41:1091(86)CA - - VA Medical Center, Fort Lyon, CO and AFGE Local 2430 - - 1991 FLRAdec CA - - v41 p1091



[ v41 p1091 ]
41:1091(86)CA
The decision of the Authority follows:


41 FLRA No. 86

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF VETERANS AFFAIRS

DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER

FORT LYON, COLORADO

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

LOCAL 2430

(Charging Party/Union)

7-CA-00158

DECISION AND ORDER

August 2, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The Respondent and the General Counsel have filed briefs with the Authority, and the General Counsel filed a motion to strike portions of Respondent's brief.(1)

The complaint alleges that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to comply with section 7114(b)(4) of the Statute, when it refused to furnish the Union a copy of the transcript of a hearing in an arbitration case between the parties. It is alleged that the transcript is necessary for the full and proper discussion, understanding and negotiation of subjects within the scope of bargaining. For the reasons that follow, we find that the Respondent committed the unfair labor practice as alleged.

II. Facts

Based on the stipulation by the parties, the facts are as follows.

American Federation of Government Employees (AFGE) is the exclusive representative of a unit of employees at the Department of Veterans Affairs Medical Center, Fort Lyon, Colorado (the Respondent). AFGE Local 2430 (the Union) is an agent of AFGE for the purpose of representing employees at the Respondent's facility.

On or about March 3, 1989,(2) a unit employee was removed from Federal service for alleged patient abuse. Since at least February 10, and at all times subsequent, the Union has acted as the unit employee's representative.

On or about March 22, the Union filed a grievance on behalf of the employee over the removal action. The grievance was not resolved and went to arbitration. An arbitration hearing was held in the matter on or about September 29. Representatives of both the Union and the Respondent were present at the hearing. The parties made oral arguments at the hearing and agreed that no post-arbitration briefs would be filed. This arbitration hearing was only the second such hearing held between the parties since 1983.

The Respondent engaged a court reporter to transcribe the hearing. Although the Respondent offered to allow the Union to join in the procurement of the transcript and to share the cost of the transcript, the Union did not agree to do so. Neither party had previously arranged for a transcription to be made of an arbitration hearing.

The parties' collective bargaining agreement, known as the Master Agreement, has been in effect since 1982. Article 14 Section 2 of the Master Agreement provides:

C. The arbitrator's fees and expenses shall be borne equally by the parties. If either party requests a transcript, that party will bear the entire cost of such transcript.

On or before December 1, the Respondent received the transcript. The original was sent to the arbitrator and a copy was given to the Respondent's counsel. A copy has been maintained by the Respondent at its facility or by its counsel at all times relevant. On or about December 8, the Union requested that the Respondent provide it with a copy of the transcript, pursuant to section 7114(b)(4) of the Statute.(3)

By letter dated December 14, the Respondent responded, stating that the Union could purchase a copy of the transcript by contacting the reporting service and that unless the Respondent heard further from the Union, it would "consider this matter closed." Exhibit 4. The Respondent has not furnished a copy of the transcript to the Union and there has been no further communication between the parties concerning the Union's request.

The parties stipulate that disclosure of the information is not prohibited by law, that at all times relevant the transcript was available to the Respondent at its Fort Lyon facility, and that the transcript does not constitute guidance, advice, counsel, or training.

III. Positions of the Parties

A. The Union

The Union did not file a brief in this case. The parties have stipulated as to what the Union would have testified, had there been a hearing before an administrative law judge. In this regard, the stipulation states that the Union requested the transcript before the arbitrator had issued his decision in the underlying termination case, and did so for several reasons. First, the Union states that had it been able to review the transcript while the arbitrator was considering the case, it could have brought any errors to his attention before he rendered his decision. In addition, the Union asserts that it wanted to review the transcript before the arbitrator made his award in order to shorten the time it would take to prepare any necessary appeal. Correspondingly, the Union asserts that if the arbitrator had ruled in the grievant's favor, it needed to be prepared to respond to an appeal by the Respondent. It states that it wanted to review the transcript in advance because, in either eventuality, it would have been facing filing deadlines. In sum, the Union maintains that the transcript, which could be cited in an appeal of the arbitrator's decision, provides the only verifiable and objective account of the entire hearing, and that, therefore, at the time of its request, possession of the transcript was indispensable for it to prepare for whatever contingency might result from the arbitrator's award.

B. The General Counsel

The General Counsel notes that the Respondent's answer to the complaint denied that the information is normally maintained by the Respondent in the regular course of business and that the transcript is reasonably available, in addition to asserting that it is not necessary within the meaning of section 7114(b)(4)(B). The General Counsel notes that the Respondent has offered no explanation regarding the Respondent's assertion in its answer to the complaint that the transcript is not normally maintained by it in the regular course of business. However, the General Counsel points out that the Respondent contracted and paid for the transcript in the normal course of business, that the hearing was conducted under the provisions of the parties' Master Agreement, and that when the transcript was received, a copy was made and maintained by either the Respondent or its counsel. Therefore, the General Counsel argues, maintenance of a copy of the transcript is not outside the Respondent's regular course of business, but is "directly connected with management's pursuit of a grievance through arbitration, an official function of the Respondent." General Counsel's brief at 5.

As to whether the transcript was reasonably available, the General Counsel cites the parties' stipulation that a copy has been available to the Respondent at its Fort Lyon facility and has been maintained by the Respondent or its counsel. Therefore, the General Counsel asserts, the transcript is normally maintained and available.

Finally, the General Counsel addresses the question of whether the transcript is necessary within the meaning of section 7114(b)(4). The General Counsel notes the Respondent's argument that the transcript would have been of no benefit to the Union because the parties had agreed not to submit post-hearing briefs to the arbitrator. The General Counsel counters that "[t]he Union had basically the same need for the transcript as Respondent." Id. at 6. In support of its argument that both parties needed an accurate record of the hearing, the General Counsel points to the fact that the Respondent kept a copy for its own use, and provided a copy to its counsel.

The General Counsel argues, in addition, that the Respondent never asked the Union to explain why it needed the transcript, indicating that the Respondent's assertion that the Union did not need the transcript is "a newly-adopted position for litigation purposes." Id. Further, the General Counsel argues that the Respondent justified its refusal to provide the transcript by the fact that the Union had declined to share the cost of the transcript. According to the General Counsel, this demonstrates that "[p]rice, not need, was the issue. Respondent decided to order a transcript at its sole expense and now feels justified in keeping the benefits of the transcript to itself. In its answer to the data request, Respondent directed the Union to the reporting service to buy a copy." Id. In this regard, the General Counsel notes the Authority's position that when an agency is required to furnish information under section 7116(b)(4), it must do so without charge.

The General Counsel acknowledges that Article 14 Section 2 of the Master Agreement provides that "[i]f either party requests a transcript, that party will bear the entire cost of such transcript." Id. at 2 n.2. The General Counsel states that the agreement nevertheless "is completely silent on the subject of who is to receive a copy of the transcript." Id. at 7. The General Counsel further states that although the parties "could have negotiated a provision prohibiting the Union from receiving a free transcript . . . [t]hey did not do so. There is no evidence that the Union, in any way, waived or even slightly impaired its Statutory right to make a request for the transcript." Id. Finally, the General Counsel states that although the arbitrator issued his decision several weeks after the request, at which time the transcript may have lost some of its value to the Union, the issue is whether the Union needed the transcript at the time of the request.

C. The Respondent

The Respondent asks that "judicial notice" be taken "that in the private sector and State and Federal Courts, the requesting party for a Court record . . . pays so much per page and if the other parties wish a copy, it is a lesser price per page paid to the Court reporter."  Respondent's brief at 2. The Respondent also refers to Article 14 Section 2 of the Master Agreement and notes that that section says nothing about the cost of copies of a transcript.

The Respondent argues that the transcript was not necessary for the Union to fulfill its obligations as exclusive representative because the Union's representatives were present at the hearing "and heard every word said." Id. at 3. Further, "[t]here is no evidence that the Union asked either the Arbitrator or the Agency to see a copy of the transcript [prior to the December 8, 1989 request] so it must be concluded no such request by the Union [to] review the transcript was made. We cannot conclude that had such a request been made, it would have been denied." Id.

Finally, the Respondent contends that the Union did not need to file an appeal or exceptions "because the award reversed the removal of the employee and ordered a two day suspension in its place." Id.

IV. Analysis and Conclusions

Under section 7114(b)(4) of the Statute, the Respondent has the duty to furnish data that is reasonably available and necessary for the Union to fulfill its representational duties. The duty to furnish the data is subject to the requirement that disclosure not be prohibited by law, that the requested data is normally maintained in the regular course of business, and that it does not constitute guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining.

