34:0182(40)CA - - Veterans Affairs, Washington, DC and Veterans Affairs, Medical and Regional Office Center, Fargo, ND and AFGE - - 1990 FLRAdec CA - - v34 p182
[ v34 p182 ]
The decision of the Authority follows:
34 FLRA NO. 40
U.S. DEPARTMENT OF VETERANS AFFAIRS
U.S. DEPARTMENT OF VETERANS AFFAIRS
MEDICAL AND REGIONAL OFFICE CENTER
FARGO, NORTH DAKOTA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
DECISION AND ORDER
January 9, 1990
Before Chairman McKee and Members Talkin and Armendariz.
Statement of the Case
This unfair labor practice case is before the Authority on exceptions filed by the Respondents to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the Respondents' exceptions.
The complaint alleged that the Respondents violated section 7116(a)(1), (5), and (8) of the Federal Service Labor - Management Relations Statute (the Statute) by refusing to furnish the Charging Party (the Union) with copies of VA Form 10-2543 pursuant to section 7114(b)(4) of the Statute. VA Form 10-2543 includes the recommendations of the Nurse Professional Standards Board (NPSB) as to the whether to continue the employment of newly-hired registered nurses.
The Judge found that the Respondents' refusal to furnish the Union with the information it requested constituted: (1) a failure to comply with section 7114(b)(4); and (2) an unfair labor practice in violation of section 7116(a)(1), (5), and (8). The Judge recommended that the Respondents be ordered to take appropriate remedial action.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute (the Statute), we have reviewed the rulings of the Judge and find that no prejudicial error was committed. We affirm the rulings. Upon consideration of the Judge's Decision, the exceptions, and the entire record, we conclude, contrary to the Judge, that the Respondents did not violate the Statute by refusing to furnish the Union with the information it requested. For the reasons discussed below, we will dismiss the complaint.
The Union is the exclusive representative of a nationwide bargaining unit which includes employees of the Respondents' Department of Medicine and Surgery (DM&S) assigned to the Veterans Administration Medical Center, Fargo, North Dakota. The unit includes registered nurses, nurse practitioners, clinical specialists and nursing instructors.
By memorandum dated April 22, 1987, the Union requested, pursuant to section 7114(b)(4)(B) of the Statute, all NPSB actions (VA Form 10-2543) of newly-hired registered nurses from January 1, 1987. The Union indicated that the information was required in the investigation of a potential grievance and for the administration of the parties' contract. By memorandum dated May 13, 1987, the Respondents denied the Union's request for information on the grounds that release of the requested information without the employees' consent would violate the Privacy Act.
The General Counsel subsequently issued a complaint alleging that the Respondents' refusal to furnish the information constituted an unfair labor practice.
III. Administrative Law Judge's Decision
The Judge found that the parties had entered into and were covered by an interim collective bargaining agreement which extended the terms of any local agreements between the parties until a new Master Agreement had been approved. Judge's Decision at 3. The Judge also found, based on Authority precedent, that the Respondents had a duty to furnish the requested information to the Union because the Union, under section 7114(b)(4) of the Statute, "clearly has a right to information necessary to process a grievance or to evaluate whether a grievance need be filed(.)" Judge's Decision at 6. While noting that the U.S. Court of Appeals for the District of Columbia Circuit had issued its decision in Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988), the Judge stated that the Authority "has not yet accepted the Colorado Nurses Association decision and its prior decisions are binding on me." Id.
The Judge concluded that the Respondents' refusal to provide the requested information to the Union as required by section 7114(b)(4) constituted an unfair labor practice in violation of section 7116(a)(1), (5) and (8).
IV. The Respondents' Exceptions
Based on the court's decision in Colorado Nurses Association, the Respondents contend that they have no duty under section 7114(b)(4) of the Statute to provide the information on VA Form 10-2543 requested by the Union because: (1) under 38 U.S.C. 4108(a), the Administrator of the Veterans Administration has exclusive authority over the conditions of employment of professional medical employees in the DM&S; and (2) the requested information concerns the conditions of employment of professional medical employees (nurses) of the DM&S.
The Respondents contend that because they have no duty to bargain on the conditions of employment of nurses in the unit represented by the Union, their refusal to provide the Union with information on VA Form 10-2543 for newly-hired registered nurses does not violate section 7116(a)(1), (5), and (8) of the Statute. The Respondents assert that as in Colorado Nurses Association, the "VA's authority over title 38 working conditions is directly in issue" in this case. Agency's Response of March 17, 1989 to Authority's Order of March 10, 1989.
