40:1116(100)CA - - HUD and Urban Development, San Francisco, CA and AFGE Local 2403 - - 1991 FLRAdec CA - - v40 p1116

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[ v40 p1116 ]
40:1116(100)CA
The decision of the Authority follows:


40 FLRA No. 100

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

SAN FRANCISCO, CALIFORNIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2403

AFL-CIO

(Charging Party/Union)

8-CA-90223

DECISION

May 30, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached Administrative Law Judge's decision. The complaint alleged that 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 Union with a copy of a notice of proposed removal of a bargaining unit member. The Judge found that the Respondent did not violate the Statute, as alleged, because the assertions of the parties were based on differing and arguable interpretations of their collective bargaining agreement. The Judge recommended that the complaint be dismissed. The General Counsel filed exceptions to the Judge's decision, and the Respondent filed cross-exceptions and a brief opposing the General Counsel's exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing. We affirm the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's decision only to the extent consistent with this decision.

Subsequent to the Judge's decision in this case, the Authority rejected the approach that would find no violation of a statutory right when the parties merely proffered differing and arguable interpretations of the collective bargaining agreement to support their positions. Internal Revenue Service, Washington, D.C., 39 FLRA 1568 (1991) (Internal Revenue Service), application for review filed sub nom. Internal Revenue Service v. FLRA, No. 91- (D.C. Cir. May 24, 1991). To resolve defenses to alleged interference with statutory rights based on a collective bargaining agreement, the Authority will determine whether the charging party has clearly and unmistakably waived its statutory right. Id. at 1574. When the language of the agreement, or bargaining history, demonstrates that there was such a waiver, the complaint will be dismissed. Id.

Accordingly, we must determine in this case whether, pursuant to section 7114(b)(4) of the Statute, certain data sought by the Union was necessary for it to perform its representational duties, and if so, whether the parties' agreement contains a waiver of the Union's statutory right to the data. We conclude that the data sought was necessary,(1) and that the agreement does not contain a waiver. Consequently, we find that the Respondent's refusal violated the Statute as alleged.

II. Background

On January 25, 1989, the president of the Union, Ernestine Napue, received a notice that the Respondent had issued a proposed removal of a bargaining unit employee in the Respondent's San Diego office. Section 21.03 of the parties' collective bargaining agreement provides for such notice:

Section 21.03 - Union Notification.

When Management issues a notice of proposed action under this Article to an employee in the unit, Management shall so notify the Union. When Management issues a notice of decision on such an action to an employee in the unit, the Union will be given a copy upon request.

Judge's decision at 3.

On that same day, Napue contacted the Respondent, advised the Respondent that the Union was the exclusive representative of employees in the San Diego office and requested all the information regarding the proposed action, including the notice of proposed removal itself and any warnings given to the employee. In response, Napue was told that the employee involved had not informed the Respondent that he was represented by anyone and that the Respondent would not give the Union the information unless or until the employee designated the Union.

Section 21.02 of the parties' collective bargaining agreement provides that an employee whose removal is proposed is entitled to advance notice and notification of the right to reply and "to be represented by an attorney or other representative which includes the right to Union representation." Judge's decision at 3. Respondent's representative referred Napue to Article 21 of the parties' agreement, which provides only that the Union is supposed to be notified of a proposed removal. According to credited testimony, when Respondent's representative asked Napue if she was representing the employee, Napue answered "no". There is no indication that Napue was asked for or offered any reason why the Union needed the information other than the statement that the Union was the exclusive representative of the unit employees.

The next day, Napue wrote to the Respondent, stating that the Union requested certain information as the exclusive representative of all bargaining unit employees in the San Diego HUD office, including "[a]ny/all information regarding this notice of proposed removal." Judge's decision at 5.

The Respondent replied to the Union by memorandum dated January 30, 1989, stating:

Section 21.02(4)(a) provides that the employee upon the Employee's request will be provided a copy of the documentation relied upon to support the proposed action.

Section 21.02(4)(b) provides that an employee has the right to be represented by an attorney or other representative which includes the right to Union Representation.

Management is unaware of any election by the employee as to who will represent him. Upon receipt of his representative designation, we will furnish a copy of the information requested[.] [Emphasis in original.]

Judge's decision at 5. (2)

Subsequently, the employee notified the Respondent that an attorney was representing him regarding the proposed removal.

