[ v07 p629 ]
07:0629(100)CA
The decision of the Authority follows:
7 FLRA No. 100
VETERANS ADMINISTRATION REGIONAL
OFFICE, DENVER, COLORADO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1557
Charging Party
Case No. 7-CA-406
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION AND ORDER IN THE
ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD ENGAGED IN
CERTAIN UNFAIR LABOR PRACTICES AND RECOMMENDING THAT IT BE ORDERED TO
CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION. NO
EXCEPTIONS WERE FILED TO THE JUDGE'S DECISION AND ORDER.
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
(5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE (THE STATUTE) THE AUTHORITY HAS REVIEWED THE RULINGS
OF THE JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND ORDER AND THE ENTIRE RECORD IN THIS CASE, AND
NOTING PARTICULARLY THE ABSENCE OF EXCEPTIONS, THE AUTHORITY HEREBY
ADOPTS THE JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS. /1/
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S RULES AND REGULATIONS AND SECTION 7118 OF THE STATUTE, IT IS
HEREBY ORDERED THAT THE VETERANS ADMINISTRATION REGIONAL OFFICE, DENVER,
COLORADO, SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO PROVIDE TO THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, THE NAMES OF EMPLOYEES WHICH CORRESPOND TO THE
ALPHANUMERICAL IDENTIFICATION DESIGNATIONS USED BY THE MERIT PROMOTION
RATING PANEL ON DECEMBER 12, 1979, DURING THE PANEL'S RATING OF
CANDIDATES ON MERIT PROMOTION PANEL NO. 79-40A.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) UPON REQUEST, PROVIDE TO THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1557, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE,
THE NAMES OF EMPLOYEES WHICH CORRESPOND TO THE ALPHANUMERICAL
IDENTIFICATION DESIGNATIONS USED BY THE MERIT PROMOTION RATING PANEL ON
DECEMBER 12, 1979, DURING THE PANEL'S RATING OF CANDIDATES ON MERIT
PROMOTION PANEL NO. 79-40A.
(B) POST AT ITS FACILITIES AT THE VETERANS ADMINISTRATION REGIONAL
OFFICE, DENVER, COLORADO, COPIES OF THE ATTACHED NOTICE ON FORMS TO BE
FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH
FORMS THEY SHALL BE SIGNED BY THE DIRECTOR OF THE VETERANS
ADMINISTRATION, DENVER REGIONAL OFFICE, AND SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS
PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES ARE
CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE
THAT SUCH NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION VII, FEDERAL LABOR
RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., JANUARY 15, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT FAIL OR REFUSE TO PROVIDE TO THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, THE NAMES OF EMPLOYEES WHICH CORRESPOND TO THE
ALPHANUMERICAL IDENTIFICATION DESIGNATIONS USED BY THE MERIT PROMOTION
RATING PANEL ON DECEMBER 12, 1979, DURING THE PANEL'S RATING OF
CANDIDATES ON MERIT PROMOTION PANEL NO. 79-40A.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL, UPON REQUEST, PROVIDE TO THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, THE NAMES OF EMPLOYEES WHICH CORRESPOND TO THE
ALPHANUMERICAL IDENTIFICATION DESIGNATIONS USED BY THE MERIT PROMOTION
RATING PANEL ON DECEMBER 12, 1979, DURING THE PANEL'S RATING OF
CANDIDATES ON MERIT PROMOTION PANEL NO. 79-40A.
(AGENCY OR ACTIVITY)
DATED: BY:
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION VII, WHOSE
ADDRESS IS: 1100 MAIN STREET, KANSAS CITY, MISSOURI, 64105 AND WHOSE
TELEPHONE NUMBER IS: (816) 374-2199.
-------------------- ALJ$ DECISION FOLLOWS --------------------
DOUGLAS D. DOANNE, ESQ.
FOR THE RESPONDENT
GAVIN K. LODGE, ESQ.
FOR THE GENERAL COUNSEL
BEFORE: SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
CASE NO. 7-CA-406
DECISION
STATEMENT OF THE CASE
THIS CASE AROSE UNDER THE PROVISIONS OF THE FEDERAL LABOR-MANAGEMENT
RELATIONS STATUTE, 92 STAT. 1191, 5 U.S.C. 7101 ET. SEQ., (HEREIN
REFERRED TO AS THE STATUTE) AND THE RULES AND REGULATIONS ISSUED
THEREUNDER.
UPON AN UNFAIR LABOR PRACTICE CHARGE FILED BY THE AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557 (HEREIN THE UNION) AGAINST
THE VETERANS ADMINISTRATION REGIONAL OFFICE, DENVER, COLORADO (HEREIN
THE RESPONDENT), THE GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS
AUTHORITY, BY THE REGIONAL DIRECTOR FOR REGION 7, ISSUED A COMPLAINT AND
NOTICE OF HEARING ON MAY 6, 1980 ALLEGING RESPONDENT ENGAGED IN UNFAIR
LABOR PRACTICE CONDUCT VIOLATIVE OF SECTIONS 7116(A)(1), (5), AND (8) OF
THE STATUTE. THE COMPLAINT ALLEGES RESPONDENT VIOLATED THE STATUTE BY
REFUSING TO FURNISH THE UNION INFORMATION WHICH WOULD ENABLE THE UNION
TO ASCERTAIN THE SPECIFIC IDENTITIES AND THE RATINGS OF CANDIDATES RATED
BY A MERIT PROMOTION PANEL.
