42:0333(27)CA - - VA, Washington, DC and VA Medical Center, Amarillo, TX and AFGE Local 2250 - - 1991 FLRAdec CA - - v42 p333



[ v42 p333 ]
42:0333(27)CA
The decision of the Authority follows:


42 FLRA No. 27

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

UNITED STATES DEPARTMENT OF VETERANS AFFAIRS

WASHINGTON, D.C.

VETERANS ADMINISTRATION MEDICAL CENTER

AMARILLO, TEXAS

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

LOCAL 2250

(Charging Party/Union)

6-CA-90369

DECISION AND ORDER

September 24, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority under section 2429.1 of our Rules and Regulations, based on the parties' stipulation of facts. The General Counsel and the Respondent filed briefs.

The complaint in this case alleges that the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to furnish the Union with necessary and relevant information pursuant to section 7114(b)(4) of the Statute. The requested information consisted of the minutes of monthly staff meetings for Dental, Dietary, and Surgical and Medical Services at the Medical Center in Amarillo, Texas from January 1, 1988, through January 6, 1989.(1)

For the following reasons, we conclude that the Respondent violated the Statute, as alleged.

II. Background

The Union has been recognized by the Authority as the exclusive bargaining representative for a unit consisting of all professional employees appointed under Title 38 of the United States Code, excluding professional staff nurses, and all professional employees covered by Title 5 of the United States Code at the Veterans Administration Medical Center, Amarillo, Texas (the Medical Center).

On January 27, 1989, the Union requested from the Respondent information consisting of the minutes of monthly staff meetings for the Laboratory, Pharmacy, Social Service, Dental, Dietary, and Surgical and Medical Services at the Medical Center from January 1, 1988, through January 6, 1989. On January 30, 1989, the Respondent requested more specificity as to why the Union requested the minutes. The Union responded on February 8, 1989, asserting that it needed the minutes for representational purposes. On February 10, 1989, the Respondent informed the Union that the broad contention of a need for the information for representational purposes was still not specific enough.

At a meeting held with management on February 14, 1989, the Union contended it needed the minutes to determine if the monthly staff meetings constituted formal discussions under section 7114(a)(2)(A) of the Statute.

On March 10, 1989, the Union received copies of the requested minutes for the Laboratory Service, Pharmacy Service and Social Work Service staff meetings that involved professional Title 5 employees in the Union's bargaining unit. In a letter dated March 14, 1989, the Respondent refused to provide the minutes for the Dental Service, Surgical Service, and Medical Service meetings that involved Title 38 employees and nonprofessional Title 5 employees who are not in the Union's bargaining unit. The Respondent further refused in the March 14 letter to provide the minutes of the Dietary Service meetings that involved only nonprofessional Title 5 employees who are not in the Union's bargaining unit.

The parties stipulated that the requested minutes: (1) were and are normally maintained by the Respondent in the regular course of business; (2) do not constitute guidance, advice, counsel or training for management officials or supervisors relating to collective bargaining; and (3) were and are reasonably available.

III. Positions of the Parties

A. General Counsel

The General Counsel notes that the Union requested the staff meeting minutes to determine if the meetings constituted formal discussions within the meaning of section 7114(a)(2)(A) of the Statute. The General Counsel contends that the Union needed the minutes to determine whether it had a right to be present at such meetings under the Statute and whether the Respondent was complying with its obligations under the Statute in that regard. Moreover, the General Counsel contends that the Union requested the minutes to determine whether it should file an unfair labor practice should such information reveal that the monthly staff meetings constituted formal discussions.

The General Counsel argues that the Union has a right under section 7114(a)(2)(A) to be represented at formal discussions involving bargaining unit employees, whether or not those discussions concern only Title 38 employees, and therefore that the Respondent was obligated under section 7114(b)(4) of the Statute to provide the requested information to the Union.

The General Counsel acknowledges that, under Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988) (Colorado Nurses), and the cases that have been issued subsequent to the Authority's adoption of that decision, the Union does not have the right to bargain over conditions of employment of Title 38 bargaining unit employees, or to have a collective bargaining agreement and grievance procedure, and that therefore, it would have no right to information under section 7114(b)(4) to support a grievance. The General Counsel argues, however, that this does not preclude the Union from attending formal discussions on behalf of Title 38 employees or limit the Union's right to request and receive data for possible unfair labor practice charges. The General Counsel cites to the Authority's decision in Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 30 FLRA 127 (1987) (National Weather Service) for the proposition that a union has a right to information to determine whether to file an unfair labor practice charge.

