48:0970(107)CA - - VA, Long Beach, CA and AFGE, Local 3943 - - 1993 FLRAdec CA - - v48 p970



[ v48 p970 ]
48:0970(107)CA
The decision of the Authority follows:


48 FLRA No. 107

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

VETERANS ADMINISTRATION

LONG BEACH, CALIFORNIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3943, AFL-CIO

(Charging Party)

SA-CA-20739

_____

DECISION AND ORDER

November 30, 1993

_____

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. Only the General Counsel filed a brief with the Authority.

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 and refusing to furnish the Charging Party with information requested under section 7114(b)(4) of the Statute and by failing to respond to the Charging Party's request for the information. For the reasons stated below, we find that the Respondent did not violate the Statute.

II. Facts

The Charging Party is the exclusive representative of a nationwide unit of professional employees, including nurses, at the Respondent's facilities at Long Beach, California. The Respondent maintains a Proficiency Rating System (PRS) for bargaining unit employees. On May 7, 1992, the Charging Party filed a grievance, under the parties' interim collective bargaining agreement, on behalf of all bargaining unit employees alleging that the Respondent failed to timely grant employees their annual proficiency ratings in accordance with the PRS. In connection with the grievance, the Charging Party requested that the Respondent provide it with the nurses' last proficiency ratings and due dates, the names of all employees whom management had determined were eligible to earn promotions, and the names of four employees whom management had determined were likely to earn promotions.

By letter dated July 25, 1992, the Respondent informed the Charging Party that the grievance over the timeliness of proficiency ratings was not grievable. Subsequently, the Charging Party requested arbitration of the grievance. The Respondent denied the arbitration request on August 27, 1992. The Respondent maintained that the grievance was not grievable or arbitrable because it pertained to one of the following: (1) professional conduct and competence; (2) peer review; or (3) the establishment, determination, or adjustment of employee compensation.

With respect to the information requested by the Charging Party under section 7114(b)(4) of the Statute, the parties have stipulated that the information is normally maintained by the Respondent in the regular course of business and that the information does not constitute guidance, advice, counsel, or training provided for management officials or supervisors relating to collective bargaining.

III. The General Counsel's Position

The General Counsel contends that the Authority has jurisdiction to determine whether the conduct alleged in the complaint constituted an unfair labor practice within the meaning of section 7116 of the Statute.

The General Counsel acknowledges that in 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), aff'd in part and rev'd in part sub nom. American Federation of Government Employees, Local 3884 v. FLRA, 930 F.2d 1315 (8th Cir. 1991), the Authority found that the Veterans Administration did not violate section 7114(b)(4) of the Statute by failing to provide information to a union in order to process a grievance because no collective bargaining relationship existed between the parties under the Statute. However, the General Counsel states that under the Department of Veterans Affairs Health-Care Personnel Act of 1991, Pub. L. No. 102-40, 105 Stat. 187 (1991) (VA Amendments), Congress extended to employees covered by title 38 of the U.S. Code the right to bargain collectively over certain conditions of employment and the right to file grievances over various matters. According to the General Counsel, the right to information under the Statute stems from the rights to bargain and file grievances.

The General Counsel further notes that even prior to the enactment of the VA Amendments, the Authority exercised jurisdiction over matters concerning title 38 employees. In this regard, the General Counsel maintains that in United States Department of Veterans Affairs, Washington, D.C., Veterans Administration Medical Center, Amarillo, Texas, 42 FLRA 333 (1991), reversed sub nom. United States Department of Veterans Affairs, Washington, D.C., United States Department of Veterans Affairs Medical Center, Amarillo, Texas v. FLRA, 1 F.3d 19 (D.C. Cir. 1993) (VA Amarillo), the Authority held that the Veterans Administration violated the Statute when it failed to provide information related to staff meetings. According to the General Counsel, the Authority concluded that the union had certain representational obligations concerning title 38 employees and that the union had a right to information under section 7114(b)(4) that was relevant and necessary to those obligations.

The General Counsel concedes that the scope of bargaining for title 38 employees provided by the VA Amendments is limited and acknowledges that 38 U.S.C. § 7422 grants exclusive authority to the Secretary of Veterans Affairs in determining whether a matter concerns an issue excluded from collective bargaining and negotiated grievance procedures.(1) The General Counsel also states that under 38 U.S.C. § 7461, an employee may elect to appeal an adverse action that does not involve a question of professional conduct or competence through a negotiated grievance procedure under the Statute, rather than through the grievance procedures provided under title 38.(2) The General Counsel acknowledges that employees are precluded from pursuing grievances involving professional conduct or competence through a negotiated grievance procedure and notes that, under 38 U.S.C. § 7422(d) and § 7461(d), the Secretary has the exclusive authority to determine whether a grievance concerns professional conduct or competence.

