Veterans Administration Regional Office, Denver, Colorado (Respondent) and American Federation of Government Employees, Local 1557, AFL-CIO (Charging Party)

 



[ v07 p629 ]
07:0629(100)CA
The decision of the Authority follows:


 7 FLRA No. 100
 
 VETERANS ADMINISTRATION REGIONAL
 OFFICE, DENVER, COLORADO
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1557
 Charging Party
 
                                            Case No. 7-CA-406
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION AND ORDER IN THE
 ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN
 CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT IT BE ORDERED TO
 CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION.  NO
 EXCEPTIONS WERE FILED TO THE JUDGE'S DECISION AND ORDER.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (THE STATUTE) THE AUTHORITY HAS REVIEWED THE RULINGS
 OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
 COMMITTED.  THE RULINGS ARE HEREBY AFFIRMED.  UPON CONSIDERATION OF THE
 JUDGE'S DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE, AND
 NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE AUTHORITY HEREBY
 ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS.  /1/
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS
 HEREBY ORDERED THAT THE VETERANS ADMINISTRATION REGIONAL OFFICE, DENVER,
 COLORADO, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING AND REFUSING TO PROVIDE TO THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557, THE EMPLOYEES' EXCLUSIVE
 REPRESENTATIVE, THE NAMES OF EMPLOYEES WHICH CORRESPOND TO THE
 ALPHANUMERICAL IDENTIFICATION DESIGNATIONS USED BY THE MERIT PROMOTION
 RATING PANEL ON DECEMBER 12, 1979, DURING THE PANEL'S RATING OF
 CANDIDATES ON MERIT PROMOTION PANEL NO. 79-40A.
 
    (B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE:
 
    (A) UPON REQUEST, PROVIDE TO THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1557, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE,
 THE NAMES OF EMPLOYEES WHICH CORRESPOND TO THE ALPHANUMERICAL
 IDENTIFICATION DESIGNATIONS USED BY THE MERIT PROMOTION RATING PANEL ON
 DECEMBER 12, 1979, DURING THE PANEL'S RATING OF CANDIDATES ON MERIT
 PROMOTION PANEL NO. 79-40A.
 
    (B) POST AT ITS FACILITIES AT THE VETERANS ADMINISTRATION REGIONAL
 OFFICE, DENVER, COLORADO, 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 DIRECTOR OF THE VETERANS
 ADMINISTRATION, DENVER REGIONAL OFFICE, AND SHALL BE POSTED AND
 MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
 PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES ARE
 CUSTOMARILY POSTED.  THE DIRECTOR SHALL TAKE REASONABLE STEPS 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 HEREWITH.
 
    ISSUED, WASHINGTON, D.C., JANUARY 15, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
                          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 FAIL OR REFUSE TO PROVIDE TO THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557, THE EMPLOYEES' EXCLUSIVE
 REPRESENTATIVE, THE NAMES OF EMPLOYEES WHICH CORRESPOND TO THE
 ALPHANUMERICAL IDENTIFICATION DESIGNATIONS USED BY THE MERIT PROMOTION
 RATING PANEL ON DECEMBER 12, 1979, DURING THE PANEL'S RATING OF
 CANDIDATES ON MERIT PROMOTION PANEL NO. 79-40A.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 STATUTE.
 
    WE WILL, UPON REQUEST, PROVIDE TO THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557, THE EMPLOYEES' EXCLUSIVE
 REPRESENTATIVE, THE NAMES OF EMPLOYEES WHICH CORRESPOND TO THE
 ALPHANUMERICAL IDENTIFICATION DESIGNATIONS USED BY THE MERIT PROMOTION
 RATING PANEL ON DECEMBER 12, 1979, DURING THE PANEL'S RATING OF
 CANDIDATES ON MERIT PROMOTION PANEL NO. 79-40A.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  BY:
 
    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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION VII, WHOSE
 ADDRESS IS:  1100 MAIN STREET, KANSAS CITY, MISSOURI, 64105 AND WHOSE
 TELEPHONE NUMBER IS:  (816) 374-2199.
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    DOUGLAS D. DOANNE, ESQ.
    FOR THE RESPONDENT
 
    GAVIN K. LODGE, ESQ.
    FOR THE GENERAL COUNSEL
 
    BEFORE:  SALVATORE J. ARRIGO
    ADMINISTRATIVE LAW JUDGE
 
                             CASE NO. 7-CA-406
 
                                 DECISION
 
                           STATEMENT OF THE CASE
 
    THIS CASE AROSE UNDER THE PROVISIONS OF THE FEDERAL LABOR-MANAGEMENT
 RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET. SEQ., (HEREIN
 REFERRED TO AS THE STATUTE) AND THE RULES AND REGULATIONS ISSUED
 THEREUNDER.
 