V. The General Counsel's Opposition
The General Counsel contends that the court's decision in Colorado Nurses Association does not preclude the Administrator of the Veterans Administration from exercising his authority by agreeing to a collective bargaining agreement. Opposition at 3. Noting that the Judge had determined that the parties were covered by an interim collective bargaining agreement which included a grievance procedure, the General Counsel argues that "(t)he VA Administrator has chosen to be bound, thus, since 1980 (the date of the parties' agreement) his discretion has not been unfettered." Opposition at 4. The General Counsel concludes that the issue in this case concerns the parties' contractual obligations. Opposition at 4.
The General Counsel notes the Judge's finding that under the court's decision in Colorado Nurses Association, the Administrator could choose to enter into an enforceable collective bargaining agreement. Opposition at 4. The General Counsel also notes that a grievance was filed under the grievance procedure contained in the parties' collective bargaining agreement and that the information requested by the Union in this case was necessary to the processing of that grievance. Opposition at 3. The General Counsel contends that the Judge correctly found that the Respondents were obligated to provide information necessary to process a grievance under the grievance procedure of the collective bargaining agreement and that the Respondent's failure to provide that information violated the Statute. Id. The General Counsel concludes that the court did not intend in Colorado Nurses Association to invalidate existing collective bargaining agreements. Id.
The Union requested copies of all Nurse Professional Standard Board actions pertaining to newly-hired registered nurses which had been recorded on VA Form 10-2543. The issue before us is whether the Respondents are obligated under section 7114(b)(4) of the Statute to provide the Union with the information requested. If the Respondents are not obligated under the Statute to provide the Union with the requested information, their failure to do so did not violate the Statute. Section 7114(b)(4) of the Statute provides that an agency's duty to "negotiate in good faith" includes the following obligation:
(4) . . . to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data--
(B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining(.)
An agency's obligation under section 7114(b)(4) encompasses the duty to furnish information which is necessary for a union to determine whether or not to file grievances and to process grievances effectively. See U.S. Army Reserve Components, Personnel and Administration Center, St. Louis, Missouri, 26 FLRA 19, 27 (1987).
An agency's obligation under section 7114 to furnish information which is necessary for unions to evaluate and process grievances flows from the agency's obligation to bargain collectively under the Statute. See American Federation of Government Employees, Local 1345 v. FLRA, 793 F.2d 1360, 1363 (D.C. Cir. 1986) ("(I)n collective bargaining, '(t)he duty to request and supply information is part and parcel of the fundamental duty to bargain.'" (citation omitted)). In Colorado Nurses Association, the court determined that the Veterans Administration had no duty under the Statute to bargain on the conditions of employment of employees of the DM& S. The court stated that "Congress intended to give the (VA) Administrator unfettered discretion to issue regulations concerning the working conditions of DM & S employees." Colorado Nurses Association at 1492. The Authority adopted the court's decision in Colorado Nurses Association that the Veterans Administration has no obligation to bargain over the conditions of employment of professional medical employees, including nurses, of the DM& S. See, for example, Veterans Administration Veterans Administration Medical Center, Muskogee, Oklahoma, 33 FLRA 417 (1988).
The Respondents do not have an obligation to bargain with the Union over the conditions of employment of nurses employed in the DM&S. Absent a duty to bargain under section 7114 of the Statute, the Respondents had no obligation under section 7114(b)(4) to provide the Union with information pertaining to the conditions of employment of those nurses for purposes of processing a grievance. The Respondents' failure to provide the requested information, therefore, does not violate section 7114(b)(4) of the Statute. Consequently, the Respondents did not violate section 7116(a)(1), (5), and (8) of the Statute by refusing to provide the Union with that information.
The General Counsel notes that in Colorado Nurses Association the court stated that 38 U.S.c. 4108(a) did not preclude the Administrator, in his discretion from negotiating an agreement with a union representing professional medical employees of the DM&S or agreeing to comply with existing agreements covering those employees. The General Counsel argues that because the Administrator has agreed to comply with the parties' interim agreement in this case and because that agreement includes a grievance procedure, the Union is entitled under the Statute to information necessary to process a grievance pursuant to that grievance procedure and the Respondents' failure to provide that information is a violation of the Statute.
We reject this argument. In our view, the decision of the Administrator, pursuant to his discretion under 38 U.S.C. 4108(a), to comply with the parties' interim agreement does not render that agreement a "collective bargaining agreement" within the meaning of the Statute and does not subject the Administrator to the Statute's mechanisms for enforcing the parties' rights and obligations under that agreement.
