28:0260(38)CA - VA, Washington, DC and VA Regional Office, Buffalo, NY and AFGE Local 3314 -- 1987 FLRAdec CA



[ v28 p260 ]
28:0260(38)CA
The decision of the Authority follows:


28 FLRA No. 38

VETERANS ADMINISTRATION
WASHINGTON, D.C.

      and

VETERANS ADMINISTRATION
REGIONAL OFFICE
BUFFALO, NEW YORK

                   Respondent

      and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3314

                   Charging Party

Case No. 1-CA-60120.1

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The issue is whether the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor - Management Relations Statute (the Statute) by failing and refusing to furnish the Charging Party with information the Charging Party had requested concerning the reassignment of a bargaining unit employee.

II. Background

The American Federation of Government Employees (AFGE) is the exclusive representative of the non-professional employees of the Veterans Administration (VA), including all non-professional employees at the VA Regional Office in Buffalo, New York. AFGE Local 3314, the Charging Party (the Union) in this case, is the designated agent of AFGE in the Buffalo Regional Office.

Prior to November 20, 1985, Debra Braun was employed on a part-time basis as a clerk-stenographer in the Buffalo [PAGE] Regional Office in the Loan Guaranty Division. on or about that date, Braun was informed that she was to be reassigned because she had a realtor's license, which apparently constituted a conflict of interest for employees dealing with real estate transactions in that Division. Braun objected to the reassignment. On November 27, Braun met with the Vice President of the Union regarding the action. She claimed, among other things, that she did not have a realtor's license. Braun asked for Union assistance in contesting the reassignment.

On December 5, the Union submitted three separate written requests to management officials for information. Specifically, the Union sought copies of:

- Braun's reported realtor's license;

- her position description and performance appraisal;

- the agreement Braun signed in which she agreed she would not conduct any business which might be a conflict of interest;

- the name of the realtor who allegedly called and informed management that Braun possessed a realtor's license and other information related to the alleged call;

- the reason and/or authority for her reassignment; and

- a complete listing of all monetary transactions authorized by Braun for payment for the period November 1, 1982, through October 31, 1985, and other information related to the transactions.

On December 6, the Vice President of the Union prepared a grievance concerning Braun's reassignment. Before delivering the grievance to management, the union representative received a letter from the Respondent's Personnel Officer. The letter acknowledged receipt of the Union's three requests for information and informed the Union that no action had been taken on the requests because, as of that date, no grievance had been filed by Braun. The Union representative immediately filed the grievance on her behalf.

A meeting between union and management representatives was held on December 11. The record reflects the [ v28 p2 ] following facts. The Respondent's Personnel Officer explained that Braun was reassigned because of the appearance of a conflict of interest and that Civil service regulations required that action must be taken in such circumstances. He further stated that Braun had a current realtor's license and showed a copy of the license to the Union representative. The Personnel Officer testified that a copy of the statement signed by Braun agreeing not to conduct any business which might be a conflict of interest was part of the grievance folder which he showed the Union representatives at the meeting. He testified that the regulations authorizing the action taken by management were also shown to the Union and discussed at the meeting. As to the performance appraisal, the Personnel Officer testified that the information was not given to the Union because he considered it to be governed by the Privacy Act. He also noted that the Union was aware of the contents of the appraisal since it was Respondent's practice to furnish the Union with copies of appraisals of employees who received awards as Braun had in the past year. The record also established that no realtor called management to inform it that Braun possessed a real estate license.

The record further reflects that all of the financial transaction records are kept for I year in the Regional Finance Office and are then sent to New Jersey for storage. There are from 5,000 to 7,000 real estate transactions a year and the records are maintained by serial number and not by name of authorizing employee. With respect to the trans-actions authorized by Braun from November 1, 1982, through October 31, 1985, which the Union requested, the Personnel Officer testified that management would have attempted to produce the data that was in the Region if the Union had shown that it was relevant and necessary. However, according to the Personnel Officer, no decision as to relevance and need was made since the grievance was withdrawn immediately after the meeting with the Union.

As to the withdrawal of the grievance, it is undisputed that about 1 hour after the meeting the Union representative delivered a note to management signed by Braun withdrawing her grievance. The record indicates that the Union did not pursue the matter further after the withdrawal and that the Respondent considered the matter closed.

III. Administrative Law Judge's Decision

The Judge found that the Respondent did not fail or refuse to comply with section 7114(b)(4) of the Statute and, therefore, did not violate section 7116(a)(1), (5) and (8) of the Statute. [ v28 p3 ] In reaching that conclusion, the Judge found that some of the information sought by the union was neither necessary nor relevant to a full discussion of the reassignment action. specifically, he found that Braun's job description and performance appraisal and the financial transaction data were not necessary to enable the Union to fulfill its responsibility as Braun's representative. In that regard, noting that the reassignment was based on Braun having a realtor's license, which by itself apparently constituted a conflict of interest for an employee in the Loan Guaranty Division, the Judge determined that Braun's job description and performance were not involved in the dispute. As to the financial transaction data, the Judge found that the list of transactions authorized by Braun for payment between November 1, 1982, and October 31, 1985, was also unnecessary because of the reason for her reassignment. He found that the reassignment was not based on any alleged favoritism to realtors and that the financial transactions were not in question.