    UPON AN UNFAIR LABOR PRACTICE CHARGE FILED BY THE AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557 (HEREIN THE UNION) AGAINST
 THE VETERANS ADMINISTRATION REGIONAL OFFICE, DENVER, COLORADO (HEREIN
 THE RESPONDENT), THE GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS
 AUTHORITY, BY THE REGIONAL DIRECTOR FOR REGION 7, ISSUED A COMPLAINT AND
 NOTICE OF HEARING ON MAY 6, 1980 ALLEGING RESPONDENT ENGAGED IN UNFAIR
 LABOR PRACTICE CONDUCT VIOLATIVE OF SECTIONS 7116(A)(1), (5), AND (8) OF
 THE STATUTE.  THE COMPLAINT ALLEGES RESPONDENT VIOLATED THE STATUTE BY
 REFUSING TO FURNISH THE UNION INFORMATION WHICH WOULD ENABLE THE UNION
 TO ASCERTAIN THE SPECIFIC IDENTITIES AND THE RATINGS OF CANDIDATES RATED
 BY A MERIT PROMOTION PANEL.
 
    A HEARING ON THE COMPLAINT WAS CONDUCTED ON JUNE 11, 1980 AT WHICH
 TIME THE GENERAL COUNSEL AND RESPONDENT WERE REPRESENTED BY COUNSEL AND
 AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE AND CALL, EXAMINE AND
 CROSS-EXAMINE WITNESSES AND ARGUE ORALLY.  BRIEFS WERE FILED AND HAVE
 BEEN DULY CONSIDERED.
 
    UPON THE ENTIRE RECORD IN THIS MATTER, MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, AND FROM MY EVALUATION OF THE EVIDENCE, I
 MAKE THE FOLLOWING:
 
                  FINDINGS OF FACT AND CONCLUSIONS OF LAW
 
    THE FACTS ARE NOT IN DISPUTE.  AT ALL TIMES MATERIAL HEREIN THE UNION
 HAS BEEN THE EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE OF
 RESPONDENT'S NONPROFESSIONAL AND PROFESSIONAL EMPLOYEES.  ON OR ABOUT
 DECEMBER 12, 1979 RESPONDENT ASSEMBLED A MERIT PROMOTION PANEL OF THREE
 EMPLOYEES TO CONSIDER THE QUALIFICATIONS OF VARIOUS CANDIDATES FOR A
 POSITION OF ACCOUNTS RECEIVABLE ANALYST.  PURSUANT TO THE TERMS OF THE
 COLLECTIVE BARGAINING AGREEMENT BETWEEN THE UNION AND RESPONDENT, A
 UNION OBSERVER WAS PRESENT AT THE PANEL MEETING.  THE PANEL MEMBERS
 UNDER THE TERMS OF THE AGREEMENT REVIEWED THE OFFICIAL PERSONNEL FILE
 (OPF) OF EACH CANDIDATE AND INDIVIDUALLY RATED EACH PERSON BASED UPON
 THE CANDIDATES' EXPERIENCE, EDUCATION, TRAINING AND DEVELOPMENT, AWARDS,
 AND SUPERVISOR'S APPRAISAL.  HOWEVER, THE NAMES OF THE CANDIDATES HAD
 BEEN REMOVED FROM THE OPF'S AND EACH CANDIDATE WAS ASSIGNED AN
 ALPHANUMERICAL DESIGNATION.  THUS, THE IDENTITIES OF THE CANDIDATES
 UNDER CONSIDERATION WERE NOT DISCLOSED TO THE PANEL WHILE IT REVIEWED
 AND DISCUSSED THE CANDIDATES' QUALIFICATIONS.
 
    BY AGREEMENT WITH RESPONDENT, THE UNION OBSERVER DID NOT HAVE ACCESS
 TO THE OPF'S NOR DID HE TAKE PART IN THE PANEL'S DISCUSSIONS.
 NEVERTHELESS, AS PANEL MEMBERS ANNOUNCED THEIR RATINGS FOR THE VARIOUS
 FACTORS BEING CONSIDERED, THE UNION OBSERVER, JOHN BRADLEY, RECORDED THE
 SPECIFIC RATINGS AND THE TOTALS FOR EACH CANDIDATE ON A TWO PAGE
 DOCUMENT FILED WITH THE UNION AT THE CONCLUSION OF THE MEETING.  THE
 DOCUMENT WAS COMPRISED OF A "CHECK SHEET" WITH A LARGE AREA RESERVED FOR
 COMMENTS.  /2/
 
    THE PANEL MEETING OF DECEMBER 12 CONCLUDED WITH ONE CANDIDATE BEING
 RATED "HIGHLY QUALIFIED" FOR THE VACANCY AND THE RATERS WERE DISMISSED
 WITHOUT EVER KNOWING THE INDIVIDUAL'S NAME.  HOWEVER, LATER THAT SAME
 DAY THE RATING PANEL AND BRADLEY WERE RECONVENED BY A REPRESENTATIVE OF
 RESPONDENT'S PERSONNEL STAFF WHO EXPLAINED THAT A MISTAKE HAD BEEN MADE
 AND THE PANEL HAD BEEN GIVEN WRONG RATING FACTORS TO USE DURING ITS
 EARLIER DELIBERATIONS.  ACCORDINGLY, THE PANEL WAS SUPPLIED WITH
 DIFFERENT RATING FACTORS AND INSTRUCTED TO RERATE THE CANDIDATES IN THE
 AREA OF "EXPERIENCE." THE PROCESS RESULTED IN TWO CANDIDATES, IDENTIFIED
 ONLY BY THEIR ALPHANUMERICAL DESIGNATIONS, RECEIVING "HIGHLY QUALIFIED"
 RATINGS AND THE PANEL AGAIN WAS DISMISSED.
 
