[ v25 p181 ]
25:0181(13)CA
The decision of the Authority follows:
25 FLRA No. 13
INTERNAL REVENUE SERVICE,
WASHINGTON, D.C., AND
INTERNAL REVENUE SERVICE,
OMAHA DISTRICT, OMAHA, NEBRASKA
Respondents
and
NATIONAL TREASURY EMPLOYEES
UNION AND NTEU, CHAPTER 3
Charging Party
Case No. 7-CA-60098
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority, in
accordance with section 2429.1(a) of the Authority's Rules and
Regulations, based upon a stipulation entered into by the Respondents,
the Charging Party and the General Counsel. The case involves an
alleged violation of section 7116(a)(1), (5) and (8) of the Federal
Service Labor-Management Relations Statute (the Statute) when the
Respondents refused to provide information the Charging Party had
requested pursuant to section 7114(b)(4) of the Statute.
II. Background (Footnotes appear in the Appendix to this
Decision)
At all times relevant the National Treasury Employees Union (NTEU or
Union) held exclusive representation for a consolidated bargaining unit
which included employees in the Omaha District of the Internal Revenue
Service (IRS or Agency). A collective bargaining agreement (NORD II),
covering the consolidated unit, had become effective on May 27, 1985.
By letter dated October 4, 1985, the Union filed a grievance,
pursuant to the negotiated grievance procedure in NORD II, concerning a
recent promotion action (Vacancy Announcement 85-53) for a GS-12 Revenue
Agent position in the IRS Lincoln, Nebraska, office. In the letter the
Union indicated that it would be requesting "various documents" in
connection with the grievance. The Union steward who filed the
grievance had been a nonselected candidate on the Best Qualified (BQ)
list in the promotion action being grieved. By letter dated Ocotber 9
the Union requested the following documents in connection with the
grievance:
(1) the promotion appraisal used for Michael Kinnison, the
selected candidate;
(2) a copy of the annual appraisal for Michael Kinnison; and
(3) copies of documents (workload reviews, on the job visits,
etc.) maintained on Michael Kinnison which were used to justify
any changes made to the annual appraisal for purposes of the
promotion appraisal.
Pursuant to Article 12 of NORD II the annual appraisal is a
performance appraisal made annually as a basis for personnel actions.
Under that same article, a "revalidated" appraisal is one that is more
than 6 months old that has been determined by the Agency to reflect
accurately an employee's performance at the time of revalidation.
Neither NORD II nor the parties define the term "promotion appraisal."
However, it appears that the parties use the term to mean a performance
appraisal used in connection with a promotion action. The term appears
to include, but is not limited to, the annual appraisal and a
"revalidated" appraisal.
In response to the Union's request, the Agency provided a copy of the
promotion appraisal used in rating Mr. Kinnison for the promotion action
being grieved. However, it refused to provide the other items requested
citing Mr. Kinnison's right to privacy. On or about November 1, 1985,
the Union reiterated its request for the documents which it had been
denied arguing that under section 7114(b) of the Statute the Agency was
obliged to furnish information necessary to the processing of a
grievance. By memorandum dated November 14, 1985, the Union made a
final request for the document. In support, it stated:
The information . . . is needed so we can determine whether a
grievance is necessary. It is our understanding that in
accordance with Articles 13 & 12 of NORD II an employee's annual
evaluation is to be used in promotion actions. Mr. Kinnison was
given an annual evaluation subsequent to the effective date of
NORD II, yet that evaluation was not used in the promotion action.
Therefore, it is necessary for the union to compare Mr.
Kinnison's annual evaluation to the one used in the promotion
action to determine if the changes affected the rank order of the
BQ list. Additionally we need the evaluation, case reviews etc.
in his performance folder which reflects the basis for the
evaluation changes.
The Agency again denied the request stating that the documents
requested were not part of the promotion package and, in accordance with
the Privacy Act, could not be released from Mr. Kinnison's Employee
Performance File without his written permission which had not been
obtained.
Article 13, section 4, of NORD II addresses how the annual appraisal
is to be used in connection with promotion actions. /1/ It provides
that an annual appraisal may be revalidated for use as a promotion
appraisal if it is more than 6 months old. The parties have stipulated
that none of the candidates for the disputed promotion, other than Mr.
