DEPARTMENT OF VETERANS AFFAIRS HUNTER HOLMES MCGUIRE VETERANS AFFAIRS MEDICAL CENTER RICHMOND, VIRGINIA and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2145, AFL-CIO

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C. 20424-0001

MEMORANDUM DATE: December 15, 2004

TO: The Federal Labor Relations Authority

FROM: PAUL B. LANG

Administrative Law Judge

SUBJECT: DEPARTMENT OF VETERANS AFFAIRS

HUNTER HOLMES MCGUIRE

VETERANS AFFAIRS MEDICAL CENTER

RICHMOND, VIRGINIA

Respondent

and Case No. WA-CA-04-0216

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 2145, AFL-CIO

Charging Party

Pursuant to section 2423.34(b) of the Rules and Regulations, 5 C.F.R. §2423.34(b), I am hereby transferring the above case to the Authority. Enclosed are copies of my Decision, the service sheet, and the transmittal form sent to the parties. Also enclosed are the stipulation, exhibits and any briefs filed by the parties.

Enclosures


UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C. 20424-0001

DEPARTMENT OF VETERANS AFFAIRS

HUNTER HOLMES MCGUIRE

VETERANS AFFAIRS MEDICAL CENTER

RICHMOND, VIRGINIA

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 2145, AFL-CIO

Charging Party

Case No. WA-CA-04-0216

NOTICE OF TRANSMITTAL OF DECISION

Pursuant to §2423.26 of the Authority's Rules and Regulations, the above-entitled case was stipulated to the undersigned Administrative Law Judge. The undersigned herein serves his Decision, a copy of which is attached hereto, on all parties to the proceeding on this date and this case is hereby transferred to the Federal Labor Relations Authority pursuant to 5 C.F.R. §2423.34(b).

PLEASE BE ADVISED that the filing of exceptions to the attached Decision is governed by 5 C.F.R. §§2423.40-41, 2429.12, 2429.21-2429.22, 2429.24-2429.25, and 2429.27.

Any such exceptions must be filed on or before

JANUARY 18, 2005, and addressed to:

Office of Case Control

Federal Labor Relations Authority

1400 K Street, NW, 2nd Floor

Washington, DC 20005

_______________________________

PAUL B. LANG

Administrative Law Judge

Dated: December 15, 2004

Washington, DC


OALJ 05-08

UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

Office of Administrative Law Judges

WASHINGTON, D.C. 20424-0001

DEPARTMENT OF VETERANS AFFAIRS

HUNTER HOLMES MCGUIRE

VETERANS AFFAIRS MEDICAL CENTER

RICHMOND, VIRGINIA

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 2145, AFL-CIO

Charging Party

Case No. WA-CA-04-0216

H. Paul Vali

For the General Counsel

Charles Snow

For the Respondent

Jennifer Marshall

For the Charging Party

Before: PAUL B. LANG

Administrative Law Judge

DECISION

Statement of the Case

On February 17, 2004, the American Federation of Government Employees, Local 2145, AFL-CIO (Union) filed an unfair labor practice charge against the Department of Veterans Affairs, Hunter Holmes McGuire Veterans Affairs Medical Center, Richmond, Virginia (Respondent). The Union filed an amended unfair labor practice charge against the Respondent on February 25, 2004. On May 27, 2004, the Regional Director of the Washington Region of the Federal Labor Relations Authority (Authority) issued a Complaint and Notice of Hearing in which it was alleged that the Respondent committed unfair labor practices in violation of §§7114(b)(4) and 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (Statute) by denying information which had been requested by the Union.

On August 12, 2004, the parties submitted a joint motion to indefinitely postpone the hearing, which had been scheduled for August 19, 2004, so as to allow for the submission of a stipulation of facts and a Decision based upon the stipulation in accordance with §2423.26 of the Rules and Regulations of the Authority. By Order dated August 16, 2004, the Chief Administrative Law Judge granted the motion. On September 15, 2004, the parties submitted a stipulation of facts along with attached exhibits.

The Chief Administrative Law Judge has assigned this case to me for disposition. I have determined that the stipulation adequately addresses the appropriate material facts and will therefore proceed to decide the case on the merits. This Decision is based upon consideration of the Stipulation of Facts and attached exhibits and of the briefs submitted by the parties.

Preliminary Issue

The General Counsel has submitted a motion to strike

portions of the Respondent's brief on the grounds that they contain arguments and conclusions which are not based upon the stipulation or the attached exhibits. The Respondent has opposed the motion and has filed a counter motion to strike portions of the General Counsel's brief on similar grounds.