The Statute establishes a framework of rights and obligations for Federal employees, labor organizations, and agencies and provides mechanisms for the enforcement of those rights and obligations. Under section 7114(a) of the Statute, a labor organization which has been accorded exclusive recognition is entitled to negotiate "collective bargaining agreements" covering all employees ina unit of exclusive representation. The Statute defines a "collective bargaining agreement" as "an agreement entered into as a result of collective bargaining" under the Statute. 5 U.S.C. 7103(a)(8). "Collective bargaining" is defined as the performance of the parties' "mutual obligation" to "bargain . . . with respect to the conditions of employment affecting (unit) employees(.)" 5 U.S.C. 7103(a)(12).
For the reasons discussed above, the Respondent has no obligation to bargain over conditions of employment of the individuals employed in the unit. The parties' negotiations, therefore, do not constitute "collective bargaining" under the Statute. Consequently, any agreement entered into as a result of those negotiations does not constitute a "collective bargaining agreement" within the meaning of the Statute. For the same reason, a grievance procedure contained in an agreement resulting from the parties' negotiations does not constitute a negotiated grievance procedure under section 7121 of the Statute. See U.S. Department of Veterans Affairs, Medical Center, Danville, Illinois and American Federation of Government Employees, Local 1963, 34 FLRA No. 29 (1990).
Because the parties' agreement results from an exercise of the Administrator's discretion under 38 U.S.C. 4108(a) rather than from collective bargaining under the Statute, it falls outside the framework of rights and obligations established by the Statute and is not covered by the Statute's mechanisms for the enforcement of those rights and obligations. A collective bargaining relationship under the Statute does not exist between the parties in this case. Consequently, the Union has no right under the Statute to information for the processing of a grievance under the parties' agreement and recourse to the Statute's unfair labor practice procedures is not available for the enforcement of the Union's claim to that information.
Our decision is not intended to preclude the Administrator from exercising his authority under 38 U.S.C. 4108(a) by agreeing to comply with existing collective bargaining agreements covering professional medical employees of the DM&S who are covered by 38 U.S.C. 4108(a). We hold only that a decision of the Administrator to abide by those agreements does not create an obligation on the part of the Respondent under section 7114 of the Statute to provide information to the Union which would be enforceable through the unfair labor practice provisions of the Statute. See U.S. Department of Veterans Affairs, Medical Center, Danville, Illinois, 34 FLRA No. 29 (1990). (The Authority held that "even assuming that the VA Administrator could exercise his authority under 38 U.S.C. 4108 by agreeing to arbitrate disputes over conditions of employment of professional medical employees of DM&S, any arbitration award issued pursuant to such an agreement would not be an award issued under section 7121 of the Statute (and) would not be subject to review by the Authority under section 7122 of the Statute.").
The complaint is dismissed.
MEDICAL AND REGIONAL OFFICE
CENTER, FARGO, NORTH DAKOTA
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 7-CA-80006
Barbara L. Perkins, Esquire
For the Respondents
Hazel E. Hanley, Esquire
For the General Counsel, FLRA
Mr. Larney Werth
For the Charging Party
Before: GARVIN LEE OLIVER
Administrative Law Judge
Statement of the Case
The unfair labor practice complaint in this case alleges, in substance, that Respondents violated section 7116(a)(1), (5) and (8) of the Federal Service Labor - Management Relations Statute (the Statute), by refusing to furnish the Charging Party, pursuant to section 7114(b)(4) of the Statute, with VA Form 10-2543 for newly hired registered nurses (RNs) from January 1, 1987 to April 22, 1987.
Respondents' answer admitted the jurisdictional allegations;
that they refused to supply the requested information; that the information is maintained by Respondents; that it is reasonably available; and that it does not constitute guidance, advice, counsel or training provided for management officials or supervisors, relating to collective bargaining. Respondents denied (1) that the information was necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining and (2) that release of the information is not prohibited by law. Respondents alleged that disclosure of the information would be an unwarranted violation of personal privacy of the individuals involved and a violation of the Privacy Act.
A hearing was held in Fargo, North Dakota. 1 The parties were represented and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. The Respondents and General Counsel filed helpful briefs, and the proposed findings have been adopted where found supported by the record as a whole. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations.
Findings of Fact
Since July 23, 1981, the American Federation of Government Employees, AFL - CIO (AFGE) has been the exclusive representative of a national consolidated unit which included all registered nurses, including nurse practitioners, clinical specialists and nursing instructors, employed by the Veterans Administration Medical Center, Fargo, North Dakota. At all times material herein, the American Federation of Government Employees, AFL - CIO, Local 3884 (Local 3884), has been an affiliate and agent of AFGE.
