Health Care Financing Administration (Respondent) and American Federation of Government Employees, Local 1923, AFL-CIO (Charging Party/Union)
[ v56 p156 ]
56 FLRA No. 19
HEALTH CARE FINANCING ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1923, AFL-CIO
DECISION AND ORDER
March 17, 2000
Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members.
I. Statement of the Case
This unfair labor practice (ULP) case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions.
The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (Statute) by refusing to provide the Union with certain information concerning the selection process that the Respondent used to fill a job vacancy for a bargaining unit position. The Judge found that the Respondent violated the Statute, as alleged.
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended order to the extent consistent with this decision. In agreement with the Judge's conclusions, we find that the data requested by the Union is necessary within the meaning of section 7114(b)(4)(B) of the Statute and that the Respondent violated the Statute in refusing to provide the information sought. We also adopt the Judge's recommended remedy.
II. Background and the Judge's Decision
The facts, set forth in detail in the Judge's decision, are summarized here.
The Union and the Respondent are parties to a "Master Labor Agreement" (MLA), which contains, as relevant here, articles on procedures for the resolution of grievances and on the subject of equal employment opportunity (EEO). The grievance procedure covers "any complaint by an employee concerning any matter relating to the employment of the employee." G.C. Exhibit No. 4, MLA Art. 24, Sect. 2. The EEO article provides that an employee with an EEO complaint has the option of proceeding under the negotiated grievance procedure or under the statutory EEO procedure, but not both, restating section 7121(d) of the Statute. The MLA advises the employee to "consult with the Union" when electing the forum for the EEO complaint. G.C. Exhibit No. 7, MLA Art. 18, Sect. 5.
In October 1997, the Respondent issued a "Recruitment Notice" for two GS-13 positions that are in the bargaining unit represented by the Union. In the proceeding before the Authority, the Respondent refers to this Notice as an "external recruitment," because both employees and non-employees were eligible to apply for these positions. [n1]
Two bargaining unit employees applied for the positions advertised by this Notice; they were not selected. The two employees separately contacted the Union Vice President because each believed, based on his own qualifications, that he should have been selected for the position. In addition, one of the employees felt that he had been discriminated against on the basis of race. Judge's Decision at 3.
On January 14, 1998, pursuant to section 7114(b)(4), the Union Vice President asked for information concerning the filling of the advertised positions, "in connection with a potential grievance [that] is necessary for full and proper discussion of matters falling within the scope of collective bargaining." Id. Specifically, the Union asked for the following: (1) the recruitment announcement; (2) the related "knowledge, skills, and abilities," task examples, and any other rating and ranking criteria; (3) the rating and ranking worksheet and scores of qualified applicants; and (4) the applications of the top three applicants. When management [ v56 p 157 ] later expressed concerns about privacy rights in some of the documents requested, the Union offered to accept the documents in sanitized form. Id. at 3-4.
On March 25, 1998, the Respondent responded to the Union's section 7114(b)(4) data request and stated that the Union had failed to identify a particularized need for the information. In refusing to provide the information, the Respondent pointed out that the information sought was outside the scope of collective bargaining, as defined by the Statute, and could not be used in connection with a potential grievance because section 7121(c)(4) provides for a statutory exclusion that precludes the filing of this type of grievance. The Respondent stated that it would reconsider any subsequent request that identified a particularized need.
On March 31, 1998, [n2] the Union clarified its information request in a second letter, explaining that it needed the information to determine whether the Respondent had misapplied or violated established merit promotion procedures in the rating and ranking of applications filed under the recruitment announcement. The Union advised that it had been contacted by bargaining unit employees who had applied under this announcement and believed that irregularities had occurred. Additionally, the Union noted, one unit employee whom the Union was representing was in the process of pursuing a complaint of discrimination, and the information requested would facilitate an informed election as to the appropriate forum in which to file an EEO appeal.
The Respondent continued to refuse to supply the requested information to the Union, maintaining that the request was outside the scope of collective bargaining, and, therefore, the Respondent had no obligation to provide the information. The Respondent reiterated that it utilized external hiring procedures not covered by the terms of the MLA to fill the positions in question, and that these procedures are excluded from the scope of collective bargaining via section 7106(a)(2)(A) and (a)(2)(C). As for the Union's representational role involving the complaint of discrimination, the Respondent pointed out that the EEO processes were governed by EEO regulations, not by the Statute. Accordingly, in representing an employee under the EEO process, the Respondent asserted, the Union acts as a personal rather than as an exclusive representative and section 7114(b)(4) does not apply.