An examination of each of the motions indicates that they are, in effect, reply briefs which are intended to rebut portions of the post-hearing briefs of the opposing parties. Neither of the parties has either requested or received permission to file reply briefs as required by §2423.33 of the Rules and Regulations of the Authority.

In addition, the final paragraph of the stipulation states:

The undersigned Parties agree that the stipulated facts set forth herein, and the attached related exhibits, constitute the entire factual record to be considered in adjudicating the instant case[.]

That language is binding on the parties and neither of them may rely upon additional evidence, Bureau of Indian Affairs, Uintah & Ouray Area Office, Ft. Duchesne, Utah, 52 FLRA 629, 634 (1996).

In evaluating the merits of each party's position, I will rely on my own analysis of the stipulations, the exhibits and the pertinent law. The factual assertions and legal arguments in each brief will only be credited and accepted to the extent that they are justified. Furthermore, I will attempt to avoid any uncertainty as to the basis for my conclusions so as to leave no doubt that I have not considered factual material outside of the record.

Subject to the above comments, each of the motions is denied.

Positions of the Parties

The General Counsel maintains that the Respondent wrongfully refused to provide information requested by the Union pursuant to its duty to represent Tammie Daniels, a registered nurse who was a member of the bargaining unit. The Respondent had proposed to suspend Daniels for five days for allegedly leaving the workplace without permission, refusing to follow her supervisor's orders and being absent without leave. According to the General Counsel the Union stated a particularized need for the information and demonstrated that the information was necessary to the performance of its representational duties. The Respondent did not state a legitimate nondisclosure interest, but relied upon the incorrect assertion that the requested information was not germane to the dispute over Daniels' proposed suspension.

The Respondent maintains that the Union did not demonstrate a particularized need for the requested information. Instead, the Union relied upon conclusory statements and could not show a valid nexus between the requested information and the issues involved in Daniels' proposed suspension inasmuch as the information was not necessary for the Union to provide adequate representation to Daniels.

The Respondent further maintains that the lack of necessity of the requested information was corroborated by the excessive delay in the Union's response to its initial denial and by the fact that the Union prevailed in the arbitration without the information.

Findings of Fact

The stipulation of facts submitted with the joint motion are attached hereto as Attachment A and are hereby incorporated as findings of fact. Additional findings of fact, as set forth below, are derived from the joint exhibits.

The Proposed Suspension

On April 2, 20031218483032, Kathleen L. Cole, Respondent's Associate Chief of Staff for Nursing, sent a letter (Ex. 2)504740923 to Daniels informing her of a proposed suspension of five workdays. The stated reasons for the proposed suspension were:

I. On Thursday, March 6, 2003, you were informed by your Nurse Manager that you were the only RN scheduled for duty, and you were needed to work in the CCL on Friday, March 7. Although you reported to the CCL at 7:00 a.m. and were aware of a patient waiting for a procedure, and other scheduled cases for that day, you left the area without obtaining appropriate authorization from your supervisor. Leaving the worksite without permission is a serious offense and will not be tolerated.

II. On Thursday, March 6, 2003, you were informed by your Nurse Manager that you were the only RN scheduled for duty, and you were needed to work in the CCL on Friday, March 7. Although you reported to the CCL at 7:00 a.m. and were aware of a patient waiting for a procedure, and other scheduled cases for that day, you left the area without obtaining appropriate authorization from your supervisor. Refusal to follow supervisory orders is a serious offense and will not be tolerated.

III. On Friday, March 7, 2003, you were the only Registered Nurse (RN) scheduled to work in the Cardiac Catherization Laboratory (CCL). You left the area without obtaining appropriate authorization from your supervisor, and were charged Absence Without Leave (AWOL) for two hours from 8:00 a.m. to 10:00 a.m. AWOL is a serious offense and will not be tolerated.

By letter of June 11 (Ex. 3) Cole informed Daniels that the proposed suspension of April 2 was amended to add the following charges:

IV. On April 24, 2003, your Nurse Manager told you to come to her office to review your proficiency and attendance report. You did not come to her office that day. Failure to follow a supervisory order is a serious offense and will not be tolerated.

V. One April 25, 2003, your Nurse Manager again told you to come to her office to review your proficiency and attendance report. You did not come to her office that day. Failure to follow a supervisory order is a serious offense and will not be tolerated.

