DEPARTMENT OF VETERANS AFFAIRS,
VETERANS AFFAIRS MEDICAL CENTER, GAINESVILLE, FLORIDA
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2779
Charging Party
Godfrey E. Goff, Jr., Esq. For the General Counsel
Case No. AT-CA-20176
Ann Barnett, Esq. For the Respondent
Before: ELI NASH, JR. Administrative Law Judge
DECISION
Statement of the Case
The American Federation of Government Employees, Local 2779 (herein
called the Union) filed a charge in this matter on November 25,
1991, and a first amended charge on December 12, 1991 against the
Department of Veterans Affairs, Veterans Affairs Medical Center,
Gainesville, Florida (herein called the Respondent). Thereafter, on
May 22, 1992, the Atlanta Regional Director, Federal Labor
Relations Authority, issued a Complaint and Notice of Hearing
alleging that the Respondent violated Section 7116(a)(1), (5) and
(8) of the Federal Service Labor - Management Relations Statute, as
amended, (the Statute) by its failure to respond to the Union's
request and to furnish the Union a sanitized computer printout and
alleged complaints regarding the performance of an employee who was
being removed.
A hearing was held in Orlando, Florida at which all parties were
represented. Each was afforded full opportunity to be heard, to
adduce evidence, and to examine as well as cross-examine witnesses.
Timely briefs were filed with the undersigned which have been duly
considered.
Upon the entire record, from my observation of the witnesses and
their demeanor, and from all the testimony and evidence adduced at
the hearing, I make the following findings and conclusions.
Findings of Fact
The essential facts are brief and as follows:
On June 13, 1991 1 , Union 1st Vice - President Nancy Whitehead
requested from Terry Hopkins, Chief Medical Administrative Services
(MAS) a sanitized computer printout of the alleged complaints in
the performance of employee Pedro Calderon. Whitehead stated in her
request that she was the designated representative of Calderon in
the matter of his proposed removal and for Respondent to contact
her if the request needed clarification. The Union needed the
information by June 19. Around June 17, Connie Bellville, Chief and
Supervisor of Calderon's work section, phoned Whitehead asking for
a clarification of the information request. Whitehead responded
that she needed a more detailed listing of the errors that were
contained in the proposed removal. The proposed removal was based
on an alleged error rate in Calderon's performance. The Union
received no further response from the Respondent and never received
the requested information.
Conclusions
This is not a case requiring a profound analysis. Here the
requested data was sought by the exclusive representative because
it thought the information was used as a basis for the proposed
removal of employee Calderon, and consequently it was needed to
examine the accuracy of the errors, the basis of the proposed
removal in order for it to respond to the removal proposal in its
representative capacity. This necessity constitutes, under any
view, a "particularized need" for the data requested. 2
The record in this matter confirms that under section 7114(b)(4) of
the Statute the data should have been furnished to the exclusive
representative. It shows that the data is: (1) normally maintained
in the regular course of business; (2) reasonably available; (3)
necessary for a full and proper discussion, understanding and
negotiation of subjects within the scope of collective bargaining
and (4) does not constitute guidance, advice, counsel or training
provided for management officials or supervisors relating to
collective bargaining. Inasmuch as Respondent does not dispute that
the essential elements are satisfied by the record, it is found
that there was no bar to Respondent's furnishing the data, upon
request, to the Union herein.
Respondent's justification for failing to supply the requested data
is twofold. First arguing that it was unable, after taking
reasonable steps, to notify the Union of actions taken on its
request. It then persists that the data as initially requested was
not available in the form requested.
Taking the latter proposition first. Case law places an obligation
on an agency to respond to data requests notwithstanding the data
may not exist. Thus, it has been consistently held that a reply is
essential to allow the exclusive representative full and proper
understanding of a disciplinary action against an employee and for
the representative to effectively represent the grievant in the
related grievance. 3 It seems, therefore, that the agency has an
affirmative obligation to inform the exclusive representative of
the nonexistence of requested data. Failed attempts to communicate
this message to the exclusive representative are presumably at the
agency's peril.