    SUBSEQUENTLY, MARY BACA, ONE OF THE TWO CANDIDATES RATED "HIGHLY
 QUALIFIED," WAS SELECTED FOR THE POSITION.  OLGA HOLLIS, ANOTHER
 CANDIDATE FOR THE VACANCY, INFORMED CHIEF STEWARD MICHAEL PIERSON OF HER
 SUSPICION THAT BACA HAD BEEN PRESELECTED FOR THE POSITION.  PIERSON
 INVESTIGATED THE ACCUSATION AND INTERVIEWED VARIOUS EMPLOYEES, INCLUDING
 BRADLEY.  BRADLEY INFORMED PIERSON WHAT HAD TRANSPIRED ON DECEMBER 12
 BUT SINCE NO NAMES WERE USED DURING THE PANEL'S DELIBERATIONS, PIERSON
 WAS UNABLE TO ASCERTAIN WHETHER BACA WAS ORIGINALLY RATED "HIGHLY
 QUALIFIED" OR WHETHER SHE WAS RAISED TO THAT RATING DURING THE PANEL'S
 SECOND MEETING.  /3/ PIERSON CONCLUDED THAT WHILE THE INFORMATION HE HAD
 THUS FAR ACCUMULATED TENDED TO INDICATE PRESELECTION HAD OCCURRED, MORE
 INFORMATION WAS NECESSARY TO SUBSTANTIATE THIS POSITION.  ACCORDINGLY,
 ON DECEMBER 27, 1979 PIERSON REQUESTED, IN WRITING, THAT RESPONDENT
 PROVIDE HIM WITH THE NAMES ASSOCIATED WITH THE ALPHANUMERICAL
 DESIGNATIONS USED AT THE DECEMBER 12 MERIT PROMOTION PANEL MEETINGS.
 PIERSON STATED THAT THE REQUEST WAS MADE "IN ACCORDANCE WITH PL 95-454
 SECTION 7114(B)(4) AND A/SLMR 1109," AND THE INFORMATION WAS NECESSARY
 "FOR GRIEVANCE DOCUMENTATION." /4/
 
    PIERSON RECEIVED NO REPLY FROM RESPONDENT AND ON JANUARY 16, 1980
 FORWARDED A SECOND WRITTEN REQUEST TO RESPONDENT FOR THE INFORMATION.
 THIS REQUEST FURTHER NOTED THAT SINCE HOLLIS' GRIEVANCE HAD PROGRESSED
 TO STEP 2 OF THE NEGOTIATED GRIEVANCE PROCEDURE, THE NAMES ASSOCIATED
 WITH THE ALPHANUMERICAL DESIGNATIONS WERE "A PRIORITY NEED TO PRESENT AS
 FACTUAL INFORMATION TO RESOLVE THE GRIEVANCE . . . ."
 
    ON THAT SAME DAY A MANAGEMENT REPRESENTATIVE DELIVERED TO PIERSON A
 PHOTOSTATIC COPY OF A LETTER DATED JANUARY 11, 1980 FROM RESPONDENT'S
 PERSONNEL OFFICER, JAMES CAFFEY, WHICH INDICATED IT WAS IN RESPONSE TO
 PIERSON'S DECEMBER 27 REQUEST.  CAFFEY'S RESPONSE DENIED PIERSON'S
 REQUEST BASED UPON "THE FREEDOM OF INFORMATION ACT, TITLE 5, UNITED
 STATES CODE, SECTION 552(B)(2), (5) AND (6)." CAFFEY'S LETTER FURTHER
 STATED THAT PIERSON COULD APPEAL THE DECISION, IF HE WISHED, BY WRITING
 TO THE ADMINISTRATOR OF THE VETERANS ADMINISTRATION, WASHINGTON, D.C.
 
    NO APPEAL TO RESPONDENT'S DENIAL OF THE REQUESTED INFORMATION WAS
 EVER FILED.  THE HOLLIS GRIEVANCE WAS DENIED BY MANAGEMENT AT STEP 2 AND
 ADVANCED TO STEP 3 ON JANUARY 18, 1980.  RESPONDENT PROPOSED AN
 ADJUSTMENT OF THE GRIEVANCE ON JANUARY 31 WHICH DID NOT INVOLVE
 PROVIDING THE REQUESTED INFORMATION.  BY LETTER TO RESPONDENT DATED
 FEBRUARY 28 PIERSON REQUESTED THAT TIME LIMITS ON THE GRIEVANCE BE HELD
 IN ABEYANCE UNTIL THE UNFAIR LABOR PRACTICE CHARGE FILED ON THIS MATTER
 ON FEBRUARY 7 WAS RESOLVED.  /5/ THE UNION RECEIVED NO REPLY.
 