The Union filed a charge and the General Counsel issued a complaint alleging that the Respondent violated section 7116(a)(1) and (8) of the Statute.
B. Judge's Decision
Before the Judge, the Union argued that it needed the information to establish that the Respondent incorrectly rated and ranked the applications and to advise the employee with the EEO claim as to the appropriate appeal forum for filing formally. The Respondent argued that the Union's request failed the "particularized need" test in two ways. First, the Union failed to establish that the documents were "necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining." Judge's Decision at 5. Second, the Union failed to explain with sufficient particularity why it needed the information. Id.
The Judge found that the Union had established a "particularized need" for the information, as required under Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661 (1995) (IRS, Kansas City). Judge's Decision at 7-8. Addressing the Respondent's contention that the Union has no representational role related to the attempts of bargaining unit employees to seek review of an external recruitment selection process, the Judge determined that "at least to [advising the employee with the race discrimination claim about] the EEO matter, however, the Union does have a recognized role." [n3] Id. at 5.
Analogizing the Union's role when it advises an employee as to the appropriate forum in which to file an EEO appeal to a union's role when it determines whether to file a grievance, the Judge cited Authority precedent holding that a union's need for information to determine whether to file a grievance may satisfy the "particularized need" standard. Id. at 7 (citing United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas, 51 FLRA 768, 774-76 (1996) (INS, Border Patrol), aff'd sub nom. AFGE, Local 2366 v. FLRA, 114 F.3d 1214 (D.C. Cir. 1997)). In this respect, the Judge noted that the Union performs its representative role of administering the MLA when the Union advises an employee with an EEO claim as to which forum -- the negotiated grievance [ v56 p158 ] procedure or the EEO complaint procedure -- the employee should direct her or his claim. Judge's Decision at 7. In addition, the Judge pointed out that if the employee decides to file a grievance, then the Union may also represent the employee in that forum. Id. at 5-6.
The Judge next considered the Respondent's assertion that this matter is not grievable as a matter of law. The Respondent cited section 7121(c)(4) of the Statute, which exempts from a negotiated grievance procedure matters relating to an "appointment." Citing National Federation of Federal Employees, Local 1636 and U.S. Department of Defense, National Guard Bureau, Albuquerque, New Mexico, 48 FLRA 511 (1993), the Judge rejected the Respondent's argument that section 7121(c)(4) of the Statute precludes a grievance over the external recruitment. The Judge noted that in that case, the Authority held that "examination, certification, or appointment" as used in section 7121(c)(4) applies only to an individual's initial entry into federal service. Therefore, the Judge concluded that section 7121(c)(4) does not preclude a federal employee from bringing a grievance concerning an application for a new position. Judge's Decision at 6-7.
Turning to the Respondent's contention that the Union failed to explain with sufficient particularity why the Union needed the information, the Judge held that the Union "adequately articulated [its] need by stating that the information was necessary `in order to make an informed election.'" Judge's Decision at 7 (quoting Union Letter to the Respondent, dated March 31, 1998). The Judge found that the Union's March 31 statement "specified its need, including the use to which the information will be put, and gave [the Respondent] a clear enough indication that such use was connected with what the Union regarded as its statutory representational responsibilities." Judge's Decision at 8.
Accordingly, the Judge found that the Union was entitled to the data that it requested, and that by denying the Union this information, the Respondent violated sections 7116(a)(1) and (8) of the Statute. The Judge issued a cease and desist order and required the Respondent to furnish the Union with the requested information in sanitized form and post a notice of compliance. [n4]
III. Positions of the Parties
A. Respondent's Exceptions
The Respondent raises two exceptions, both of which it characterizes as a failure of the Union to satisfy the "particularized need" test. First, the Respondent argues that the Union's information request does not relate to a subject within the scope of collective bargaining because it concerns external recruitment, and that, therefore, no section 7114(b)(4) right exists. Second, the Respondent argues that the Union's request is deficient because it lacks the required specificity under the "particularized need" standard.
In support of its first exception that the Union has no representational responsibilities with regard to external recruitment, the Respondent makes the following six arguments:
With regard to its second exception, the Respondent argues that the Union failed the "articulation" requirement because its request for information to show that the Respondent incorrectly rated and ranked the applications is both "non-specific" and "inaccurate." Id. at 14, 17. The Respondent asserts that the Union is "searching for a violation without having a basis/reason for believing that one might exist." Id. at 15. The Respondent also points out that the request is inaccurate because it refers to "Merit Promotion" when the process was an "External Recruitment," which is "not governed by the merit promotion policies and procedures outlined in Article 26 of the parties' collective bargaining agreement." Id. at 16.
B. General Counsel's Opposition
The General Counsel contends that the Judge correctly found that the Union sufficiently articulated a "particularized need" for the documents. The General Counsel argues that the Judge properly found that the MLA expressly recognizes that the Union has a role in advising bargaining unit employees with discrimination allegations whether they should file a grievance or pursue a statutory appeal procedure. The General Counsel points out that the MLA, by advising employees to consult with the Union regarding forums for their complaints, expressly recognizes this advisory role of the Union. Therefore, the General Counsel argues, the matter in connection with which the Union requests the data --that is, advising the employee on the election of forum -- is within the scope of collective bargaining, as required by section 7114(b)(4). GC Opposition at 9.
With regard to the Respondent's exception that the Union has failed to articulate with specificity its "particularized need," the General Counsel contends that the Union sufficiently articulated its need to permit the Respondent to make a reasoned judgment as to whether the disclosure of the information is required under the Statute.
IV. Analysis and Conclusions
Under section 7114(b)(4) of the Statute, an agency must furnish information to a union, upon request and "to the extent not prohibited by law," if that information is: (1) "normally maintained by the agency"; (2) "reasonably available"; (3) "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining"; and (4) not "guidance, advice, counsel or training." Only one of these elements is in dispute here -- whether the information is "necessary." See Judge's Decision at 5. Specifically, the Respondent challenges whether the information relates to matters within the "scope of collective bargaining" and whether the Union has adequately expressed its need for that information with particularity.
To demonstrate that information is "necessary" a union "must establish a particularized need for the information by articulating, with specificity, why it needs the requested information, including the uses to which the union will put the information and the connection between those uses and the union's representational responsibilities under the Statute." IRS, Kansas City, 50 FLRA at 669 (footnote omitted). Further, the union's responsibility for articulating its interests in the requested information requires more than a conclusory assertion and must permit an agency to make a reasoned judgment as to whether the disclosure of the information is required under the Statute. Id. at 670. The agency is responsible for establishing any countervailing anti-disclosure interests and, like the union, must do so in more than a conclusory way. Id. This case turns on whether it has been established that the documents relate to the Union's representational responsibilities and that a "particularized need" for the documents has been sufficiently articulated. [n5] [ v56 p160 ]
A. The Judge Correctly Determined That the Union's Statement of Need Relates to Its Representational Responsibilities
The first issue to be resolved is whether the Union's request for information is connected to its representational responsibilities under the Statute. In its information request dated January 14, 1998, the Union stated that it needed information related to a specific vacancy announcement "in connection with a potential grievance." Later, by letter dated March 31, 1998, the Union clarified its need by explaining that it requested the documents because (1) bargaining unit employees alleged that irregularities in the selection process occurred, and (2) the Union was representing one such employee who had filed an informal complaint of discrimination, been issued a Counseling Report, and needed to make an informed election as to the appropriate appeal forum for filing formally. [n6] As shown below, we find that the Union's stated use for the documents relates to its representational responsibilities.
The Union stated that one of the reasons that it needed the information was to advise the employee with the EEO complaint whether he should proceed through the statutory appeal process or through the negotiated grievance procedure. Before it could advise that employee, the Union had to make a determination as to whether it would be willing to take the individual's case to arbitration at the end of the grievance process. Tr. at 34-35. Determining whether to file a grievance is a basic union responsibility under the Statute. See, e.g., INS, Border Patrol, 51 FLRA at 774-76 (union entitled to information to determine if employee complaints about management's assigning policy is "true and correct" and, therefore, grievable).
Further, the MLA expressly contemplates that the Union would advise a bargaining unit employee who was considering filing an EEO claim against the Respondent. It is well settled that the scope of information entitlement under section 7114(b)(4) extends to the full range of representational activity, including contract administration. See, e.g., FAA, 55 FLRA at 258-59; U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 22 FLRA 667, 669 (1986). Therefore, the Union would be using the information to administer the contract.
Each of the six arguments proffered by the Respondent in support of its first exception lacks merit.
1. Section 7121(c)(4) Does not Preclude a Grievance Over a Non-initial Entry Appointment
Section 7121(c)(4) provides that the scope of a grievance procedure negotiated under the Statute may not extend to any grievance concerning an "examination, certification, or appointment." However, the Authority has held that the term "appointment" in section 7121(c)(4) relates to the initial entry of an applicant into the federal service. See, e.g., U.S. Department of Defense, Dependent Schools, Kaiserslautern, Germany and Overseas Education Association, 51 FLRA 210, 212 (1995); National Council of Field Labor Locals of the American Federation of Government Employees, AFL-CIO and United States Department of Labor, 4 FLRA 376, 381 (1980); see also Suzal v. Director, United States Information Agency, 32 F.3d 574, 580 (D.C. Cir. 1994); Brammer v. United States, 24 Cl. Ct. 487, 492 (1991). Although the Respondent claims that the action at issue is an "appointment" and thus not grievable, it has offered no reasons why this well-settled Authority and judicial precedent is wrong. Accordingly, we conclude that the Judge properly held that an employee's grievance regarding an external recruitment is not precluded by section 7121(c)(4).
2. Employees Who Apply for New Bargaining Unit Positions Through an External Recruitment Remain "Employees" under the Statute
The Respondent cites no authority for the proposition that a bargaining unit employee who applies for a new position does not apply as an "employee" under the Statute, but as an applicant. In any event, Authority case law makes clear that the process that an agency uses to fill vacant positions for which bargaining unit [ v56 p161 ] employees are eligible concerns the working conditions of those employees. See National Federation of Federal Employees, Local 33 and U.S. Department of the Army, Corps of Engineers, Galveston, Texas, 47 FLRA 765 (1993).
The Respondent's related argument that complaints about the selection process do not qualify as a "grievance" within the meaning of 5 U.S.C. § 7103(a)(9) is also baseless. Although section 7103(a)(9) refers to "any matter relating to the employment of the employee," bargaining unit employees do not cease to be "employees" merely because they apply for a bargaining unit position that is open to non-employee applicants.
The Respondent relies on Internal Revenue Service, National Office, 21 FLRA 646, 649 n.3 (1986) for the proposition that an agency has no obligation to provide information for a grievance that is statutorily excluded. However, as shown above, the Respondent has failed to establish that a grievance regarding a recruitment open to bargaining unit and non-employee applicants is precluded either by the definition of "grievance" in section 7103(a)(9) or by section 7121(c)(4). Moreover, grievability questions are for an arbitrator to decide and the existence of such a question does not relieve an agency of its obligation to furnish information. See U.S. Department of Transportation, Federal Aviation Administration, National Aviation Support Facility, Atlantic City Airport, New Jersey, 43 FLRA 191, 197 (1991).
3. The Application of a Crediting Plan Is not "Specifically Provided For" and, Therefore, Falls Within the Statutory Definition of "Conditions of Employment"
In this case a bargaining unit employee has claimed that the Respondent has misapplied its crediting plan, and the Respondent does not identify any law that specifically provides how crediting plans are to be applied. Further, even if the Respondent had identified a law, to the extent that that law gave the Respondent discretion with regard to the application of the crediting plan, the matter is not "specifically provided for" by statute and thus is a condition of employment. See International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135 and U.S. Department of the Treasury, Bureau of Engraving & Printing, 50 FLRA 677, 685 (1995), aff'd mem. sub nom. Bureau of Engraving & Printing v. FLRA, 88 F.3d 1279 (D.C. Cir. 1996).
4. The Union Has the Right to Information Regarding External Recruitment Matters Even Though They Relate to Management Rights to Hire and Select
Even if the Union's request relates to matters that are management rights, this case involves the Union's right to information - not the scope of the Respondent's duty to bargain. Although section 7114(b)(4) ties a union's information rights to "the scope of collective bargaining," the Authority has broadly interpreted this statutory phrase. See FAA, 55 FLRA at 258-59; Commander Naval Air Pacific, San Diego, California and Naval Air Station, Whidbey Island, Oak Harbor, Washington, 41 FLRA 662, 668 (1991); see also American Federation of Government Employees, AFL-CIO, Local 1345 v. FLRA, 793 F.2d 1360 (D.C. Cir. 1986) (affirming Authority's interpretation of "scope of collective bargaining"). The Union asks for the information in order to fulfill its contractual role of advising a bargaining unit employee -- a purpose "within the scope of collective bargaining." In this regard, the Respondent's reliance on General Services Administration, 29 FLRA 197 (1987) is misplaced. In General Services Administration, the Authority held that a union was not entitled to information in order to draft negotiation proposals concerning the establishment of crediting plans because that matter is outside the duty to bargain. In contrast, here, the Union requested the information not to bargain about external recruitments but to assist an employee who has complained about how a bargaining unit position was filled.
