With regard to its second exception, the Respondent argues that the Union failed the "articulation" requirement because its request for information to show that the Respondent incorrectly rated and ranked the applications is both "non-specific" and "inaccurate." Id. at 14, 17. The Respondent asserts that the Union is "searching for a violation without having a basis/reason for believing that one might exist." Id. at 15. The Respondent also points out that the request is inaccurate because it refers to "Merit Promotion" when the process was an "External Recruitment," which is "not governed by the merit promotion policies and procedures outlined in Article 26 of the parties' collective bargaining agreement." Id. at 16.

B.     General Counsel's Opposition

      The General Counsel contends that the Judge correctly found that the Union sufficiently articulated a "particularized need" for the documents. The General Counsel argues that the Judge properly found that the MLA expressly recognizes that the Union has a role in advising bargaining unit employees with discrimination allegations whether they should file a grievance or pursue a statutory appeal procedure. The General Counsel points out that the MLA, by advising employees to consult with the Union regarding forums for their complaints, expressly recognizes this advisory role of the Union. Therefore, the General Counsel argues, the matter in connection with which the Union requests the data --that is, advising the employee on the election of forum -- is within the scope of collective bargaining, as required by section 7114(b)(4). GC Opposition at 9.

      With regard to the Respondent's exception that the Union has failed to articulate with specificity its "particularized need," the General Counsel contends that the Union sufficiently articulated its need to permit the Respondent to make a reasoned judgment as to whether the disclosure of the information is required under the Statute.                                                       

IV.     Analysis and Conclusions

      Under section 7114(b)(4) of the Statute, an agency must furnish information to a union, upon request and "to the extent not prohibited by law," if that information is: (1) "normally maintained by the agency"; (2) "reasonably available"; (3) "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining"; and (4) not "guidance, advice, counsel or training." Only one of these elements is in dispute here -- whether the information is "necessary." See Judge's Decision at 5. Specifically, the Respondent challenges whether the information relates to matters within the "scope of collective bargaining" and whether the Union has adequately expressed its need for that information with particularity.

      To demonstrate that information is "necessary" a union "must establish a particularized need for the information by articulating, with specificity, why it needs the requested information, including the uses to which the union will put the information and the connection between those uses and the union's representational responsibilities under the Statute." IRS, Kansas City, 50 FLRA at 669 (footnote omitted). Further, the union's responsibility for articulating its interests in the requested information requires more than a conclusory assertion and must permit an agency to make a reasoned judgment as to whether the disclosure of the information is required under the Statute. Id. at 670. The agency is responsible for establishing any countervailing anti-disclosure interests and, like the union, must do so in more than a conclusory way. Id. This case turns on whether it has been established that the documents relate to the Union's representational responsibilities and that a "particularized need" for the documents has been sufficiently articulated. [n5]  [ v56 p160 ]

A.     The Judge Correctly Determined That the Union's Statement of Need Relates to Its Representational Responsibilities

      The first issue to be resolved is whether the Union's request for information is connected to its representational responsibilities under the Statute. In its information request dated January 14, 1998, the Union stated that it needed information related to a specific vacancy announcement "in connection with a potential grievance." Later, by letter dated March 31, 1998, the Union clarified its need by explaining that it requested the documents because (1) bargaining unit employees alleged that irregularities in the selection process occurred, and (2) the Union was representing one such employee who had filed an informal complaint of discrimination, been issued a Counseling Report, and needed to make an informed election as to the appropriate appeal forum for filing formally. [n6]  As shown below, we find that the Union's stated use for the documents relates to its representational responsibilities.

      The Union stated that one of the reasons that it needed the information was to advise the employee with the EEO complaint whether he should proceed through the statutory appeal process or through the negotiated grievance procedure. Before it could advise that employee, the Union had to make a determination as to whether it would be willing to take the individual's case to arbitration at the end of the grievance process. Tr. at 34-35. Determining whether to file a grievance is a basic union responsibility under the Statute. See, e.g., INS, Border Patrol, 51 FLRA at 774-76 (union entitled to information to determine if employee complaints about management's assigning policy is "true and correct" and, therefore, grievable).

      Further, the MLA expressly contemplates that the Union would advise a bargaining unit employee who was considering filing an EEO claim against the Respondent. It is well settled that the scope of information entitlement under section 7114(b)(4) extends to the full range of representational activity, including contract administration. See, e.g., FAA, 55 FLRA at 258-59; U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 22 FLRA 667, 669 (1986). Therefore, the Union would be using the information to administer the contract.