Here Respondent faults the Union for not making a clarification of
its request as it contends the data the Union sought "was not even
available, or had nothing to do with the case at all." If the
requested data was not kept in the regular course of business or
did not exist, the Union should have been informed. It is clear
that the question whether the data was available in the form
initially requested by the Union is not a real issue in this case.
Besides, the record shows that Whitehead was called by Bellville,
around June 17 and asked to clarify the Union's initial request.
Whitehead responded that she "needed a more detailed listing of the
errors that were contained in the proposed removal." Surely, this
explanation to Bellville should have been sufficient to satisfy
Respondent as to what data the Union was actually seeking. Finally,
I do not view this conversation as a response to the Union's
request.
Bellville then handed the request over to a personnel management
specialist, Joan Turkovich. It appears therefore, that any specific
concerns with the shortcomings of the request were resolved during
that conversation between Whithead and Bellville. 4 Thus, all that
remained to be done was for Respondent to gather the data and
deliver it to the Union. In the circumstances of the case, it is
found that the Union did clarify its request through Bellville and
that Respondent was able, as the facts establish, to collect the
data requested by the Union.
Respondent's primary reasoning for not responding to the request is
again attributed to the Union. Respondent argues that it was
unable, after taking reasonable steps, to notify the Union of
actions taken on its request.
While it is indisputable that conditions do exist which can excuse
a failure to respond to the type requests present in this case, the
facts set out by Respondent concerning its attempts to reach a
representative of the exclusive representative located at its
facility, do not persuade the undersigned that it met its
obligation to provide the exclusive representative with the data
requested. Notwithstanding that Respondent through Turkovich, left
several telephone messages for Whitehead on the Union's answering
machine which were unanswered, other means for reaching Whitehead
existed which were just as effective, but were not utilized. The
most convincing evidence in this case, which persuades the
undersigned that Respondent did not meet its obligation to respond
to and supply the information, is that Bellville had no difficulty
in reaching Whitehead for a clarification of her request only a
short time before Turkovich allegedly made her telephone calls.
Since Bellville obviously knew how to reach Whitehead and appeared
to be handling the matter for Respondent, surely one must surmise,
that maybe the most reasonable way to get the information to the
Union, in a timely fashion, would have been to reroute the data
through Bellville to assure that Whitehead received it on time. In
any event, several alternatives to merely leaving a message on the
Union's answering machine clearly remained. Those alternatives
included, contacting Whitehead at her work site or, by using the
mailing system where the Union has a drop box. Turkovich's
rejection of these alternatives indeed left a void for the Union.
As the record shows, the Union was running out of time to answer
the proposed removal and leaving messages on the answering machine
and waiting for a response would not, in such circumstances be as
reasonable as Respondent contends.
It is my view that without exhausting several of the methods which
could have been used to reach Whitehead, who worked at the
facility, Respondent can hardly argue that it took reasonable steps
to inform the Union of actions taken on its request. While I agree
that in some circumstances, Respondent's action may have been a
reasonable step to notify Whitehead, it cannot be said that the
efforts by Turkovich, were a reasonable effort to respond to and
furnish the Union with the data requested in this case.
Accordingly, where as here, the Union representative to be
contacted is located on the facility and there are several ways to
reach that representative, the undersigned rejects the argument
that a respondent fulfills its obligation to respond to and furnish
requested data merely by exhausting one of the ways to reach the
representative. Therefore, the undersigned finds Respondent's
argument that it was unable to contact Whitehead after taking
reasonable steps to do so, lacks merit.
Based on the foregoing, it is found that Respondent violated
section 7116(a)(1), (5) and (8) of the Statute by its failure to
respond to the Union's request and to furnish the Union a sanitized
computer printout and alleged complaints regarding the performance
of the employee who was being removed.