    COUNSEL FOR THE GENERAL COUNSEL CONTENDS THAT UNDER SECTION
 7114(B)(4) OF THE STATUTE AND THE LAW ESTABLISHED UNDER EXECUTIVE ORDER
 11491, RESPONDENT WAS OBLIGATED TO FURNISH THE UNION THE NAMES OF THE
 CANDIDATES UNDER CONSIDERATION FOR THE VACANCY BY THE PANEL AND THE
 ALPHANUMERICAL DESIGNATIONS ASSIGNED EACH CANDIDATE.
 
    RESPONDENT TAKES THE POSITION THAT:  THE CASE HEREIN INVOLVES
 APPLICATION OF THE FREEDOM OF INFORMATION ACT AND THEREFORE THE
 AUTHORITY HAS NO JURISDICTION TO CONSIDER THE MATTER, EXCLUSIVE
 JURISDICTION RESIDING IN THE FEDERAL COURTS;  THE UNION AGREED IN THE
 NEGOTIATED COLLECTIVE BARGAINING AGREEMENT TO FORGO ACCESS TO THE
 INFORMATION IN QUESTION;  IN THE CIRCUMSTANCES HEREIN, SECTION
 7114(B)(4) OF THE STATUTE DOES NOT REQUIRE THAT RESPONDENT PROVIDE THE
 UNION THE INFORMATION IT REQUESTED;  AND, AS THE UNION COULD HAVE
 APPEALED RESPONDENT'S REFUSAL TO PROVIDE THE INFORMATION TO THE
 ADMINISTRATOR OF THE VETERANS ADMINISTRATION, UNDER SECTION 7-16(D) OF
 THE STATUTE, THE UNION WAS PRECLUDED FROM RAISING THE REFUSAL IN AN
 UNFAIR LABOR PRACTICE CHARGE.
 
    IT HAS BEEN LONG ESTABLISHED UNDER EXECUTIVE ORDER 11491, AS AMENDED
 (THE EXECUTIVE ORDER), THE PREDECESSOR TO THE STATUTE IN THE REGULATION
 OF LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SECTOR, THAT A UNION IS
 ENTITLED TO ACCESS TO INFORMATION NECESSARY AND RELEVANT TO THE
 EFFECTIVE PROCESSING OF A GRIEVANCE.  /6/ THAT RIGHT EMANATED FROM
 SECTION 10(E) OF THE EXECUTIVE ORDER UNDER WHICH A LABOR ORGANIZATION
 WAS GIVEN THE RESPONSIBILITY FOR REPRESENTING THE INTERESTS OF ALL
 EMPLOYEES IN THE COLLECTIVE BARGAINING UNIT.  /7/ THE LANGUAGE OF
 SECTION 7114(A)(1) OF THE STATUTE IS VIRTUALLY IDENTICAL TO SECTION
 10(E) OF THE EXECUTIVE ORDER.  /8/ THEREFORE, IT IS REASONABLE TO ASSUME
 THAT RIGHTS WHICH A UNION POSSESSED UNDER SECTION 10(E) OF THE EXECUTIVE
 ORDER WERE RETAINED UNDER SECTION 7114(A)(1) OF THE STATUTE.  FURTHER,
 SECTION 7135 OF THE STATUTE PROVIDES THAT "POLICIES, REGULATIONS, AND
 PROCEDURES ESTABLISHED UNDER AND DECISIONS ISSUED UNDER . . . (THE
 ORDER) . . . SHALL REMAIN IN FULL FORCE AND EFFECT UNTIL REVISED OR
 REVOKED BY THE PRESIDENT, OR UNLESS SUPERCEDED BY SPECIFIC PROVISIONS OF
 (THE STATUTE) OR BY REGULATIONS OR DECISIONS ISSUED PURSUANT TO (THE
 STATUTE)."
 
    THE UNION HEREIN SEEKS THE NAMES OF THE INDIVIDUALS CORRESPONDING TO
 THE ALPHANUMERICAL DESIGNATIONS USED BY THE RATING PANEL FOR
 IDENTIFICATION PURPOSES DURING ITS DECEMBER 12, 1979 MEETINGS.  COUNSEL
 FOR THE GENERAL COUNSEL URGES THAT THE INFORMATION WAS NECESSARY SO THAT
 THE UNION COULD INTELLIGENTLY INVESTIGATE HOLLIS' GRIEVANCE ALLEGING
 BACA WAS PRESELECTED FOR THE ANALYST POSITION.  RESPONDENT RESISTS
 PROVIDING THE INFORMATION CONTENDING, INTER ALIA, THAT THE PRIVACY OF
 THE CANDIDATES FOR THE POSITION WOULD BE INFRINGED UPON SINCE BRADLEY,
 THE UNION OBSERVER, WAS PRESENT DURING THE RATINGS, HEARD THE PANEL'S
 DISCUSSION, RECORDED THE RATINGS AND WAS ABLE TO TAKE NOTES WHICH,
 PRESUMABLY, COULD BE RECONSTRUCTED TO PROVIDE THE UNION WITH INFORMATION
 RELATING TO ALL THE CANDIDATES' PERSONAL QUALIFICATIONS FOR THE
 POSITION.
 
