DEPARTMENT OF VETERANS AFFAIRS RALPH H. JOHNSON MEDICAL CENTER CHARLESTON, SOUTH CAROLINA and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-136
Office of Administrative Law Judges
DEPARTMENT OF VETERANS AFFAIRS
RALPH H. JOHNSON MEDICAL CENTER
CHARLESTON, SOUTH CAROLINA
andNATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R5-136
Case No. AT-CA-80605
Michele W. Snyder Counsel for the Charging Party
Brent S. Hudspeth Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER Administrative Law Judge
Statement of the Case
The unfair labor practice complaint alleges that Respondent
failed to comply with the provisions of section 7114(b)(4) of the
Federal Service Labor-Management Relations Statute (the Statute),
by refusing to provide information requested by the Union, and
thereby violated section 7116(a)(1), (5), and (8) of the Statute.
Respondent's answer admitted in part and denied in part the
Following a prehearing conference, the parties entered into
a stipulation of facts with attached exhibits which "constitutes
the entire record in this matter." The parties further stipulated
"that the Respondent has committed an unfair labor practice as set
forth below and that the only remaining issue is for the
Administrative Law Judge to fashion an appropriate remedy."
(General Counsel (GC) Exh. 1(n)). The parties filed briefs
addressing that issue.
Based on the record, I make the following findings of fact,
conclusions of law, and recommendations.
Findings of Fact
As noted, the parties stipulated to the following facts and
exhibits, and I so find:
1. Th[e] unfair labor practice complaint and notice of hearing is issued under 5 U.S.C.
§§ 7101-7135 and 5 C.F.R. Chapter XIV.
2. The National Association of Government Employees, Local R5-136 (the Union or
the Charging Party) is a labor organization under 5 U.S.C. §
3. The Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston,
South Carolina (the Respondent) is an agency under 5 U.S.C.
4. The original charge was filed by the Union with the Atlanta Regional Director on May
5. An amended charge was filed by the Union with the Atlanta Regional Director on
September 8, 1998.
6. Copies of the original and amended charge were
served on the Respondent.
7. During the time period covered by th[e] complaint, the following persons occupied the
positions opposite their names:
Stephen Johnston Chairman, Office of
Chief of Human Resources
Sarah Williams Associate Chief of
Nursing & Patient Care
8. During the time period covered by th[e] complaint, those persons named in paragraph
7 were either a supervisor or a management official under 5
U.S.C. § 7103(a)(10) and (11).
9. During the time period covered th[e] complaint, those persons named in paragraph 7
were acting on behalf of the Respondent.
10. The Charging Party is the exclusive representative of a unit of employees appropriate
for collective bargaining at the Respondent.
11. On or about August 23, 1996, the Respondent, through Williams, issued a Letter of
Reprimand to Frank Bethune over an allegation of patient abuse that occurred on June 10, 1996.
[Stipulated Exhibit (S. Exh.) 2]. The Respondent also reassigned Bethune from his position of
Psychiatric Nursing Assistant, GS-5, to Nursing Assistant, GS-5 (Medical Surgical) as a result.
The Union filed a grievance and, on October 17, 1997, Bethune requested that the Agency provide
"all investigational information concerning the reprimand, lost wages, and removal or (sic) Frank
Bethune from Ward 5BN. We would also like the statements from all of the staff that was
interviewed." [S. Exh. 3].
12. Pursuant to the grievance described in paragraph 11, the Respondent and the Union
scheduled an arbitration hearing for May 14, 1998.
13. On April 28, 1998, the Union requested Vogel to provide "all documents relied upon in
imposing the Letter Of Reprimand on Frank Bethune, dated 23
August 1996." [S. Exh. 4].
14. In response to the request described in paragraph 13, on May 12, 1998, the Respondent,
through Graves, furnished the Union with the witness statements of Frank Bethune and Frank
Gadson. Graves had previously provided Bethune with the same statements in response to the
request described in paragraph 11. [S. Exh. 5].
15. The information described in paragraph 13 includes a July 8, 1996 memorandum from
Members, Administrative Board of Investigation, hereinafter, Board's recommendation), and
documents listed therein as exhibits, which recommended the discipline described in paragraph 11.
[S. Exh. 6].
16. On May 14, 1998, the Respondent, through Johnston, testified at the arbitration
proceeding described in paragraph 12 that it was the Board's recommendation to issue the
discipline towards Bethune, as described in paragraph
17. On May 14, 1998, the Respondent, through Williams, testified at the arbitration
proceeding described in paragraph 12 that she looked at the Board's recommendation and its
exhibits, as described in paragraph 15. Specifically Williams testified that she looked at the
nurses' testimony as well as the patient's testimony. Williams also testified that she looked at the
Table of Penalties and the Board's recommendation and saw that it provided a framework.
Williams testified that she made the decision to issue the discipline described in paragraph 11 after
looking at Messrs. Bethune and Gadson's statements.
18. On May 14, 1998, during the arbitration proceeding described in paragraphs 12, 16, and
17, the Respondent offered into evidence the July 8, 1996 memorandum from Members,
Administrative Board of Investigation, which recommended the discipline described in paragraph 11.
At this time, the Respondent provided the Charging Party a copy of the Board's recommendation but
did not provide any of the exhibits listed in that
19. The information described in paragraphs 13 and 15 is normally maintained by the
Respondent in the regular course of business.
20. The information described in paragraphs 13 and
15 is reasonably available.
21. The information described in paragraphs 13 and 15 is necessary for full and proper
discussion, understanding, and negotiation of subjects
within the scope of bargaining.
22. The information described in paragraphs 13 and 15 does not constitute guidance, advice,
counsel, or training provided for management officials or
supervisors, relating to collective bargaining.