The parties have stipulated that providing the transcript is not prohibited by law and that the transcript does not constitute guidance, advice, counsel or training relating to collective bargaining. We conclude below that the transcript was normally maintained by the Respondent in the regular course of business, that it was necessary for the Union to perform its representational functions, and that the Union did not waive its statutory right to obtain the transcript from the Respondent. Accordingly, we find that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by failing to fulfill its obligations under section 7114(b)(4) of the Statute.

A. The Transcript Was Normally Maintained and Reasonably Available

In its answer to the complaint the Respondent denied that the transcript is normally maintained and reasonably available. Based on the stipulated facts, however, there can be no serious doubt that those requirements have been met. Thus, it is stipulated that the transcript has been "at all times relevant herein . . . maintained by Respondent, at its facility or by its Counsel." Stipulation, § 15(b). Further, the maintenance of records regarding the processing of a grievance pursuant to the parties' collective bargaining agreement is, by its nature, part of an agency's regular course of business. Nothing in the Respondent's post-stipulation brief raises any other argument to support the Respondent's position in this regard. Accordingly, we find that the information sought was normally maintained by the Respondent in the regular course of business, and has been reasonably available at all times since the Union's request.

B. The Transcript Is Necessary Within the Meaning of Section 7114(b)(4) of the Statute

It is well settled that an agency is obligated under section 7114(b)(4) to provide an exclusive representative of its employees with information that is necessary for the union to effectively fulfill its representational functions and responsibilities in the processing of employee grievances. Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, Dallas, Texas, 41 FLRA 137, 141 (1991). This includes information requested in order to effectively process a grievance in arbitration proceedings. See U.S. Department of Transportation, Federal Aviation Administration, New England Region, Burlington, Massachusetts, 38 FLRA 1623 (1991). The Union asserts that the requested information, a transcript of the arbitration hearing that the Respondent had in its possession, which would be relied upon by the arbitrator in making his decision, was necessary for it to fulfill its representational functions in several respects. First, it states it would have checked the transcript for accuracy, so that it could apprise the arbitrator of any mistakes before he rendered his decision. In addition, the Union states that it needed the transcript to begin preparing for any proceedings that might occur after the arbitrator issued his decision.

We agree with the Union that the transcript was necessary for it to carry out its representational duties by more effectively representing the unit employee in the arbitration proceeding. Unquestionably, verification of the accuracy of an arbitration transcript and a careful analysis of that transcript in preparation for an appeal or the response to an appeal could be critical to a union's ultimate success in arbitration. In this case, where the Respondent had the transcript and could have used it for any of these purposes, the Union's need for this document was all the more crucial so as not to place the grievant at a fundamental disadvantage.

The Respondent suggests that the Union could have obtained the transcript by buying it from the reporting service or by requesting to view the arbitrator's copy. However, when an agency is required to furnish information under section 7114(b)(4), it is irrelevant that the information might be obtained in some other manner. U.S. Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 38 FLRA 3, 7 (1990).

Accordingly, we conclude that the information sought was necessary for the Union to carry out its representational functions. Therefore, the Respondent's refusal to furnish the transcript violated the Statute unless the Union waived its statutory right to the information.

C. The Union Did Not Waive Its Right to the Information

A Union's waiver of a statutory right must be clear and unmistakable. U.S. Department of the Navy, United States Marine Corps (MPL), Washington, D.C. and Marine Corps Logistics Base, Albany, Georgia, 38 FLRA 632, 636 (1990). In determining whether a provision in a collective bargaining agreement constitutes a clear and unmistakable waiver, we examine the wording of the provision in issue as well as other relevant provisions of the contract, bargaining history, and past practice. Id. As the Authority has stated, we "will not lightly infer a waiver of a statutory right." Id.

In this case, the Respondent appears to argue that the Union waived its right to the hearing transcript by agreeing to Article 14 Section 2 of the Master Agreement. As noted, that clause provides that "[i]f either party requests a transcript, that party will bear the entire cost of such transcript." The record indicates that this was only the second arbitration hearing between the parties since 1983, and that there never has been a transcript made of an arbitration in the past. Therefore, there is no past practice demonstrating a waiver by the Union of its right to this information. Moreover, the parties' stipulation does not suggest any bargaining history or relevant provisions of the agreement, other than Article 14 Section 2, that would bear on the waiver issue.

We conclude that Article 14 Section 2 does not waive the Union's right to a copy of the transcript. As the Respondent admits, that provision says nothing about who will pay for copies of a transcript. Respondent's brief at 2. Article 14 Section 2 could just as easily be interpreted to mean that the party requesting production of a transcript will pay the entire cost of having the transcript made, including the cost of furnishing copies to other parties, when required by law. As the document was created at the sole request of the Respondent, and its provision to the Union was necessary under section 7114(b)(4) of the Statute, such an interpretation would require the Respondent to furnish the transcript to the Union at no cost. Thus, contrary to the Respondent's position, the contract clause may well serve to reinforce, rather than to waive, the Union's right to a copy of the transcript.