    I FIND THE INFORMATION SOUGHT HEREIN TO BE CLEARLY NECESSARY AND
 RELEVANT TO THE UNION CARRYING OUT IS REPRESENTATIONAL OBLIGATION IN THE
 PROCESSING OF AN EMPLOYEE GRIEVANCE.  THUS, IF BACA WAS THE CANDIDATE
 WHO FIRST WAS DESIGNATED "HIGHLY QUALIFIED" BY THE PANEL, THE UNION
 MIGHT CONCLUDE THAT ADDITIONAL EFFORTS ON HOLLIS' GRIEVANCE WOULD NOT BE
 FRUITFUL AND THEREFORE, DECLINE PURSUING THE GRIEVANCE FURTHER THEREBY
 CONSERVING ITS RESOURCES.  ON THE OTHER HAND, IF BACA'S FIRST RATING WAS
 RATHER LOW AS COMPARED WITH THE OTHER CANDIDATES AND ROSE
 EXTRAORDINARILY AFTER THE DIFFERENT RATING FACTORS WERE USED, THE UNION
 MIGHT WELL CONCLUDE THAT MORE EXTENSIVE INVESTIGATION WAS REQUIRED.
 INDEED, THE UNION MIGHT ALSO CONCLUDE THAT THIS FACT PLUS WHATEVER OTHER
 EVIDENCE IT HAD MIGHT BE SUFFICIENT TO PUT THE MATTER TO AN ARBITRATOR
 FOR DECISION.  ACCORDINGLY, WHILE THE RATINGS OF THE CANDIDATES DURING
 THE TWO SESSIONS CONDUCTED ON DECEMBER 12 MAY OR MAY NOT BE CONCLUSIVE
 IN DETERMINING WHETHER PRESELECTION OCCURRED, THE UNION SHOULD NOT BE
 FORECLOSED FROM OBTAINING INFORMATION WHICH REASONABLY BEARS UPON THE
 RATING PROCESS WHERE, AS HERE, AN UNUSUAL CIRCUMSTANCE RAISES A
 REASONABLE SUSPICION OF IMPROPER CONDUCT.
 
    UNDER THE EXECUTIVE ORDER IS WAS WELL SETTLED THAT AN EMPLOYER WAS
 OBLIGATED TO PROVIDE TO THE COLLECTIVE BARGAINING REPRESENTATIVE
 INFORMATION SIMILAR TO THAT SOUGHT HEREIN.  /9/ FURTHER, ARGUMENTS
 AGAINST SUPPLYING SUCH DATA, SUCH AS THOSE RAISED BY RESPONDENT HEREIN
 WITH REGARD TO THE APPLICABILITY OF THE FREEDOM OF INFORMATION ACT, HAVE
 BEEN FREQUENTLY RAISED AND REJECTED WHEN THE PRIVACY RIGHTS UNDER THE
 EXECUTIVE ORDER AND THE PARAMOUNT PUBLIC INTEREST.  /10/ ACCORDINGLY, I
 FIND IN THE CASE HEREIN THAT THE UNION'S STATUTORY RIGHT AND NEED TO THE
 INFORMATION SOUGHT SUBSTANTIALLY OUTWEIGHTS THE LOSS OF PRIVACY WHICH
 MIGHT BE VISITED UPON AN EMPLOYEE WHOSE RATINGS BY THE PANEL, AND
 WHATEVER OTHER INFORMATION MIGHT HAVE BEEN DISCLOSED DURING THE PANEL'S
 DELIBERATIONS, ARE MADE KNOWN TO THE UNION.  THERFORE, I CONCLUDE THAT
 BY ITS REFUSAL TO PROVIDE THE UNION THE INFORMATION IT WAS ENTITLED TO
 RECEIVE UNDER SECTION 7114(A)(1) OF THE STATUTE, RESPONDENT VIOLATED
 SECTION 7116(A)(1) AND (5) OF THE STATUTE.  /11/
 
    TURNING NOW TO RESPONDENT'S JURISDICTION ARGUMENT, RESPONDENT CLAIMS
 THAT SINCE THE SITUATION HEREIN INVOLVES APPLICATION OF THE FREEDOM OF
 INFORMATION ACT, THE CASE IS WITHIN THE EXCLUSIVE JURISDICTION OF THE
 FEDERAL COURTS THEREBY PRECLUDING THE FEDERAL LABOR RELATIONS AUTHORITY
 FROM CONSIDERING THE MATTER.  /12/ HOWEVER, COUNSEL FOR RESPONDENT CITES
 NO CASES NOR SUGGESTS ANYTHING IN THE STATUTE OR ITS LEGISLATIVE HISTORY
 TO SUPPORT THIS CONTENTION AND I AM OTHERWISE UNPERSUADED THAT THE
 ARGUMENT HAS MERIT.  /13/ ACCORDINGLY, RESPONDENT'S CONTENTION IS
 REJECTED.
 
