41:0480(45)CA - - HUD, San Francisco, CA and AFGE Local 2403 - - 1991 FLRAdec CA - - v41 p480
[ v41 p480 ]
The decision of the Authority follows:
41 FLRA No. 45
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on the Respondent's motion for reconsideration of our decision in Department of Housing and Urban Development, San Francisco, California, 40 FLRA No. 100 (1991).(*) The General Counsel filed a response to the motion.
Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. For the following reasons, we find that the Respondent has established extraordinary circumstances warranting reconsideration of one portion of the remedial order. However, the Respondent has failed to establish extraordinary circumstances with regard to another portion of the remedial order. Accordingly, the motion to that extent will be denied.
II. The Decision in 40 FLRA No. 100
In 40 FLRA No. 100, the Authority found that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to provide the Union with a copy of the notice of proposed removal of a bargaining unit employee. In reaching this result, the Authority found that the requested information was necessary for the Union to carry out its representational duties and that the parties' collective bargaining agreement did not contain a waiver of the Union's statutory right, under section 7114(b)(4) of the Statute, to the requested information.
To remedy the unlawful conduct, the Authority ordered the Respondent to furnish the information to the Union, on request. The Authority also ordered the Director, Department of Housing and Urban Development (HUD), San Francisco, California Regional Office to sign the remedial notice and to post copies of the notice at its facilities in San Francisco.
III. The Respondent's Motion for Reconsideration and the General Counsel's Response
The Respondent seeks reconsideration of two aspects of the Authority's order: (1) the location at which the notice is to be posted; and (2) the designation of the particular individual responsible for signing the notice. The Respondent claims that the Authority's order "does not conform to HUD's organizational and contractual realities." Request for Reconsideration at 1. The Respondent indicates that labor relations in the San Francisco Regional Office are governed by a collective bargaining agreement between the Regional Office and a labor organization other than the Union. Thus, the Respondent states that even though an employee of the San Francisco office took the action involved in this case, the affected employee is located in San Diego and the Union is the exclusive representative in that location, but not in San Francisco. The Respondent requests that the Authority modify its order to require that the notice be signed by the Director of the San Diego Office, and posted only in San Diego, or that the Authority "in some other manner acknowledge that the posting should take this form." Id.
The General Counsel opposes the Respondent's request. The General Counsel argues that as the unlawful act of refusing to furnish information was committed by an individual in the San Francisco office, it is appropriate that the notice be signed by the head of the San Francisco office. While admitting that no bargaining unit employees work in Respondent's San Francisco office, the General Counsel also claims that the notice should be posted in San Francisco because that is the location at which the unlawful conduct occurred. Finally, the General Counsel requests that the Authority modify the posting to include locations throughout the Union's bargaining unit.
IV. Analysis and Conclusions
As indicated, the Respondent raises two issues in its request for reconsideration: the scope of the posting and the identity of the official designated to sign the notice. As to the scope of the posting, we agree with the Respondent that modification is warranted. In determining the scope of a posting requirement, the Authority considers the purposes that a notice serves. See U.S. Department of Treasury, Customs Service, Washington, D.C. and Customs Service, Region IV, Miami, Florida, 37 FLRA 603, 604-05 (1990). For example, notices provide evidence to bargaining unit employees that the rights guaranteed under the Statute will be vigorously enforced. Also, in many instances, the posting of a notice is the only visible indication to those employees that a respondent recognizes and intends to fulfill its obligations under the Statute.
The record before the Authority in 40 FLRA No. 100 indicated that the Respondent's official to whom the request for information was made, and who denied the request, is located in HUD's San Francisco Regional Office. The employee who was the subject of the proposed removal is located in the San Diego office, while the Union president who requested the information is located in the Los Angeles office. The record also indicated that the Union holds exclusive recognition in a unit comprised of employees in the Los Angeles Area Office of the Respondent's San Francisco Regional Office, which includes offices in Los Angeles, San Diego and Santa Ana, California and Phoenix and Tucson, Arizona.
In its request for reconsideration, the Respondent has advised us that the Union does not represent bargaining unit employees in San Francisco. The General Counsel admits that this assertion is correct. Consequently, we find that a posting in San Francisco will not serve the purpose of notifying bargaining unit employees of the measures the Respondent must take in order to fulfill its statutory obligations. Although the Authority initially ordered that the notice be posted in the Respondent's San Francisco facilities, on reconsideration, we find that the Respondent should not be required to post a notice in that location.
We further find, in agreement with the Respondent, that a posting in the San Diego office is appropriate. However, in order to give full effect to the purposes served by the notice, we find that posting in all locations where employees represented by the Union are located, rather than a limited posting in San Diego, will more fully effectuate the purposes and policies of the Statute. In this connection, the record indicates that the bargaining unit employees who were most directly involved in the case before the Authority are in two geographically dispersed locations: Los Angeles and San Diego. Clearly, given the nature of the unlawful conduct in this case, involving the proposed removal of a bargaining unit employee, employees in those two locations as well as employees in the other locations within the Respondent's San Francisco region who are represented by the Union should be apprised that the Respondent intends to fulfill its obligations under the Statute. Consequently, we will further modify our order to require that the notice be posted in all locations within the San Francisco region at which bargaining unit employees represented by the Union are located.
With regard to the second issue raised by the Respondent, concerning the identity of the official designated to sign the notice, we find that no extraordinary circumstances have been presented warranting reconsideration of this portion of our order. Consistent with the remedial purposes that are served by the posting of a notice, requiring a responsible official, designated by the Authority, to sign the notice signifies that a respondent acknowledges its obligations under the Statute and intends to comply with those obligations. See Department of the Air Force, Air Force Logistics Command, Sacramento Air Logistics Center, McClellan Air Force Base, California, 35 FLRA 217, 220 (1990). As the unlawful refusal to provide information was made by an official in the San Francisco Regional Office, as acknowledged by the Respondent, ordering the Director of the San Francisco Regional Office to sign the notice comports with the above requirements.
The Respondent's motion for reconsideration of the Authority's decision in 40 FLRA No. 100 is granted for the limited purpose of modifying the location at which the remedial notice must be posted. The Authority's order is modified by substituting the following as paragraph 2(b) of the order:
(b) Post at its facilities where bargaining unit employees represented by the American Federation of Government Employees, Local 2403, 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 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.
The Respondent's motion for reconsideration is denied in all other respects.
(If blank, the decision does not have footnotes.)
*/ We consider the Respondent's request to modify portions of our decision as a motion for reconsideration.