VI. On April 29, 2003, at 4:44 p.m., you read an

e-mail from your Nurse Manager which instructed you to meet with her the following day April 30, 2003, at

3:15 p.m., to review your proficiency and attendance report. You did not come to her office that day as directed. Failure to follow a supervisory order is a serious offense and will not be tolerated.

VII. On May 1, 2003, your Nurse Manager sent you another e-mail, which instructed you to meet with her on May 5, 2003, at 7:45 a.m. to review your proficiency and attendance report. You did not come to her office that day. Failure to follow a supervisory order is a serious offense and will not be tolerated.

By letter of November 20 (Ex. 8) James W. Dudley, Respondent's Director, informed Daniels that he had sustained each of the seven stated grounds for her suspension and that she would be suspended from December 1 to 5.

The Union grieved the proposed suspension. By letter of December 29 (Ex. 10) from Charlene S. Ehret, Respondent's Associate Director, to Jennifer Marshall, the President of the Union, the Respondent issued its final decision and sustained the suspension. The Union requested arbitration by letter of January 2, 2004, from Marshall to Dudley (Ex. 11).

The Request for Information and the Respondent's Reply

The Union's original information request was submitted by letter of August 8 (Ex. 4) from Marshall to Douglas Butler, the Respondent's Interim Chief of HRM Service. The letter contained thirteen information requests which were preceded by the statement that, "privacy information such as social security numbers may be sanitized" and by the following language:

The Union needs this information in order to make a meaningful response to the deciding official regarding the Agency's Proposed suspension and amendment for this bargaining unit employee. The Agency is reminded that Ms. Tammie Daniels has designed (sic) the Union as her representative in this matter and therefore all information requested is in order for the union to fulfill their representational role and adequately represent this bargaining unit employee. (Emphasis in original.)

Marshall's letter also contains the following statements of particularized need:

1. The Union, in their representational role, will utilize this information when providing responses to the deciding official.

2. The information will be utilized by the Union, in their representational role, to ensure management's consistency of imposed penalty and related offenses.

3. The information will be utilized by the Union, in their representational role, for any and all appeal (sic) of the imposed penalty and offense for this bargaining unit employee.

4. The information will be utilized by the Union, to demonstrate that the case load assignment and nursing ratio was not unusual for 1 registered nurse to handle in order for Ms. Daniels to attend the scheduled training.

5. The information will be utilized by the Union, to demonstrate that the case load assignment and staffing did not allow time for Ms. Daniels to attend the 4/30/2003 meeting.

6. The information will be utilized by the Union to demonstrate that Mr. Neblett is a fully functional cath nurse as Ms. Daniels.

7. Referenced documents contained in written counseling to support the written counseling cited as Ms. Daniels prior disciplinary record is needed in order for the union to demonstrate that a written counseling for the charges was not ever warranted or justified. (MP-5, Part 1 Chapter 752 and nursing agreement)560636477

8. Documents contained in the agency evidence file are too dark or non legible for the Union to make any type of use of these documents to support or not support management's proposed action on this bargaining unit employee. Request 3 and 7.

9. The requested information will be utilized to demonstrate that Ms. Daniels received the VISTA e-mail or read the VISTA e-mail after the scheduled meeting and therefore was not able to attend or not intentionally not following supervisors orders.

10. The information is expected to demonstrate exactly how much notice Ms. Daniels provided her supervisor for the annual leave request for 3/6/2003 and 3/7/2003 and when her supervisor approved the leave request.

11. The Proficiency report will be utilized by the Union to establish the date NM signed the Proficiency and the date the BUE signed the proficiency.

12. This information is needed and in compliance with the DVA/AFGE Master Agreement.685421262

The letter also stated that the request for information was in accordance with the DVA/AFGE Master Agreement and with §7114(b)(4) of the Statute and that the requested information was maintained by the Respondent in the normal course of business. The Union requested that the information be provided by the close of business on August 27.

This case is based solely on the Respondent's refusal to provide the information described in requests 11 and 12. Those requests were as follows:

11. Please provide a copy of the certified time sheets for MICU, CCU, and SICU for 3/1/2003 through May 31st, 2003.

12. Please provide a copy of the nursing assignments sheets for each day from 3/1/2003 through 5/31/2003 for MICU, CCU, and SICU.