At all times material herein, the Veterans Administration, Washington, D.C. (Agency) and the Veterans Administration Medical and Regional Office Center, Fargo, North Dakota (Activity) (collectively referred to as Respondents) have been agencies within the meaning of 5 U.S.C. 7103(2)(3). At all times material herein, Ray A. Johnson has occupied the position of Personnel Officer at Respondents' facility in Fargo, North Dakota, and has been a management official or supervisor and an agent of Respondents.
On July 3, 1974, the Activity signed a collective bargaining agreement with the North Dakota State Nurses' Association, the AFGE'S predecessor as exclusive representative of the unit described above. This agreement was amended on December 30, 1976. The amendment provided in part:
Vacancies in the positions of head nurse, supervisor, specialty positions and newly created positions will be filled from among the best qualified and available nurses. The Center agrees that such selection will not be based solely on educational achievement, and will take every means to insure that the principles of equal opportunity are strictly adhered to.
On April 21, 1980, Respondent Agency and the AFGE entered into an interim collective bargaining agreement pending the approval of a Master Agreement. Among other things, it provided:
The terms of any local agreement which was in effect at the time of the consolidated unit certification shall remain in effect until final approval of the Master Agreement for this unit. 2
Larney Werth is the President and Debra Cederholm is the Vice President of Local 3884. They have made over forty information requests of the Activity since 1984. When making such requests, they use a form agreed to in settlement of a prior unfair labor practice complaint. The form states whether the reason for the request is (a) investigation of potential grievance, (b) grievance processing or other representational activity, (c) collective bargaining, or (d) administration of the contract. According to the Settlement Agreement, the Chief, Personnel Service, is to respond to the request within 10 days by granting it, denying it with supporting reasons, or requesting a clarification for the purpose of seeking to determine what information is being requested.
Among the previous requests made under this procedure and complied with by the Activity was a request for copies of all bargaining unit Registered Nurse Annual Proficiency Reports (VA Form 10-2623) from June 1983 to November 1984 and the related NPSB actions related thereto (Form 10-2543). The NPSB is the Nurse Professional Standards Board which (1) evaluates probationary employees to determine if their employment will be continued, (2) acts on new appointments to the Division of Medicine and Surgery, and (3) evaluates currently employed registered nurses. VA Form 10-2543 sets forth the name, birth place, school of nursing, license, previous employment, and number of references of the employee, a recommendation by the NPSB and signatures of the Board members.
When they receive information from Respondents, Mr. Werth and Ms. Cederholm put it in a locked metal box in their office, and they are the only ones who have access to it. There has never been any complaint that this information was improperly disseminated by the Union.
On March 17, 1987, Mr. Werth filed a grievance on behalf of Bruce Boelter, a bargaining unit employee, who had applied for a lateral transfer from the Intensive Care Unit to the Operating Room. Mr. Boelter had responded to a posting along with three other employees, had been interviewed and had been found qualified. However, the grievance claimed that when two of the other employees who had applied were offered the position but declined it, the position was reposted and eventually was filled by persons outside of the Veterans Administration. Mr. Werth was also informed at a Union meeting that the Activity was hiring outside of the Veterans Administration for the Intensive Care Unit and the Operating Room.
It was Mr. Werth's belief that the practice under the collective bargaining agreement was to fill Operating Room positions from among employees who were qualified and were already employed. This was contrary to the understanding of Respondents' Mr. Johnson, who believed that the Respondents could hire under provisions established by the Chief Medical Director, subject only to the posting requirements in the agreement.
On April 22, 1987, Mr. Werth wrote to Mr. Johnson requesting all NPSB actions (VA Form 10-2543) of newly hired RNs from January 1, 1987 to the present date. The reasons given was investigation of potential grievance and administration of the contract. Mr. Werth believed that he could compare the VA forms with the qualifications of current employees to determine whether or not the persons hired from the outside possessed superior qualifications.
On May 13, 1987, Mr. Johnson denied Mr. Werth's request, on the grounds that it violated the Privacy Act. Mr. Johnson did not request clarification or propose sanitization of the data. In any event, Mr. Werth believed that he had to have the names of the new employees because he had to compare the qualifications of the persons who were hired for the contested positions with the qualifications of the applicants who were current employees of the Veterans Administration. Moreover, he did not know the names of the persons who were hired from the outside since they had not yet reported, so he could not ask them what their qualifications
Discussion, Conclusions, and Recommendations
The Respondents contend that the requested form contains information that could, if released in unsanitized form, be detrimental to the nurses' privacy interests and that the Union has failed to justify its need for the data. It also contends that Title 38 of the United States Code gives the Veterans Administration the right to determine working conditions, and in a post-hearing letter, cites the recent case of Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988) for this principle.