A HEARING ON THE COMPLAINT WAS CONDUCTED ON JUNE 11, 1980 AT WHICH
TIME THE GENERAL COUNSEL AND RESPONDENT WERE REPRESENTED BY COUNSEL AND
AFFORDED FULL OPPORTUNITY TO ADDUCE EVIDENCE AND CALL, EXAMINE AND
CROSS-EXAMINE WITNESSES AND ARGUE ORALLY. BRIEFS WERE FILED AND HAVE
BEEN DULY CONSIDERED.
UPON THE ENTIRE RECORD IN THIS MATTER, MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, AND FROM MY EVALUATION OF THE EVIDENCE, I
MAKE THE FOLLOWING:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
THE FACTS ARE NOT IN DISPUTE. AT ALL TIMES MATERIAL HEREIN THE UNION
HAS BEEN THE EXCLUSIVE COLLECTIVE BARGAINING REPRESENTATIVE OF
RESPONDENT'S NONPROFESSIONAL AND PROFESSIONAL EMPLOYEES. ON OR ABOUT
DECEMBER 12, 1979 RESPONDENT ASSEMBLED A MERIT PROMOTION PANEL OF THREE
EMPLOYEES TO CONSIDER THE QUALIFICATIONS OF VARIOUS CANDIDATES FOR A
POSITION OF ACCOUNTS RECEIVABLE ANALYST. PURSUANT TO THE TERMS OF THE
COLLECTIVE BARGAINING AGREEMENT BETWEEN THE UNION AND RESPONDENT, A
UNION OBSERVER WAS PRESENT AT THE PANEL MEETING. THE PANEL MEMBERS
UNDER THE TERMS OF THE AGREEMENT REVIEWED THE OFFICIAL PERSONNEL FILE
(OPF) OF EACH CANDIDATE AND INDIVIDUALLY RATED EACH PERSON BASED UPON
THE CANDIDATES' EXPERIENCE, EDUCATION, TRAINING AND DEVELOPMENT, AWARDS,
AND SUPERVISOR'S APPRAISAL. HOWEVER, THE NAMES OF THE CANDIDATES HAD
BEEN REMOVED FROM THE OPF'S AND EACH CANDIDATE WAS ASSIGNED AN
ALPHANUMERICAL DESIGNATION. THUS, THE IDENTITIES OF THE CANDIDATES
UNDER CONSIDERATION WERE NOT DISCLOSED TO THE PANEL WHILE IT REVIEWED
AND DISCUSSED THE CANDIDATES' QUALIFICATIONS.
BY AGREEMENT WITH RESPONDENT, THE UNION OBSERVER DID NOT HAVE ACCESS
TO THE OPF'S NOR DID HE TAKE PART IN THE PANEL'S DISCUSSIONS.
NEVERTHELESS, AS PANEL MEMBERS ANNOUNCED THEIR RATINGS FOR THE VARIOUS
FACTORS BEING CONSIDERED, THE UNION OBSERVER, JOHN BRADLEY, RECORDED THE
SPECIFIC RATINGS AND THE TOTALS FOR EACH CANDIDATE ON A TWO PAGE
DOCUMENT FILED WITH THE UNION AT THE CONCLUSION OF THE MEETING. THE
DOCUMENT WAS COMPRISED OF A "CHECK SHEET" WITH A LARGE AREA RESERVED FOR
COMMENTS. /2/
THE PANEL MEETING OF DECEMBER 12 CONCLUDED WITH ONE CANDIDATE BEING
RATED "HIGHLY QUALIFIED" FOR THE VACANCY AND THE RATERS WERE DISMISSED
WITHOUT EVER KNOWING THE INDIVIDUAL'S NAME. HOWEVER, LATER THAT SAME
DAY THE RATING PANEL AND BRADLEY WERE RECONVENED BY A REPRESENTATIVE OF
RESPONDENT'S PERSONNEL STAFF WHO EXPLAINED THAT A MISTAKE HAD BEEN MADE
AND THE PANEL HAD BEEN GIVEN WRONG RATING FACTORS TO USE DURING ITS
EARLIER DELIBERATIONS. ACCORDINGLY, THE PANEL WAS SUPPLIED WITH
DIFFERENT RATING FACTORS AND INSTRUCTED TO RERATE THE CANDIDATES IN THE
AREA OF "EXPERIENCE." THE PROCESS RESULTED IN TWO CANDIDATES, IDENTIFIED
ONLY BY THEIR ALPHANUMERICAL DESIGNATIONS, RECEIVING "HIGHLY QUALIFIED"
RATINGS AND THE PANEL AGAIN WAS DISMISSED.