The General Counsel contends that the right to attend formal discussions is not conditioned upon negotiations or collective bargaining; rather, that right flows from the Union's right to represent employees. The General Counsel argues that as nothing in the Colorado Nurses case, its progeny, or Title 38 prohibits Title 38 employees from being represented by a union, the Union would still have a right to attend formal discussions in a representational capacity. In this regard, the General Counsel contends that the Union's mere presence at a formal discussion would have no effect on the discretion of the Veterans Administration's Administrator(2) to set and determine the conditions of employment of Title 38 employees.

The General Counsel further argues that as the Colorado Nurses line of cases does not prohibit the Union from requesting consultations or negotiations over conditions of employment and the Agency head may approve such consultation or negotiations, the presence of the Union at formal discussions involving Title 38 employees would be necessary to ensure an opportunity for such discretionary bargaining or consultation. Further, the General Counsel contends that Union participation in formal discussions would be imperative for Title 38 employees to ensure that the Union adequately reflects and contributes the ideas, concerns, and fears of bargaining unit employees and effectively communicates with bargaining unit employees regarding management's ideas, concerns, and plans. Finally, the General Counsel contends that the Union would need such information to determine if it was fulfilling its statutory duty to represent all employees regardless of their Title 38 status.

In response to the Respondent's position that Title 38 employees are removed from the jurisdiction of the Statute and therefore that the Union is not entitled to any information regarding Title 38 employees, the General Counsel contends that this "extreme position" is totally contrary to the intent of Congress as expressed through the Statute and Title 38. General Counsel's Brief at 10. Moreover, the General Counsel contends that this position is contrary to the dictates of the Colorado Nurses case, which it states stands only for the proposition that there is no mandatory requirement that the Department of Veterans Affairs bargain or consult with the Union. The General Counsel also argues that although section 7103(a)(3) of the Statute specifically exempts certain agencies from coverage under the Statute, it does not exempt either the Agency or Title 38 employees from its coverage.

The General Counsel also disagrees with the Respondent's argument that the Union's right to attend a formal discussion and its right to information under the Statute flow from the Union's right to negotiate and file grievances on behalf of employees. The General Counsel argues that the language of section 7114(a)(2)(A) is clear that the right to attend a formal discussion is not conditioned upon negotiations or grievances but rather is conditioned upon representation. Accordingly, the General Counsel asserts that the Union has a right to engage in limited representational activities on behalf of Title 38 employees and, therefore, that it has the corresponding right to attend formal discussions and request information relating to an unfair labor practice charge on behalf of Title 38 employees.

Finally, the General Counsel disagrees with the Respondent's argument that the requested information is protected by 38 U.S.C. §§ 3301, 3305 and 4132, relating to the dissemination of confidential claims by veterans and their medical and quality assurance records. The General Counsel argues that the Respondent placed no evidence into the record that the requested information contained such protected documentation. Rather, the General Counsel argues that the record reveals that the requested information was created for the express purpose of memorializing meetings between staff and management. Even if it should be determined that the minutes constitute any of the information the Respondent claims to be protected, the General Counsel contends the balancing test prescribed by the Authority in Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado, 17 FLRA 624 (1985), should be employed. The General Counsel asserts that if the requested information contains any reference to an individual veteran's name, claims or records, those identifiers could easily be sanitized to protect the personal privacy of those mentioned.

B. The Respondent

The Respondent argues that the Union and the Authority have no legal basis "to require" that the Medical Center furnish the Union with copies of the monthly staff minutes. Respondent's Statement of Position at 1 (emphasis in original). The Respondent contends that the Authority does not have jurisdiction to hear and decide the merits of this case because the requested copies of the monthly staff minutes involve professional Title 38 employees. The Respondent asserts that it has no statutory duty to provide the requested minutes that concern Title 38 professional employees as a matter of Federal law, citing Colorado Nurses and subsequent Authority cases.(3)

The Respondent argues that Colorado Nurses held that the Respondent has exclusive authority to establish working conditions for its Title 38 employees without regard to any other law. Thus, the Respondent contends that: (1) it has no statutory duty to bargain and negotiate with labor organizations concerning Title 38 employees; (2) labor organizations have no statutory or legal right to be present at formal discussions concerning Title 38 employees; and (3) as Title 38 is an entirely different personnel system from that embodied in Title 5, Title 5 and the Statute do not regulate, control, or apply to Title 38 employees.

Further, the Respondent raises certain procedural issues, including: (1) the Authority has no jurisdiction to hear and decide the issue regarding formal discussions being asserted by the General Counsel because the complaint failed to raise that legal issue; (2) the General Counsel has failed to allege and show that the charge and amended charges by the Union were timely and properly filed; and (3) the General Counsel has failed to allege and show that the complaint contains a notice of the charge and that the complaint was timely and properly filed.

IV. Analysis and Conclusions

A. Preliminary Matters

1. Effect of Title 38 Amendments

Subsequent to the filing of this case the Congress enacted legislation amending Title 38 of the United States Code, extending to Title 38 employees the right to collectively bargain over certain conditions of employment. Department of Veterans Affairs Health-Care Personnel Act of 1991, Pub. L. No. 102-40, § 7421, 105 Stat. 187, 200-01 (1991). Section 205(b) of those amendments provides that "[w]ith respect to cases pending on the date of the enactment of this Act . . . such cases shall proceed in the same manner as they would have if this Act had not been enacted." Id. at 207-08. Accordingly, as the charge in this case was filed with the Authority prior to the enactment of the amendments, the amendments to Title 38 have no bearing on the disposition of this case.

2. Amended Charges and the Complaint Were Timely and Properly Filed

The Respondent alleges, without explanation, that the charge, the amended charges and the complaint in this proceeding were not timely and properly filed. The Respondent also alleges that the complaint did not contain a notice of the charge and that the complaint failed to raise the issue of formal discussions. The Respondent does not establish any basis for these allegations; neither does it assert that it was prejudiced by any of these alleged defects.

Section 7118(a)(4)(A) of the Statute provides that "no complaint shall be issued based on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority." The intent of this provision is to prevent the litigation of stale charges. See United States Department of the Interior, Lower Colorado Dams Project, Water and Power Resources Service, 14 FLRA 539, 542-43 (1984). The record reveals that the charge in this case was filed on April 7, 1989, alleging that on or about January 30, 1989, the Respondent violated the Statute by failing and refusing to furnish to the Union requested information in accordance with section 7114(b)(4)(A) and (B) of the Statute. Subsequently, the Regional Director sent the Union a deficiency letter, explaining the requirement under the Authority's Rules and Regulations for a clear and concise statement of the facts constituting the alleged unfair labor practice. On June 30, 1989, the Union filed the first amended charge, which contained a clear and concise statement of the facts and, accordingly, was deemed to cure the deficiency. The amended charge was filed within 6 months of the alleged violation, as required by section 7118(a)(4)(A) of the Statute. Therefore, we find, contrary to the Respondent's allegation, that the Union timely filed a valid charge in this proceeding.

The Union filed a second amended charge on December 19, 1989. The second amended charge was similar in content to the first amended charge, but referred to the date of the violation as March 14, 1989, rather than January 30, 1989, as was alleged in the first amended charge. March 14, 1989 is the date, according to the stipulated record, that the Respondent refused to provide the staff meeting minutes for the Dental, Dietary, Surgical and Medical staffs, Stipulation at 5-6, Paragraph 14, which became the basis for the allegations of the complaint.

The Authority has held that amended charges that are closely related to events or matters complained of in the charge and are based on events occurring within the 6-month period preceding the charge are not barred by section 7118(a)(4)(A) and are properly before the Authority. Department of Housing and Urban Development, Region X, Seattle, Washington, 41 FLRA 363 (1991).

In this case, the second amended charge has not raised a new cause of action that was filed more than 6 months after the conduct alleged in the first amended charge, but rather, amends the charge only as to the date of the Respondent's alleged refusal to provide the requested information. The same operative facts and allegations are involved. Both the first amended charge and the second amended charge allege as violations the Respondent's refusal to provide the Union with the minutes of the staff meetings the Union had requested. Both concern the same minutes and the same staff meetings. Thus, we find that the second amended charge is closely related to the first amended charge. Further, the March 14, 1989, refusal date by the Respondent occurred well within the 6-month period preceding the charge, as required by section 7118(a)(4)(A). Accordingly, we find the allegations of the second amended charge are properly before the Authority.