Section 21.01 (2) of the collective bargaining agreement provides:

The grievance procedure for . . . removing an employee for unacceptable performance is set forth in this Article [21 - UNACCEPTABLE PERFORMANCE ACTIONS] and is in lieu of the procedures identified in Article 22 (Grievance Procedure).

Id. at 3. Finally, Section 21.05 provides:

(1) The decision of Management regarding:

    (a) Reduction-in-grade; and for

    (b) A removal

Will be sent to the employee and, upon request, given to the Principal Office Representative. Within twenty (20) calendar [d]ays of the employee's receipt of the notice, the Union may invoke arbitration.

III. Administrative Law Judge's Decision

The Judge noted that the agreement (1) provides that notification of a proposed removal must be given to the Union, (2) addresses supplying of documentation relied upon to support the proposed action, and (3) provides that documentation will be supplied "[u]pon the employee's request . . . ." Judge's decision at 9-10 (quoting the agreement).

The Judge stated that but for the provisions of Article 21, he "would wholly agree with General Counsel that Respondent violated § [71]14(b)(4) of the Statute by failing to provide the data in question." Id. at 10. However, relying on 22nd Combat Support Group (SAC), March Air Force Base, California, 30 FLRA 331, 334 (1987), the Judge dismissed the complaint because the assertions of the parties involved differing and arguable interpretations of parts of Article 21 of the agreement.

IV. Positions of the Parties

The General Counsel asserts that the Union did not clearly and unmistakably waive its right to the information sought under section 7114(b)(4) of the Statute. The General Counsel argues that no evidence of waiver was provided by Respondent, and asserts that no waiver "is apparent." General Counsel's brief in support of exceptions at 6-7. Accordingly, the General Counsel argues that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by failing and refusing to furnish the Union a copy of the notice of proposed removal and supporting documentation.

The Respondent argues that there can be no finding that it unlawfully failed to furnish data pursuant to section 7114(b)(4) of the Statute because there has been no finding that the information was necessary to the Union's representational functions as required by section 7114(b)(4). In this regard, the Respondent states that proposed adverse actions, as opposed to decisions effecting such actions, are not grievable, citing section 21.05 of the agreement. The Respondent maintains that, "[s]ince the ALJ identified no other reason for the Union to need the information, the conclusion that but for the contract dispute the [S]tatute was violated is unsupported." Respondent's cross-exceptions and brief at 4.

The Respondent also argues that the plain language of section 21.03 of the agreement, "Union Notification," constitutes a clear and unmistakable waiver. The Respondent argues that "to expressly state some guarantees under an agreement is to exclude other guarantees. The right to a copy of a decision upon request was specifically guaranteed to the Union but . . . a copy of a proposal was not." Id. at 5.

V. Analysis and Conclusions

A. The Information Is Necessary Within the Meaning of Section 7114(b)(4) of the Statute

The Respondent argues that the General Counsel has not established that the information is necessary for the Union to carry out its representational duties. Credited testimony reveals that Napue told the Respondent that the Union did not represent the employee in regard to his proposed removal. However, the duty to provide information "must be evaluated in the context of the full range of union responsibilities in both the negotiation and the administration of a labor agreement." American Federation of Government Employees, AFL-CIO, Local 1345 v. FLRA, 793 F.2d 1360, 1364 (D.C. Cir. 1986) (AFGE v. FLRA) (emphasis in original); U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 38 FLRA 120, 130 (1990), application for enforcement filed sub nom. FLRA v. U.S. Department of Commerce, National Oceanic and Atmospheric Administration National Weather Service, Silver, Spring, MD, No. 91-1175 (D.C. Cir. Apr. 12, 1991). In this regard, there are many aspects of an exclusive representative's duties in addition to representing unit employees in grievance or disciplinary actions. For example, a policy established in connection with a particular personnel action may affect employees beyond those immediately involved, making it necessary for the union to seek certain information in order to understand the new policy or application of an old policy. In addition, the circumstances surrounding disciplinary actions may also be relevant to proposals in future negotiations. An exclusive representative also has a legitimate concern with its own status. The union cannot fulfill its representative obligation if it lacks information necessary to assess its representational responsibilities. AFGE v. FLRA, 793 F.2d at 1364.