SUBSEQUENTLY, MARY BACA, ONE OF THE TWO CANDIDATES RATED "HIGHLY
QUALIFIED," WAS SELECTED FOR THE POSITION. OLGA HOLLIS, ANOTHER
CANDIDATE FOR THE VACANCY, INFORMED CHIEF STEWARD MICHAEL PIERSON OF HER
SUSPICION THAT BACA HAD BEEN PRESELECTED FOR THE POSITION. PIERSON
INVESTIGATED THE ACCUSATION AND INTERVIEWED VARIOUS EMPLOYEES, INCLUDING
BRADLEY. BRADLEY INFORMED PIERSON WHAT HAD TRANSPIRED ON DECEMBER 12
BUT SINCE NO NAMES WERE USED DURING THE PANEL'S DELIBERATIONS, PIERSON
WAS UNABLE TO ASCERTAIN WHETHER BACA WAS ORIGINALLY RATED "HIGHLY
QUALIFIED" OR WHETHER SHE WAS RAISED TO THAT RATING DURING THE PANEL'S
SECOND MEETING. /3/ PIERSON CONCLUDED THAT WHILE THE INFORMATION HE HAD
THUS FAR ACCUMULATED TENDED TO INDICATE PRESELECTION HAD OCCURRED, MORE
INFORMATION WAS NECESSARY TO SUBSTANTIATE THIS POSITION. ACCORDINGLY,
ON DECEMBER 27, 1979 PIERSON REQUESTED, IN WRITING, THAT RESPONDENT
PROVIDE HIM WITH THE NAMES ASSOCIATED WITH THE ALPHANUMERICAL
DESIGNATIONS USED AT THE DECEMBER 12 MERIT PROMOTION PANEL MEETINGS.
PIERSON STATED THAT THE REQUEST WAS MADE "IN ACCORDANCE WITH PL 95-454
SECTION 7114(B)(4) AND A/SLMR 1109," AND THE INFORMATION WAS NECESSARY
"FOR GRIEVANCE DOCUMENTATION." /4/
PIERSON RECEIVED NO REPLY FROM RESPONDENT AND ON JANUARY 16, 1980
FORWARDED A SECOND WRITTEN REQUEST TO RESPONDENT FOR THE INFORMATION.
THIS REQUEST FURTHER NOTED THAT SINCE HOLLIS' GRIEVANCE HAD PROGRESSED
TO STEP 2 OF THE NEGOTIATED GRIEVANCE PROCEDURE, THE NAMES ASSOCIATED
WITH THE ALPHANUMERICAL DESIGNATIONS WERE "A PRIORITY NEED TO PRESENT AS
FACTUAL INFORMATION TO RESOLVE THE GRIEVANCE . . . ."
ON THAT SAME DAY A MANAGEMENT REPRESENTATIVE DELIVERED TO PIERSON A
PHOTOSTATIC COPY OF A LETTER DATED JANUARY 11, 1980 FROM RESPONDENT'S
PERSONNEL OFFICER, JAMES CAFFEY, WHICH INDICATED IT WAS IN RESPONSE TO
PIERSON'S DECEMBER 27 REQUEST. CAFFEY'S RESPONSE DENIED PIERSON'S
REQUEST BASED UPON "THE FREEDOM OF INFORMATION ACT, TITLE 5, UNITED
STATES CODE, SECTION 552(B)(2), (5) AND (6)." CAFFEY'S LETTER FURTHER
STATED THAT PIERSON COULD APPEAL THE DECISION, IF HE WISHED, BY WRITING
TO THE ADMINISTRATOR OF THE VETERANS ADMINISTRATION, WASHINGTON, D.C.
NO APPEAL TO RESPONDENT'S DENIAL OF THE REQUESTED INFORMATION WAS
EVER FILED. THE HOLLIS GRIEVANCE WAS DENIED BY MANAGEMENT AT STEP 2 AND
ADVANCED TO STEP 3 ON JANUARY 18, 1980. RESPONDENT PROPOSED AN
ADJUSTMENT OF THE GRIEVANCE ON JANUARY 31 WHICH DID NOT INVOLVE
PROVIDING THE REQUESTED INFORMATION. BY LETTER TO RESPONDENT DATED
FEBRUARY 28 PIERSON REQUESTED THAT TIME LIMITS ON THE GRIEVANCE BE HELD
IN ABEYANCE UNTIL THE UNFAIR LABOR PRACTICE CHARGE FILED ON THIS MATTER
ON FEBRUARY 7 WAS RESOLVED. /5/ THE UNION RECEIVED NO REPLY.
COUNSEL FOR THE GENERAL COUNSEL CONTENDS THAT UNDER SECTION
7114(B)(4) OF THE STATUTE AND THE LAW ESTABLISHED UNDER EXECUTIVE ORDER
11491, RESPONDENT WAS OBLIGATED TO FURNISH THE UNION THE NAMES OF THE
CANDIDATES UNDER CONSIDERATION FOR THE VACANCY BY THE PANEL AND THE
ALPHANUMERICAL DESIGNATIONS ASSIGNED EACH CANDIDATE.
RESPONDENT TAKES THE POSITION THAT: THE CASE HEREIN INVOLVES
APPLICATION OF THE FREEDOM OF INFORMATION ACT AND THEREFORE THE
AUTHORITY HAS NO JURISDICTION TO CONSIDER THE MATTER, EXCLUSIVE
JURISDICTION RESIDING IN THE FEDERAL COURTS; THE UNION AGREED IN THE
NEGOTIATED COLLECTIVE BARGAINING AGREEMENT TO FORGO ACCESS TO THE
INFORMATION IN QUESTION; IN THE CIRCUMSTANCES HEREIN, SECTION
7114(B)(4) OF THE STATUTE DOES NOT REQUIRE THAT RESPONDENT PROVIDE THE
UNION THE INFORMATION IT REQUESTED; AND, AS THE UNION COULD HAVE
APPEALED RESPONDENT'S REFUSAL TO PROVIDE THE INFORMATION TO THE
ADMINISTRATOR OF THE VETERANS ADMINISTRATION, UNDER SECTION 7-16(D) OF
THE STATUTE, THE UNION WAS PRECLUDED FROM RAISING THE REFUSAL IN AN
UNFAIR LABOR PRACTICE CHARGE.