Finally, the complaint clearly referred to the charge and amended charges. Complaint at 1-2, Paragraph 1. In addition, we find that the complaint, which alleges that the disclosure to the Union of the minutes of the staff meetings was necessary under section 7114(b)(4), sufficiently put the Respondent on notice that the scope of the allegations included the issue of whether the Union had a right to be present at the staff meetings as formal discussions. In this regard, we note that the Respondent addressed the issue of formal discussions in its answers to the complaint and its submission before the Authority. Accordingly, we find that the Respondent has not supported in any manner its claim that the complaint was not timely or properly filed, and we find no evidence that it was procedurally defective.

B. The Authority Has Jurisdiction to Rule on the Issue Raised by This Case

In Colorado Nurses, the court concluded that under 38 U.S.C. § 4108(a), the Department of Veterans Affairs has exclusive authority to determine the working conditions of employees covered by Title 38. 851 F.2d at 1492. Based on the rationale and conclusions of the court in Colorado Nurses, the Authority has found that the Respondent has no obligation to bargain over the conditions of employment of its professional medical employees. American Federation of Government Employees, Local 3884 and U.S. Department of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, 34 FLRA 199, 201 (1990), aff'd sub nom. American Federation of Government Employees, AFL-CIO, Local 3884 v. FLRA, 930 F.2d 1315 (8th Cir. 1991). The Authority has also held that the authority of the Respondent under 38 U.S.C. § 4108 to establish the conditions of employment of its professional medical employees is not subject to sections 7121 and 7122 of the Statute, which govern negotiated grievance and arbitration procedures and appeals from arbitration awards rendered pursuant to those procedures. U.S. Department of Veterans Affairs, Medical Center, Danville, Illinois and American Federation of Government Employees, Local 1963, 34 FLRA 131, 135 (1990). Accordingly, the Authority has also held that a union representing Title 38 employees has no right under section 7114(b)(4) of the Statute to information requested for the purpose of processing a grievance under an existing collective bargaining agreement covering those employees. U.S. Department of Veterans Affairs, Washington, D.C. and U.S. Department of Veterans Affairs, Medical and Regional Office Center, Fargo, North Dakota, 34 FLRA 182 (1990), rev'd sub nom. American Federation of Government Employees v. FLRA, 930 F.2d 1315 (8th Cir. 1991).

The Authority is not wholly deprived of jurisdiction over matters concerning Title 38 employees, however. Indeed, in its answer to the complaint in this case, the Respondent admits that it is an agency within the meaning of section 7103(a)(3) of the Statute and that the Union is a labor organization within the meaning of section 7103(a)(4) of the Statute. Stipulation, exhibits 1(k) and 1(m). In U.S. Department of Veterans Affairs, Veterans Administration Medical Center, San Francisco, California, 40 FLRA 290 (1991) (VA, San Francisco), the Authority held that although Title 38 employees have no rights protected by the Statute to engage in collective bargaining under section 7102 of the Statute, they are fully protected in their exercise of other rights protected by section 7102. Id. at 296. For example, the Authority specifically stated that unlawful interference with the rights of a Title 38 employee to form, join, or assist a labor organization without fear of penalty or reprisal would constitute an unfair labor practice under section 7116(a)(1) of the Statute and that unlawful discrimination against a Title 38 employee on the basis of the exercise of rights under section 7102 would constitute a violation of section 7116(a)(2) of the Statute. Id.

In this case, the Union requested information under section 7114(b)(4) of the Statute in order to determine whether certain staff meetings were formal discussions under section 7114(a)(2)(A) of the Statute and whether it should file an unfair labor practice charge over management's failure to provide it with notice and the opportunity to be represented at those meetings. The Authority consistently has held that under section 7114(b)(4) an agency must release information that will enable a union to carry out effectively its representational functions and responsibilities. See U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 38 FLRA 120, 130-31 (1990), petition for enforcement filed, FLRA v. U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, MD, No. 91-1175 (D.C. Cir. April 12, 1991). Thus, it is clear that as the Union has certain representational obligations with regard to the Respondent's Title 38 employees, it has a right to information under section 7114(b)(4) that is relevant to those obligations and necessary for it to perform its representational duties. Accordingly, in this case we must determine whether the Union has a sufficient interest in determining whether staff meetings of Title 38 employees constitute formal discussions to require disclosure of the minutes of those meetings.

