that Federal Personnel
Manual (FPM) chapter 335, subchapter 1-4,
Requirement 5 and FPM Supplement 335-1,
subchapter 5.2c require management to ensure
that employees' rights to privacy are protected.
The Agency states that, subject to an exemption
permitting disclosure to agency officials and
employees who have a need for a record in the
performance of their duties, the Privacy Act
prohibits the disclosure of "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." Id. at
6-7. According to the Agency, therefore, the
Privacy Act prohibits the disclosure of the
Promotion Certificate and Form AD-735.

The Agency also argues that the Union has
confused the Privacy Act with the Freedom of
Information Act (FOIA), 5 U.S.C. §552. The
Agency notes that Exemption 6 to the FOIA
exempts the disclosure of personnel and medical
files from the requirements of the FOIA where
such disclosure would constitute a clearly
unwarranted invasion of personal privacy.

Further, the Agency states that it "suggested
to the [U]nion that sanitization of the
Promotion Certificate and Form AD-735 to protect
the privacy rights of nonselected individuals
would remove any question of negotiability."
Id. at 7. The Agency notes that the Union did
not modify Provision 2. The Agency argues that
the language of the provision does not indicate
that "the Union is willing to accept sanitized
documents." Id. In support of its position,
the Agency relies on National Federation of
Federal Employees, Local 1745 and Veterans
Administration, 13 FLRA 543 (1983) (Veterans
Administration), affirmed sub nom. NFFE, Local
1745 v. FLRA, 828 F.2d 834 (D.C. Cir. 1987).

2. Union

In its petition for review, the Union
contends that Provision 2 is consistent with
law. The Union argues that disclosure of the
requested forms is permitted under Exemption 6
to the FOIA and, therefore, is not prohibited
from disclosure under the Privacy Act. The
Union states that "[t]he point of Exception 6
(FOIA) is that the Privacy Act never prohibits a
disclosure that is required by the FOIA."
Petition for Review at 2. The Union also points
out that, in applying Exemption 6 of the FOIA,
courts "have held that the [u]nion's interest in
obtaining such information, outweighs the
employees' privacy interest in protecting the
information." Id.

The Union also argues that the Promotion
Certificate and Form AD-735: (1) are available
to the Union in accordance with section
7114(b)(4) of the Statute; and (2) have been
previously disclosed by the Agency at the
Union's oral request and pursuant to the
Statute. The Union asserts that the information
is requested in order to protect unit employees'
rights under the parties' agreement "to fair
consideration for positions advertised through
the Merit Promotion Plan[.]" Id.

B. Analysis and Conclusions

We conclude that Provision 2 is inconsistent
with the Privacy Act and, therefore, is
nonnegotiable under section 7117(a)(1) of the
Statute.

Provision 2 requires the Agency to provide
the Union with copies of the Promotion
Certificate (Form FCIC-473) and Form AD-735 when
the merit promotion process has been completed.
The Agency claims, and the Union does not
dispute, that the Agency agreed to the
disclosure of sanitized copies of Forms
FCIC-473 and AD-735. There is no indication in
the record that the Union is willing to accept
sanitized copies of the requested forms.
Consequently, in the absence of evidence to the
contrary, we will interpret the provision as
requiring unsanitized copies of Forms FCIC-473
and AD-735.

Form AD-735 is used by a rating and ranking
panel to evaluate the qualifications of
applicants for a merit promotion position. Form
AD-735 includes, among other things, the
comments of the rating panel members in arriving
at an applicant's rating and the numerical
rating given to each applicant. At the
completion of the merit promotion process, the
Agency compiles a master copy of Form AD-735
that indicates: (1) the names and rating of
each applicant for the position; and (2) the
names of those applicants who were found to be
best qualified for the position. The Promotion
Certificate (Form FCIC-473) is a listing of the
best qualified applicants for a position. Form
FCIC-473 also indicates whether an applicant was
selected for, not selected for, or declined the
position. Provision 2, therefore, requires the
Agency, following completion of the merit
promotion process, to provide the Union with
unsanitized copies of forms listing the names
and relative ranking of all applicants for a
promotion, the rating for each applicant, and
whether or not an applicant was selected for the
position.