Kinnison, were reappraised specifically for the promotion action in lieu
of using an existing, current annual appraisal.
The parties also stipulate that the information sought exists, is
normally maintained by the IRS in the regular course of business and is
reasonably available. Moreover, they agree that it does not constitute
guidance, advice, counsel, or training for management officials or
supervisors relating to collective bargaining.
III. Position of the Parties
The Respondents argue that the information requested and which they
refused to provide is not relevant and necessary for full and proper
discussion, understanding, and negotiation of subjects within the scope
of collective bargaining. In support they assert that, of the documents
originally requested by the Union, they provided the only one to which
the Union was entitled under NORD II and which was relevant to its
grievance, i.e., the promotion appraisal of Mr. Kinnison relied upon in
the promotion action. As to the other documents they contend that under
the terms of NORD II, they had no relevance to the Union's grievance.
/2/ In this regard, they assert that these documents (1) are not among
those which Article 13, section 13, requires be made available to the
Union in the processing of grievances related to promotion actions, and
(2) have no relevance to the circumstances specified in section 14 in
which relief may be provided an employee aggrieved by a promotion
action.
The Respondents also argue that disclosure of the denied documents is
prohibited by the Privacy Act. In support, they contend that Mr.
Kinnison's right to privacy outweighs the Union's need for the
information.
The Union asserts that the information requested was relevant and
necessary to its ability to the processing of a grievance. In support,
it contends that the grievance involved the issue of the "new" appraisal
which had been given selected candidate Kinnison in lieu of his existing
annual appraisal and its effect on his ranking relative to that of
other, non-selected, candidates such as the grievant. Additionally, it
disputes the Respondents' contention that the Privacy Act prohibited
disclosure of the documents. It argues, contrary to the Respondents,
that under the circumstances the documents came within two of the
exceptions provided under the Privacy Act to its general prohibition on
the disclosure of records -- specifically those found at 5 U.S.C.
Section 552a(b)(2) and (3). Consequently, it argues that Respondents'
refusal to provide the requested documents violated section 7116(a)(1),
(5) and (8) of the Statute.
The General Counsel's arguments are not materially different from
those presented by the Union and will not be repeated here.
IV. Analysis
A. The Documents Denied Are Necessary to the Union's
Representational Functions
The Union requested the disputed documents in the context of its
representational functions -- specifically the processing of a grievance
over a promotion action. We find that the record establishes that the
documents were necessary to enable the Union to determine whether the
selection process involved in the promotion was fair and in accordance
with established procedures. Based on its interpretation of the
contract, it questioned the use of a performance appraisal other than
Mr. Kinnison's regular, annual appraisal in the promotion action. It
sought to determine whether use of his regular, annual appraisal would
have produced a different result in terms of the composition of the BQ
list. Additionally, it sought to determine whether any differences
between that appraisal and the one actually used were justified.
The Respondents contend that they have no obligation to provide the
disputed documents because they do not relate to an issue or remedy
cognizable under the negotiated grievance procedure and, consequently,
were not relevant or necessary to a valid grievance. Questions over the
interpretation of a contract, including whether something is grievable,
are issues legitimately resolved through the negotiated grievance
procedure. Therefore, an assertion that a grievance is nongrievable
does not negate an agency's obligation under section 7114(b)(4) to
provide information relating to that grievance. U.S. Customs Service,
Region VII, Los Angeles, California, 10 FLRA 251 (1982).
B. Dislcosure of the Documents Would Not Violate the Privacy Act
We conclude that the disputed documents fall within two of the
exceptions to the Privacy Act's general prohibition on the disclosure of
employee records -- specifically those found at 5 U.S.C. Section
552a(b)(2) and (3).
1. The Exception Found at 5 U.S.C. Section 552a(b)(2)
This exception permits disclosure of information which would be
available under the Freedom of Information Act (FOIA). Under the FOIA
requested information must be disclosed unless it falls within one of
the enumerated exemptions. The exemption pertinent to this case is that
found at 5 U.S.C. Section 552(b)(6) which authorizes withholding
information in" personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of
personal privacy(.)"