IT HAS BEEN LONG ESTABLISHED UNDER EXECUTIVE ORDER 11491, AS AMENDED
(THE EXECUTIVE ORDER), THE PREDECESSOR TO THE STATUTE IN THE REGULATION
OF LABOR-MANAGEMENT RELATIONS IN THE FEDERAL SECTOR, THAT A UNION IS
ENTITLED TO ACCESS TO INFORMATION NECESSARY AND RELEVANT TO THE
EFFECTIVE PROCESSING OF A GRIEVANCE. /6/ THAT RIGHT EMANATED FROM
SECTION 10(E) OF THE EXECUTIVE ORDER UNDER WHICH A LABOR ORGANIZATION
WAS GIVEN THE RESPONSIBILITY FOR REPRESENTING THE INTERESTS OF ALL
EMPLOYEES IN THE COLLECTIVE BARGAINING UNIT. /7/ THE LANGUAGE OF
SECTION 7114(A)(1) OF THE STATUTE IS VIRTUALLY IDENTICAL TO SECTION
10(E) OF THE EXECUTIVE ORDER. /8/ THEREFORE, IT IS REASONABLE TO ASSUME
THAT RIGHTS WHICH A UNION POSSESSED UNDER SECTION 10(E) OF THE EXECUTIVE
ORDER WERE RETAINED UNDER SECTION 7114(A)(1) OF THE STATUTE. FURTHER,
SECTION 7135 OF THE STATUTE PROVIDES THAT "POLICIES, REGULATIONS, AND
PROCEDURES ESTABLISHED UNDER AND DECISIONS ISSUED UNDER . . . (THE
ORDER) . . . SHALL REMAIN IN FULL FORCE AND EFFECT UNTIL REVISED OR
REVOKED BY THE PRESIDENT, OR UNLESS SUPERCEDED BY SPECIFIC PROVISIONS OF
(THE STATUTE) OR BY REGULATIONS OR DECISIONS ISSUED PURSUANT TO (THE
STATUTE)."
THE UNION HEREIN SEEKS THE NAMES OF THE INDIVIDUALS CORRESPONDING TO
THE ALPHANUMERICAL DESIGNATIONS USED BY THE RATING PANEL FOR
IDENTIFICATION PURPOSES DURING ITS DECEMBER 12, 1979 MEETINGS. COUNSEL
FOR THE GENERAL COUNSEL URGES THAT THE INFORMATION WAS NECESSARY SO THAT
THE UNION COULD INTELLIGENTLY INVESTIGATE HOLLIS' GRIEVANCE ALLEGING
BACA WAS PRESELECTED FOR THE ANALYST POSITION. RESPONDENT RESISTS
PROVIDING THE INFORMATION CONTENDING, INTER ALIA, THAT THE PRIVACY OF
THE CANDIDATES FOR THE POSITION WOULD BE INFRINGED UPON SINCE BRADLEY,
THE UNION OBSERVER, WAS PRESENT DURING THE RATINGS, HEARD THE PANEL'S
DISCUSSION, RECORDED THE RATINGS AND WAS ABLE TO TAKE NOTES WHICH,
PRESUMABLY, COULD BE RECONSTRUCTED TO PROVIDE THE UNION WITH INFORMATION
RELATING TO ALL THE CANDIDATES' PERSONAL QUALIFICATIONS FOR THE
POSITION.
I FIND THE INFORMATION SOUGHT HEREIN TO BE CLEARLY NECESSARY AND
RELEVANT TO THE UNION CARRYING OUT IS REPRESENTATIONAL OBLIGATION IN THE
PROCESSING OF AN EMPLOYEE GRIEVANCE. THUS, IF BACA WAS THE CANDIDATE
WHO FIRST WAS DESIGNATED "HIGHLY QUALIFIED" BY THE PANEL, THE UNION
MIGHT CONCLUDE THAT ADDITIONAL EFFORTS ON HOLLIS' GRIEVANCE WOULD NOT BE
FRUITFUL AND THEREFORE, DECLINE PURSUING THE GRIEVANCE FURTHER THEREBY
CONSERVING ITS RESOURCES. ON THE OTHER HAND, IF BACA'S FIRST RATING WAS
RATHER LOW AS COMPARED WITH THE OTHER CANDIDATES AND ROSE
EXTRAORDINARILY AFTER THE DIFFERENT RATING FACTORS WERE USED, THE UNION
MIGHT WELL CONCLUDE THAT MORE EXTENSIVE INVESTIGATION WAS REQUIRED.