5. The Respondent's Argument Regarding EEO Procedures Lacks Merit
The Respondent incorrectly assumes that an employee with an EEO claim could proceed only through the statutory EEO procedures. Rather, the employee has an option with regard to remedial forum. See G.C. Exhibit No. 7, MLA Art. 18, Sect. 5. Further, contrary to the Respondent's assertion, the Union is not asking for information to be used in the EEO forum but rather to advise the employee as to which forum -- EEO or negotiated grievance procedure -- the employee should pursue. Library of Congress, 19 FLRA 267 (1985), relied upon by the Respondent, merely stands for the proposition that once the employee elects the statutory EEO forum over the negotiated grievance procedure, a union official acting as the employee's personal representative must use EEO procedures, not section 7114(b)(4), to gather information. [n7] [ v56 p162 ]
6. The Respondent's Assertion that It Performs External Recruitments through Authority Delegated from OPM Is Irrelevant
Although the Union does not have a collective bargaining relationship with OPM, it does have a bargaining relationship with the Respondent. Two unit employees who are represented by the Union have alleged that they were harmed by the Respondent's actions. The fact that OPM delegated examining authority to the Respondent does not alter the fact that the Respondent exercised that authority by performing the selection process at issue in this case. Cf. Internal Revenue Service (District Office Unit), Department of the Treasury, 29 FLRA 268, 270-71 (1987) (agency must bargain with union over proposal related to OPM's delegation of examining authority to the agency).
In sum, we find that the Judge properly concluded that the Union's request for information is related to its representational responsibilities and, therefore, is related to a subject "within the scope of bargaining" within the meaning of section 7114(b)(4).
B. The Judge Correctly Determined That the Union Articulated Its Need with Requisite Particularity
The Respondent also argues that the Union's request is not specific enough. Under the Authority's "particularized need" test, the Union must "articulat[e], with specificity, why it needs the requested information, including the uses to which the union will put the information and the connection between those uses and the union's representational responsibilities under the Statute." IRS, Kansas City, 50 FLRA at 669.
The Union Vice President's clarified request to the Respondent, dated March 31, 1998, GC Exhibit 9, satisfies the particularity requirement. Referring to a specific vacancy announcement for a bargaining unit position, the request clearly informs the Respondent that the Union needs the information for two reasons: (1) to determine whether the Respondent wrongfully rated and ranked the applications of bargaining unit employees; and (2) to advise a bargaining unit employee regarding the proper forum to bring an EEO claim --an advisory role recognized in the MLA.
The Respondent complains that the Union failed to articulate what "act or failure to act [the] Respondent is alleged to have committed" and to "identify any specific promotion policy/procedure or any law or regulation that was alleged to have been misapplied or violated." Respondent Exceptions at 15. The Union, however, has explained in its request that bargaining unit employees believe that they were rated and ranked incorrectly. To require the Union to describe the exact nature of the alleged irregularities is asking too much of the Union. In essence, the Respondent is asking the Union to describe the potential contents of documents it has not seen. [n8] See AFGE, Local 2343 v. FLRA, 144 F.3d 85, 89 (D.C. Cir. 1998) (citing IRS, Kansas City, 50 FLRA at 670 n.13).
We conclude that the Union has provided sufficient information to allow the Respondent "to make a reasoned judgment" concerning disclosure. We agree with the Judge that the Union has established a "particularized need" and has sufficiently articulated its need for the information requested in order to advise the employee with the EEO claim as to the appropriate filing forum.
Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Health Care Financing Administration shall:
1. Cease and desist from:
(a) Failing and refusing to furnish the American Federation of Government Employees, Local 1923, AFL-CIO (the Union) with the following information requested by the Union, in "sanitized form," which relates to recruitment announcement RN-97-039: (1) the recruitment announcement; (2) the related "knowledge, skills, and abilities," task examples, and any other rating and ranking criteria; (3) the rating and ranking worksheet and scores of qualified applicants; and (4) the applications of the top three applicants.
(b) In any like or related manner interfering with, restraining or coercing bargaining unit employees [ v56 p163 ] in the exercise of their rights assured them by the Statute.
2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute:
(a) Upon request, furnish in "sanitized" form the following information requested by the Union, which relates to recruitment announcement RN-97-039: (1) the recruitment announcement; (2) the related "knowledge, skills, and abilities," task examples, and any other rating and ranking criteria; (3) the rating and ranking worksheet and scores of qualified applicants; and (4) the applications of the top three applicants.
(b) Post at all facilities where bargaining unit employees 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 Administrator, Health Care Financing Administration, 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 ensure that such notices are not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Washington Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comp