In making a determination as to whether requested information falls
within exemption (b)( 6), it is necessary to balance the competing
interests of an employee's privacy against the public interest in
disclosure. See Farmers Home Administration Finance Office, St. Louis,
Missouri, 23 FLRA No. 101 (1986). In balancing Michael Kinnison's
privacy interest against the Union's need for the documents in the
circumstances of this case, we note that there has been no allegation,
nor does the record reflect, that the documents sought contain any
"stigmatizing" information. See Celmins v. United States Department of
the Treasury, 457 F. Supp. 13, 15-16 (D.D.C. 1977). There is no
indication or reason to believe that the contents of the documents would
become generally known. Based on the circumstances, we conclude that
the intrusion into Mr. Kinnison's privacy is limited.
On the other hand, as noted above, the documents are necessary and
relevant to the processing of the grievance which had been filed over
the promotion action in which Mr. Kinnison was the successful candidate.
Moreover, disclosure of the documents serves two important public
interests: it insures that the Government fairly follows its own merit
promotion procedures and encourages the use of non-disruptive grievance
procedures. See Celmins v. United States Department of the Treasury,
supra. 457 F. Supp. at 16. We find, on balance, that disclosure of the
disputed documents does not constitute a clearly unwarranted invasion of
Mr. Kinnison's privacy.
2. The Exception Found at 5 U.S.C. Section 552a(b)(3)
This exception permits disclosure of information for a "routine use."
As noted in Farmers Home Administration, the Office of Personnel
Management (OPM) has determined that a "routine use" of personnel
records is disclosure to "officials of labor organizations . . . when
relevant and necessary to their duties as exclusive representation(.)"
The Respondents, here, acknowledge that the Agency has made the
disclosure of personnel records to the Union pursuant to a 5 U.S.C.
Section 7114 request a routine use. /3/ However, they contend that the
same balancing test applicable to 5 U.S.C. Section 552(b)(6) must be met
before disclosure of such material may actually be made.
As discussed earlier, we conclude that disclosure of the disputed
documents is necessary within the meaning of section 7114(b)(4) of the
Statute for the Union to discharge its statutory obligations.
Consistent with that conclusion, we find that disclosure of the
information sought falls within the routine use established by OPM and
the IRS. Even assuming, for the sake of argument, that the same
balancing test required for disclosure pursuant to 5 U.S.C. Section
552a(b)(2) applies to disclosure under 5 U.S.C. Section 552a(b)(3), /4/
we conclude, for the same reasons as set forth above in Section
IV(B)(1), that on balance disclosure is warranted.
V. Conclusion
Based on the stipulated record, the analysis of the facts and the
precedent cited above, we conclude that the Respondents violated section
7116(a)(1), (5) and (8) of the Statute by failing to provide information
to the Union as required under section 7113(b)(4) of the Statute. In
this regard, we find that the documents sought are necessary for the
Union to fulfill its duties under the Statute and that disclosure of
them is not prohibited by the Privacy Act.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, it is ordered that the Internal Revenue Service and its Omaha
District shall:
1. Cease and desist from:
(a) Refusing to provide the National Treasury Employees Union and
NTEU Chapter 3, the exclusive representative of a unit of its employees,
with copies of documents which are necessary for full and proper
performance by the National Treasury Employees Union and NTEU Chapter 3
of its representational function regarding the selection process for the
GS-12 Revenue Officer position for which Vacancy Announcement 85-53 was
posted.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Upon request by the National Treasury Employees Union and NTEU
Chapter 3, the exclusive representative of a unit of its employees,
furnish it with copies of the documents, previously denied, which are
necessary to its representational function regarding the selection
process for the GS-12 Revenue Officer position for which Vacancy
Announcement 85-53 was posted.
(b) Post at all of its facilities in its Omaha District where
bargaining unit employees represented by the National Treasury Employees
Union and NTEU Chapter 3 are located, copies of the attached Notice on
forms to be furnished by the Federal Labor Relations Authority. Upon
receipt of such forms, they shall be signed by the District Director and
shall be posted and maintained for 60 consecutive days thereafter, in
conspicuous places, including all bulletin boards and other places where
notices to employees are customarily posted. Reasonable steps shall be
taken to insure that such Notices are not altered, defaced, or covered
by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
Issued, Washington, D.C. January 14, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier, III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) Article 13, section 4, of NORD II provides in relevant part:
A.