INDEED, THE UNION MIGHT ALSO CONCLUDE THAT THIS FACT PLUS WHATEVER OTHER
EVIDENCE IT HAD MIGHT BE SUFFICIENT TO PUT THE MATTER TO AN ARBITRATOR
FOR DECISION. ACCORDINGLY, WHILE THE RATINGS OF THE CANDIDATES DURING
THE TWO SESSIONS CONDUCTED ON DECEMBER 12 MAY OR MAY NOT BE CONCLUSIVE
IN DETERMINING WHETHER PRESELECTION OCCURRED, THE UNION SHOULD NOT BE
FORECLOSED FROM OBTAINING INFORMATION WHICH REASONABLY BEARS UPON THE
RATING PROCESS WHERE, AS HERE, AN UNUSUAL CIRCUMSTANCE RAISES A
REASONABLE SUSPICION OF IMPROPER CONDUCT.
UNDER THE EXECUTIVE ORDER IS WAS WELL SETTLED THAT AN EMPLOYER WAS
OBLIGATED TO PROVIDE TO THE COLLECTIVE BARGAINING REPRESENTATIVE
INFORMATION SIMILAR TO THAT SOUGHT HEREIN. /9/ FURTHER, ARGUMENTS
AGAINST SUPPLYING SUCH DATA, SUCH AS THOSE RAISED BY RESPONDENT HEREIN
WITH REGARD TO THE APPLICABILITY OF THE FREEDOM OF INFORMATION ACT, HAVE
BEEN FREQUENTLY RAISED AND REJECTED WHEN THE PRIVACY RIGHTS UNDER THE
EXECUTIVE ORDER AND THE PARAMOUNT PUBLIC INTEREST. /10/ ACCORDINGLY, I
FIND IN THE CASE HEREIN THAT THE UNION'S STATUTORY RIGHT AND NEED TO THE
INFORMATION SOUGHT SUBSTANTIALLY OUTWEIGHTS THE LOSS OF PRIVACY WHICH
MIGHT BE VISITED UPON AN EMPLOYEE WHOSE RATINGS BY THE PANEL, AND
WHATEVER OTHER INFORMATION MIGHT HAVE BEEN DISCLOSED DURING THE PANEL'S
DELIBERATIONS, ARE MADE KNOWN TO THE UNION. THERFORE, I CONCLUDE THAT
BY ITS REFUSAL TO PROVIDE THE UNION THE INFORMATION IT WAS ENTITLED TO
RECEIVE UNDER SECTION 7114(A)(1) OF THE STATUTE, RESPONDENT VIOLATED
SECTION 7116(A)(1) AND (5) OF THE STATUTE. /11/
TURNING NOW TO RESPONDENT'S JURISDICTION ARGUMENT, RESPONDENT CLAIMS
THAT SINCE THE SITUATION HEREIN INVOLVES APPLICATION OF THE FREEDOM OF
INFORMATION ACT, THE CASE IS WITHIN THE EXCLUSIVE JURISDICTION OF THE
FEDERAL COURTS THEREBY PRECLUDING THE FEDERAL LABOR RELATIONS AUTHORITY
FROM CONSIDERING THE MATTER. /12/ HOWEVER, COUNSEL FOR RESPONDENT CITES
NO CASES NOR SUGGESTS ANYTHING IN THE STATUTE OR ITS LEGISLATIVE HISTORY
TO SUPPORT THIS CONTENTION AND I AM OTHERWISE UNPERSUADED THAT THE
ARGUMENT HAS MERIT. /13/ ACCORDINGLY, RESPONDENT'S CONTENTION IS
REJECTED.
I ALSO FIND NO MERIT TO RESPONDENT'S ARGUMENT THAT BY THE TERMS OF
THE NEGOTIATED AGREEMENT, THE UNION AGREED TO FORGO ACCESS TO THE
INFORMATION IN QUESTION. RESPONDENT RELIES ON ARTICLE 7 OF THE
AGREEMENT WHICH PROVIDES, IN RELEVANT PART:
"IT IS FURTHER AGREED THAT WHERE CIVIL SERVICE COMMISSION OR
PUBLISHED AGENCY REGULATIONS
PROHIBIT DISCLOSURE OF ANY RECORD, FILE OR DOCUMENT TO ANY EMPLOYEE
AND/OR HIS REPRESENTATIVE,
THEN SUCH RECORD, DOCUMENT OR FILE MAY BE MADE AVAILABLE ONLY TO
THOSE OFFICIALS OF THE
EMPLOYER OR AUTHORITIES AUTHORIZED BY LAW WHOSE DUTIES REQUIRE ACCESS
TO SUCH MATERIAL.
IN MY VIEW THE UNION, AS THE EXCLUSIVE COLLECTIVE BARGAINING
REPRESENTATIVE OF RESPONDENT'S EMPLOYEES, IS AUTHORIZED BY OPERATION OF
THE STATUTE, THE LAW GOVERNING COLLECTIVE BARGAINING IN THE FEDERAL
SECTOR, TO HAVE MADE AVAILABLE TO IT THE INFORMATION IN QUESTION. /14/
FURTHER, TO THE EXTENT RESPONDENT SUGGESTS THAT THE UNION HAS BY ARTICLE
7 WAIVED ITS STATUTORY RIGHT TO THE INFORMATION, IT IS WELL SETTLED THAT
A WAIVER OF RIGHT GRANTED BY THE EXECUTIVE ORDER OR THE STATUTE WILL NOT
BE LIGHTLY INFERRED AND MUST BE CLEAR AND UNMISTAKABLE. /15/ IN MY
OPINION, THE CONTRACTUAL LANGUAGE AND FACTS HEREIN FALL FAR SHORT OF
CONSTITUTING CLEAR AND UNMISTAKABLE CONDUCT SUFFICIENT TO SUPPORT A
WAIVER AND OBLIGATE THE UNION TO OBTAIN ONLY THROUGH FREEDOM OF
INFORMATION ACT PROCEDURES DOCUMENTS TO WHICH IT WAS ENTITLED TO RECEIVE
UNDER THE STATUTE.
FINALLY, I REJECT RESPONDENT'S CONTENTION THAT NO UNFAIR LABOR
PRACTICE FINDING CAN BE MADE HEREIN SINCE THE UNION COULD HAVE APPEALED
RESPONDENT'S DENIAL OF THE INFORMATION TO THE ADMINISTRATOR OF THE
VETERANS ADMINISTRATION IN WASHINGTON, D.C. SECTION 7116(D) OF THE
STATUTE PROVIDES THAT "ISSUES WHICH CAN PROPERLY BE RAISED UNDER AN
APPEALS PROCEDURE MAY NOT BE RAISED AS UNFAIR LABOR PRACTICES PROHIBITED
UNDER (THE STATUTE)." HOWEVER, IT WAS FIRMLY ESTABLISHED UNDER THE
EXECUTIVE ORDER THAT THE TERM "APPEALS PROCEDURE" AS SET FORTH IN
SECTION 19(D) OF THE ORDER, WHICH CONTAINED THE SAME PROVISION AS THAT
UNDER CONSIDERATION HEREIN, WAS "NOT INTENDED TO ENCOMPASS 'APPEALS'
PROCEDURES WHICH DO NOT PROVIDE FOR THIRD-PARTY REVIEW OF AN AGENCY
ACTION." /16/ THE "APPEAL" REFERRED TO BY RESPONDENT HEREIN WAS AN
INTRA-AGENCY APPEAL TO THE HEAD OF THE AGENCY, CLEARLY NOT A THIRD PARTY
TO THE SITUATION. MOREOVER, THE AUTHORITY, IN DENYING A PETITION TO
REVIEW A DECISION IN A CASE ARISING UNDER THE EXECUTIVE ORDER HELD:
"WITH REGARD TO THE ALLEGATION CONCERNING WHETHER THE AVAILABILITY OF
THE REQUESTED
INFORMATION UNDER THE FOIA OR THE PRIVACY ACT TRIGGERS SECTION 19(D)
OF THE ORDER, IN THE
AUTHORITY'S VIEW, NO MAJOR POLICY ISSUE IS THEREBY PRESENTED
WARRANTING REVIEW. THAT IS, THE
APPEAL FAILS TO CONTAIN ANY BASIS TO SUPPORT THE CONTENTION THAT THE
FREEDOM OF INFORMATION
ACT OR THE PRIVACY ACT CONSTITUTES A STATUTORY APPEAL PROCEDURE SO AS
TO PRECLUDE THE UNION'S
RIGHT TO SEEK NECESSARY AND RELEVANT INFORMATION UNDER THE UNFAIR
LABOR PRACTICE PROCEDURES OF
THE ORDER." /17/
ACCORDINGLY, BASED UPON THE ENTIRE FOREGOING, I CONCLUDE THAT
RESPONDENT, BY ITS FAILURE TO PROVIDE THE UNION WITH THE NAMES AND
CORRESPONDING ALPHANUMERICAL DESIGNATIONS OF THOSE EMPLOYEES RATED BY
THE PANEL ON DECEMBER 12, 1979, VIOLATED SECTION 7116(A)(1) AND (5) OF
THE STATUTE AND I RECOMMEND THE AUTHORITY ISSUE THE FOLLOWING ORDER:
/18/
ORDER
PURSUANT TO SECTION 2423.29 OF THE FEDERAL LABOR RELATIONS
AUTHORITY'S REGULATIONS AND SECTION 7118 OF THE FEDERAL LABOR-MANAGEMENT
RELATIONS STATUTE, IT IS HEREBY ORDERED THAT VETERANS ADMINISTRATION
REGIONAL OFFICE, DENVER, COLORADO, SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO PROVIDE TO THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1557, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, THE
NAMES OF EMPLOYEES WHICH
CORRESPOND TO THE ALPHANUMERICAL IDENTIFICATION DESIGNATIONS USED BY
THE MERIT PROMOTION
RATING PANEL ON DECEMBER 12, 1979 DURING THE PANEL'S RATING OF
CANDIDATES ON MERIT PROMOTION
PANEL NO. 79-40A.
(B) IN ANY LIKE OR RELATED MANNER, INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN
THE EXERCISE OF THEIR RIGHTS ASSURED BY THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) UPON REQUEST, PROVIDE TO THE AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO,
LOCAL 1557, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, THE NAMES OF
EMPLOYEES WHICH CORRESPOND
TO THE ALPHANUMERICAL IDENTIFICATION DESIGNATIONS USED BY THE MERIT
PROMOTION RATING PANEL ON
DECEMBER 12, 1979 DURING THE PANEL'S RATING OF CANDIDATES ON MERIT
PROMOTION PANEL NO. 79-40A.
