32:0903(130)CA - - Bureau of Indian Affairs, Phoenix Area Office, Phoenix, AZ and NFFE - - 1988 FLRAdec CA - - v32 p903

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32:0903(130)CA
The decision of the Authority follows:


32 FLRA No. 130

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

 

BUREAU OF INDIAN AFFAIRS

PHOENIX AREA OFFICE

PHOENIX, ARIZONA

Respondent

and

NATIONAL FEDERATION OF FEDERAL

EMPLOYEES

Charging Party

 Case No. 8-CA-60560

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 Respondent filed cross exceptions to the Judge's decision and an opposition to the General Counsel's exceptions. Thereafter, the General Counsel filed an opposition to the Respondent's cross exceptions.

The issue is whether the Respondent violated the Federal Service Labor-Management Relations Statute (the Statute), by refusing to furnish the Charging Party (Union) with the names and home addresses of bargaining unit employees under the jurisdiction of Respondent's Phoenix Area Office. The Judge found that the Union clearly and unmistakably waived its right to have the Respondent compile and furnish the names and home addresses of bargaining unit employees under the jurisdiction of the Phoenix Area Office.

Pursuant to section 2423.29 of our Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge and find that no prejudicial error was committed. We affirm the rulings. For the reasons stated below, we agree with the Judge that the Union waived its right to require the Respondent to furnish the names and home addresses of unit employees. Therefore, we will dismiss the complaint.

II. Background

The Bureau of Indian Affairs Council of Consolidated Locals, an agent of the Union, is the exclusive representative of a national consolidated unit of the Bureau of Indian Affairs (BIA) employees, including bargaining unit employees under the jurisdiction of the Phoenix Area Office. On or about September 5, 1986, the Union requested the names and home addresses of bargaining unit employees within the jurisdiction of the Phoenix Area Office. On or about September 6, 1986, the Respondent declined to provide the information.

The names and home addresses of bargaining unit employees are located in the official personnel files in the Phoenix Area Office. They are also contained in the PAY/PERS system. PAY/PERS is an acronym for the Office of Payroll and Personnel System of the Department of Interior located in Denver, Colorado. It is a computer system that generates payroll and personnel data for Federal employees, including BIA employees.

On June 13, 1985--prior to the request for information made by the Union in the instant case--the parties entered into a memorandum of agreement in settlement of an unfair labor practice complaint in Case No. 8-CA-50114. Case No. 8-CA-50114 involved the Respondent's refusal to furnish the Union with the names and home addresses of bargaining unit employees under the jurisdiction of the Respondent's Navajo Area Office. The memorandum provided as follows:

In settlement of the ULP concerning names and addresses listing at the Navajo area, the parties agree to:

1. Provide the computer generated checklist of names and addresses of unit employees for pay check distribution (excluding financial institutions) as compiled by the PAY/PERS system for Navajo Area only.

2. Provide the existing listing of names and addresses is (sic) normally maintained by each location of bargaining unit employees in Navajo Area only.

3. Management will not be required to provide the Council or Area Vice-President or any other union official computer generated listings as in number 1 above or any other non-existing list.

4. Not be limited in bargaining at the national level, over this or similar issues at the renegotiation of the Master Agreement.

Before the Judge, the Respondent claimed the memorandum of agreement in Case No. 8-CA-50114 constituted a waiver of the Union's right to the names and home addresses of employees requested in this case. The Union and the General Counsel claimed that the memorandum of agreement did not constitute a waiver.

Further, during the hearing, the Respondent objected to section 2423.14(a) of the Authority's Rules and Regulations. That provision requires a prehearing exchange of proposed witnesses and potential exhibits in the case. The Respondent claimed that the regulation was contrary to principles of due process, and was promulgated in violation of the Administrative Procedures Act.

III. Judge's Decision

During the hearing, the Judge ruled, without comment, that the Respondent must comply with section 2423.14(a) of the Authority's Rules and Regulations.

On the merits, the Judge first noted that apart from the memorandum of agreement in settlement of Case No. 8-CA-50114, the Union's request for names and home addresses of the employees under the jurisdiction of Respondent's Phoenix Area Office meets all of the requirements for release of information established by section 7114(b)(4). The Judge determined--on alternative grounds--that the Respondent did not violate the Statute because (1) the dispute involved differing and arguable interpretations of the memorandum of agreement in Case No. 8-CA-50114; or (2) the Union clearly and unmistakably waived its right to require the Respondent to make a computer-generated or manual compilation of names and home addresses of bargaining unit employees.

In view of his finding that this case involved a dispute over the interpretation of the memorandum of agreement in Case No. 8-CA-50014, the Judge determined that the aggrieved party's remedy was through the grievance and arbitration procedure available to the parties rather than through the unfair labor practice procedure.

As to waiver, based on factual and credibility findings, the Judge determined that the memorandum of agreement in Case No. 8-CA-50114 extended beyond the Navajo Area Office and had nationwide application. He found that under the agreement, the Agency would not be required to provide the Union with "computer generated listings . . . or any other non-existing list." Judge's Decision at 6. He found that the phrase "any other non-existing list" in the memorandum of agreement relieved the Agency of any obligation to compile and provide to the Union a list of names and home addresses which the Agency does not ordinarily maintain. Judge's Decision at 6. The Judge found further that the phrase is not limited to only "computer generated listings," as asserted by the General Counsel. Judge's Decision at 6. The Judge noted that the memorandum of agreement was negotiated in the context of a dispute concerning the exclusive representative's right to such a list under section 7114(b)(4), at a time when the Authority was actively considering the question of whether exclusive representatives had a right to the names and home addresses of bargaining unit employees under section 7114(b)(4). Judge's Decision at 8.

IV. Positions of the Parties

A. The General Counsel

The General Counsel excepts to certain credibility findings made by the Judge. The General Counsel also excepts to the Judge's alternative determinations that (1) this matter involves differing and arguable interpretations of the memorandum of agreement; and (2) the Union clearly and unmistakably waived its right to require the Respondent to furnish the names and home addresses of unit employees.

The General Counsel argues that because this case involves the Union's right under section 7114(b)(4) to names and home addresses of bargaining unit employees, the case cannot be decided on the basis of contract interpretation. The General Counsel further argues that the evidence in the record does not support a finding that the Union waived its right to the requested information. The General Counsel maintains that the Union could not have knowingly and consciously waived its right to the information requested because the memorandum of agreement was executed before the Authority resolved the issue of a union's right to names and home addresses of unit employees.

B. The Respondent

In its opposition to General Counsel's exceptions and its cross exceptions, the Respondent contends that the record supports the Judge's dismissal of the complaint. However, the Respondent excepts to the Judge's ruling at the hearing that the Respondent must comply with section 2423.14(a) of the Authority's Rules and Regulations. The Respondent also excepts to the Judge's finding that apart from the memorandum of agreement, the Union's request meets all of the requirements established by section 7114(b)(4). The Respondent maintains that the release of the requested information is not required under section 7114(b)(4) and is prohibited by the Privacy Act.

C. The General Counsel's Opposition to the Respondent's Cross Exceptions

In its opposition to the Respondent's cross exceptions, the General Counsel maintains that the Judge correctly ruled that the Respondent must comply with section 2423.14(a) of the Authority's Rules and Regulations. The General Counsel also reiterates its support for the Judge's finding that apart from the memorandum of agreement, the Union's request for names and home addresses otherwise meets all of the requirements established by 7114(b)(4).

V. Analysis and Conclusion

A. Procedural Matters

The Respondent's exception to the Judge's ruling at the hearing requiring the Respondent to comply with section 2423.14(a) of the Authority's Rules concerning prehearing disclosure is without merit. We have carefully considered the Judge's ruling and the submissions of the parties on this issue. We reject the Respondent's claims that section 2423.14(a) violates principles of due process and was promulgated in violation of the Administrative Procedures Act for the following reasons.

The Respondent's argument that the rule denies the Respondent due process because it tilts unfair practice proceedings in favor of the General Counsel is not persuasive. We note that the rule applies equally to both parties. Moreover, it is similar to other provisions which apply in pre-trial proceedings. See, for example, D.D.C. Rule 209(b). Consequently, we reject the assertion that section 2423.14(a) of the Rules denies the Respondent due process. We note that similar arguments which were submitted by the Respondent in 1986 were considered and rejected by the Authority in connection with the promulgation of the rule.