23. The information described in paragraphs 13 and 15 is not prohibited form disclosure by
24. Beyond that described in paragraphs 14 and 18, since April 28, 1998 and May 14, 1998,
the Respondent has refused to furnish the Union with the information described in paragraphs 13, 15,
and 18 through 23.
25. By the conduct described in paragraph 24, the Respondent refused to comply with the
provisions of 5 U.S.C. § 7114(b)(4).
26. By the conduct described in paragraphs 24 and 25, the Respondent has committed an unfair
labor practice in violation of 5 U.S.C. § 7116(a)(1), (5),
Discussion and Conclusions
The parties stipulated, the stipulation and the stipulated
exhibits support, and I conclude, that by the Respondent's conduct
in failing to provide to the Union the information requested,
including a July 8, 1996 memorandum from Members, Administrative
Board of Investigation, and documents listed therein as exhibits,
the Respondent refused to comply with section 7114(b)(4) of the
Statute and thereby committed an unfair labor practice in violation
of section 7116(a)(1), (5), and (8) of the Statute.
A. The Positions of the Parties
1. The Union's Position
The Union claims that, if the Respondent had provided the
information when requested, it may have been able to resolve the
matter prior to arbitration or, at the very least, it would have
utilized the information in the defense of the employee at the
arbitration hearing. The Union claims that it and the employee have
The Union requests that the Respondent be ordered to (1)
return the employee to his prior position and work schedule, (2)
pay the employee backpay and differentials with interest, including
compensation for his lost income from outside employment, which was
precluded by his altered schedule, and (3) remove any reference to
the letter of reprimand from his file and correct any action taken
as a result of the letter.
The Union also requests that Respondent be ordered to
reimburse it for all expenses and attorney fees incurred in
connection with the arbitration and this unfair labor practice
proceeding. Counsel for the Union have submitted itemized
statements and affidavits in support of the fee requests.
2. The Respondent's Position
The Respondent contends that the Union's request for a
remedy is premature as the arbitrator has not rendered his opinion.
The Respondent urges that if the arbitrator decides in favor of the
grievant, the request will be moot. The Respondent also claims that
the grievant was not disadvantaged at the arbitration hearing by
not having the entire investigation file and was afforded
fundamental due process.(1)
3. The General Counsel's Position
The General Counsel notes that the Respondent, subsequent to issuance of the complaint, provided the Charging Party with the data at issue. Therefore, under the circumstances of the instant case, the General Counsel requests a cease and desist order against the Respondent and that the Respondent also be required to (1) post a notice to employees signed by the Center Director and, (2) submit, upon the Union's request, a joint request that the arbitrator reopen the record, either through witness testimony or written submission, so that the arbitrator may consider any evidence or arguments that the Union is able to present based upon its receipt of the data at issue. The General Counsel further suggests that any costs associated with the reopening of the record be submitted to the arbitrator for ruling on that issue.
I agree with Counsel for the General Counsel that, in
addition to a cease and desist order and the posting of a notice,
an order is appropriate requiring the Respondent to submit, upon
the Union's request, a joint request that the arbitrator reopen the
record so that the arbitrator may consider any evidence or
arguments that the Union is able to present based upon its receipt
of the data at issue. The arbitrator is in the best position to
evaluate the record of the arbitration in that light. Such an order
would best place the parties in the position they would have been,
absent the Respondent's violation of the Statute. SeeU.S.
Department of the Treasury, Internal Revenue Service, Washington,
D.C.,40 FLRA 303, 312 (1991) (Authority ordered agency to
supply information and, upon request of the union, proceed with the
The Charging Party's request for attorney fees for this
proceeding should be initially addressed to the Authority pursuant
to the Back Pay Act, 5 U.S.C. § 5596(b)(1), in the event the
Authority, in its action on this decision pursuant to 5 C.F.R. §
2423.41, corrects or directs the correction of an unjustified or
unwarranted personnel action. See U.S. Department of Veterans
Affairs, Medical Center, Allen Park, Michigan, 49 FLRA 405, 406
n2 (1994); U.S. Customs Service, 46 FLRA 1080 (1992).
The Union's request for attorney fees and expenses in the
arbitration proceeding must be presented to the arbitrator. A
motion for attorney fees related to an unjustified or unwarranted
personnel action must be determined by an "appropriate authority,"
as defined in 5 C.F.R. § 550.807(a). When an arbitrator has
resolved a grievance over an unjustified or unwarranted personnel
action, the arbitrator, not the Authority, is the "appropriate
authority" for resolving the request for an award of attorney fees.
U.S. Department of the Army, Red River Army Depot, Texarkana,
Texas and National Association of Government Employees, Local
R14-52, 54 FLRA 759,(1998); Department of the Air Force
Headquarters, 832D Combat Support Group DPCE, Luke Air Force Base,
Arizona, 32 FLRA 1084, 1093 (1988).
Based on the above findings and conclusions, it is
recommended that the Authority issue the following Order:
Pursuant to section 2423.41(c) of the Federal Labor
Relations Authority's Rules and Regulations and section 7118 of the
Statute, it is hereby ordered that the Department of Veterans
Affairs, Ralph H. Johnson Medical Center, Charleston, South
1. Cease and desist from:
(a) Failing and refusing to furnish the National
Association of Government Employees, Local R5-136, the exclusive
representative of certain of its employees, upon request, data
which is normally maintained in the regular course of business,
which is reasonably available and necessary for full and proper
discussion, understanding, and negotiation of subjects within the
scope of collective bargaining, which does not constitute guidance,
advice, counsel, or training provided for management officials or
supervisors relating to collective bargaining, and which is not
prohibited by law from release.
(b) In any like or related manner interfering with,
restraining or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations