Health Care Financing Administration (Respondent) and American Federation of Government Employees, Local 1923, AFL-CIO (Charging Party/Union) (Authority decision, July 26, 2000)

Read the official release (flra.gov)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair-labor-practice proceeding. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The agency failed to supply requested selection records for two vacancies after bargaining-unit applicants sought union help investigating possible irregularities. The Authority upheld the unfair-labor-practice findings and ordered disclosure with personal identifiers removed. The union identified the vacancies, its concerns, and its intended use of the records to decide whether to grieve, sufficiently establishing a particularized need. External recruitment did not remove the requests from the union’s representational responsibilities. Redaction protected the affected individuals’ privacy, so the Privacy Act did not prohibit disclosure; the Authority did not decide whether that defense had been waived. The agency also had to refrain from asserting untimeliness against related grievances filed within the applicable period measured from receipt of the information, and post notices.

Decision snapshot

• Authority: Union information requests, redaction, and remedial protection of grievance deadlines.
• Outcome: Violations upheld; sanitized disclosure, deadline protection, and posting ordered.
• Key point: The union showed its need for the selection records, and redaction addressed the privacy interests.

Full text (FLRA public release)

[ v56 p503 ]

56 FLRA No. 79

HEALTH CARE FINANCING ADMINISTRATION

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 1923, AFL-CIO

(Charging Party/Union)

WA-CA-90046

WA-CA-90378

_____

DECISION AND ORDER

July 26, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

I. Statement of the Case

This unfair labor practice 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), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to provide the Union with certain sanitized documents concerning the selection process that the Respondent used to fill two job vacancies for bargaining unit positions. The Judge found that the Respondent violated the Statute as charged.

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 Privacy Act does not prohibit disclosure of the requested information, that the data requested by the Union was necessary within the meaning of section 7114(b)(4)(B) of the Statute, and that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute. We also adopt the Judge's recommended remedy.

II. Background

This case involves two information requests made by the Union to the Respondent.

A. First request

The Respondent issued a "Recruitment Notice" for a GS-13 position in the bargaining unit represented by the Union. The Respondent referred to this Notice as an "external recruitment," because both employees and non-employees were eligible to apply for this position. Judge's Decision at 2. A bargaining unit employee, who had applied for the position and was not selected, contacted the Union Vice President regarding the selection process because the employee believed that he should have been placed on the best qualified list.

Subsequently, the Union Vice President requested information concerning the filling of the position, pursuant to section 7114(b)(4) of the Statute, to determine whether to file a grievance. [n1] The Union Vice President explained in his request that he was contacted by at least one employee who contended that irregularities occurred in the selection process and that the Union Vice President needed the data to "determine whether [the Respondent] misapplied and violated established merit promotion principles and procedures in the rating and ranking of applicants." Id. at 3. The Union Vice President also stated that the data was necessary for the Union to meet its representational obligations.

The Union Vice President did not receive a response to his original request or to his second request, which essentially reiterated his original request. Further, the Union never received the requested data. [ v56 p504 ]

B. Second request

Later, the Respondent issued a "Recruitment Notice" for a GS-13 position in the bargaining unit represented by the Union. As was the case with respect to the Notice involved in the first request, the Respondent referred to this Notice as an "external recruitment," because both employees and non-employees were eligible to apply for this position. Id. at 4. A bargaining unit employee, who had applied for the position and was not selected, contacted the Union Vice President regarding the selection process. The employee stated that "something had gone wrong with the selection process," and that she had not received "proper credit" for her application material. Id.

Thereafter, the Union Vice President submitted a data request identical to the first request, pursuant to 7114(b)(4) of the Statute, in order to determine whether to file a grievance. The Union Vice President gave the same explanation used for the first request. The Respondent, in a letter dated approximately 7 weeks after the request and 1 month after the Union filed the unfair labor practice charge, refused to provide the requested data on the ground that the Union had not "articulated a particularized need" and "not demonstrated any connection to its representational responsibilities under the Statute." Exceptions at 1-2, Exhibit 8 to Exceptions.

The General Counsel issued a complaint alleging that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by failing to provide the Union with the requested information.

III. The Judge's Decision

The Judge first determined that, under section 7114(b) of the Statute, the information requested by the Union "was normally maintained by [the Respondent], was reasonably available to [the Respondent], and did not constitute guidance, advice or counsel provided for management officials relating to collective bargaining." Judge's Decision at 7. The Judge stated that the issues were whether: (1) the data is necessary for the Union to perform its representational duties; (2) the Union articulated its need for the requested data with sufficient particularity; and (3) the Respondent established any reasons prohibiting the disclosure of the information.

The Judge determined that the information requested by the Union is necessary for the Union to perform its representational duties. The Judge found that, without the requested data, the Union could not: (1) assess whether the employees who sought Union assistance were minimally qualified for the vacant position; (2) determine whether the rating and ranking factors were applied uniformly; (3) determine whether merit principles, policies, and procedures were followed in a fair and equitable manner; (4) compare the applicants, and the credit they received for each KSA; and (5) learn what guidance the selecting official relied on in determining how applicants should be rated and ranked, and what was used to establish the selection certificate.

The Judge also determined that the Union articulated its need for the requested data with sufficient particularity under the Authority's framework set forth in Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661, 669-70 (1995) (IRS, Kansas City). The Judge found that the requests both explained the need for the data and "unambiguously connected" this intended use with the Union's representational responsibilities under the Statute. Judge's Decision at 11.

The Judge then addressed the Respondent's defenses that: (1) the Privacy Act, 5 U.S.C. § 552a, bars the disclosure of data; and (2) matters related to the external recruitment process are not connected to the Union's representational responsibilities. With respect to both of the Respondent's defenses, the Judge found that the Respondent's failure to raise its arguments when the requests were made foreclosed the Respondent from doing so for the first time at the hearing. In making this determination, the Judge relied on the Authority's decision in Federal Aviation Administration, 55 FLRA 254, 260 (1999) (FAA).

The Judge also found that the Respondent's defenses lacked merit. With respect to the Respondent's assertion that the Privacy Act bars disclosure of the requested data, the Judge cited the Authority's framework for addressing such claims set forth in U.S. Department of Transportation, Federal Aviation Administration, New York TRACON, Westbury, New York, 50 FLRA 338, 345 (1995) (TRACON). The Judge found that the Union had specifically requested the data in sanitized form in order to avoid any Privacy Act implications and that several of the requested documents did not include any items that raise privacy concerns. The Judge thus concluded that the Privacy Act did not prohibit the Respondent from providing the requested data.

With respect to the Respondent's assertion that matters related to the external recruitment process are not connected to the Union's representational responsibilities, the Judge found that certain provisions of the Master Labor Agreement pertain to the external recruitment [ v56 p505 ] process. Judge's Decision at 14 (citing Master Labor Agreement Appendix I to Article 3, and Article 26, sections 6.A, 9.A.1.b.). The Judge determined that, even though external hiring was conducted pursuant to an Interagency Agreement with Office of Personnel Management (OPM), the Respondent acknowledged that it "acts for itself, not OPM, when considering applicants under this delegated authority." Judge's Decision at 15; see also Interagency Agreement at I.E.2.b., p.3. The Judge also found that the Interagency Agreement did not preclude the disclosure of the requested data because the agreement states that "the [Respondent] shall . . . [r]espond to correspondence/inquires" and "is ultimately responsible for [the] decision about the release of examining information." Judge's Decision at 15 (quoting Interagency Agreement at I.E.2.b., p.3; Section 9.3).

Based on the foregoing, the Judge found that the Respondent violated sections 7116(a)(1), (5) and (8) of the Statute. The Judge recommended that the Authority require the Respondent to furnish the Union with the requested information in sanitized form. The Judge also recommended, in response to the Union's request, that the Authority preclude the Respondent from raising timeliness as a defense in any subsequent grievance and/or arbitration filed in connection with the disputed vacancy announcements so long as the grievance is timely filed from the date the Union receives the requested information. The Judge noted that the Respondent conceded that it had the authority to waive any timeliness defense in a grievance. According to the Judge, failure to implement this remedy would permit the Respondent to benefit from its own misconduct.

IV. Positions of the Parties

A. Respondent's Exceptions

The Respondent argues that the Judge erred in concluding that the Respondent is prohibited from raising countervailing interests to the disclosure of data for the first time at the hearing. In particular, the Respondent contends that the Privacy Act cannot be violated merely because the Respondent did not raise it as a defense until the hearing.

The Respondent claims that the Privacy Act prohibits disclosure of the requested information and that the Judge incorrectly found that there were no Privacy Act implications because the Union had requested the information in sanitized form. The Respondent contends, in particular, that the Privacy Act does not contain any provision for the release of sanitized records. The Respondent relies on the Authority's decision in Internal Revenue Service, Austin District Office, Austin, Texas, 51 FLRA 1166 (1996) (IRS, Austin). Further, the Respondent claims that the Union did not articulate a public interest that would outweigh the privacy interests in the requested information.

The Respondent also contends that the Judge erred in concluding that the Union established a particularized need for the information it requested. The Respondent claims that the Union's requests for data: (1) failed to contain the specificity required by the particularized need standard and (2) concerned a matter that was outside the scope of collective bargaining, the external recruitment process.

Finally, the Respondent argues that there is no legal authority for the Judge's recommended order to extend the time limits for filing a grievance beyond what parties bargain for in their collective bargaining agreement. According to the Respondent, the exclusive provisions for the time limits for filing a grievance are contained in the parties' agreement.

B. General Counsel's Opposition

The General Counsel claims that the Judge correctly found that the Respondent was foreclosed from raising its countervailing interests for the first time at the hearing. Regarding the Respondent's argument that the Privacy Act was violated, the General Counsel contends that the Respondent did not meet its burden under TRACON, and that privacy interests generally are not implicated in a request for sanitized documents.

The General Counsel also contends that the Union's requests established a particularized need for the requested data because the requests: (1) stated that the Union needed the data to determine whether the Respondent had misapplied and/or violated established merit principles, policies and procedures in the rating and ranking of applicants; and (2) connected this intended use with the Union's representational responsibilities of determining whether to file a grievance on behalf of the complaining employees.

The General Counsel contends that the Judge correctly ordered the Respondent to refrain from alleging that any subsequent grievance in connection with the vacancy announcements is untimely. The General Counsel asserts that the Authority has held that Judges have broad remedial powers and that this remedy "recreate[s] conditions prior to the Respondent's violative conduct." Opposition at 18 n.13. [ v56 p506 ]

V. 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. Two of these aspects are in dispute here: whether disclosure of the information is prohibited by law and whether the information is necessary.

A. The Judge properly concluded that disclosure of the information requested by the Union is not prohibited by the Privacy Act.

In TRACON, which involved the disclosure of performance appraisals of bargaining unit employees, the Authority set forth the analytical approach it follows in assessing an agency's claim that disclosure of information requested under section 7114(b)(4) of the Statute would violate the Privacy Act. Section (b)(2) of the Privacy Act provides that the prohibition against disclosure is not applicable if disclosure of the requested information would be required under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA). Exemption 6 of the FOIA provides, in turn, that information contained in "personnel and medical files and similar files" may be withheld if disclosure of the information would result in a "clearly unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(6). If such an invasion would result, then disclosure is not required by the FOIA.

There is no dispute that the requested information in this case would be sanitized to protect the privacy interests of affected individuals. Although the Respondent argues that the Privacy Act does not contain any provision for the release of sanitized records, see Exceptions at 10, citing IRS, Austin, 51 FLRA 1166, the redaction of documents to permit disclosure of nonexempt portions is appropriate under Exemption 6. See Department of Air Force v. Rose, 425 U.S. 352, 374 (1976) (Rose); see also United States Department of State v. Ray, 112 S. Ct. 541, 547 (1991) (Court held that redaction procedure is "expressly authorized by FOIA"). Further, the court in Rose found that the request for sanitized information "respected the confidentiality interests embodied in Exemption 6." Rose, 425 U.S. at 380. Here, because identifying information would be redacted, there would be no unwarranted invasion of privacy under Exemption 6. Thus, the information would be required to be disclosed under the FOIA, and the Privacy Act would not prohibit its release.

The Authority decision relied on by the Respondent does not undermine this conclusion. The tax record information at issue in that case is specifically exempted from disclosure in the Privacy Act, under section 552a(b)(3), even when sanitized. See IRS, Austin, 51 FLRA at 1175. Here, the data requested by the Union is not protected from disclosure by the Privacy Act. See TRACON, 50 FLRA at 345. Therefore, as the Respondent has failed to show that disclosure would implicate a privacy interest, we find that the Privacy Act does not prohibit the disclosure of the requested information. [n2]

B. The Judge properly concluded that the Union articulated a particularized need for the requested information.

1. The Union articulated its need with requisite specificity.

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 Respondent argues that the Union's two requests for information did not contain the specificity required by IRS, Kansas City. In particular, the Respondent asserts that the Union's requests contain nothing more than "bare and conclusory assertions" that the information would establish that the Respondent misapplied and/or violated established merit promotion policies and procedures in the rating and ranking of applications. Exceptions at 12.

We reject the Respondent's argument. The Union's requests referred to specific vacancy announcements and clearly informed the Respondent that the Union [ v56 p507 ] needed the information for two reasons: (1) to determine whether the Respondent had misapplied and/or violated established merit principles, policies and procedures in the rating and ranking of applicants under the vacancy announcements; and (2) to determine whether or not to file a grievance on behalf of the complaining employees. See Joint Exhibit No. 2; Respondent's Exhibit No. 4. The Union also explained, in both requests, that bargaining unit employees believed that they had not been given fair and proper consideration for the vacancy announcements. Although the Union did not explain exactly how the requested documents would enable it to decide whether or not to file a grievance, a union's request for information "need not be so specific" as "to reveal its strategies." IRS, Kansas City, 50 FLRA at 670 n.13; see also Health Care Financing Administration, 56 FLRA 156, 162 (2000) (HCFA) (union not required to describe exact nature of respondent's alleged misapplication or violation of policy/procedure, law or regulation).

We conclude that the Union provided sufficient information for the Respondent to make a reasoned judgment concerning disclosure. [n3] As such, we find that the Judge properly found that the Union sufficiently articulated its need for the requested information.

2. The Union's statement of need related to its representational responsibilities.

The Authority has held generally that the scope of the information entitlement under section 7114(b)(4) of the Statute "extends to the full range of representational activity, not just the context of pending negotiations between labor and management." FAA, 55 FLRA at 258. Moreover, the Authority recently decided, in a case virtually identical to this one, that the external recruitment process used by the Respondent to fill vacant positions for which bargaining unit employees are eligible concerns the working conditions of those employees and is an appropriate subject of an information request. See HCFA, 56 FLRA at 160-61. Consistent with HCFA, we find that the Judge properly concluded that the Union's request for information is related to its representational responsibilities.

C. The Judge's recommended remedy is proper.

As one remedy for the violation, the Judge ordered the Respondent to refrain from alleging as a defense, in any subsequent grievance and/or arbitration filed in connection with the vacancy announcements, that the grievance is untimely.

In F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA 149, 160-62 (1996) (Warren), the Authority discussed its approach to evaluating requests for nontraditional remedies, and concluded that such remedies must satisfy the same broad objectives that the Authority described in United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431, 444-45 (1990) (DOJ). "That is, assuming that there [are] no legal or public policy objections to a proposed, nontraditional remedy, the questions are whether the remedy is reasonably necessary and would be effective to 'recreate the conditions and relationships' with which the unfair labor practice interfered, as well as to effectuate the policies of the Statute, including the deterrence of future violative conduct." Warren, 52 FLRA at 161 (quoting DOJ, 35 FLRA at 444-45).

The Respondent has not raised any legal or public policy objections to the remedy, other then stating that there is no "legal authority" for the Judge's recommended order to extend the time limits for filing a grievance over any of the matters related to the disputed vacancy announcements. Exceptions at 16-17. However, the Respondent conceded before the Judge that it has the authority to agree to a waiver of any timeliness defense in a grievance. Judge's Decision at 16. Although the Union could have filed a grievance without the requested information, the release of the requested information would have enabled the Union to make this decision in an informed manner. Thus, the Judge's recommended remedy effectively recreates the conditions that would have existed had there been no unfair labor practice. As such, we find the remedy appropriate under Warren.

VI. Order

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 reply to requests for data from the American Federation of Government Employees, Local 1923, AFL-CIO (Local 1923), the employees' exclusive representative, which reply is necessary [ v56 p508 ] for a full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.

(b) Failing and refusing to furnish Local 1923 with data it requested on October 8, 1998, in connection with Vacancy Announcement RN-98-079C.

(c) Failing and refusing to furnish Local 1923 with data it requested on March 26, 1999, in connection with Vacancy Announcement RN-99-016.

(d) In any like or related manner interfering with, restraining, or coercing bargaining unit 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) Furnish Local 1923, the data it requested on October 8, 1998, in connection with Vacancy Announcement RN-98-079C.

(b) Furnish Local 1923, the data it requested on March 26, 1999, in connection with Vacancy Announcement RN-99-016.

(c) Refrain from alleging as a defense, in any subsequent grievance and/or arbitration filed in connection with Vacancy Announcements RN-98-079C and RN-99-016, that the grievance is untimely, as long as the grievance is timely filed from the date Local 1923, receives the requested information.

(d) Post at its facilities where bargaining unit employees represented by Local 1923 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 Chairman of the 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.

(e) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the 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 comply herewith.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Health Care Financing Administration has violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice.

We hereby notify bargaining unit employees that:

WE WILL NOT fail and refuse to reply to requests for data from the American Federation of Government Employees, Local 1923, AFL-CIO (Local 1923), the employees' exclusive representative, which reply is necessary for a full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.

WE WILL NOT fail and refuse to furnish Local 1923, data it requested on October 8, 1998, in connection with Vacancy Announcement RN-98-079C.

WE WILL NOT fail and refuse to furnish Local 1923, data it requested on March 26, 1999, in connection with Vacancy Announcement RN-99-016.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL furnish Local 1923, all the data it requested on October 8, 1998, in connection with Vacancy Announcement RN-98-079C.

WE WILL furnish Local 1923, all the data it requested on March 26, 1999, in connection with Vacancy Announcement RN-99-016.

WE WILL refrain from alleging as a defense, in any subsequent grievance and/or arbitration filed in connection with Vacancy Announcements RN-98-079C and RN-99-016, that the grievance is untimely, as long as the grievance is timely filed from the date Local 1923, receives the requested information.

_________

(Activity)

Dated:_ By:______

(Signature) (Title)

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, Washington, D.C. Regional Office, Federal Labor Relations Authority, whose address is: TechWorld Plaza, 800 "K" Street, NW., Suite 910, Washington, D.C. 20001, and whose telephone number is: (202) 482-6700.

File 1: Authority's Decision in 56 FLRA No.
79

File 2: ALJ's Decision

Footnote # 1 for
56 FLRA No. 79

• Authority's Decision

Specifically, the Union asked for an official copy of the following data in sanitized form:

(1) the recruitment announcement;

(2) the position description;

(3) the related "knowledge, skills, and abilities," task examples, and any other rating and criteria;

(4) the rating and ranking worksheet and scores of each applicant;

(5) the selection certificate;

(6) the applications of all candidates; and

(7) the rules, regulations, and policies used in the rating and ranking process and in establishing the selection certificate.

Judge's Decision at 3.

Footnote # 2 for
56 FLRA No. 79

• Authority's Decision

In view of our determination, we do not address whether the Respondent was precluded from raising the Privacy Act defense for the first time at the hearing. We note, however, that it appears clear that an agency cannot waive the Privacy Act rights of its employees regarding the release of personal information. See 5 U.S.C. § 552a(g)(1)(D) (employee authorized to bring private civil action against agency for violation of agency provision that adversely affects the employee, such as unauthorized disclosure of employee's personal information, prohibited under § 552a(b)).

Footnote # 3 for
56 FLRA No. 79

• Authority's Decision

We note that if the Respondent was unclear about the reason the Union needed the requested information, then the Respondent should have sought clarification from the Union. Had the Respondent sought clarification, the Union would have been required to provide it or run the risk of failing to meet its burden of establishing a particularized need for the information requested. See, e.g., U.S. Department of the Treasury, Internal Revenue Service, Washington, D.C. and U.S. Department of the Treasury, Internal Revenue Service, Oklahoma City District, Oklahoma City, Oklahoma, 51 FLRA 1391, 1395-96 (1996).

[ v56 p509 ]

Office of Administrative Law Judges

HEALTH CARE FINANCING ADMINISTRATION

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 1923, AFL-CIO

Charging Party

Case Nos.

WA-CA-90046

WA-CA-90378

Barbara Ann Wilhelm, Esquire

For the Respondent

Tracy E. Levine, Esquire

Thomas F. Bianco, Esquire

For the General Counsel, FLRA

Before: SAMUEL A. CHAITOVITZ

Chief Administrative Law Judge

DECISION

Statement of the Case

This proceeding arose under the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (the Statute), and the Revised Rules and Regulations of the Federal Labor Relations Authority (FLRA/the Authority) 5 C.F.R. § 2423.1 et seq.

This proceeding was initiated by charges filed in each case by the American Federation of Government Employees, Local 1923 (AFGE/AFGE Local 1923), against the Health Care Finance Administration (HCFA/Respondent). The Regional Director of the Washington Region of the FLRA on behalf of the General Counsel (GC), issued a Complaint [n1] and Notice of Hearing in each case and the cases were consolidated. The Complaints allege that HCFA violated sections 7116(1) and (5) and 7116(a)(1), (5) and (8) of the Statute by failing and refusing to provide AFGE Local 1923 with the requested information. HCFA filed its answers in both cases, denying the allegations that it violated the Statute.

A hearing was held in Washington, DC, on July 14, 1999, at which time all parties were afforded a full opportunity to be represented, to be heard, to examine and cross-examine witnesses, and to introduce evidence. HCFA and the GC of the FLRA filed timely post-hearing briefs which have been fully considered.

Based upon the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions, and recommendations.

Findings of Fact

AFGE Local 1923 is the exclusive collective bargaining representative for an appropriate unit of employees at HCFA.

A. Case No. WA-CA-90046

HCFA issued Recruitment Notice No. RN-98-079C (vacancy announcement 98-079C) in April of 1998 for a bargaining unit position entitled Computer Specialist, GS-334-13. The position in vacancy announcement 98-079C was open to HCFA employees, including bargaining unit employees, as well as applicants from outside the Federal service. Since the position was open to applicants outside the Federal service in addition to HCFA employees, HCFA characterized the announcement as an "outside" or "external" recruitment announcement.

In late September of 1998, a bargaining unit employee who had applied for the position contacted then AFGE Local 1923 Vice President Joseph Flynn regarding the selection process. The employee told Flynn that he did not think that his application had been given fair and proper consideration, and that, based on his longevity with the Activity, he should have been placed on the best qualified (BQ) list.

On October 8, 1998, Flynn submitted a data request under section 7114(b)(4) of the Statute. In order to determine whether to file a grievance on the employee's behalf, Flynn sent an electronic mail message to Glenn Kendall, the Director of Legal and Technical Services for the Activity, requesting the following data with regard to vacancy announcement 98-079C:

(1) An official copy of announcement RN-98-079C;

(2) An official copy of the position description;

(3) An official copy of the related KSA's [n2] , task examples, and any other rating criteria;

(4) An official copy of the rating and ranking scores of each applicant, including work sheets;

(5) An official copy of the selection certificate; [ v56 p510 ]

(6) An official copy of the applications of all candidates; and

(7) A copy of the rules, regulations, and policies used in the rating and ranking process and in establishing the selection certificate.

The data was requested purged of personal identifiers.

Flynn explained in his request that he needed this data to determine whether HCFA misapplied and violated established merit promotion principles and procedures in the rating and ranking of applicants. He also explained that AFGE Local 1923 had been contacted by at least one employee who applied under this announcement, and who contended that irregularities occurred in the selection process. Finally, Flynn stated that the employee requested union representation for the purposes of filing a grievance and that the data was necessary for AFGE Local 1923 to meet its representational obligations.

At the hearing, Flynn further explained that he requested the data to determine whether HCFA had given the employee's application fair and appropriate consideration under various rules, regulations, and policies, including numerous provisions of the parties' Master Labor Agreement (MLA). Specifically, Flynn stated that, had he received and considered the requested data, he might have filed a grievance on the employee's behalf under Articles 1, 3, 24 and 26 of the MLA.

Flynn did not receive a response to his October 8, 1998, request. He sent Kendall a follow-up electronic mail message on October 16, 1998, effectively reiterating his request. Flynn did not receive a response.

AFGE Local 1923 never received the data that was requested by Flynn in Case No. WA-CA-90046. [n3]

B. Case No. WA-CA-90378

HCFA issued Recruitment Notice No. RN-99-016 (vacancy announcement 99-016) in February of 1999, for a bargaining unit position entitled Health Insurance Specialist, GS-107-13. The position in vacancy announcement 99-016 was open to HCFA employees, as well as to applicants outside the Federal service. It was an "outside" or "external" recruitment announcement.

In March of 1999, a bargaining unit employee who had applied for the position contacted AFGE Local 1923 Vice President Ann Robinson regarding the selection process for the vacancy. The employee told Robinson that she thought that something had gone wrong with the selection process and that she did not think she had received "proper credit" for the material she set forth in her application. The employee also stated that she thought that she should have been selected for the position.

On March 26, 1999, Robinson submitted a written data request under section 7114(b)(4) of the Statute in order to determine whether to file a grievance on this employee's behalf. This request, hand delivered to the office of Glenn Kendall, requested the following data with regard to vacancy announcement 99-016:

(1) An official copy of announcement RN-99-016;

(2) An official copy of the position description;

(3) An official copy of the related KSA's, task examples, and any other rating criteria;

(4) An official copy of the rating and ranking scores of each applicant, including work sheets;

(5) An official copy of the selection certificate;

(6) An official copy of the applications of all candidates; and

(7) A copy of the rules, regulations, and policies used in the rating and ranking process and in establishing the selection certificate.

The data was requested purged of personal identifiers.

Robinson explained in her request that she needed this data to determine whether HCFA misapplied and violated established merit principles, policies and procedures in the rating and ranking of applicants. She also explained that AFGE Local 1923 had been contacted by an employee who applied under this announcement and believed that irregularities occurred in the selection process. Robinson stated that the employee was requesting Union representation for the purposes of filing a grievance and that the data was necessary for AFGE Local 1923 to meet its representational obligations.

Robinson requested the data because she did not have enough data to file a grievance. She was unable to tell from the documentation the employee provided her, whether the material in the employee's application had been "properly credited." Had Robinson received and considered the requested data, she might have filed a [ v56 p511 ] grievance on the employee's behalf under Articles 1, 3, 24 and 26 of the MLA. It was Robinson's understanding that after she received the requested data, she could file a grievance on the employee's behalf.

Robinson did not receive a response to her March 26, 1999, request until a letter dated May 18, 1999, [n4] approximately one month after April 13, 1999, the date she filed the Unfair Labor Practice Charge in Case No. WA-CA-90378.

AFGE Local 1923 never received the data requested by Robinson. [n5]

C. Procedure for Evaluating Applicants

The examination of applicants under both vacancy announcements, which included the rating and ranking of applicants and establishing a BQ list, was performed by HCFA pursuant to authority delegated to it by the Office of Personnel Management (OPM) in an interagency agreement (IA). The personnel who performed that function worked for, and acted on behalf of HCFA, not for OPM.

The examination of applicants under external or outside vacancy announcements, and the process used to fill the positions, is based on merit selection principles. The IA also requires that all examining activities conform with the requirements "of Federal laws, rules, regulations and of any applicable court orders."

The IA requires HCFA rate applications, notify applicants of assigned ratings, and provide a procedure for applicants to request reconsideration of their ratings. The IA allows that procedure be incorporated into the agency's administrative grievance system, or an alternative dispute resolution system, and be used for agency employed applicants who grieve an assigned rating.

HCFA and AFGE Local 1923, in their MLA, bargained over some aspects of external recruitments. The IA also requires HCFA to "[r]espond to correspondence/inquires" including, but not limited to, "requests for information covered by the provisions of the Freedom of Information Act and the Privacy Act."

Discussion and Conclusions of Law

A. The Statute

Section 7114(b)(4) of the Statute provides that the duty to bargain in good faith includes, among other things, the obligation -

4. in the case of an agency, to furnish 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[.] . . .

Sections 7116(a)(1), (5) and (8) of the Statute provide:

(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency -

(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter;

---

(5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter;

---

(8) to otherwise fail or refuse to comply with any provision of this chapter.

A. AFGE Local 1923 was Entitled to the Requested Information

The record herein and HCFA's admissions in its answers establish that the information requested by AFGE Local 1923 was normally maintained by HCFA, was reasonably available to HCFA, and did not constitute guidance, advice, or counsel provided for management officials relating to collective bargaining. [ v56 p512 ]

The only issues which remain in dispute are whether AFGE Local 1923 articulated its need for the requested data with particularity; whether the data is necessary; and whether HCFA established any reasons prohibiting the disclosure of the information.

1. The Information Requested by AFGE Local 1923 is Necessary for the Union to Perform its Representational Duties

The right to data under section 7114(b)(4) of the Statute extends to data needed by a union to perform its full range of representational responsibilities. Federal Aviation Administration et al., 55 FLRA 254, 259 (1999)(FAA). That includes deciding whether to file a grievance, Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 26 FLRA 407 (1987)(Fort Bragg), as well as simply assessing the strengths or weaknesses of an employee's complaint. U.S. Department of Labor, Washington, DC, 39 FLRA 531, 539 (1991) remanded sub nom. DOL v. FLRA, No. 91-1174 (D.C. Cir. 1992) decision on remand dismissed on other grounds, 51 FLRA 462 (1995)(DOL).

AFGE Local 1923 requested data to assist it in assessing whether to file grievances on behalf of two different employees who contacted the Union and complained about the manner in which their applications were considered for two vacant positions in HCFA. The Union could not make even a preliminary assessment of whether the complaining employee was minimally qualified for the vacant position without the Recruitment Notice or the position description. The rating and ranking scores and worksheets of the applicants were necessary for AFGE Local 1923 to determine whether the rating and ranking factors were applied uniformly or disparately, and whether merit principles, policies, and procedures were followed in a fair and equitable manner. The applications of every applicant were necessary for the Union to compare the applicants, and the credit that they received from the selecting official for each KSA. Finally, a copy of the rules, regulations, and policies were needed so that the Union could learn what guidance the selecting official relied on in determining how applicants should be rated and ranked, and what was used to establish the selection certificate. [n6] Thus, without the requested data, AFGE Local 1923 could not perform its representational functions.

To the extent that HCFA raises as a defense, that the Union did not need the information because AFGE Local 1923 was not able to file a grievance concerning irregularities which may have occurred during the selection of applicants in an external recruitment announcement, this defense is rejected. I conclude that HCFA is not entitled to deny the Union's data requested under the Statute on that ground. Specifically, the Authority has held that ". . . the resolution of grievability questions cognizable under law is for an arbitrator under [the] parties' negotiated agreements . . . the existence of such a threshold question . . . would not in and of itself relieve the Respondent of its obligation to furnish otherwise necessary information . . . ." Internal Revenue Service, National Office, 21 FLRA 646, 649 n.3 (1986). See also Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 39 FLRA 298 (1991)(agency required to furnish data concerning the filing of non-unit positions when the data is necessary to fulfill its representational responsibilities); Defense Mapping Agency, Aerospace Center, St. Louis, Missouri, 21 FLRA 595, 605-06 (1986).

The MLA could reasonably be construed to provide that AFGE Local 1923 could file a grievance over violations or the misapplication of laws, rules, and regulations applying to bargaining unit employees. The MLA expressly grants AFGE Local 1923 such a right. Specifically, Article 24 of the MLA contains the MLA's broad-scope grievance procedures, which permits the Union to file a grievance concerning, among numerous matters, "any matter relating to the employment of the employee . . . concerning . . . any claimed violation, misinterpretation or misapplication of any law, rule or regulation affecting conditions of employment." MLA Article 24, Section 2.C.2. Article 1 of the MLA provides that, in the administration of all matters covered by the MLA, "officials and employees will be governed by existing or future laws and existing Government-wide rules and regulations as defined in 5 U.S.C. § 71, Executive Order 12871 and by subsequently enacted Government-wide rules and regulations implementing 5 U.S.C. § 2302." MLA Article 1, Section 1. The Appendix to Article 3 of the MLA, Merit System Principles, provides that Federal Personnel Management be implemented consistent with multiple merit system principles, including, but not limited to, the principle that "[a]ll employees and applicants for employment [ v56 p513 ] should receive fair and equitable treatment in all aspects of personnel management . . . ." MLA Appendix I to Article 3, Section B.

In light of the foregoing, I conclude that AFGE Local 1923 needed the requested data in both cases to perform its representational duties.

2. AFGE Local 1923 Articulated its Need for the Requested Data to HCFA with Particularity

In Internal Revenue Service, Washington DC and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661 (1995), the Authority set forth the following framework for determining whether data is requested with sufficient particularity under section 7114(b)(4) of the Statute:

[A] union requesting information under [section 7114(b)(4)] 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. The requirement that a union establish such need will not be satisfied merely by showing that requested information is or would be relevant or useful to a union. Instead, a union must establish that requested information is `required in order for the union adequately to represent its members.' (footnote and citations omitted).

The union is responsible for articulating and explaining its interests in disclosure of the information. Satisfying this burden requires more than a conclusory or bare assertion. Among other things, a request for information must be sufficient to permit an agency to make a reasoned judgment as to whether information must be disclosed under the Statute. . . .

Id. at 669-70.

The facts of this case establish that AFGE Local 1923 met the particularized need standard. Flynn's electronic mail message dated October 8, 1998, and Robinson's letter dated March 26, 1999, stated that the Union needed the requested data to determine whether HCFA had misapplied and/or violated established merit principles, policies and procedures in the rating and ranking of applicants under the vacancy announcements. The requests also stated that AFGE Local 1923 had been contacted by employees who had applied under the announcements and who contend that irregularities occurred in the selection process. The requests stated further that the employees were requesting Union representation for the purposes of filing a grievance and that the requested data was necessary for the Union to meet its representational obligations.

In addition to explaining the Union's need, the requests show that AFGE Local 1923 unambiguously connected its intended use for the data - to determine whether HCFA misapplied or violated merit principles, policies and procedures - with its representational responsibilities under the Statute, representation of employees in a grievance. See, e.g., Department of Justice, Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota v. FLRA, 144 F.3d 90 (D.C. Cir. 1998)(union articulated a particularized need for the requested data by connecting its request for disciplinary records with its intended use for the data - comparison with the potential grievant's record); Department of the Air Force, Scott Air Force Base, Illinois v. FLRA, 104 F.3d 1396 (D.C. Cir. 1997)(union articulated a particularized need for the requested data by connecting its request for a letter dealing with the discipline of a supervisor to its use for the data - a potential grievance on workplace safety). See FAA, (union articulated a particularized need for the requested data by connecting its request for seniority policy data to its use for the data - to administer a contractual provision); See also, Health Care Financing Administration, Case No. WA-CA-80383, OALJ 99-21, slip op. at 7-8 (March 18, 1999)(union articulated a particularized need for the requested data by connecting its request for data regarding an external recruitment announcement to its use for the data - to determine whether or not to file a grievance on an employee's behalf).

The HCFA's contention that the AFGE Local 1923 failed to articulate its particularized need for the data lacks merit. The HCFA knew, both from the plain language of the requests, as previously stated, and from the MLA, that AFGE Local 1923 needed the requested data to perform its representational duties.

Article 26 of the MLA involves outside or external recruitment. Article 26, Section 9, provides, in pertinent part, that "[w]hen a decision is made for outside recruitment for a bargaining unit position, a summary vacancy announcement identifying title, series, and grade of the outside recruitment will be timely announced to employees via e-mail and made available on HCFANet. . . ." MLA Article 26, Section 9.A.1.b. Therefore, based on the clear and unambiguous language of the requests and the parties' MLA, HCFA was provided with a statement of AFGE Local 1923's need for the requested data, stated with particularity, which connected the Union's intended use for the data with its representational [ v56 p514 ] obligations and, thereby, satisfied the Authority's particularized need requirements.

In light of the foregoing, I conclude that in both cases, AFGE Local 1923 advised HCFA with sufficient particularity of the need for the requested information.

3. HCFA Failed to Respond to the Requests for the Information

HCFA did not timely respond to the Union's data requests regarding vacancy announcements 98-079C and 99-016 before AFGE Local 1923 filed the subject unfair labor practice charges. [n7] In this regard, HCFA did not respond to the Union's request in Case No. WA-CA-90378 until some seven weeks after the data request and one month after the unfair labor practice charge was filed. Hardly a timely or meaningful response.

The Authority has interpreted section 7114(b)(4) of the Statute as requiring an agency to respond to a data request even if the response is to tell an exclusive representative that the agency does not maintain the data which the exclusive representative seeks. See Department of Health and Human Services, Social Security Administration, New York Region, New York, New York, 52 FLRA 1133, 1149-50 (1997)(SSA, New York Region). See also U.S. Naval Supply Center, San Diego, California, 26 FLRA 324, 326-27 (1987). The Authority has also stated that a timely reply to a union's data request under section 7114(b)(4) of the Statute is necessary for a full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining. See SSA, New York Region, 52 FLRA at 1150; U.S. Department of Justice, Office of Justice Programs, 45 FLRA 1022, 1026-27 (1992). See also Social Security Administration, Baltimore, Maryland and Social Security Administration, Area II, Boston Region, Boston, Massachusetts, 39 FLRA 650, 656 (1991).

Thus, HCFA's failure to timely respond to AFGE Local 1923's data requests in both cases violated sections 7116(a)(1), (5) and (8) of the Statute. Even if, as the HCFA contends, the Union was aware of the HCFA's position on the disclosure of the data from a previous ULP case. A union can not be required to infer an agency's position from an event that occurred under different circumstances, approximately one year before the date that the requests in these cases were submitted.

4. HCFA has not Raised any Defense that Justifies its Refusal to Provide the Union the Requested Data

For the first time at the hearing, the HCFA raised three defenses to the disclosure of the requested data under the Statute. HCFA's failure to timely respond to the data requests not only constituted violations of the Statute, it also forecloses HCFA from raising countervailing interests to disclosure of the data for the first time at the hearing. The Authority has held that a union is required to articulate its disclosure interests at or near the time of the request -- not for the first time at the ULP hearing. See Department of the Air Force, Washington, DC and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 52 FLRA 1000, 1006 (1997). Similarly, an agency's "expression of countervailing interests for the first time at the unfair labor practice hearing does not absolve the [agency] of its obligations under the Statute." FAA, 55 FLRA at 260. Accordingly, HCFA's defenses, that were not communicated to AFGE Local 1923, can not be raised for the first time in this proceeding.

However, even if HCFA's defenses are considered, they must be rejected. HCFA argues that the Privacy Act bars the disclosure of the data; that the data requested does not concern a subject within the scope of collective bargaining; and that the IA prohibited the HCFA from furnishing the data. Each of these defenses, to the extent that they were asserted at all, are rejected.

D. Privacy Act

In U.S. Department of Transportation, Federal Aviation Administration, New York TRACON, Westbury, New York, 50 FLRA 338, 345 (1995)(TRACON), the Authority established a framework of what an agency must demonstrate when asserting that the Privacy Act, 5 U.S.C. § 552, bars disclosure of data requested under section 7114(b)(4) of the Statute:

(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.

Id. at 345. See DOL, 51 FLRA at 469, citing TRACON, 50 FLRA at 345.

The HCFA has not met its burden under the TRACON framework. AFGE Local 1923 specifically [ v56 p515 ] requested the data purged of personal identifiers in order to avoid any Privacy Act implications and to ease HCFA's burden in disclosing the documents. [n8] Further, the documents requested in items (1), (2), (3), and (7) of both requests include no items that raise privacy concerns. Thus, the Privacy Act did not prohibit HCFA from providing AFGE Local 1923 with the data it requested. See, e.g., TRACON, 50 FLRA at 342 n.5.

E. External Recruitment

HCFA contends that the data requested does not concern a subject within the scope of collective bargaining because: (1) the external recruitment procedure is not covered by the parties' MLA; (2) the external recruitment process is operated under delegated authority from OPM and the Union has no collective bargaining relationship with OPM; and (3) selections under the external recruitment procedure are considered appointments, and therefore, are excluded from the negotiated grievance procedure under section 7121(c)(4) of the Statute.

Whether the external recruitment process used by the HCFA, or parts thereof, was itself open to negotiation is not determinative. It must be noted, as discussed above, that certain provisions of the MLA did pertain to the external recruitment process. See, e.g., MLA Appendix I to Article 3, Article 26, Sections 6.A., 9.A.1.b. Similarly, the fact that the parties did not, and could not, negotiate over the crediting plan (Department of the Interior, Washington, DC and Bureau of Reclamation, Lower Colorado Dams Project, Boulder City, Nevada, 26 FLRA 832 (1987)), does not justify HCFA's failure to furnish such a plan if the Union needs it to determine whether to file a grievance alleging an inconsistent application of that plan. See Fort Bragg, 26 FLRA at 413-14.

OPM has delegated examining authority to HCFA. HCFA acknowledged that it acts for itself, not OPM, when considering applicants under this delegated authority, and that a grievance filed over the administration of the selection procedures would be against the HCFA, not OPM. Furthermore, the IA itself does not preclude the disclosure of the requested data. IA at I.E.2.b., p.3 ("the HCFA shall. . . [r]espond to correspondence/inquiries . . ."); Section 9.3 ("[i]nformation in this section is advisory only. Each agency is ultimately responsible for decision about the release of examining information.").

Finally, with respect to the word "appointment" as used in section 7121(c)(4) of the Statute, the Authority has consistently held that when a current Federal employee applies for another Federal job, as was the case here, the Federal employee's selection to that position is not considered an appointment under section 7121(c)(4) of the Statute. Instead, an "appointment" under that section is an applicant's initial entry into the Federal service. See, e.g., National Federation of Employees, Local 2010 and U.S. Department of Agriculture, Forest Service, Rogue River National Forest, 55 FLRA 533, 534 (1999)("appointment" in section 7121(c)(4) refers "to the action which takes place at the time an individual is initially hired into the Federal service."), citing, United States Information Agency and American Federation of Government Employees, Local 1812, 32 FLRA 739, 748 (1988); Suzal v. Director, United States Information Agency, 32 F.3d 574, 580 (D.C. Cir. 1994) ("appointment" in section 7121(c)(4) "refer[s] only to initial appointments. . ."); U.S. Department of Defense Dependents Schools, Kaiserslautern, Germany and Overseas Education Association, 51 FLRA 210, 212 (1995), citing, National Council of Field Labor Locals of the American Federation of Government Employees, AFL-CIO and U.S. Department of Labor, 4 FLRA 376, 381 (1980)(the term appointment relates to the initial entry of an applicant into Federal service).

The employees that came to AFGE Local 1923 for assistance were employees of HCFA and were not seeking initial entry into Federal service. Therefore, section 7121(c)(4) does not preclude AFGE Local 1923 from filing grievances on their behalf because such grievances would not concern an initial appointment into the Federal service. See American Federation of Government Employees, Local 1843 and U.S. Department of Veterans Affairs Medical Center, Northport, New York, 51 FLRA 444, 447 (1995).

Accordingly, I conclude that HCFA has not produced any reason that would justify not providing AFGE Local 1923 with the data it requested. Thus, I further conclude that AFGE Local 1923 was entitled to the requested data pursuant to section 7114(b)(4) of the Statute and HCFA violated sections 7116(a)(1),(5) and (8) of the Statute by failing to respond to AFGE Local 1923's requests for data and by failing and refusing to provide the Union with such data. [ v56 p516 ]

Remedy

The GC of the FLRA requested at the hearing and in its brief that HCFA be ordered to refrain from raising the defense of untimeliness in any grievance in connection with the disputed vacancy announcements, as long as the grievance is timely filed from the date the Union receives the requested information. HCFA objects to any such remedy, but admits it does have the authority to agree to a waiver of any timeliness defense in a grievance.

In light of the circumstances of this case, I conclude that the remedy requested by the GC of the FLRA is appropriate. To conclude otherwise would permit HCFA to benefit from its own misconduct.

Having found that HCFA violated sections 7116(a)(1), (5) and (8) of the Statute, I recommend that the Authority adopt the following Order:

ORDER

Pursuant to section 2423.41(c) of the Federal Labor Relations Authority's Rules and Regulations and Section 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the Health Care Financing Administration, shall:

1. Cease and desist from:

(a) Failing and refusing to reply to requests for data from the American Federation of Government Employees, Local 1923 (Local 1923), the exclusive representative of its employees, which reply is necessary for a full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.

(b) Failing and refusing to furnish Local 1923 with data it requested on October 8, 1998, in connection with Vacancy Announcement RN-98-079C, consisting of copies of: (1) the announcement in RN-98-079C; (2) the position description; (3) the related KSA's, task examples, and any other rating criteria; (4) the rating and ranking scores of each applicant, including work sheets; (5) the selection certificate; (6) the applications of all candidates; and (7) the rules, regulations, and policies used in the rating and ranking process and in establishing the selection certificate, all purged of all personal identifiers.

(c) Failing and refusing to furnish the American Federation of Government Employees, Local 1923, with data it requested on March 26, 1999, in connection with Vacancy Announcement RN-99-016, consisting of copies of: (1) the announcement in RN-99-016; (2) the position description; (3) the related KSA's, task examples, and any other rating criteria; (4) the sanitized rating and ranking scores of each applicant, including work sheets; (5) the sanitized selection certificate; (6) the sanitized applications of all candidates; and (7) the rules, regulations, and policies used in the rating and ranking process and in establishing the selection certificate, all purged of any personal identifiers.

(d) 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) Furnish the American Federation of Government Employees, Local 1923, the data it requested on October 8, 1998, in connection with Vacancy Announcement RN-98-079C, consisting of copies of: (1) the announcement in RN-98-079C; (2) the position description; (3) the related KSA's, task examples, and any other rating criteria; (4) the sanitized rating and ranking scores of each applicant, including work sheets; (5) the sanitized selection certificate; (6) the sanitized applications of all candidates; and (7) the rules, regulations, and policies used in the rating and ranking process and in establishing the selection certificate.

(b) Furnish the American Federation of Government Employees, Local 1923, the data it requested on March 26, 1999, in connection with Vacancy Announcement RN-99-016, consisting of copies of: (1) the announcement in RN-99-016; (2) the position description; (3) the related KSA's, task examples, and any other rating criteria; (4) the sanitized rating and ranking scores of each applicant, including work sheets; (5) the sanitized selection certificate; (6) the sanitized applications of all candidates; and (7) the rules, regulations, and policies used in the rating and ranking process and in establishing the selection certificate.

(c) Refrain from alleging as a defense, in any subsequent grievance and/or arbitration filed in connection with Vacancy Announcements RN-99-079C and RN-99-016, that the grievance is untimely, as long as the grievance is timely filed from the date the American Federation of Government Employees, Local 1923, receives the requested information.

(d) Post at its facilities where bargaining unit employees represented by the American Federation of Government Employees, Local 1923 are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt [ v56 p517 ] of such forms, they shall be signed by the Chairman of the 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.

(e) Pursuant to section 2423.41(e) of the Authority's Rules and Regulations, notify the Regional Director of the 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 comply herewith.

Issued, Washington, DC, September 24, 1999.

______

SAMUEL A. CHAITOVITZ

Chief Administrative Law Judge

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Health Care Financing Administration has violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to reply to requests for data from the American Federation of Government Employees, Local 1923, the exclusive representative of our employees, which reply is necessary for a full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining.

WE WILL NOT fail and refuse to furnish the American Federation of Government Employees, Local 1923, data it requested on October 8, 1998, in connection with Vacancy Announcement RN-98-079C, consisting of copies of: (1) the announcement in RN-98-079C; (2) the position description; (3) the related KSA's, task examples, and any other rating criteria; (4) the sanitized rating and ranking scores of each applicant, including work sheets; (5) the sanitized selection certificate; (6) the sanitized applications of all candidates; and (7) the rules, regulations, and policies used in the rating and ranking process and in establishing the selection certificate.

WE WILL NOT fail and refuse to furnish the American Federation of Government Employees, Local 1923, data it requested on March 26, 1999, in connection with Vacancy Announcement RN-99-016, consisting of copies of: (1) the announcement in RN-99-016; (2) the position description; (3) the related KSA's, task examples, and any other rating criteria; (4) the sanitized rating and ranking scores of each applicant, including work sheets; (5) the sanitized selection certificate; (6) the sanitized applications of all candidates; and (7) the rules, regulations, and policies used in the rating and ranking process and in establishing the selection certificate.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL furnish the American Federation of Government Employees, Local 1923, all the data it requested on October 8, 1998, in connection with Vacancy Announcement RN-98-079C, consisting of copies of: (1) the announcement in RN-98-079C; (2) the position description; (3) the related KSA's, task examples, and any other rating criteria; (4) the sanitized rating and [ v56 p518 ] ranking scores of each applicant, including work sheets; (5) the sanitized selection certificate; (6) the sanitized applications of all candidates; and (7) the rules, regulations, and policies used in the rating and ranking process and in establishing the selection certificate.

WE WILL furnish the American Federation of Government Employees, Local 1923, all the data it requested on March 26, 1999, in connection with Vacancy Announcement RN-99-016, consisting of copies of: (1) the announcement in RN-99-016; (2) the position description; (3) the related KSA's, task examples, and any other rating criteria; (4) the sanitized rating and ranking scores of each applicant, including work sheets; (5) the sanitized selection certificate; (6) the sanitized applications of all candidates; and (7) the rules, regulations, and policies used in the rating and ranking process and in establishing the selection certificate.

WE WILL refrain from alleging as a defense, in any subsequent grievance and/or arbitration filed in connection with Vacancy Announcements RN-99-079C and RN-99-016, that the grievance is untimely, as long as the grievance is timely filed from the date the American Federation of Government Employees, Local 1923, receives the requested information.

______

(Activity)

Date:__ By:_____

(Signature) (Title)

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 any of its provisions, they may communicate directly with the Regional Director, Washington, DC Regional Office, Federal Labor Relations Authority, whose address is: 800 "K" Street, NW., Suite 910, Washington, DC 20001, and whose telephone number is: (202)482-6700.

File 1: Authority's Decision in 56 FLRA No. 79

File 2: ALJ's Decision

Footnote # 1 for
56 FLRA No. 79

• ALJ's Decision

The Complaint in Case No. WA-CA-90046 was amended.

Footnote # 2 for
56 FLRA No. 79

• ALJ's Decision

Knowledge, Skills and Abilities.

Footnote # 3 for
56 FLRA No. 79

• ALJ's Decision

Flynn testified that the Union still needs this data to pursue an employee's grievance.

Footnote # 4 for
56 FLRA No. 79

• ALJ's Decision

HCFA refused to provide the requested data.

Footnote # 5 for
56 FLRA No. 79

• ALJ's Decision

Robinson testified that AFGE Local 1923 needs the data to represent the employee who still wants to learn why she was not selected for the position.

Footnote # 6 for
56 FLRA No. 79

• ALJ's Decision

Together, the data requested by the Union is sometimes referred to as the selection package for a vacancy or recruitment announcement. Items 2 and 3 of the Union's data requests are also referred to as a crediting plan. Crediting plans are documents developed by an employer to rate and rank candidates for a specific position. See U.S. Department of Justice, Bureau of Prisons et al. v. FLRA, 988 F.2d 1267, 1268 (D.C. Cir. 1993). The Authority has acknowledged that a union needs a crediting plan to assess employees' complaints about the rating and ranking process, including employees who were not placed on the BQ list or, if placed on the list, not selected. See Fort Bragg, 26 FLRA at 413-14.

Footnote # 7 for
56 FLRA No. 79

• ALJ's Decision

Counsel for HCFA characterized HCFA's behavior as a "failure or neglect" to give the Union a written response.

Footnote # 8 for
56 FLRA No. 79

• ALJ's Decision

The documents themselves as provided by HCFA at the hearing in response to a subpoena confirm that the requested data is not prohibited from disclosure by the Privacy Act.