In any event, we agree with the General Counsel that the Master Agreement "is completely silent on the subject of who is to receive a copy of the transcript[,]" and that although the parties "could have negotiated a provision prohibiting the Union from receiving a free transcript . . . [t]hey did not do so." General Counsel's brief at 7. Thus, in our view, the Master Agreement did not waive the Union's statutory right to a copy of the transcript, which was secured by the Respondent on its own initiative and at it own expense. Therefore, we conclude that there is insufficient evidence to find that the Union clearly and unmistakably waived its statutory right to be provided with a copy of the transcript.

V. Summary and Remedy

We conclude that the Respondent was required under section 7114(b)(4) of the Statute to furnish the Union a copy of the arbitration hearing transcript because disclosure was not prohibited by law, and the transcript was normally maintained by the Respondent, was reasonably available and necessary for the Union to carry out effectively its representational functions, and did not constitute guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining. Therefore, we find that the Respondent's refusal to provide the requested information constitutes a failure to comply with section 7114(b)(4) of the Statute, in violation of section 7116(a)(1), (5) and (8).

With regard to the remedy, we note the General Counsel's request that the Respondent be directed to furnish a copy of the transcript to the Union. In its answer to the complaint, the Respondent asserts that the arbitrator issued his decision some time after the Union requested the transcript and that the Union prevailed in the arbitration. Exhibit 1(c). The General Counsel acknowledges that the decision has become final and binding on the parties, General Counsel's brief at 7, and does not indicate that the Union has established any further representational need for the transcript.

We agree with the General Counsel's statement that "the issue in this case is whether or not, at the time the Union's request was made and rejected, the Union needed the transcript." General Counsel's brief at 7 (emphasis in original). Having found that the Union had a statutory right to the transcript at the time it was requested, we have found that the Respondent's failure to provide the transcript violated the Statute. However, under the circumstances of this case, we find no basis to conclude that the transcript would be useful to the Union in fulfilling its representational duties at this time. We conclude, therefore, that it would not effectuate the purposes of the Statute to grant the General Counsel's request in this case. See Veterans Administration, Washington, D.C. and Veterans Administration Regional Office, Buffalo, New York, 28 FLRA 260, 267 (1987) (Veterans Administration), in which the Authority held that it would not order the respondent to provide information where the grievance to which the information pertained had been withdrawn and the union had indicated no further need for that information. On the other hand, the Authority has rejected arguments that necessary information need not be provided when it has found that the exclusive representative continued to have a need for the information. See, for example, Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, El Paso, Texas, 41 FLRA 259 (1991) (union's need for information was not rendered moot by the removal from employment of a potential grievant because the nature of the information made it necessary for the union to fulfill its broader representational obligations); U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Salt Lake City, Utah, 40 FLRA 303, 311 (1991), petition for review filed sub nom. U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Salt Lake City District, Salt Lake City, Utah v. FLRA, No. 91-1287 (D.C. Cir. June 17, 1991) (Authority found that the record did not support an argument that the information was no longer needed).

Accordingly, we find that a cease and desist order is adequate to remedy the violation. We shall also order an appropriate posting. Veterans Administration, 28 FLRA at 267; see also U.S. Department of Treasury, Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Helena District, Helena, Montana, 39 FLRA 241, 255 (1991), application for review filed sub nom. United States Department of the Treasury, Internal Revenue Service v. FLRA, No. 91-1153 (D.C. Cir. Mar. 29, 1991).

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, the Department of Veterans Affairs, Department of Veterans Affairs Medical Center, Fort Lyon, Colorado, shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request by the American Federation of Government Employees, AFL-CIO, Local 2430, 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 in grievance arbitration proceedings.

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

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

(a) Post at its facility at Fort Lyon, Colorado 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 of the Medical Center, 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.

(b) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Denver Region, 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 RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT refuse to furnish, upon request by the American federation of Government Employees, AFL-CIO, Local 2430, 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 in grievance arbitration proceedings.

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

(Agency)

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 its provisions, they may communicate directly with the Regional Director, Denver Region, Federal Labor Relations Authority, whose address is: 1244 Speer Street, suite 100, Denver, CO 80204 and whose telephone number is: (303) 844-5224.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The General Counsel moved