As the Court of Appeals said in similar circumstances in AFGE v. FLRA, the Union's request here for "any/all information regarding [the] notice of proposed removal" "was descriptive enough to indicate what it had in mind to make plain the relevance of the information under the [S]tatute." Id. at 1364-65. In AFGE v. FLRA, a unit employee had received a notice of proposed removal. In that context, the court held that there was no need for further justification of the request. Id. at 1365. Cf. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515, 522-23 (1990), application for enforcement filed sub nom. FLRA v. U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, No. 90-1949 (1st Cir. Oct. 1, 1990) (requested information, names and home addresses, "is fundamentally relevant to the Union's role as bargaining agent," and "opening the record to assess the necessity of the information . . . is not required[.]"). Accordingly, we conclude that the information was necessary for the Union to carry out its representational duties.

B. The Union Did Not Waive Its Right Under Section 7114(b)(4) to the Information

As noted above, when the language of a negotiated agreement is raised as a defense to an unfair labor practice complaint, we will dismiss the complaint when the agreement demonstrates that the charging party clearly and unmistakably waived its statutory right. Internal Revenue Service, 39 FLRA at 1574. (3)

We conclude that the language of the parties' collective bargaining agreement does not demonstrate that, by agreeing to the various provisions of section 21 of the agreement, the Union clearly and unmistakably waived its right to information about the circumstances underlying the proposed removal of a bargaining unit employee. It cannot be shown that the agreement specifically addresses the issue. See Department of the Navy, Marine Corps Logistics Base, Albany, Georgia, 39 FLRA 1060, 1067 (1991), (Department of the Navy), petition for review filed sub nom. Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. FLRA, No. 91-1211 (D.C. Cir. May 9, 1991).

The Respondent's position is that the provisions of section 21.03, giving the Union the right to request a copy of an actual decision to remove a unit employee, and, in contrast, requiring the Respondent to provide the Union with only notification of a proposed removal, waives the Union's right to receive a copy of the proposed removal itself or any supporting documents. The Respondent bases its argument on the "timeless rule of construction . . . [that] to expressly state some guarantees under an agreement is to exclude other guarantees. The right to a copy of a decision upon request was specifically guaranteed to the Union but . . . a copy of a proposal was not." Respondent's cross-exceptions and brief at 5.

To the contrary, under the standard expressed in Department of the Navy for determining if there is a waiver of a statutory right, the very section of the agreement raised by the Respondent to support its waiver argument does not specifically address the issue of the Union's right to a copy of the proposed removal or supporting information. Indeed, the Respondent concedes that section 21.03 does not specifically address the Union's right to information about the proposed removal.

Similarly, we note that section 21.02(4)(a) of the parties' agreement, which provides that an employee who is the subject of a proposed removal is entitled to the documentation, does not indicate a waiver of the Union's right to such information.

In all the circumstances, we conclude that the Union did not waive its right to request and receive information regarding the notice of proposed removal. Accordingly, we find that the Respondent violated the Statute as alleged.

VI. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, it is hereby ordered that the Department of Housing and Urban Development, San Francisco, California, shall:

1. Cease and desist from:

(a) Failing and refusing to furnish, upon request of American Federation of Government Employees, Local 2403, AFL-CIO, the exclusive bargaining representative of its employees, information about the proposed removal of a unit employee, including a copy of the proposed removal itself.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of rights assured by the Statute.

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

(a) On request of American Federation of Government Employees, Local 2403, AFL-CIO, the exclusive bargaining representative of its employees, furnish it with information about the proposed removal of a unit employee, including a copy of the proposed removal itself.

(b) Post at its facilities in San Francisco, California, 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, Department of Housing and Urban Development, San Francisco, California Regional Office, 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 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, San Francisco, California 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.

 

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUT EMPLOYEES THAT:

WE WILL NOT fail or refuse to furnish, upon request of American Federation of Government Employees, Local 2403, AFL-CIO, the exclusive bargaining representative of our employees, information about the proposed removal of a unit employee, including a copy of the proposed removal itself.

WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL, upon request of American Federation of Government Employees, Local 2403, AFL-CIO, the exclusive bargaining representative of our employees, furnish it with information about the proposed removal of a unit employee, including a copy of the proposed removal itself.

(Activity)

Dated: 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, San Francisco, California Regional Office, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103, and whose telephone number is: (415) 744-4000.




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