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55 FLRA No. 191
NTEU and U.S. Department of the Treasury U.S. Customs Service Washington, D.C., Case No. 0-NG-2356 (Decided December 23, 1999)
The parties filed exceptions to a recommended decision of an administrative law judge on the negotiability of six provisions of a collective bargaining agreement. The provisions were disapproved by the Agency head under section 7114(c) of the Statute. After the Agency head disapproved the provisions, the Union filed a negotiability appeal under section 7105(a)(2)(E) of the Statute. Pursuant to section 7117(c)(5) of the Statute and section 2424.9 of the Authority's regulations, the Authority transferred the case to the Chief Administrative Law Judge for assignment to an administrative law judge for a hearing to determine, among other things, the meaning and context of the provisions. After a hearing, the Judge issued a decision, recommending that the Authority direct the Agency to withdraw its disapproval of certain provisions and that the Authority dismiss the Union's petition as to certain other provisions. Both the Agency and the Union filed exceptions to the Judge's recommended decision.
The Authority concluded that Provisions 1, 2, and 8 were not contrary to law, and directed the Agency to rescind its disapproval of these provisions. The Authority also concluded that Provisions 6, 7, and 9 were contrary to law or Government-wide regulation, and dismissed the Union's petition with respect to these provisions. With regard to provision 6, the Authority noted the framework for analyzing claims that the Privacy Act bars disclosure of information. Under that framework, an agency asserting a Privacy Act bar based on a claim that disclosure would result in a clearly unwarranted invasion of personal privacy under Exemption 6 of the FOIA is required to demonstrate: (1) that the information requested is contained in a "system of records" under the Privacy Act; (2) that disclosure of the information would implicate employee privacy interests; and (3) the nature and significance of those privacy interests. Here, the Authority found that disclosure of the material required by Provision 6 would constitute a clearly unwarranted invasion of personal privacy, within the meaning of exemption 6 of the FOIA. As such, disclosure was not required by the FOIA and, in turn, was barred by the Privacy Act.
As to provision 7, the Authority noted that it has found that a provision requiring the Agency to add points to candidates' scores under a crediting plan based on seniority alone is inconsistent with 5 C.F.R. § 300.103(a). Provision 7 provides two groups of employees with credit based on seniority in promotions thus, the provision was found to be contrary to 5 C.F.R. § 300.103. As to Provision 9, the Authority concluded that it affected management's right to determine its internal security and that it was not an appropriate arrangement.