[ v13 p543 ]
13:0543(91)NG
The decision of the Authority follows:
13 FLRA No. 91
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1745
Union
and
VETERANS ADMINISTRATION
Agency
Case No. 0-NG-479
DECISION AND ORDER ON NEGOTIABILITY ISSUES
This case comes before the Federal Labor Relations Authority pursuant
to section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management
Relations Statute (the Statute) and concerns the negotiability of two
Union proposals.
Union Proposal 1
The Union will appoint a participating member on the Rating
Panel. The Union Member will be allowed access to all personnel
records of employees being evaluated by the Promotion Panel.
If there are no qualified SME's available as a Union Member on
the Rating Panel, then the Union Member will act as an Observer
rather than a participating member.
Neither a Panel Member nor an Observer can be an applicant for
a position under consideration by the Panel. Information
discussed in Panel Meetings will be considered confidential and
will not discussed outside these meetings.
Question Before the Authority
The question is whether Union Proposal 1 is inconsistent with the
Agency's rights under section 7106(a)(2)(C) of the Statute, as alleged
by the Agency.
Opinion
Conclusion and Order: Union Proposal 1 is inconsistent with section
7106(a)(2)(C) of the Statute. /1/ Accordingly, pursuant to section
2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the
petition for review as to Union Proposal 1 be, and it hereby is,
dismissed.
Reasons: Union Proposal 1 provides for Union Representation on, and
participation in the functioning of, promotion or rating and ranking
panels established by the Agency as a part of the selection process for
filling vacant positions. Applicable Agency regulations provide for
such panels to be constituted by a representative of the Office of
Personnel and two line officials who are familiar with the position to
be filled. /2/ The panel is responsible for developing a rating
schedule which will set forth the factors to be used in evaluating
candidates, a ranking plan which will establish the criteria to be used
to rate candidates under each such factor, and a method for combining
the ratings obtained to arrive at a ranking of candidates. /3/ The
panel also applies the rating schedule and ranking plan which it has
developed to the applications of qualified candidates and establishes a
promotion register for submission to the selecting official. /4/
In thus providing for a Union representative on a panel which, among
other things, develops the selective factors to be used in a merit
promotion plan or rating schedule, Union Proposal 1 herein is
substantively to the same effect as Union Proposals 1 and 2 in National
Federation of Federal Employees, Local 1497 and Headquarters, Lowry
Technical Training Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA
No. 92 (1983). In that case, the Authority held that Union Proposals 1
and 2, which established a joint labor-management panel to develop
"promotion evaluation patterns," i.e., those aspects of a merit
promotion plan involving both "selective factors" and a "crediting
plan," were outside the duty to bargain because they involved the union
in the agency's selection process and thereby directly interfered with
management's rights under section 7106(a)(2)(C) of the Statute.
Therefore, for the reasons set forth fully in Lowry Technical Training
Center, Union Proposal 1 herein is outside the duty to bargain under
section 7106(a)(2)(C) of the Statute. /5/
Union Proposal 2
Any employee is entitled to see any records used by the
Promotion Panel as long as the employee's name was submitted to
the Panel and the employee was not selected for promotion.
Question Before the Authority
The question is whether Union Proposal 2 is inconsistent with Federal
law, i.e., the Privacy Act (5 U.S.C. 552a), as alleged by the Agency.
Opinion.
Conclusion and Order: Union Proposal 2 is inconsistent with 5 U.S.C.
552a(b) /6/ and, thus, is outside the duty to bargain under section
7117(a)(1) of the Statute. /7/ Accordingly, pursuant to section 2424.10
of the Authority's Rules and Regulations, IT IS ORDERED that the
petition for review as to Union Proposal 2 be, and it hereby is,
dismissed.
Reasons: Union Proposal 2 would require the Agency to disclose "any
record" used by a promotion panel to "any employee" who was a candidate
for a vacant position but was nonselected. The term "record" as used in
the proposal is not further defined therein, nor does the record
otherwise reveal the Union's intent in using the term. However, under
the Agency regulations pertaining to promotion panels, the "records:
used by such panels would include the applications of candidates for the
position, rating schedules, ranking plans, rating sheets, and promotion
registers or certificates. Thus, Union Proposal 2 would require the
Agency to disclose upon request all such "records" pertaining to
candidates.