C. The Respondent Violated the Statute by Refusing to Provide the Requested Information

We conclude that the Union has a significant interest in ascertaining whether the staff meetings are formal discussions at which it should be represented and that, therefore, the Union's need for the requested information has been established. The parties have stipulated that the requested information is normally maintained by the Respondent in the regular course of business, is reasonably available, and does not constitute guidance, advice, counsel or training for management officials relating to collective bargaining. Stipulation, paragraphs 15, 16 and 17. Therefore, we find that the Respondent violated section 7116(a)(1) and (8) by failing and refusing to supply the requested information to the Union.

The complaint also alleged a violation of section 7116(a)(5) of the Statute. As we discuss below, the violation is not based on the Union's need for the requested information for any purposes related to the negotiation or administration of a collective bargaining agreement. Accordingly, the Respondent has not violated section 7116(a)(5) by refusing to provide the information, and we shall dismiss that allegation.

Under section 7114(a)(2)(A) of the Statute, a union has the right to be represented at "any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment[.]" As we have discussed, under existing Authority case law, the Union would have no right to be represented at the staff meetings insofar as the discussion at those meetings is concerned with grievances under a negotiated bargaining agreement or with personnel policies and practices over which the Respondent has exclusive authority under Title 38. The Union would, however, have a right to be present at those meetings if other matters were discussed that could give rise to its representational obligations to the unit employees. For example, if a staff meeting discussion involved such "general conditions of employment" as prohibitions on the ability of the unit employees to support the Union by the distribution of union materials or the wearing of union insignia at the Medical Center, the Union would have a substantial interest in being present to assure that rights protected by section 7102 were not being abridged. See Army and Air Force Exchange Service, Fort Drum Exchange, Fort Drum, New York, 41 FLRA 85 (1991) (union insignia); General Services Administration, 29 FLRA 684 (1987) (distribution of union materials). Moreover, the Union would have the right to be present in such circumstances to ascertain whether it should file an unfair labor practice charge over the perceived denial of employee rights under section 7102.

In view of our conclusion that the Union would be entitled to be present at the staff meetings when matters involving the protected rights of unit employees were discussed and the fact that the minutes of the staff meetings could be useful to the Union in determining whether it had been denied the opportunity to be present at such times, we find that the disclosure of the minutes was necessary for the Union to fulfill its representational obligations. We further find that the Respondent violated the Statute by refusing to furnish the minutes, as requested. We stress that we are not addressing whether in fact the staff meetings constitute formal discussions or the extent of the Union's right to attend those meetings. We find only that the Union had a right under section 7114(b)(4) to obtain the minutes of staff meetings in order to determine whether it should have been permitted to participate in any formal discussions and to file an unfair labor practice charge if it believed that its rights had been denied. See National Weather Service, 30 FLRA at 142.

The Respondent contends that certain information within the requested staff meeting minutes is protected from disclosure by 38 U.S.C. §§ 3301, 3305 and 4132, which relate to the dissemination of confidential veterans' claims, medical records and quality assurance records. There is no evidence in the record before us to determine whether the requested information contains such confidential information. We note, however, that the General Counsel states that if the requested information contains any reference to individual veteran's names, claims or records, those identifiers could easily be sanitized to protect the personal privacy of those mentioned. General Counsel's Brief at 14. We conclude that providing the documents to the Union sanitized in this manner is appropriate and will effectuate the purposes and policies of both the Statute and Title 38. See Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and Social Security Administration, Region X, Seattle, Washington, 39 FLRA 298 (1991); U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1324 (1990).

V. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the United States Department of Veterans Affairs, Washington, D.C. shall:

1. Cease and desist from:

(a) Refusing to furnish, upon request of the American Federation of Government Employees, AFL-CIO, Local 2250, the designated agent of the exclusive representative of certain of its employees, the minutes of staff meetings for Dental, Surgical and Medical Services at its Veterans Administrat