By letter of September 2 (Ex. 5) Butler partially responded to the Union's information request and stated why certain information was not being provided. The Respondent's response to requests 11 and 12 was, "Not germane to the proposed suspension." (Ex. 5)

By letter of September 8 (Ex. 6) to Butler, Marshall again requested the information that had not been provided and rebutted the Respondent's stated reasons for not having done so previously. With regard to requests 11 and 12, the Union attempted to rebut the Respondent's stated grounds for refusing to provide the information as follows:

These are Nursing Staff employees that are under the direct supervision of the Nurse manager, Ms. Short. The information is needed in order to prove that management did not explore all staffing options so that Ms. Daniels could attend the approved training on March 6th, 2003 and March 7, 2003. This information will also be used to demonstrate that Ms. Short could have provided Ms. Daniels relief in order to attend the 4/30/2003 meeting.

The Union also reiterated some of the numbered statements of particularized need contained in the letter of August 8.

On September 30 Ted Knicely, Respondent's Chief of the Human Resources Management Service, provided Marshall with additional information but continued to withhold some of the the information that had been requested (Ex. 7). The letter did not expand on the reason for the Respondent's refusal to provide information in response to request 11. As to request 12 Knicely added that:

The MICU, CCU and SICU are completely separate units. The certified time sheets for these units are not germane to the proposed suspension. This information will not be provided.

On February 11, 2004, Marshall sent an e-mail message to Charles E. Snow, a Labor Relations Specialist for Respondent, reiterating the Union's request for information and stating that the Union would file an unfair labor practice charge if the information were not provided by the close of business on February 13.1384081033 Marshall further stated that, "The information is vital in order to adequately represent this employee [Daniels] in the response stage, grievance stage and now at the arbitration stage."

On February 12 Snow sent an e-mail message to Marshall, with copy to Knicely, stating:

This is to confirm Mr. Knicely's evaluation and denial of the information requested in items 11 and 12. It should be noted that AFGE has not submitted a response to this denial of September 30, 2003. The grounds for the denial are still sound. The information does not satisfy either the particularized need prong or the usage prong. The requested information is essentially not relevant to the behavior leading to the suspension i.e. naked staffing figures will not establish availability and more importantly management is not obligated to explore staffing options when employees absent themselves from their post without authorization.

Marshall responded by e-mail message of the same date. The message quotes MP-5, Part I, Chapter 630d.1191964393 as follows:

Generally, this authority to cancel leave will not be exercised unless there is an urgent unforeseen circumstance and it is feasible for the employee to return to duty. If an employee refuses to return to work when leave is canceled, the absence may be charged to absence without leave. (Emphasis in original.)

Marshall further stated:

The Union requested this information to see if patient load and staffing from other areas in which the same nurse manager supervised could have supplied necessary staffing since this was not urgent, unforeseeable circumstances in that management was well aware of the approved annual leave for over a month in advance. Just want to set the record straight.

There is no evidence of further communication between the parties concerning the information request.

Discussion and Analysis

The Controlling Law

§7114(b)(4) of the Statute provides that the duty of an agency to bargain in good faith includes the obligation to furnish to an exclusive representative of its employees, to the extent not prohibited by law, requested information:

(A) which is normally maintained by the agency in the regular course of business;

(B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and

(C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining . . . .

In order for a union to invoke its right to information it must establish a particularized need by articulating, with specificity, why it needs the information, including the uses to which it will put the information and the connection between those uses and its representational responsibilities under the Statute. The union's responsibility for articulation requires more than a conclusory statement; the statement of particularized need must be specific enough to permit the agency to make a reasoned judgment as to its obligation to provide the requested information. Internal Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas City Service Center, Kansas City, Missouri, 50 FLRA 661, 669 (1995) (IRS Kansas City).

Once the union presents an adequate statement of particularized need, the agency is obligated to provide the information or to inform the union of its legitimate nondisclosure interests. The agency's response must be made in a timely manner. Its failure to provide the requested information may not be justified retroactively by defenses raised for the first time in response to an unfair labor practice charge, Federal Aviation Administration, 55 FLRA 254, 260 (1999).

The Adequacy of the Statement of Particularized Need

The adequacy of the statement of particularized need does not depend upon whether the requested information will accomplish a union's professed purpose. It is for the union or, ultimately, the Arbitrator to determine whether certain evidence is persuasive or even relevant. Indeed, an examination of the information could show that the grievance is without merit, IRS Kansas City, 50 FLRA at 673. Therefore, the Respondent's insistence that the MICU, CCU and SICU were completely separate units (Ex. 6) does not justify the withholding of the information described in request 12. Stated otherwise, the Respondent was free to argue the lack of relevance or weight at the arbitration hearing, but was not entitled to prevent the Union from offering the evidence by refusing to provide it.