Furthermore, the rule was promulgated in accordance with the Administrative Procedures Act, 5 U.S.C. § 553, which requires that (1) notice of proposed rule making be published in the Federal Register and (2) interested persons be given an opportunity to submit comments for the Agency's consideration. The proposed rule was published in the Federal Register. 51 Fed. Reg. 33839. Respondent, on October 21, 1986, responded to the proposed rule and, as noted, offered arguments similar to those made in this case. The Authority considered the Respondent's comments before the final rule was published in the Federal Register on December 22, 1986. 51 Fed. Reg. 45752.

Accordingly, we affirm the Judge's ruling requiring the Respondent to exchange witness lists and exhibits.

B. The Respondent Did Not Fail to Comply with Section 7114(b)(4) in Violation of Section 7116(a)(1), (5) and (8) of the Statute.

Turning to the merits of the case, we find that the Union waived its right to the information requested by the memorandum of agreement in settlement of Case No. 8-CA-50114.

A Union's waiver of a statutory right must be clear and unmistakable. Missouri National Guard, Office of the Adjutant General, Jefferson City, Missouri, 31 FLRA 1244, 1247 (1988) ("zipper clause" waived parties' rights to any bargaining during the term of their agreement except in accordance with a limited reopener clause). See also Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 708 (1983). In determining whether a contract provision constitutes a clear and unmistakable waiver, we examine the wording of the provision as well as other relevant provisions of the contract, bargaining history and past practice. Missouri National Guard, 31 FLRA 1244, 1247 (1988).

In the instant case, we are not faced with a provision in a collective bargaining agreement. Rather, the memorandum of agreement which assertedly waives the Union's rights was reached in settlement of an unfair labor practice complaint. We conclude that the same principles apply to determine whether the settlement agreement constitutes a waiver as apply when the alleged waiver is contained in a contract provision. Compare Energy Cooperative, Inc., 290 NLRB No. 78, slip op. at 3-7 (July 29, 1988) (memorandum of agreement reached in settlement of a strike waived a statutory right).

In our view, the plain wording of the memorandum of agreement evinces a clear intent that: (1) it be applied nationwide; and (2) in exchange for the Respondent's agreement to provide certain lists for the Navajo Area, the Respondent was relieved of any obligation to provide the Union with other lists of names and home addresses of bargaining unit employees which were computer generated or not otherwise ordinarily maintained by management. The agreement was reached in the context of a national consolidated unit. It expressly states in section 3 that the Respondent will not be required to provide the lists to "the Council or Area Vice-President or any other union official . . . ." Therefore, we find that by entering into the memorandum of agreement, the Union clearly and unmistakably waived its right to the information requested in this case. See, for example, Office of Personnel Management, 23 FLRA 724 (1986).

We reject the General Counsel's argument that the Union could not knowingly have waived its statutory right to names and home addresses because at the time of the execution of the June 13, 1985 memorandum of agreement, the Authority was in the process of resolving the question of the exclusive representative's right to that information. The Union had notice that the Authority was actively considering this question; the Union was a party to litigation pending before the Authority concerning this question in Defense Mapping Agency Aerospace Center, St. Louis, Missouri, 19 FLRA 675 (1985), in which the decision of the Administrative Law Judge was issued in 1983. Consequently, we find that the Union's waiver of rights concerning names and home addresses which was at issue in pending Authority decisions was clear and unmistakable. U.S. Library of Congress, 18 FLRA 224 (1985), affirmed sub nom. Congressional Research Employees Association v. Federal Labor Relations Authority, 790 F.2d 964 (D.C. Cir. 1986) (where it was found that the union was aware of pending legislation allowing a maxiflex workweek, and that its waiver of any rights provided in the pending legislation was conscious, clear and unmistakable).

We also reject the General Counsel's claim that this case is analogous to our decision that there was no waiver in Department of the Air Force Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 28 FLRA 306 (1987), petition for review filed sub nom. Federal Labor Relations Authority v. Department of the Air Force Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, No. 87-1387 (D.C. Cir. July 7, 1987). In that case, unlike here, the plain wording of the agreement at issue did not support a finding of a waiver.

In view of our finding that the Union clearly and unmistakably waived its right to have the Respondent furnish the information requested by entering the memorandum of agreement, we do not adopt the Judge's alternative finding that the resolution of the dispute in this case involves differing and arguable interpretations of the memorandum of agreement.

VI