The Privacy Act regulates the disclosure of
any information contained in an agency "record"
within a "system of records" that is retrieved
by reference to an individual's name or some
other personal identifier. 5 U.S.C. §552a(a)(4), (5) (1982). The Privacy Act defines
"record" as "any item, collection, or grouping
of information about an individual that is
maintained by an agency . . . ." and "system of
records" 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[.]" 5 U.S.C. §552a(a)(5). See also
National Federation of Federal Employees, Local
1655 and U.S. Department of Defense, Department
of Military Affairs, Springfield, Illinois, 39
FLRA 1087, 1094-96 (1991) (Department of
Military Affairs). Forms FCIC-473 and AD-735
are records within a "system of records" under
the Privacy Act. See Veterans Administration,
13 FLRA at 545-46.

With certain enumerated exceptions, the
Privacy Act precludes an agency from disclosing
to any person or agency any record which it
maintains as a part of a system of records
absent a request by, or the written consent of,
the person to whom the record pertains. Section
(b)(2) of the Privacy Act provides that the
prohibition against disclosure is not applicable
if disclosure of the information would be
required under the FOIA. 5 U.S.C. §552a(b)(2).
Exemption (b)(6) of the FOIA provides that
information contained in personnel files, in
addition to 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).
Therefore, if the release of Forms FCIC-473 and
AD-735 would not constitute a clearly
unwarranted invasion of personal privacy,
disclosure of those forms to the Union would not
be barred by the Privacy Act.

The question, therefore, is whether
disclosure of unsanitized copies of Forms
FCIC-473 and AD-735 would constitute a clearly
unwarranted invasion of privacy. In determining
whether disclosure of the requested forms,
including the names of individuals not selected
for a position, would constitute a clearly
unwarranted invasion of personal privacy, the
employee's right to privacy must be balanced
against the public interest in disclosure. See
U.S. Department of the Navy, Portsmouth Naval
Shipyard, Portsmouth, New Hampshire, 37 FLRA 515
(1990) (Portsmouth), application for enforcement
denied sub nom. FLRA v. U.S. Department of the
Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, No. 90-1949 (1st Cir. Oct. 1, 1990).

In applying the balancing test, we look to
the public interest embodied in the Statute.
Id. at 525-35. The "public interest" identified
in the Statute is "the facilitation of the
collective bargaining process . . . ." Id. at

531. We conclude that there is a strong public
     interest in the disclosure of the requested
     information. The Union argues that the
     information is necessary in order to ensure that
     the Agency adheres to the provisions of the
     parties' agreement, thereby "protecting the
     bargaining unit employees' right to fair
     consideration for positions advertised through
     the Merit Promotion Plan[.]" Petition for
     Review at 2. Because the Union requested the
     information for this purpose, we find that the
     disclosure of the names and relative standings
     of all employees contained in the Forms FCIC-473
     and AD-735 would serve a strong public interest.
     The disclosure of information needed to ensure
     that the Agency complies with its
     responsibilities in administering the selection
     process is a matter of public concern. See,
     for example, Department of Commerce, National
     Oceanic and Atmospheric Administration, National
     Weather Service, Silver Spring, Maryland, 38
     FLRA 120, 132 (1990), application for
     enforcement filed sub nom. FLRA V. U.S.
     Department of Commerce, National Oceanic and
     Atmospheric Administration, National Weather
     Service, Silver Spring, MD, No. 91-1175 (D.C.
     Cir. Apr. 12, 1991) (disclosure of the names and
     duty stations of unit employees receiving
     commendable or outstanding performance ratings
     was found to serve an important public
     interest).

Even using only the public interest
identified by the Supreme Court in United States
Department of Justice v. Reporters Committee for
Freedom of the Press, 489 U.S. 749, 773 (1989)
(Reporters Committee), and taking into account
"the nature of the requested document and its
relationship to the basic purpose of the FOIA
'to open agency action to the light of public
scrutiny,'" Dunkelberger v. Department of
Justice, 906 F.2d 779, 781 (D.C. Cir. 1990),
quoting Reporters Committee, we find that there
is a clear public interest in the disclosure of
the information requested by the Union in this
case. Disclosing copies of forms listing the
names and relative ranking of all applicants for
a promotion, the rating for each applicant, and
whether or not an applicant was selected for the
position, would open to public scrutiny the
manner in which the Agency administers its
selection process and whether the Agency's
selection process is administered in a fair and
evenhanded manner. See, for example, Department
of the Air Force, Scott Air Force Base,
Illinois, 38 FLRA 410, 419 (1990), petition for
review filed sub nom. Department of the Air
Force, Scott Air Force Base, Illinois v. FLRA,
No. 91-1042 (D.C. Cir. Jan. 24, 1991)
(disclosing the nature of a disciplinary action
taken against a supervisor for an alleged
assault on an employee found to concern the
public interest in the agency's compliance "with
its responsibilities [for] administering its
disciplinary system in a fair and evenhanded
manner.").