    I ALSO FIND NO MERIT TO RESPONDENT'S ARGUMENT THAT BY THE TERMS OF
 THE NEGOTIATED AGREEMENT, THE UNION AGREED TO FORGO ACCESS TO THE
 INFORMATION IN QUESTION.  RESPONDENT RELIES ON ARTICLE 7 OF THE
 AGREEMENT WHICH PROVIDES, IN RELEVANT PART:
 
    "IT IS FURTHER AGREED THAT WHERE CIVIL SERVICE COMMISSION OR
 PUBLISHED AGENCY REGULATIONS
 
    PROHIBIT DISCLOSURE OF ANY RECORD, FILE OR DOCUMENT TO ANY EMPLOYEE
 AND/OR HIS REPRESENTATIVE,
 
    THEN SUCH RECORD, DOCUMENT OR FILE MAY BE MADE AVAILABLE ONLY TO
 THOSE OFFICIALS OF THE
 
    EMPLOYER OR AUTHORITIES AUTHORIZED BY LAW WHOSE DUTIES REQUIRE ACCESS
 TO SUCH MATERIAL.
 
    IN MY VIEW THE UNION, AS THE EXCLUSIVE COLLECTIVE BARGAINING
 REPRESENTATIVE OF RESPONDENT'S EMPLOYEES, IS AUTHORIZED BY OPERATION OF
 THE STATUTE, THE LAW GOVERNING COLLECTIVE BARGAINING IN THE FEDERAL
 SECTOR, TO HAVE MADE AVAILABLE TO IT THE INFORMATION IN QUESTION.  /14/
 FURTHER, TO THE EXTENT RESPONDENT SUGGESTS THAT THE UNION HAS BY ARTICLE
 7 WAIVED ITS STATUTORY RIGHT TO THE INFORMATION, IT IS WELL SETTLED THAT
 A WAIVER OF RIGHT GRANTED BY THE EXECUTIVE ORDER OR THE STATUTE WILL NOT
 BE LIGHTLY INFERRED AND MUST BE CLEAR AND UNMISTAKABLE.  /15/ IN MY
 OPINION, THE CONTRACTUAL LANGUAGE AND FACTS HEREIN FALL FAR SHORT OF
 CONSTITUTING CLEAR AND UNMISTAKABLE CONDUCT SUFFICIENT TO SUPPORT A
 WAIVER AND OBLIGATE THE UNION TO OBTAIN ONLY THROUGH FREEDOM OF
 INFORMATION ACT PROCEDURES DOCUMENTS TO WHICH IT WAS ENTITLED TO RECEIVE
 UNDER THE STATUTE.
 
    FINALLY, I REJECT RESPONDENT'S CONTENTION THAT NO UNFAIR LABOR
 PRACTICE FINDING CAN BE MADE HEREIN SINCE THE UNION COULD HAVE APPEALED
 RESPONDENT'S DENIAL OF THE INFORMATION TO THE ADMINISTRATOR OF THE
 VETERANS ADMINISTRATION IN WASHINGTON, D.C.  SECTION 7116(D) OF THE
 STATUTE PROVIDES THAT "ISSUES WHICH CAN PROPERLY BE RAISED UNDER AN
 APPEALS PROCEDURE MAY NOT BE RAISED AS UNFAIR LABOR PRACTICES PROHIBITED
 UNDER (THE STATUTE)." HOWEVER, IT WAS FIRMLY ESTABLISHED UNDER THE
 EXECUTIVE ORDER THAT THE TERM "APPEALS PROCEDURE" AS SET FORTH IN
 SECTION 19(D) OF THE ORDER, WHICH CONTAINED THE SAME PROVISION AS THAT
 UNDER CONSIDERATION HEREIN, WAS "NOT INTENDED TO ENCOMPASS 'APPEALS'
 PROCEDURES WHICH DO NOT PROVIDE FOR THIRD-PARTY REVIEW OF AN AGENCY
 ACTION." /16/ THE "APPEAL" REFERRED TO BY RESPONDENT HEREIN WAS AN
 INTRA-AGENCY APPEAL TO THE HEAD OF THE AGENCY, CLEARLY NOT A THIRD PARTY
 TO THE SITUATION.  MOREOVER, THE AUTHORITY, IN DENYING A PETITION TO
 REVIEW A DECISION IN A CASE ARISING UNDER THE EXECUTIVE ORDER HELD:
 
    "WITH REGARD TO THE ALLEGATION CONCERNING WHETHER THE AVAILABILITY OF
 THE REQUESTED
 
    INFORMATION UNDER THE FOIA OR THE PRIVACY ACT TRIGGERS SECTION 19(D)
 OF THE ORDER, IN THE
 
    AUTHORITY'S VIEW, NO MAJOR POLICY ISSUE IS THEREBY PRESENTED
 WARRANTING REVIEW.  THAT IS, THE
 
    APPEAL FAILS TO CONTAIN ANY BASIS TO SUPPORT THE CONTENTION THAT THE
 FREEDOM OF INFORMATION
 
    ACT OR THE PRIVACY ACT CONSTITUTES A STATUTORY APPEAL PROCEDURE SO AS
 TO PRECLUDE THE UNION'S
 
    RIGHT TO SEEK NECESSARY AND RELEVANT INFORMATION UNDER THE UNFAIR
 LABOR PRACTICE PROCEDURES OF
 
    THE ORDER." /17/
 
    ACCORDINGLY, BASED UPON THE ENTIRE FOREGOING, I CONCLUDE THAT
 RESPONDENT, BY ITS FAILURE TO PROVIDE THE UNION WITH THE NAMES AND
 CORRESPONDING ALPHANUMERICAL DESIGNATIONS OF THOSE EMPLOYEES RATED BY
 THE PANEL ON DECEMBER 12, 1979, VIOLATED SECTION 7116(A)(1) AND (5) OF
 THE STATUTE AND I RECOMMEND THE AUTHORITY ISSUE THE FOLLOWING ORDER:
 /18/
 
