Click here to view the decision.
56 FLRA No. 198
American Federation of Government EmployeesLocal 1858 and United States Department of the Army, Army Aviation and Missile CommandRedstone Arsenal, Alabama, Case No. 0-NG-2549 (Decided February 28, 2001)
This case concerned the negotiability of three proposals. The proposals were offered during negotiations over Agency changes to Army Regulation 690-400, Chapter 4302, Total Army Performance Evaluations System (TAPES). The Authority found that the proposals were not within the Agency's obligation to bargain.
The Authority found that Proposal 1 affected management's rights to direct employees and assign work. Additionally, the Authority found that the Union failed to demonstrate that Proposal 1 was a procedure or an appropriate arrangement. With regard to Proposal 2, the Union did not file a response to the Agency's Statement of Position in this case. The Authority further found that there was nothing in the record indicating the Union's position with respect to the Agency's Privacy Act claim. Thus, the Authority noted that section 2424.32 of its regulations provides that a party's failure to respond to an argument will, where appropriate, be deemed a concession to such argument or assertion. The Authority noted that it has found that a union concedes that a proposal affects management rights under § 7106(a) where the record is silent with respect to the union's position on that issue and where the agency's argument are supported by Authority precedent.
The Authority stated that an agency asserting a Privacy Act bar to disclosure of information is required to demonstrate: (1) that the information is contained in a "system of records" under the Privacy Act; (2) that disclosure of the information would implicate privacy interests; and (3) the nature and significance of those interests. If the agency makes the requisite showings, then the burden shifts to the party asserting that disclosure would not result in a clearly unwarranted invasion of personal privacy under Exemption 6 to: (1) identify a public interest cognizable under the Freedom of Information Act (FOIA); and (2) demonstrate how disclosure of the requested information will serve that public interest. Once the respective interests have been articulated, the Authority balances the privacy interests against the public interest, with the balance weighted in favor of disclosure.
Here, the Authority found that Proposal 2 would require the Agency to disclose information contained in a "system of records" under the Privacy Act. With regard to the second and third inquiries, the Authority has held that employees have significant privacy interests in shielding their individual performance appraisals from public view. Consistent with this precedent, the Authority found that the Agency satisfied its burden.
The Authority further found that the Union did not respond to the Agency's argument, or otherwise articulated a public interest in disclosure. The Authority noted that disclosure of employee evaluation material serves the public interest because the public is served if an agency carries out its personnel functions fairly, equitably, and in accordance with laws, rules and regulations. To the extent that the disclosure required by Proposal 2 would reveal the identities of affected employees in some situations, there is no basis for concluding that disclosure would serve a public interest. However, it concluded that the Union did not meet its burden of rebutting the Agency's prima facie case. The Authority stated that in this situation -- where the record is silent with respect to the Union's position on the Privacy Act claim and where the Agency's claim is supported by applicable precedent -- it applied § 2424.32 of its regulations and found that the Union conceded that Proposal 2 was inconsistent with the Privacy Act.
With regard to Proposal 3, the Authority noted that the establishment of performance standards and elements constitutes an exercise of management's rights to direct employees Proposals or provisions that restrict an agency's authority to determine the content of standards and elements affects the exercise of these rights. The Authority found that Proposal 3 would restrict the Agency's ability to determine the content of performance standards by precluding management from evaluating employees on the Army values set forth in the TAPES regulation, thus, the proposal affected management's rights to direct employees and assign work.