      Each of the six arguments proffered by the Respondent in support of its first exception lacks merit.

1.     Section 7121(c)(4) Does not Preclude a Grievance Over a Non-initial Entry Appointment

      Section 7121(c)(4) provides that the scope of a grievance procedure negotiated under the Statute may not extend to any grievance concerning an "examination, certification, or appointment." However, the Authority has held that the term "appointment" in section 7121(c)(4) relates to the initial entry of an applicant into the federal service. See, e.g., U.S. Department of Defense, Dependent Schools, Kaiserslautern, Germany and Overseas Education Association, 51 FLRA 210, 212 (1995); National Council of Field Labor Locals of the American Federation of Government Employees, AFL-CIO and United States Department of Labor, 4 FLRA 376, 381 (1980); see also Suzal v. Director, United States Information Agency, 32 F.3d 574, 580 (D.C. Cir. 1994); Brammer v. United States, 24 Cl. Ct. 487, 492 (1991). Although the Respondent claims that the action at issue is an "appointment" and thus not grievable, it has offered no reasons why this well-settled Authority and judicial precedent is wrong. Accordingly, we conclude that the Judge properly held that an employee's grievance regarding an external recruitment is not precluded by section 7121(c)(4).

2.     Employees Who Apply for New Bargaining Unit Positions Through an External Recruitment Remain "Employees" under the Statute

      The Respondent cites no authority for the proposition that a bargaining unit employee who applies for a new position does not apply as an "employee" under the Statute, but as an applicant. In any event, Authority case law makes clear that the process that an agency uses to fill vacant positions for which bargaining unit [ v56 p161 ] employees are eligible concerns the working conditions of those employees. See National Federation of Federal Employees, Local 33 and U.S. Department of the Army, Corps of Engineers, Galveston, Texas, 47 FLRA 765 (1993).

      The Respondent's related argument that complaints about the selection process do not qualify as a "grievance" within the meaning of 5 U.S.C. § 7103(a)(9) is also baseless. Although section 7103(a)(9) refers to "any matter relating to the employment of the employee," bargaining unit employees do not cease to be "employees" merely because they apply for a bargaining unit position that is open to non-employee applicants.

      The Respondent relies on Internal Revenue Service, National Office, 21 FLRA 646, 649 n.3 (1986) for the proposition that an agency has no obligation to provide information for a grievance that is statutorily excluded. However, as shown above, the Respondent has failed to establish that a grievance regarding a recruitment open to bargaining unit and non-employee applicants is precluded either by the definition of "grievance" in section 7103(a)(9) or by section 7121(c)(4). Moreover, grievability questions are for an arbitrator to decide and the existence of such a question does not relieve an agency of its obligation to furnish information. See U.S. Department of Transportation, Federal Aviation Administration, National Aviation Support Facility, Atlantic City Airport, New Jersey, 43 FLRA 191, 197 (1991).

3.     The Application of a Crediting Plan Is not "Specifically Provided For" and, Therefore, Falls Within the Statutory Definition of "Conditions of Employment"

      In this case a bargaining unit employee has claimed that the Respondent has misapplied its crediting plan, and the Respondent does not identify any law that specifically provides how crediting plans are to be applied. Further, even if the Respondent had identified a law, to the extent that that law gave the Respondent discretion with regard to the application of the crediting plan, the matter is not "specifically provided for" by statute and thus is a condition of employment. See International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135 and U.S. Department of the Treasury, Bureau of Engraving & Printing, 50 FLRA 677, 685 (1995), aff'd mem. sub nom. Bureau of Engraving & Printing v. FLRA, 88 F.3d 1279 (D.C. Cir. 1996).

4.     The Union Has the Right to Information Regarding External Recruitment Matters Even Though They Relate to Management Rights to Hire and Select

      Even if the Union's request relates to matters that are management rights, this case involves the Union's right to information - not the scope of the Respondent's duty to bargain. Although section 7114(b)(4) ties a union's information rights to "the scope of collective bargaining," the Authority has broadly interpreted this statutory phrase. See FAA, 55 FLRA at 258-59; Commander Naval Air Pacific, San Diego, California and Naval Air Station, Whidbey Island, Oak Harbor, Washington, 41 FLRA 662, 668 (1991); see also American Federation of Government Employees, AFL-CIO, Local 1345 v. FLRA, 793 F.2d 1360 (D.C. Cir. 1986) (affirming Authority's interpretation of "scope of collective bargaining"). The Union asks for the information in order to fulfill its contractual role of advising a bargaining unit employee -- a purpose "within the scope of collective bargaining." In this regard, the Respondent's reliance on General Services Administration, 29 FLRA 197 (1987) is misplaced. In General Services Administration, the Authority held that a union was not entitled to information in order to draft negotiation proposals concerning the establishment of crediting plans because that matter is outside the duty to bargain. In contrast, here, the Union requested the information not to bargain about external recruitments but to assist an employee who has complained about how a bargaining unit position was filled.