As to the Union's request for the name of the realtor who allegedly informed management of Braun's license and for related information, the Judge found that the record disclosed that no realtor had called about Braun and, therefore, the requested information did not exist and the Respondent may not be faulted for failing to furnish it to the Union.

As to the other information sought by the Union, that is, Braun's real estate license, the governing regulations, and the agreement signed by Braun stating that she would not engage in activity constituting a conflict of interest, the Judge found that the information was relevant to consideration and discussion of the reassignment. However, the Judge concluded that in the circumstances involved, the Respondent's failure to provide a copy of each document to the Union did not constitute an unfair labor practice. The Judge noted that Braun's Union representative was shown a copy of her real estate license and the governing regulations at the meeting with the Respondent on December 11. The Judge found that while it was not clear if the agreement signed by Braun was also specifically shown to the Union on that date, the record indicated that the document was included in the grievance folder which was shown to the Union. The Judge noted that the Union representative did not request copies of any of the documents he was shown or indicate that he still needed copies of the information. The Judge noted that about an hour after the December 11 meeting, the Union representative handed the Respondent's representative a note signed by Braun withdrawing the grievance. The Judge found that it was reasonable for the Respondent to conclude at that time that [ v28 p4 ] the Union was satisfied and did not intend to pursue the matter and that no further action by management was required.

Finally, the Judge found that any refusal to supply copies of the requested documents between December 6 and 11 was rendered moot by Braun's withdrawal of the grievance. The Judge concluded that in these circumstances, the Respondent's failure to supply the documents was not unlawful.

IV. Positions of the Parties

The General Counsel contends that the Judge erred in not finding a violation because the facts support such a finding. The General Counsel argues that rather than focusing on the events of December 11 (the meeting and the withdrawal of the grievance), the Judge should have focused on circumstances on December 6.

in that regard, the General Counsel argues that all of the information requested by the Union on December 6 was necessary and relevant because at that time it was not clear whether Braun's reassignment was due to an appearance of a conflict of interest or an actual conflict of interest or both. Further, the General Counsel asserts that the Respondent denied the Union's request on December 6 because no grievance had been filed. The General Counsel contends that the Respondent knew exactly why the information was necessary and relevant. Finally, the General Counsel argues that the Respondent's refusal to provide information on December 6 is too significant a violation to be overlooked simply because the grievance was withdrawn on December 11. The General Counsel maintains that the issue may be moot with respect to Braun's grievance, but that the issue is still vital for the Union in the consideration of and processing of grievances in the future. For those reasons, the General Counsel requests that the Authority reverse the Judge and find that the Respondent's conduct on December 6, 1985, violated section 7116(a)(1), (5) and (8) of the Statute.

The Respondent contends that the Judge properly applied Authority precedent and case law concerning section 7114(b)(4) in finding that the Respondent had not violated the Statute. The Respondent argues that the Union did not establish that the requested information was necessary. The Respondent further argues that its letter to the Union of December 6 was not an unlawful refusal to furnish the information. The Respondent maintains that the letter was a prompt response to the Union's December 5 requests and essentially advised the Union that the Respondent did not intend to take immediate action, indicating that it first wished to determine the [ v28 p5 ] relevance and necessity of the data. The Respondent further contends that it acted reasonably in the matter and that the meeting on December 11, only 3 work days after December 6, resulted in resolution of the matter to which the Union's information requests were directed to the apparent satisfaction of all concerned. The Respondent claims that the General Counsel is arguing that once a request for information is made, any failure to provide the information immediately is an unfair labor practice, and the Respondent disagrees with such an argument. Further, the Respondent contends that the General Counsel's exceptions fail to provide a legal basis for reversal of the Judge's decision.

V. Analysis and Conclusions

As previously stated, the issue in this case is whether the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by failing and refusing to provide the Union with the information requested. In order to resolve this issue, we first have to determine whether the Respondent was required under section 7114(b)(4) to provide the information.

it is well established that an agency is obligated under section 7114 (b) (4) (B) to provide an exclusive representative of its employees with information that is reasonably available and necessary for the union to effectively fulfill its representational functions and responsibilities in the processing of employee grievances. For example, United States Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, 26 FLRA No. 79, slip op. at 4 (1987). It is also well established that under section 7114(b)(4) a union has a right to information that is necessary for it to determine whether or not to file a grievance. U.S. Army Reserve Components, Personnel and Administrative Center, St. Louis Missouri, 26 FLRA No. 4, slip op. at 9 (1987).