(B) POST, AT THE VETERANS ADMINISTRATION REGIONAL OFFICE, DENVER,
COLORADO, COPIES OF THE
ATTACHED NOTICE MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE
FEDERAL LABOR RELATIONS
AUTHORITY. UPON RECEIPT OF SUCH FORMS THEY SHALL BE SIGNED BY THE
DIRECTOR OF THE VETERANS
ADMINISTRATION, DENVER REGIONAL OFFICE, AND SHALL BE POSTED AND
MAINTAINED BY HIM FOR 60
CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER
PLACES WHERE NOTICES ARE CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE
REASONABLE STEPS TO
INSURE THAT SUCH NOTICES ARE NOT ALTERED, DEFACED OR COVERED BY ANY
OTHER MATERIALS.
(C) NOTIFY THE FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN
30 DAYS FROM THE DATE
OF THIS ORDER AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
SALVATORE J. ARRIGO
ADMINISTRATIVE LAW JUDGE
DATED: FEBRUARY 10, 1981
WASHINGTON, D.C.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT FAIL OR REFUSE TO PROVIDE TO THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, THE NAMES OF EMPLOYEES WHICH CORRESPOND TO THE
ALPHANUMERICAL IDENTIFICATION DESIGNATIONS USED BY THE MERIT PROMOTION
RATING PANEL ON DECEMBER 12, 1979 DURING THE PANEL'S RATING OF
CANDIDATES ON MERIT PROMOTION PANEL NO. 79-40A.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN OR
COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE.
WE WILL, UPON REQUEST, PROVIDE TO THE AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1557, THE EMPLOYEES' EXCLUSIVE
REPRESENTATIVE, THE NAMES OF EMPLOYEES WHICH CORRESPOND TO THE
ALPHANUMERICAL IDENTIFICATION DESIGNATIONS USED BY THE MERIT PROMOTION
RATING PANEL ON DECEMBER 12, 1979 DURING THE PANEL'S RATING OF
CANDIDATES ON MERIT PROMOTION PANEL NO. 79-40A.
(AGENCY OR ACTIVITY)
DATED: . . . BY: . . .
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION VII, WHOSE
ADDRESS IS: 1100 MAIN STREET, SUITE 680, CITY CENTER SQUARE, KANSAS
CITY, MISSOURI 60415.
--------------- FOOTNOTES: ---------------
/1/ IN FINDING THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND
(5) OF THE STATUTE BY REFUSING TO FURNISH THE UNION INFORMATION WHICH
WOULD ENABLE THE UNION TO EFFECTIVELY CARRY OUT ITS REPRESENTATIONAL
OBLIGATION IN THE PROCESSING OF AN EMPLOYEE GRIEVANCE, THE AUTHORITY
FINDS THAT THIS RIGHT TO INFORMATION IS DERIVED FROM SECTION 7114(B)(4)
OF THE STATUTE, NOT FROM SECTION 7114(A)(1) AS CONCLUDED BY THE JUDGE.
SECTION 7114(B)(4) PROVIDES:
(B) THE DUTY OF AN AGENCY AND AN EXCLUSIVE REPRESENTATIVE TO
NEGOTIATE IN GOOD FAITH UNDER SUBSECTION (A) OF THIS SECTION SHALL
INCLUDE THE OBLIGATION--
. . . .
(4) IN THE CASE OF AN AGENCY, TO FURNISH TO THE EXCLUSIVE
REPRESENTATIVE INVOLVED, OR ITS AUTHORIZED REPRESENTATIVE, UPON REQUEST
AND, TO THE EXTENT NOT PROHIBITED BY LAW, DATA--
(A) WHICH IS NORMALLY MAINTAINED BY THE AGENCY IN THE REGULAR COURSE
OF BUSINESS;
(B) WHICH IS REASONABLY AVAILABLE AND NECESSARY FOR FULL AND PROPER
DISCUSSION, UNDERSTANDING, AND NEGOTIATION OF SUBJECTS WITHIN THE SCOPE
OF COLLECTIVE BARGAINING; AND
(C) WHICH DOES NOT CONSTITUTE GUIDANCE, ADVICE, COUNSEL, OR TRAINING
PROVIDED FOR MANAGEMENT OFFICIALS OR SUPERVISORS, RELATING TO COLLECTIVE
BARGAINING(.)
/2/ THE RECORD DOES NOT DISCLOSE WHAT COMMENTS, IF ANY, BRADLEY
RECORDED.
/3/ THE RECORD DOES NOT DISCLOSE WHETHER HOLLIS WAS THE OTHER
CANDIDATE RATED "HIGHLY QUALIFIED."
/4/ APPARENTLY, BY THIS TIME HOLLIS HAD FAILED A GRIEVANCE CONCERNING
THE MATTER.
/5/ UNDER THE PARTIES' COLLECTIVE BARGAINING AGREEMENT A GRIEVANCE
WHICH HAS NOT BEEN RESOLVED AT STEP 3 MAY PROCEED TO ARBITRATION IF
ARBITRATION IS REQUESTED WITHIN 30 DAYS AFTER MANAGEMENT'S FINAL
DECISION AT STEP 3.
/6/ SEE DEPARTMENT OF DEFENSE, STATE OF NEW JERSEY, 3 FLRC 285, FLRC
NO. 73A-59 (1975); 5 A/SLMR 499, A/SLMR NO. 539 (1975); 3 A/SLMR 591,
A/SLMR NO. 323 (1973).