In addition to the extension of collective bargaining rights to title 38 employees which, in the General Counsel's view, logically includes a statutory right to information, the General Counsel contends that the Charging Party's information request meets the requirements for disclosure under section 7114(b)(4) of the Statute. First, the General Counsel claims that the requested information is reasonably available. In this regard, the General Counsel maintains that the Respondent has not demonstrated that the retrieval of the requested information is "overly burdensome" or "would adversely affect the Respondent's primary mission or budget[.]" General Counsel's Brief at 11.

The General Counsel further claims that the requested information is relevant and necessary to enable the Charging Party to carry out its representational functions. The General Counsel maintains that the Charging Party has a right to information that will assist in the investigation, evaluation, and processing of a potential grievance relating to the Respondent's failure to timely grant employees their proficiency ratings.

The General Counsel further contends, relying on the Authority's decision in Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Omaha District, Omaha, Nebraska, 25 FLRA 181, 185 (1987) (Internal Revenue Service), that an agency's assertion that a matter is not grievable does not relieve the agency's obligation under section 7114(b)(4) of the Statute to provide information relating to that grievance. Although conceding that the Respondent has the exclusive authority to determine whether a matter concerns professional conduct or competence and is, therefore, excluded from the negotiated grievance procedure, the General Counsel asserts that the grievance in this case involved the failure of the Respondent to follow its own regulations and did not concern professional conduct or competence. In this regard, the General Counsel maintains that if the Respondent's interpretation of the issue raised by the grievance prevails, the VA Amendments would deny the Charging Party the opportunity to pursue a legitimate grievance and "usurp the Authority's role in determining the statutory right of unions to pursue information that would assist them in their representative capacity." General Counsel's Brief at 13.

The General Counsel also contends that the requested information is not prohibited by the Privacy Act, codified at 5 U.S.C. § 552(a). According to the General Counsel, the dates that employees last received their proficiency ratings and the due dates of their current proficiency ratings do not raise legitimate privacy interests. The General Counsel maintains that the Charging Party is not interested in the content of the proficiency ratings but, rather, is concerned only about when the proficiency ratings were received in order to ensure that they were issued in a timely manner.

In sum, the General Counsel argues that the Respondent's failure to provide the requested information violated section 7116(a)(1), (5), and (8) of the Statute. The General Counsel also contends that the Respondent's failure to respond to the Charging Party's request for information constitutes a separate violation of those same statutory provisions. In support of this latter contention, the General Counsel asserts that the Respondent's reply at the third step of the grievance procedure stated only that the grievance was not grievable and contained no response to the Charging Party's information request.

IV. Analysis and Conclusions

We find that the Respondent was not obligated to provide the information. Consequently, its conduct did not violate the Statute.

First, we reject the General Counsel's contention that because employees covered by title 38 of the U.S. Code have been granted the right to bargain collectively over certain conditions of employment, the Charging Party has the right to the requested information under section 7114(b)(4) of the Statute. In Wisconsin Federation of Nurses and Health Professionals, Veterans Administration Staff Nurses Council, Local 5032 and U.S. Department of Veterans Affairs, Clement J. Zablocki Medical Center, Milwaukee, Wisconsin, 47 FLRA 910 (1993), petition for review filed sub nom. Veterans Administration Staff Nurses Council, Wisconsin Federation of Nurses and Health Professionals, AFT, AFL-CIO, Local 5032 v. FLRA, No. 93-1496 (D.C. Cir. Aug. 13, 1993), we found that, under 38 U.S.C. § 7422(b), collective bargaining may not cover any matter or question concerning or arising out of professional conduct and competence, peer review, or the establishment, determination, or adjustment of employee compensation. We further found that section 7422(d) grants exclusive authority to the Secretary of Veterans Affairs to determine whether a matter concerns or arises out of those subjects excluded from collective bargaining and that the Secretary's determination is not reviewable by the Authority.

In addition to the limitations on collective bargaining, 38 U.S.C. § 7422(b) specifically excludes matters concerning professional conduct or competence, peer review, and employee compensation from coverage under negotiated grievance procedures. Additionally, the Secretary determines whether a matter concerns one of the enumerated subjects, which determination "may not be reviewed by any other agency." 38 U.S.C. § 7422(d). In this case, the Respondent determined that the grievance involved the professional conduct or competence of bargaining unit employees and, therefore, that it concerned a matter that is excluded from the parties' negotiated grievance procedure. As set forth above, the Authority is without jurisdiction to review the Respondent's determination in this regard. Accordingly, we are required by law to treat the grievance as nonarbitrable.

The issue in this case is whether the Respondent was obligated to provide information in connection with the processing of a grievance in the face of the Respondent's determination that the grievance was not grievable because it concerned a matter excluded from the parties' negotiated grievance procedure. We conclude that no such obligation existed.