The General Counsel contends that the requested information relates to the Union's need to evaluate grievances and unsanitized data was needed for this purpose; that similar data had been previously produced; that the data was not stigmatizing; that the Union had always protected such data in the past; that the Authority has held that the Veterans Administration has a duty to bargain over working conditions; and that the grievability of the grievance must be determined by the arbitrator. In response to Respondents' post-hearing letter, General Counsel pointed out that the Authority has not yet accepted as the law of the case the court decision in Colorado Nurses Association and that, in any event, that case only related to the Veterans Administration's duty to bargain over new proposals, not to its duty to abide by existing contractual obligations.
I find that Respondents had a duty to provide the data to the Union. First, the Union clearly has a right to information necessary to process a grievance or to evaluate whether a grievance need be filed and the Union's statement of reasons was clearly adequate to show that it needed the forms for such purposes. See, e.g., American Federation of Government Employees, AFL - CIO v. FLRA, 811 F.2d 769 (2nd Cir. 1987); U.S. Equal Employment Opportunity Commission, Washington, D.C., 20 FLRA 357 (1985); Veterans Administration Regional Office, Denver, Colorado, 7 FLRA 629 (1982). It is clear that if the Union's position that currently employed qualified employees should be hired for Operating Room positions is correct (a question for the arbitrator), the data sought by the Union would enable it to prove that the outside employees hired did not have superior qualifications and, thus, show that its position was meritorious. Moreover, the issue of whether the Respondents are exempted from submitting the working conditions of nurses to grievance procedures has been decided by the Authority in favor of the Union. See Veterans Administration Medical Center, Omaha, Nebraska, 26 FLRA 371 (1987). The Authority has not yet accepted the Colorado Nurses Association decision and its prior decisions are binding on me. In any event, the Court stated that the Veterans Administration could choose to negotiate over particular matters, and it is not clear that grievances concerning the interpretation of previously agreed language cannot now be brought. With respect to the Privacy Act, the Authority stated in Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 25 FLRA 1060, 1062 (1987):
Exemption (b)(6) of FOIA, 5 U.S.C. 552(b)(6), pertinently provides that information contained in personnel files may be withheld if disclosure of the information would constitute a 'clearly unwarranted invasion of personal privacy.' As we recently stated in Farmers Home Administration Finance Office, St. Louis, Missouri, 23 FLRA No. 101, (1986), petition for review filed sub nom., No. 86-2579 (8th Cir. Dec. 23, 1986), to determine whether requested information falls within exemption (b)(6), it is necessary to strike a balance between an individual's right to privacy and the public interests in having the information disclosed. In striking this balance in cases under section 7114(b)(4), we also stated that in view of the congressional findings in section 7101 that collective bargaining is in the public interest and safeguards that interest, release of information which is necessary for a union to perform its statutory representational functions promotes important public interests.
In Veterans Administration Central Office, Washington, D.C. and Veterans Administration Regional Office, Denver, Colorado, 25 FLRA 633 (1987), the Authority held that where unsanitized information was necessary to the performance of the union's functions and similar information had been previously disclosed to the union with no indication of widespread circulation of the information or protest of the employees involved, the disclosure was not prohibited by the Privacy Act. In this case, similar data has been supplied before and has been protected by the Union without complaint. Further, the Authority has ordered disclosure after finding that data would not be "stigmatizing" or become generally known. Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Omaha District, Omaha, Nebraska, 25 FLRA 181 (1987). The data requested is a very brief description of the employee's background and is not stigmatizing. For example, although it gives the school, experience and references of the employee, it does not state the grades earned by the employee, the duties at the former employment, or whether the references are good or bad. Finally, in Andrews v. Veterans Administration of United States, 613 F. Supp. 1404 (D.C. Wyo. 1985), where a court held that the disclosure of performance reports was held to violate the Privacy Act, the data was not needed or used to process a grievance or for any other valid union purpose. Consequently, it is easily distinguishable from this case.
Since Respondents conceded that Mr. Johnson was the agent of both the Activity and the Agency, both are liable for the violation of the Statute.
It is concluded that by Respondents' action in refusing to furnish the Union with the information it requested, it failed to comply with section 7114(b)(4) and engaged in unfair labor practices in violation of section 7116(a)(1), (5) and (8), as alleged.
Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following 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 Veterans Administration Medical and Regional Office Center, Fargo, North Dakota, shall:
1. Cease and desist from:
(a) Failing and refusing to furnish, upon request of the American Federation of Government Employees, AFL - CIO, hereinafter called the Union, information which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining. (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) Furnish, upon request of the Union, VA Form 10-2543 for all RNs hired during the period Janua