                                   ORDER
 
    PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
 AUTHORITY'S REGULATIONS AND SECTION 7118 OF THE FEDERAL LABOR-MANAGEMENT
 RELATIONS STATUTE, IT IS HEREBY ORDERED THAT VETERANS ADMINISTRATION
 REGIONAL OFFICE, DENVER, COLORADO, SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING AND REFUSING TO PROVIDE TO THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES,
 
    AFL-CIO, LOCAL 1557, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, THE
 NAMES OF EMPLOYEES WHICH
 
    CORRESPOND TO THE ALPHANUMERICAL IDENTIFICATION DESIGNATIONS USED BY
 THE MERIT PROMOTION
 
    RATING PANEL ON DECEMBER 12, 1979 DURING THE PANEL'S RATING OF
 CANDIDATES ON MERIT PROMOTION
 
    PANEL NO. 79-40A.
 
    (B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
 COERCING EMPLOYEES IN
 
    THE EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS
 
    STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE:
 
    (A) UPON REQUEST, PROVIDE TO THE AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO,
 
    LOCAL 1557, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, THE NAMES OF
 EMPLOYEES WHICH CORRESPOND
 
    TO THE ALPHANUMERICAL IDENTIFICATION DESIGNATIONS USED BY THE MERIT
 PROMOTION RATING PANEL ON
 
    DECEMBER 12, 1979 DURING THE PANEL'S RATING OF CANDIDATES ON MERIT
 PROMOTION PANEL NO. 79-40A.
 
    (B) POST, AT THE VETERANS ADMINISTRATION REGIONAL OFFICE, DENVER,
 COLORADO, COPIES OF THE
 
    ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
 FEDERAL LABOR RELATIONS
 
    AUTHORITY.  UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE
 DIRECTOR OF THE VETERANS
 
    ADMINISTRATION, DENVER REGIONAL OFFICE, AND SHALL BE POSTED AND
 MAINTAINED BY HIM FOR 60
 
    CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
 BULLETIN BOARDS AND OTHER
 
    PLACES WHERE NOTICES ARE CUSTOMARILY POSTED.  THE DIRECTOR SHALL TAKE
 REASONABLE STEPS TO
 
    INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED OR COVERED BY ANY
 OTHER MATERIALS.
 
    (C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
 30 DAYS FROM THE DATE
   OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
                         SALVATORE J. ARRIGO
                         ADMINISTRATIVE LAW JUDGE
 
    DATED:  FEBRUARY 10, 1981
    WASHINGTON, D.C.
 
                                 APPENDIX
 
                          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 FAIL OR REFUSE TO PROVIDE TO THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557, THE EMPLOYEES' EXCLUSIVE
 REPRESENTATIVE, THE NAMES OF EMPLOYEES WHICH CORRESPOND TO THE
 ALPHANUMERICAL IDENTIFICATION DESIGNATIONS USED BY THE MERIT PROMOTION
 RATING PANEL ON DECEMBER 12, 1979 DURING THE PANEL'S RATING OF
 CANDIDATES ON MERIT PROMOTION PANEL NO. 79-40A.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
 COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE.
 
    WE WILL, UPON REQUEST, PROVIDE TO THE AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557, THE EMPLOYEES' EXCLUSIVE
 REPRESENTATIVE, THE NAMES OF EMPLOYEES WHICH CORRESPOND TO THE
 ALPHANUMERICAL IDENTIFICATION DESIGNATIONS USED BY THE MERIT PROMOTION
 RATING PANEL ON DECEMBER 12, 1979 DURING THE PANEL'S RATING OF
 CANDIDATES ON MERIT PROMOTION PANEL NO. 79-40A.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  . . .  BY:  . . .
 
    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 QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
 WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
 REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION VII, WHOSE
 ADDRESS IS:  1100 MAIN STREET, SUITE 680, CITY CENTER SQUARE, KANSAS
 CITY, MISSOURI 60415.
 