The Authority previously has stated that an exclusive representative is entitled to information under section 7114(b)(4) of the Statute that, among other things, will assist in the evaluation and processing of a grievance. See, for example, U.S. Department of the Air Force, Air Force Logistics Command, Sacramento Air Logistics Center, McClellan Air Force Base, California, 37 FLRA 987, 995 (1990) (Air Force Logistics Command). Where, as here, the grievance was outside the scope of the negotiated grievance procedure, there is no basis under the Statute on which to require the Respondent to furnish the information. The situation presented with respect to title 38 employees is distinguishable from a situation in which an agency refuses to provide information on the basis that the grieved matter is nongrievable. As we stated in Air Force Logistics Command, an agency's contention that a potential grievance is not grievable does not relieve that agency of its obligation to furnish requested information. In such cases, questions concerning whether a matter is grievable "are issues legitimately resolved through the negotiated grievance procedure." Internal Revenue Service, 25 FLRA at 185. In contrast, matters pertaining to professional conduct or competence, peer review, or the establishment, determination, or adjustment of employee compensation are specifically excluded, by law, from coverage under negotiated grievance procedures. Consequently, to the extent the Charging Party sought information in connection with a matter that could not be pursued under the negotiated grievance procedure, we find that the Respondent did not violate the Statute by refusing to provide such information. The General Counsel's contention that the grievance did not pertain to professional conduct or competence does not warrant a different result. As we stated above, under 38 U.S.C. § 7422(d) we are without jurisdiction to review the determination of the Secretary of Veterans Affairs that the grievance concerns a matter involving professional conduct or competence. Compare Department of Veterans Affairs, Veteran Affairs Medical Center, Jackson, Mississippi, 48 FLRA No. 83 (1993) (section 7422(b) of title 38 does not permit the respondent to refuse to allow the designated union representative to participate in an examination in connection with an investigation because the rights contained in section 7114(a)(2)(B) of the Statute are not tied to collective bargaining).

Our finding that the Charging Party did not have a statutory right to the information is also consistent with the court's decision in VA Amarillo, which reversed the Authority's holding that the Veterans Administration was obligated to provide information concerning minutes of staff meetings. In the court's decision, which was limited to addressing collective bargaining for title 38 employees prior to the enactment of the VA Amendments, the court found that the right to information under section 7114(b)(4) is tied to the obligation to negotiate, which is also set forth in that section. In the court's view, because the employees covered by title 38 "had no information-rights-generating collective bargaining agreement" and "no statutory right to engage in bargaining," the union had no right to the information under section 7114(b)(4) of the Statute. VA Amarillo, 1 F.3d at 23 (footnote omitted). The court stated that "the existence or requirement of collective bargaining is critical to the information right described in 5 U.S.C. § 7114(b)(4)(B)." Id.

Additionally, we reject the General Counsel's argument that the Respondent violated the Statute by failing to respond to the Charging Party's information request. Ordinarily, the Authority will find a violation of the Statute when no reply to a request for information is given. For example, Food and Drug Administration, Mid-Atlantic Region, Philadelphia, Pennsylvania, 48 FLRA 424, 439-40 (1993). In this connection, the Authority has held that a reply to a request for information is necessary for the full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining under section 7114(b)(4) of the Statute. See U.S. Naval Supply Center, San Diego, California, 26 FLRA 324 (1987) (the nonexistence of the specific information sought does not relieve the respondent of the obligation to reply to an information request). However, we find that the circumstances of the instant case are distinguishable. In those cases where the information sought did not exist, the request for information pertained to matters that were within the scope of collective bargaining or negotiated grievance procedures under the Statute. In contrast, the information here was sought in connection with a matter that the Respondent determined was outside the scope of the negotiated grievance procedure. In these circumstances, the Respondent's response that the matter was not grievable was sufficient to apprise the Charging Party that the information was not necessary for the full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining under section 7114(b)(4) of the Statute.

In sum, we conclude that the Respondent did not violate section 7116(a)(1), (5), and (8) by failing to provide the requested information to the Charging Party and by failing to respond to the information request. Accordingly, we will dismiss the complaint.

V. Order

The complaint is dismissed.




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

1. 38 U.S.C. § 7422 provides, in pertinent part:

        (a) Except as otherwise specifically provided in this title, the authority of the Secretary to prescribe regulations under section 7421 of this title is subject to the right of Federal employees to engage in collective bargaining with respect to conditions of employment . . . .

        (b) Such collective bargaining (and any grievance procedures provided under a collective bargaining agreement) . . . may not cover, or have any applicability to, any matter or question concerning or arising out of (1) professional conduct or competence, (2) peer review, or

        (3) the establishment, determination, or adjustment of employee compensation . . . .

. . . .

        (d) An issue of whether a matter or question concerns or arises out of (1) professional conduct or competence, (2) peer review, or (3) the establishment, determination, or adjustment of employee compensation under this title shall be decided by the Secretary and is not itself subject to collective bargaining and may not be reviewed by any other agency.

2.   38 U.S.C. § 7461 provides, in pertinent part:

        (