In view of the foregoing, it is recommended that the Authority
adopt the following:
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute,
the Department of Veterans Affairs, Veterans Affairs Medical
Center, Gainseville, Florida, shall:
1. Cease and desist from:
(a) Failing and refusing to respond to requests to furnish the
American Federation of Government Employees, Local 2779, the
exclusive representative of its employees, with data requested
pursuant to section 7114(b)(4) of the Statute which was relevant
and necessary for its representational duties.
(b) Failing and refusing to furnish the American Federation of
Government Employees, Local 2779, the exclusive representative of
its employees, with data requested pursuant to section 7114(b)(4)
of the Statute which was relevant and necessary for its
representational duties.
(c) 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) Upon request, furnish the American Federation of Government
Employees, Local 2779, the exclusive representative of its
employees, information related to proposed removals which is
reasonably available and necessary for full and proper discussion,
understanding and negotiation of subjects within the scope of
collective bargaining.
(b) Post at its facilities, 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 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 insure that such Notices are not
altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, 5 C.F.R. º 2423.30, notify the Regional Director of
the Atlanta Region, Federal Labor Relations Authority, 1371
Peachtree Street, NE, Suite 122, Atlanta, Georgia 30367, in
writing, within 30 days from the date of this Order, as to what
steps have been taken to comply herewith.
Issued, August 25, 1993, Washington, DC
_____________________________
ELI NASH, JR. Administrative Law Judge
NOTICE TO ALL
EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS
AUTHORITY
AND TO EFFECTUATE THE
POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to respond to requests to furnish the
American Federation of Government Employees, Local 2779, the
exclusive representative of our employees, with data requested
pursuant to section 7114(b)(4) of the Statute which is relevant and
necessary for its representational duties.
WE WILL NOT fail or refuse to provide to the American Federation of
Government Employees, Local 2779, the exclusive representative of
our employees, with data requested pursuant to section 7114(b)(4)
of the Statute which is relevant and necessary for its
representational duties.
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 upon request, furnish the American Federation of Government
Employees, Local 2779, the exclusive representative of our
employees, information related to proposed removals which is
reasonably available and necessary for full and proper discussion,
understanding and negotiation of subjects within the scope of
collective bargaining.
_______________________________ (Activity)
Dated: ____________________________By:
_______________________________ (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the
date of the 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, of the Federal Labor Relations Authority,
Atlanta Region, whose address is: 1371 Peachtree Street, NE., Suite
122, Atlanta, Georgia 30367, and whose telephone number is: (404)
347-2324.
FOOTNOTES
Footnote 1 All dates are 1991 unless otherwise indicated.
Footnote 2 National Labor Relations Board v. FLRA, 952 F.2d 523
(D.C. Cir. 1992); Scott Air Force Base v. FLRA, 956 F.2d 1223 (D.C.
Cir. 1992); Department of Justice, Immigration and Naturalization
Service, Border Patrol v. FLRA, 991 F.2d 285 (5th Cir. 1993);
Department of Justice, Bureau of Prisons, Allenwood Federal Prison
Camp, Montgomery, Pa. v. FLRA, 988 F.2d 1267 (D.C. Cir. 1993) are
examples of cases where the courts created a "particularized need"
standard of necessity for data requests made by unions under
section 7114(b)(4) of the Statute. Although I do not see this as a
situation where such particularity should be a condition to
furnishing the data, it is noted that at this writing, the
Authority has not submitted to the courts approach. Accordingly,
herein the Authority's method is applied.
Footnote 3 Social Security, Administration Baltimore, Maryland, 39
FLRA 650 (1991); U.S. Department of Justice, Office of Justice
Programs, 45 FLRA 1022 (1991); U.S. Naval Supply Center, San Diego,
California, 26 FLRA 324, 326-327 (1987).
Footnote 4 Army and Air Force Exchange Service, Dallas, Texas, 24
FLRA 292 (1986) cited by Respondent is inapposite. In the instant
case the Union clearly gave a "reason" for needing the information,
in Whitehead's response to Supervisor Connie Bellville's request
for a clarification, on June 17, 1992. Her reply that she "needed a
more detailed listing of the errors that were contained in the
proposed removal" could not have been more clear.