5.     The Respondent's Argument Regarding EEO Procedures Lacks Merit

      The Respondent incorrectly assumes that an employee with an EEO claim could proceed only through the statutory EEO procedures. Rather, the employee has an option with regard to remedial forum. See G.C. Exhibit No. 7, MLA Art. 18, Sect. 5. Further, contrary to the Respondent's assertion, the Union is not asking for information to be used in the EEO forum but rather to advise the employee as to which forum -- EEO or negotiated grievance procedure -- the employee should pursue. Library of Congress, 19 FLRA 267 (1985), relied upon by the Respondent, merely stands for the proposition that once the employee elects the statutory EEO forum over the negotiated grievance procedure, a union official acting as the employee's personal representative must use EEO procedures, not section 7114(b)(4), to gather information. [n7]  [ v56 p162 ]

6.     The Respondent's Assertion that It Performs External Recruitments through Authority Delegated from OPM Is Irrelevant

      Although the Union does not have a collective bargaining relationship with OPM, it does have a bargaining relationship with the Respondent. Two unit employees who are represented by the Union have alleged that they were harmed by the Respondent's actions. The fact that OPM delegated examining authority to the Respondent does not alter the fact that the Respondent exercised that authority by performing the selection process at issue in this case. Cf. Internal Revenue Service (District Office Unit), Department of the Treasury, 29 FLRA 268, 270-71 (1987) (agency must bargain with union over proposal related to OPM's delegation of examining authority to the agency).

      In sum, we find that the Judge properly concluded that the Union's request for information is related to its representational responsibilities and, therefore, is related to a subject "within the scope of bargaining" within the meaning of section 7114(b)(4).

B.     The Judge Correctly Determined That the Union Articulated Its Need with Requisite Particularity

      The Respondent also argues that the Union's request is not specific enough. Under the Authority's "particularized need" test, the Union must "articulat[e], with specificity, why it needs the requested information, including the uses to which the union will put the information and the connection between those uses and the union's representational responsibilities under the Statute." IRS, Kansas City, 50 FLRA at 669.

      The Union Vice President's clarified request to the Respondent, dated March 31, 1998, GC Exhibit 9, satisfies the particularity requirement. Referring to a specific vacancy announcement for a bargaining unit position, the request clearly informs the Respondent that the Union needs the information for two reasons: (1) to determine whether the Respondent wrongfully rated and ranked the applications of bargaining unit employees; and (2) to advise a bargaining unit employee regarding the proper forum to bring an EEO claim --an advisory role recognized in the MLA.

      The Respondent complains that the Union failed to articulate what "act or failure to act [the] Respondent is alleged to have committed" and to "identify any specific promotion policy/procedure or any law or regulation that was alleged to have been misapplied or violated." Respondent Exceptions at 15. The Union, however, has explained in its request that bargaining unit employees believe that they were rated and ranked incorrectly. To require the Union to describe the exact nature of the alleged irregularities is asking too much of the Union. In essence, the Respondent is asking the Union to describe the potential contents of documents it has not seen. [n8]  See AFGE, Local 2343 v. FLRA, 144 F.3d 85, 89 (D.C. Cir. 1998) (citing IRS, Kansas City, 50 FLRA at 670 n.13).

      We conclude that the Union has provided sufficient information to allow the Respondent "to make a reasoned judgment" concerning disclosure. We agree with the Judge that the Union has established a "particularized need" and has sufficiently articulated its need for the information requested in order to advise the employee with the EEO claim as to the appropriate filing forum.

V.     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 furnish the American Federation of Government Employees, Local 1923, AFL-CIO (the Union) with the following information requested by the Union, in "sanitized form," which relates to recruitment announcement RN-97-039: (1) the recruitment announcement; (2) the related "knowledge, skills, and abilities," task examples, and any other rating and ranking criteria; (3) the rating and ranking worksheet and scores of qualified applicants; and (4) the applications of the top three applicants.