This is not to say that the Respondent was required to accept any statement of particularized need, no matter how far-fetched. In order for information to be "necessary" within the meaning of §7114(b)(4)(B) there must be some logical nexus between the information requested and the Union's stated need for it. Where information sought by a union is broader than the circumstances covered by the request, and the union has not been able to establish a connection between the broader scope of information requested and the particular matter referenced in the request, it has not established a particularized need for the information, United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Forrest City, Arkansas, 57 FLRA 808, 813 (2002) (Forrest City).

The Respondent proposed to suspend Daniels because of incidents which occurred on March 6 and 7, April 24, 25, 29 and 30 and May 1 and 5, 2003 (Ex. 2 and 3). Yet, in requests 11 and 12, the Union sought records for the period of March 1 through May 31, 2003. Nothing in the Union's letters of August 8 and September 8 or in the subsequent e-mail messages could reasonably be construed as establishing a connection between records pertaining to dates other than those mentioned in the two letters to Daniels and the Union's representational duties with regard to Daniels' proposed suspension. Thus, the Union failed to demonstrate a particularized need for that information, Forrest City.

The Union did, however, establish a particularized need for information pertaining to March 6 and 7, April 24, 25, 29 and 30 and May 1 and 5, 2003. The Union was apparently exploring the feasibility of arguing that Daniels need not have been called back to work on March 7 and that she could not have met with her supervisor as directed because of case load assignments and staffing.

In its statement of particularized need, the Union specifically referred to case load and staffing only with regard to the meeting which had been scheduled for April 30 (Ex. 4, p. 3, ¶5). However, the Respondent could reasonably have assumed that the same argument might be raised with regard to the other scheduled meetings. A statement of particularized need only provide sufficient information for an agency to make a "reasoned judgment" concerning disclosure, Health Care Financing Administration, 56 FLRA 156, 159, 162 (2000). The Union's statement of particularized need met that standard.

The Respondent also maintains that the requested information could not have been necessary because the Union delayed its insistence on the information after the Respondent's initial refusal and because the Union prevailed at arbitration without it. Contrary to that assertion, the Authority has consistently held that the question of whether an agency has improperly withheld information depends on its obligation to furnish the information at the time of the union's request, Internal Revenue Service, Austin District Office, Austin, Texas, 51 FLRA 1166, 1181, n.14 (1996).

In view of the foregoing, I have concluded that the Respondent committed an unfair labor practice in violation of §7116(a)(1), (5) and (8) of the Statute by failing to provide the Union with copies of the certified time sheets for MICU, CCU and SICU and copies of the nursing assignment sheets, appropriately sanitized, for April 24, 25, 29 and 30 and May 1 and 5, 2003. Accordingly, I recommend that the Authority adopt the following Order:

ORDER

Pursuant to §2423.41 of the Rules and Regulations of the Federal Labor Relations Authority (Authority) and §7118 of the Federal Service Labor-Management Relations Statute (Statute), it is hereby ordered that the Department of Veterans Affairs, Hunter Holmes McGuire Veterans Affairs Medical Center, Richmond, Virginia, shall:

1. Cease and desist from:

(a) Failing or refusing to furnish the American Federation of Government Employees, Local 2145, AFL-CIO with information to which it is entitled under §7114(b)(4) of the Statute.

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

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

(a) Furnish the American Federation of Government Employees, Local 2145, AFL-CIO with information to which it is entitled under §7114(b)(4) of the Statute.

(b) Post at facilities at the U.S. Department of Veterans Affairs Medical Center, Richmond, Virginia, where bargaining unit employees represented by the Union, are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt, such forms 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 places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that these Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to § 2423.41(e) of the Authority's Rules and Regulations, notify the Regional Director of the Washington Regional Office, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

Issued, Washington, DC, December 15, 2004

PAUL B. LANG

Administrative Law Judge


NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF

THE FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Department of Veterans Affairs, Veterans Administration, Hunter Holmes McGuire Veterans Affairs Medical Center, Richmond, Virginia has violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail or refuse to furnish the American Federation of Government Employees, Local 2145, AFL-CIO with information to which it is entitled under §7114(b)(4) of the Federal Service Labor-Management Relations Statute.

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.

WE WILL furnish the American Federation of Government