/7/ SECTION 10(E) OF THE EXECUTIVE ORDER PROVIDED, IN RELEVANT PART:
"WHEN A LABOR ORGANIZATION HAS BEEN ACCORDED EXCLUSIVE RECOGNITION,
IT IS THE EXCLUSIVE
REPRESENTATIVE OF EMPLOYEES IN THE UNIT AND IS ENTITLED TO ACT FOR
AND NEGOTIATE AGREEMENTS
COVERING ALL EMPLOYEES IN THE UNIT. IT IS RESPONSIBLE FOR
REPRESENTING THE INTERESTS OF ALL
EMPLOYEES IN THE UNIT WITHOUT DISCRIMINATION AND WITHOUT REGARD TO
LABOR ORGANIZATION
MEMBERSHIP . . . ."
/8/ SECTION 7114(A)(1) OF THE STATUTE PROVIDES:
"(A)(1) A LABOR ORGANIZATION WHICH HAS BEEN ACCORDED EXCLUSIVE
RECOGNITION IS THE EXCLUSIVE
REPRESENTATIVE OF THE EMPLOYEES IN THE UNIT IT REPRESENTS AND IS
ENTITLED TO ACT FOR, AND
NEGOTIATE COLLECTIVE BARGAINING AGREEMENTS COVERING ALL EMPLOYEES IN
THE UNIT. AN EXCLUSIVE
REPRESENTATIVE IS RESPONSIBLE FOR REPRESENTING THE INTERESTS OF ALL
EMPLOYEES IN THE UNIT IT
REPRESENTS WITHOUT DISCRIMINATION AND WITHOUT REGARD TO LABOR
ORGANIZATION MEMBERSHIP."
/9/ DEPARTMENT OF DEFENSE, STATE OF NEW JERSEY, SUPRA; DEPARTMENT OF
THE TREASURY, INTERNAL REVENUE SERVICE, MILWAUKEE, WISCONSIN, 8 A/SLMR
113, A/SLMR NO. 974, AFF'D 6 FLRC 797, FLRC 78A-31 (1978); INTERNAL
REVENUE SERVICE, CHICAGO DISTRICT OFFICE, 8 A/SLMR 309, A/SLMR NO. 1004
(1978); DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, REGION VIII, 8
A/SLMR 949, A/SLMR NO. 1109 (1978); DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE AND IRS MILWAUKEE DISTRICT, 8 A/SLMR 1125,
A/SLMR NO. 1133 (1978).
/10/ ID.
/11/ SINCE I HAVE CONCLUDED THAT RESPONDENT'S CONDUCT HAS VIOLATED
SECTION 7116(A)(1) AND (5) OF THE STATUTE, A RESOLUTION WITH REGARD TO
THE APPLICABILITY OF SECTION 7114(B)(4) IS UNNECESSARY TO THE
DISPOSITION OF THE MATTER BEFORE ME AND I MAKE NO FINDINGS REGARDING
THAT ISSUE. (CF. KENTUCKY NATIONAL GUARD, 4 FLRA NO. 73, (1980).
/12/ I NOTE THAT IN NUMEROUS CASES ARISING UNDER THE EXECUTIVE ORDER
DEFENSES RELYING UPON THE APPLICATION OF THE FREEDOM OF INFORMATION ACT
(AND THE PRIVACY ACT) WERE RAISED AND THE JURISDICTION OF THE ASSISTANT
SECRETARY OR THE FEDERAL LABOR RELATIONS COUNCIL TO DETERMINE SUCH
MATTERS WAS ALWAYS ASSUMED. (SEE CASES CITED IN FOOTNOTE 8, ABOVE).
/13/ I NOTE THAT THE UNION'S REQUEST FOR INFORMATION WAS MADE
PURSUANT TO A CLAIM OF STATUTORY RIGHT AND NOT UNDER THE FREEDOM OF
INFORMATION ACT.
/14/ SEE CASES CITED IN FOOTNOTE 8, ABOVE.
/15/ DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD, 4 FLRA NO.
82(1980); OKLAHOMA CITY AIR LOGISTICS CENTER, TINKER AIR FORCE BASE,
OKLAHOMA, 3 FLRA NO. 82(1980); AND INTERNAL REVENUE SERVICE,
JACKSONVILLE, FLORIDA, 1 FLRA NO. 35(1979) AND CASES CITED THEREIN.
/16/ VETERANS ADMINISTRATION, NORTH CHICAGO VETERANS HOSPITAL, NORTH
CHICAGO, ILLINOIS, A/SLMR 431, A/SLMR NO. 1024 (1978) CITING DEPARTMENT
OF THE AIR FORCE, A/SLMR NO. 784 (1977), FLRC NO. 77A-22 (1977).
/17/ U.S. CUSTOMS SERVICE AND HOUSTON REGION, U.S. CUSTOMS SERVICE, 1
FLRA NO. 66(1979).
/18/ AS NO FINDING IS MADE AS TO THE APPLICABILITY OF SECTION 7114(B)
OF THE STATUTE TO THE SITUATION HEREIN, THE ALLEGATION OF VIOLATION OF
SECTION 7116(A)(8) IF DISMISSED.