The information required by the proposal
pertains to the decisions the Agency makes and
the actions the Agency takes in selecting among
candidates for a vacant position. Disclosure of
that information would open to "public scrutiny"
what the Agency is "up to" in its hiring and
promotion practices. See Reporters Committee,
489 U.S. at 772-73. Disclosure of the
information would enable the public to assess,
for example, whether the Agency is hiring and
promoting candidates for a vacancy consistent
with applicable law, regulation, and the
collective bargaining agreement.

Employees, however, have significant privacy
interests in records concerning their relative
standing in the Agency's selection process. In
this regard, FPM chapter 335, subchapter 1-4,
Requirement 5 and FPM Supplement 335-1,
subchapter S5-2.c. provide that an agency, in
administering its promotion system, must ensure
the protection of an individual's privacy rights
and an employee's rating or score must not be
made known to anyone who does not have an
official need to know an individual's score.

Applying the balancing test to this case, we
find that the personal privacy interests of
employees whose records are disclosed outweigh
the public interest in the blanket disclosure to
the Union in its representational capacity of
unsanitized documents generated in the promotion
process. In Federal Employees Metal Trades
Council and U.S. Department of the Navy, Mare
Island Naval Shipyard, Vallejo, California, 38
FLRA 1410 (1990) (Mare Island Naval Shipyard),
petition for review filed sub nom. Federal
Employees Metal Trades Council v. FLRA, No.
91-70168 (9th Cir. Mar. 5, 1991), the Authority
found that "the public interest in blanket,
unsanitized disclosure of all proposed and final
disciplinary and adverse actions to the Union,
without an expressed particularized need for the
information" constituted an unwarranted invasion
of personal privacy and did not outweigh "the
employees' strong privacy interests." Id. at
1425. The Authority found that the information
requested in Mare Island Naval Shipyard was
prohibited from disclosure under the Privacy
Act. See also U.S. Department of Justice and
Immigration and Naturalization Service, 37 FLRA
1346, 1364 (1990) (INS), petition for review
filed sub nom. U.S. Department of Justice,
Immigration and Naturalization Service v. FLRA,
No. 90-1613 (D.C. Cir. Dec. 27, 1990) (provision
requiring respondent to provide the union with
unsanitized copies of notices of proposed
disciplinary actions, final actions taken, and
decisions on subsequent appeal constituted an
unwarranted invasion of personal privacy and,
therefore, was prohibited from disclosure under
the Privacy Act).

Here, Provision 2 requires the blanket
release of unsanitized information concerning
each applicant's individual rating, selection,
nonselection, and relative ranking in the
Agency's selection process for promotions. On
balance, we find that the privacy interests of
the affected employees outweigh the public
interest in the disclosure of that information.
Consequently, we conclude that the disclosure of
Forms FCIC-473 and AD-735 constitutes an
unwarranted invasion of personal privacy under
Exemption 6 of the FOIA and that such disclosure
is prohibited under the Privacy Act. See Mare
Island Naval Shipyard and INS. Accordingly, we
find that Provision 2 is inconsistent with law
and, therefore, is nonnegotiable under section
7117(a)(1) of the Statute.

We emphasize that, under our decision, the
Union is not foreclosed from requesting specific
information, including information that is
unsanitized and that concerns employees who have
not designated the Union as their
representative, under section 7114(b)(4) of the
Statute. In the event that such a request were
disputed, the Authority would then balance the
competing interests in determining whether
disclosure of the information is consistent with
law. See Mare Island Naval Shipyard, 38 FLRA at
1425 (1991).

IV. Order

The Union's petition for review is dismissed.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)