Each employee who has applied for and meets the basic
eligibility requirements and any selective placement factors
previously announced for a vacancy shall be ranked as described
below, using Form 6850, Job Element Appraisal, as prepared in
accordance with the provisions of Article 12 of this Agreement.
B.
In promotion actions, a Form 6850 may be used for a period of
six (6) months. When the appraisal is more than six (6) months
old, on or before the date of a vacancy announcement, it may be
revalidated if accurate, and be used for an additional six (6)
months.
(Article 12, section 5, of NORD II states that annual appraisal will
be made on Form 6850.)
(2) The Respondents rely on sections 13 and 14 of Article 13 which
provide in relevant part:
ARTICLE 13
Promotion/Other Competitive Actions
Section 13
B.
1. In the processing of grievances related to actions taken
under the terms of this article, a steward representing an
employee will, upon request, be furnished the "evaluative
material" generated or utilized by the ranking official in
assessing the qualifications of the eligible candidates in regard
to a grieved promotion action, subject to the following criteria:
(a) The aforementioned material consisting of the panel's
evaluation, supervisor appraisals, and records related to
experience, training and awards will be provided to the grieving
employee's steward subject to the Employer's legal responsibility
and obligations to protect the privacy of the eligible
candidate(s) involved in the promotion in question:
(b) If the grievance is confined to "best qualified"
candidates, only the evaluative material of such candidates will
be provided;
(c) If the grievance involves "highly qualified" candidates,
only the evaluative material of all highly qualified and best
qualified candidates will be provided; and
(d) If the grievance involves questions of basic eligibles,
evaluative material of all candidates will be provided.
2. Challenges to the Employer's action in the implementation
of subsection B.1 above, if any, may be grieved and finally
resolved by an arbitrator making as "in camera" inspection of the
entire promotion file to either confirm the material provided or
to amend same, subject to the "privacy" protection cited in
subsection B.1.a. above.
Section 14
A.
In the absence of an adjustment satisfactory to an aggrieved
employee of any merit promotion action involving an employee of
the unit which is determined to have been in violation of the
provisions of this Agreement, and which has had the effect of
denying the grievant proper consideration, corrective action will
be taken as follows:
1. Employees on the best qualified list who did not receive a
fair and an objective rating from the ranking panel, ranking
official or immediate supervisor shall be entitled to priority
consideration if their rank order on the best qualified list is
improved as a result of an increased score.
2. If an employee was improperly or erroneously omitted from a
best qualified list, the employee shall receive priority
consideration for the next appropriate vacancy for which the
employee is qualified.
3. If the employee was erroneously omitted from or improperly
ranked on a roster created as a result of a roster announcement,
but does not otherwise qualify for relief under subsection A.1. or
2. above, the employee will be ranked in proper order on such a
roster.
(3) Respondents' Brief at 13. Also, 50 Fed. Reg. 29816, 19844-45
(1985); and 50 Fed. Reg. 49493 (1985).
(4) See Andrews v. Veterans Administration, 613 F. Supp. 1404,
1413-14 (D. Wyo. 1985).
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to provide the National Treasury Employees Union
and NTEU Chapter 3, the exclusive representative of a unit of our
employees with copies of documents which are necessary for full and
proper performance by the National Treasury Employees Union and NTEU
Chapter 3 of its representational functions regarding the selection
process for the GS-12 Revenue Officer position for which Vacancy
Announcement 85-53 was posted.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL, upon request by the National Treasury Employees Union and
NTEU Chapter 3, the exclusive representative of a unit of its employees,
furnish it with copies of the documents, previously denied, which are
necessary to its representational functions regarding the selection
process for the GS-12 Revenue Officer position for which Vacancy
Announcement 85-53 was posted.
(Agency or Acitivity)
Dated: By:
(Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VII, Federal Labor Relations Authority, whose address
is: 535 16th Street, Suite 310, Denver, Colorado 80202 and whose
telephone number is: (303) 837-5224.