 
 
 
 
 --------------- FOOTNOTES: ---------------
 
 
    /1/ IN FINDING THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND
 (5) OF THE STATUTE BY REFUSING TO FURNISH THE UNION INFORMATION WHICH
 WOULD ENABLE THE UNION TO EFFECTIVELY CARRY OUT ITS REPRESENTATIONAL
 OBLIGATION IN THE PROCESSING OF AN EMPLOYEE GRIEVANCE, THE AUTHORITY
 FINDS THAT THIS RIGHT TO INFORMATION IS DERIVED FROM SECTION 7114(B)(4)
 OF THE STATUTE, NOT FROM SECTION 7114(A)(1) AS CONCLUDED BY THE JUDGE.
 SECTION 7114(B)(4) PROVIDES:
 
    (B) THE DUTY OF AN AGENCY AND AN EXCLUSIVE REPRESENTATIVE TO
 NEGOTIATE IN GOOD FAITH UNDER SUBSECTION (A) OF THIS SECTION SHALL
 INCLUDE THE OBLIGATION--
 
   .          .          .          .
 
 
    (4) IN THE CASE OF AN AGENCY, TO FURNISH TO THE EXCLUSIVE
 REPRESENTATIVE INVOLVED, OR ITS AUTHORIZED REPRESENTATIVE, UPON REQUEST
 AND, TO THE EXTENT NOT PROHIBITED BY LAW, DATA--
 
    (A) WHICH IS NORMALLY MAINTAINED BY THE AGENCY IN THE REGULAR COURSE
 OF BUSINESS;
 
    (B) WHICH IS REASONABLY AVAILABLE AND NECESSARY FOR FULL AND PROPER
 DISCUSSION, UNDERSTANDING, AND NEGOTIATION OF SUBJECTS WITHIN THE SCOPE
 OF COLLECTIVE BARGAINING;  AND
 
    (C) WHICH DOES NOT CONSTITUTE GUIDANCE, ADVICE, COUNSEL, OR TRAINING
 PROVIDED FOR MANAGEMENT OFFICIALS OR SUPERVISORS, RELATING TO COLLECTIVE
 BARGAINING(.)
 
    /2/ THE RECORD DOES NOT DISCLOSE WHAT COMMENTS, IF ANY, BRADLEY
 RECORDED.
 
    /3/ THE RECORD DOES NOT DISCLOSE WHETHER HOLLIS WAS THE OTHER
 CANDIDATE RATED "HIGHLY QUALIFIED."
 
    /4/ APPARENTLY, BY THIS TIME HOLLIS HAD FAILED A GRIEVANCE CONCERNING
 THE MATTER.
 
    /5/ UNDER THE PARTIES' COLLECTIVE BARGAINING AGREEMENT A GRIEVANCE
 WHICH HAS NOT BEEN RESOLVED AT STEP 3 MAY PROCEED TO ARBITRATION IF
 ARBITRATION IS REQUESTED WITHIN 30 DAYS AFTER MANAGEMENT'S FINAL
 DECISION AT STEP 3.
 
    /6/ SEE DEPARTMENT OF DEFENSE, STATE OF NEW JERSEY, 3 FLRC 285, FLRC
 NO. 73A-59 (1975);  5 A/SLMR 499, A/SLMR NO. 539 (1975);  3 A/SLMR 591,
 A/SLMR NO. 323 (1973).
 
    /7/ SECTION 10(E) OF THE EXECUTIVE ORDER PROVIDED, IN RELEVANT PART:
 
    "WHEN A LABOR ORGANIZATION HAS BEEN ACCORDED EXCLUSIVE RECOGNITION,
 IT IS THE EXCLUSIVE
 
    REPRESENTATIVE OF EMPLOYEES IN THE UNIT AND IS ENTITLED TO ACT FOR
 AND NEGOTIATE AGREEMENTS
 
    COVERING ALL EMPLOYEES IN THE UNIT.  IT IS RESPONSIBLE FOR
 REPRESENTING THE INTERESTS OF ALL
 
    EMPLOYEES IN THE UNIT WITHOUT DISCRIMINATION AND WITHOUT REGARD TO
 LABOR ORGANIZATION
 
    MEMBERSHIP . . . ."
 
    /8/ SECTION 7114(A)(1) OF THE STATUTE PROVIDES:
 
    "(A)(1) A LABOR ORGANIZATION WHICH HAS BEEN ACCORDED EXCLUSIVE
 RECOGNITION IS THE EXCLUSIVE
 
    REPRESENTATIVE OF THE EMPLOYEES IN THE UNIT IT REPRESENTS AND IS
 ENTITLED TO ACT FOR, AND
 
    NEGOTIATE COLLECTIVE BARGAINING AGREEMENTS COVERING ALL EMPLOYEES IN
 THE UNIT.  AN EXCLUSIVE
 
    REPRESENTATIVE IS RESPONSIBLE FOR REPRESENTING THE INTERESTS OF ALL
 EMPLOYEES IN THE UNIT IT
 
    REPRESENTS WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR
 ORGANIZATION MEMBERSHIP."
 
    /9/ DEPARTMENT OF DEFENSE, STATE OF NEW JERSEY, SUPRA;  DEPARTMENT OF
 THE TREASURY, INTERNAL REVENUE SERVICE, MILWAUKEE, WISCONSIN, 8 A/SLMR
 113, A/SLMR NO. 974, AFF'D 6 FLRC 797, FLRC 78A-31 (1978);  INTERNAL
 REVENUE SERVICE, CHICAGO DISTRICT OFFICE, 8 A/SLMR 309, A/SLMR NO. 1004
 (1978);