           (b)     In any like or related manner interfering with, restraining or coercing bargaining unit employees [ v56 p163 ] in the exercise of their rights assured them by the Statute.

      2.     Take the following affirmative actions in order to effectuate the purposes and policies of the Statute:

           (a)     Upon request, furnish in "sanitized" form the following information requested by the Union, which relates to recruitment announcement RN-97-039: (1) the recruitment announcement; (2) the related "knowledge, skills, and abilities," task examples, and any other rating and ranking criteria; (3) the rating and ranking worksheet and scores of qualified applicants; and (4) the applications of the top three applicants.

           (b)     Post at all facilities where bargaining unit employees are located copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Administrator, Health Care Financing Administration, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.

           (c)     Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Washington Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

The Federal Labor Relations Authority has found that the Health Care Financing Administration 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 furnish the American Federation of Government Employees, Local 1923, AFL- CIO (the Union) "sanitized" copies of the following information requested by the Union, which relates to recruitment announcement RN-97-039: (1) the recruitment announcement; (2) the related "knowledge, skills, and abilities," task examples, and any other rating and ranking criteria; (3) the rating and ranking worksheet and scores of qualified applicants; and (4) the applications of the top three applicants.

WE WILL NOT in any like or related manner interfere with, restrain or coerce bargaining unit employees in the exercise of their rights assured them by the Statute.

WE WILL, upon request, furnish in "sanitized" form the following information requested by the Union, which relates to recruitment announcement RN-97-039: (1) the recruitment announcement; (2) the related "knowledge, skills, and abilities," task examples, and any other rating and ranking criteria; (3) the rating and ranking worksheet and scores of qualified applicants; and (4) the applications of the top three applicants.

      _____________________

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 Regional Office, Federal Labor Relations Authority, whose address is: Tech World 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. 19
File 2: ALJ's Decision

   The Respondent operates its external recruitment process under examining authority delegated from the Office of Personnel Management (OPM). Judge's Decision at 2.

   The Judge mistakenly describes this letter as dated March 28, 1998.

   Having reached this conclusion, the Judge stated that it was "unnecessary to decide whether the Union was also entitled to the data in connection with the other employee's attempt to seek review of the selection process." Judge's Decision at 8.

   Neither the Respondent nor the General Counsel has excepted to the Judge's remedy, and, therefore, it will not be discussed further.

   The Respondent claims that by granting the Union section 7114(b)(4) rights concerning external recruitment, bargaining unit employees "would be afforded `special privileges' that other applicants would not possess. Not only would bargaining unit employees have access to information unavailable to other applicants (e.g., rating and ranking criteria), giving them an unfair advantage, but presumably, the Negotiated Grievance Procedure would be available as an avenue of recourse and relief." Respondent Exceptions at 11. To the extent these claims can be construed as countervailing interests, the Respondent failed to articulate these interests to the Union at the time that it denied the Union's request. GC Exhibit No. 10 (the Respondent's denial, quoted supra). See Federal Aviation Administration, 55 FLRA 254, 260 (1999) (FAA) (an agency must articulate its countervailing interest in non-disclosure at the time that it denies an information request). In any event, because the Respondent failed to raise this argument to the Judge, see Judge's Decision at 5 n.2, our regulations preclude it from raising the argument to the Authority. See 5 C.F.R. § 2429.5.

   At the hearing, the Union Vice President explained that the EEO complainant was forced to pursue his claim in the statutory forum because the Union did not receive the information before the complainant's time to file in the EEO appeal forum expired. Tr. at 37.

   Moreover, the Authority has determined that even where a Union is not required to represent an employee, once the Union opts to represent that employee, the Union is entitled to information pursuant to section 7114(b)(4), see U.S. Department of Justice, Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota, 51 FLRA 1467, 1478-79 (1996), aff'd, U.S. Department of Justice, Immigration and Naturalization Service, Northern Region, Twin Cities, Minnesota v. FLRA, 144 F.3d 90, 93-94 (D.C. Cir. 1998).

   The Respondent's argument that the Union's request is "inaccurate" because it refers to merit promotion rather than to external recruitment, Respondent Exceptions at 15-16, is frivolous. The request clearly references the external recruitment by Announcement Number. The Respondent could not reasonably have been confused as to what the Union sought.