In this case, the Union requested documents and information in connection with its representational functions, specifically, evaluation of Braun's expressed concerns about her reassignment and consideration of whether to file a grievance on her behalf. We find that all of the information requested was necessary within the meaning of section 7114(b)(4) to enable the Union to effectively carry out its representational obligations. Thus, Braun's alleged realtor's license, her position description and performance appraisal, any agreement Braun may have signed regarding outside business activities, information regarding the alleged call from a realtor concerning her outside activities, the Respondent's reasons and/or authority for reassigning Braun, and Braun's [ v28 p6 ] financial transaction data can all be considered necessary for the union to effectively determine the nature and extent of the purported conflict of interest and whether to file a grievance concerning Braun's reassignment, and to effectively represent her in the matter.

The next question is whether the information was reasonably available. The record establishes that except for Braun's financial transaction data and information regarding the alleged call from a realtor, the requested information was reasonably available to the Respondent. As to the two exceptions, the record first reflects that there was no call from a realtor regarding Braun's outside activities. The record further establishes that the financial transaction data was not readily available by employee name but rather, that it was maintained by transaction number, and that for the period between October 1, 1982, and the end of 1984, the information was not even available in the Buffalo Regional Office.

We therefore conclude that the Respondent was obligated under section 7114(b)(4) to provide the Union with a copy of Braun's realtor's license, her Position description and performance appraisal, the agreement she signed concerning conflicts of interest and the reasons and/or authority for her reassignment. The fact that the Respondent showed the information to the Union representative at the December 11 meeting did not satisfy its obligation under section 7114(b)(4). Section 7114(b)(4) requires an agency to furnish information to an exclusive representative of its employees and merely allowing a union representative to look at information the union is entitled to for representational purposes does not discharge the agency's duty. Animal and Plant Health Inspection Service, 27 FLRA No. 79, slip op. at 7 (1987). Thus, the Respondent was required to provide the Union with copies of the necessary and reasonably available information requested.

Moreover, with regard to the Union's request for information concerning the alleged call from a realtor and for Braun's financial transaction data, the fact that the information sought did not exist or was not readily available did not relieve the Respondent of an obligation to so inform the Union. We have held that section 7114(b)(4) requires an agency to respond to a request from an exclusive representative for information even if the response is that the information sought does not exist. U.S. Navy Supply Center, San Diego, California, 26 FLRA No. 41, slip op. at 4 (1987). In this case, we find that a response was necessary for the Union's full understanding of the reassignment action [ v28 p7 ] and for the union to effectively represent Braun in the matter.

In summary, we find that the Respondent was required under section 7114(b)(4) of the Statute to provide the Union with copies of the information that was reasonably available and to properly respond to the Union's requests for the information that did not exist or was not reasonably available. By informing the Union representative that no action had been taken on its requests because no grievance had been filed, the Respondent created the impression that discharge of its statutory obligations under section 7114 was conditioned on the filing of a grievance. We conclude that the Respondent's failure to provide the information or to otherwise respond to the Union because a grievance had not been filed by or on behalf of Braun constituted a failure to comply with section 7114(b)(4), and a violation of section 7116(a)(1), (5) and (8) of the Statute.

with regard to an appropriate remedy for the violation, we find that a cease and desist order is warranted in the circumstances of this case. We shall also order an appropriate posting. However, in the particular circumstances, we find that it would not effectuate the purposes and policies of the Statute to direct the Respondent to furnish the Union with the requested information. As an immediate result of the meeting of December 11, Braun's grievance concerning the reassignment to which the Union's requests pertained was withdrawn. Moreover, as the Judge found, the Union did not indicate any further need for the information for any purpose at the meeting. Further, there is no indication in the record that the Union subsequently renewed its requests.

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Veterans Administration Washington, D.C. and the Veterans Administration Regional Office, Buffalo, New York shall:

1. Cease and desist from:

(a) Failing or refusing to furnish, upon request by the American Federation of Government Employees, AFL - CIO, Local 3314, the designated agent of the exclusive representative of a unit of its employees, requested information that is reasonably available and necessary for the agent to effectively represent unit employees. [PAGE] (b) Failing or refusing to inform the American Federation of Government Employees, AFL - CIO, Local 3314, where appropriate, that information requested in connection with its representation of unit employees does not exist or is not reasonably available.

(c) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights under the Statute.

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

(a) Post at its facility, Veterans Administration Regional Office, Buffalo, New York, 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 Regional Administrator and they shall be posted 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.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region I, Federal Labor Relations Authority, in writing within 30 days from the date of this Order as to what steps have been taken to comply.

Issued, Washington, D.C., July 29, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v28 p9 ]

              NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
       AND TO EFFECTUATE THE POLICIES OF THE
     FEDERAL LABOR-MANAGEMENT RELATIONS STATUTE
           WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail or refuse to furnish, upon request by the American Federation of Government Employees, AFL - CIO, Local 3314, the designated agent of the exclusive representative of a unit of our employees, requested information that is reasonably available and necessary for the agent to effectively represent unit employees.

WE WILL NOT fail or refuse to inform the American Federation of Government Employees, AFL - CIO, Local 3314, where appropriate, that information requested in connection with its representation of unit employees does not exist or is not reasonably available.

WE WILL NOT in any like or related mann