The Privacy Act, however, in particular 5 U.S.C. 552a(b), with
certain enumerated exceptions, 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. /8/ Therefore, under 5 U.S.C. 552a(b)
candidates nonselected for a position may not have access to records
pertaining to candidates other than themselves without obtaining the
written consent of those candidates. Clearly, the materials encompassed
by Union Proposal 2, as outlined above, are "records" covered by the
Privacy Act. See Local 2047, American Federation of Government
Employees v. Defense General Supply Center, 423 F.Supp. 481, 482, n. 1
(E.D. Va. 1976), affirmed 573 F.2d 184 (4th Cir. 1978). Since, as
discussed above, the proposal would unconditionally require disclosure
of those records to any nonselected employee, /9/ the proposal clearly
is inconsistent with the restrictions imposed by Sec. 552a(b) of the
Privacy Act on an agency's disclosure of information contained in its
records. Hence, it is outside the duty to bargain under section
7117(a)(1) of the Statute. /10/
Issued, Washington, D.C., December 22, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 7106(a)(2)(C) of the Statute provides as follows:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in the
chapter shall affect the authority of any management official of
any agency--
* * * *
(C) with respect to filling positions, to make selections for
appointments from--
(i) among properly ranked and certified candidates for
promotion; or
(ii) any other appropriate source).)
/2/ Veterans Administration (VA) Manual MP-5, Part 1, Chapter 335,
Change 2, Appendix C, Section 6.a. Because of the disposition herein of
Union Proposal 1, it is unnecessary to consider the Agency's additional
contention that a "compelling need" exists for the Agency's regulation
to bar negotiations.
/3/ VA Manual MP-5, Part 2, Chapter 335, Change 2, Appendix C,
Sections 6.b. and c. For a more detailed discussion of merit promotion
procedures see National Treasury Employees Union and NTEU Chapters 153,
161 and 183 and U.S. Customs Service, Region II, 11 FLRA No. 47 (1983)
(Union Proposals 1 and 2).
/4/ VA Manual MP-5, Part 1, Chapter 335, Change 2, Appendix C,
Section 6.d.
/5/ Cf. National Federation of Federal Employees, Local 1497 and
Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force
Base, Colorado, 11 FLRA No. 92 (1983) (Union Proposals 5 and 6) (Joint
labor-management panels to develop crediting plans are within the duty
to bargain).
/6/ 5 U.S.C. 552a(b) provides, in pertinent part, as follows:
Sec. 552a. Records maintained on individuals.
* * * *
(b) Conditions of disclosure.-- 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, unless disclosure of the
record would be--
* * * *
(3) for a routine use as defined in subsection (a)(7) of this
section and described under subsection (e)(4)(D) of this
section(.)
/7/ Section 7117(a)(1) of the Statute provides as follows:
Sec. 7117. Duty to bargain in good faith; compelling need;
duty to consult
(a)(1) Subject to paragraph (2) of this subsection, the duty to
bargain in good faith shall, to the extent not inconsistent with
any Federal law or any Government-wide rule or regulation, extend
to matters which are the subject of any rule or regulation only if
the rule or regulation is not a Government-wide rule or
regulation.
/8/ Cf. Federal Personnel Manual, chapter 335, subchapter 1-4,
Requirement 5; FPM Supplement 335-1, subchapter S5-2.c.
(Administration of an agency's promotion system must ensure 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
the score.)
/9/ The Authority also notes that the proposal at issue herein does
not provide, as a condition precedent to disclosure, for the deletion
from any records to be disclosed of any and all information pertaining
to persons other than the person making the request for the records,
i.e., "sanitizing" the records. Such a proposal would present a
different set of issues which need not be addressed in this section.
See National Treasury Employees Union and Department of the Treasury,
U.S. Customs Service, 9 FLRA No. 138 (1982) at 5 of decision. See also
Bureau of Alcohol, Tobacco and Firearms, National Office and Western
Region, San Francisco, California and National Treasury Employees Union,
8 FLRA No. 108 (1982).
/10/ 5 U.S.C. 552a(b)(3) provides that an agency may disclose records
within its control to persons or agencies without the written consent of
the person(s) to whom the records pertain if such disclosure is for a
"routine use" within the meaning of 5 U.S.C. 552a(7), i.e., the use of a
record for a purpose which is compatible with the purpose for which it
was collected. Disclosure of records used by a promotion panel in the
process of selecting a candidate for appointment to a position,
particularly applications and/or rating sheets, to other candidates for
that position is not such a routine use which is compatible with the
purpose for which those records were collected by the agency. See Local
2047, American Federation of Government Employees, at 484, in which the
court held that disclosure to a union pursuant to a collective
bargaining agreement of copies of, e.g., referral lists for promotion
and lists of persons promoted, does not fall within the "routine use"
exception under the Privacy Act and its implementing regulations.