U.S. Department of Housing and Urban Development and American Federation of Government Employees, Local 476 (Authority decision, October 22, 1991)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair labor practice case. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

A union requested records, including a crediting plan, for a HUD Financial Operations Analyst vacancy. HUD declined to furnish the requested data and did not respond promptly. An administrative law judge found unfair labor practices, and the Authority adopted that finding over HUD's exceptions. It ordered HUD to furnish the data on request, answer future information requests promptly, and post a notice to employees. An offer to let a union representative inspect some records did not satisfy HUD's duty to furnish them.

Decision snapshot

• Authority: Information refusal and untimely response under 5 U.S.C. § 7116(a)(1), (5), and (8).
• Outcome: Judge's findings adopted; HUD ordered to provide records and post a notice.
• Key point: Offering inspection of records did not fulfill the statutory duty to furnish the requested data.

Full text (FLRA public release)

[ v42 p1002 ]

42:1002(71)CA

The decision of the Authority follows:

42 FLRA No. 71

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 476, AFL-CIO

(Charging Party/Union)

3-CA-10066

DECISION AND ORDER

October 22, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent.(1) No opposition was filed to the Respondent's exceptions.

The complaint alleged and the Judge found that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) when the Respondent failed and refused to provide to the Union certain data, including a crediting plan, requested regarding the merit staffing file for the vacancy announcement for the position of Financial Operations Analyst 0159, and when it failed to make a timely reply to the Union's requests.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm those rulings. Upon consideration of the Judge's decision, the exceptions, and the entire record, we adopt the Judge's findings, conclusions and recommended Order.(2) See U.S. Department of Justice, Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery, Pennsylvania, 40 FLRA 449 (1991) (the Authority found that the agency committed an unfair labor practice by refusing to release a copy of a specific crediting plan to the union for a potential grievance), petition for review filed sub nom. U.S. Department of Justice, Bureau of Prisons, Allenwood Federal Prison Camp, Montgomery, Pennsylvania v. FLRA, No. 91-1293 (D.C. Cir. June 21, 1991).

II. Order

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the U.S. Department of Housing and Urban Development shall:

1. Cease and desist from:

(a) Failing and refusing to furnish the American Federation of Government Employees, Local 476, AFL-CIO, the exclusive representative of its unit employees at its Headquarters in Washington, D.C., the data requested by the Union in its letters dated April 12, 1990 and April 30, 1990.

(b) Failing or refusing to make a timely reply to requests for information from the American Federation of Government Employees, Local 476, AFL-CIO, which reply is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.

(c) In any like or related manner interfering with, restraining or coercing its employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to
   effectuate the purposes and policies of the Federal Service Labor-Management Statute:

(a) Upon request, furnish the American Federation of Government Employees, Local 476, AFL-CIO, copies of the data requested by the Union in letters dated April 12, 1990 and April 30, 1990.

(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 of the Employee Classification Division, Washington, D.C. 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, notify the Regional Director, of the Washington Region, Federal Labor Relations Authority, 1111 - 18th Street, NW, 7th Floor, Washington, DC 20033-0758, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

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 HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail or refuse to furnish the American Federation of Government Employees, Local 476, AFL-CIO, the exclusive representative of our unit employees at our Headquarters in Washington, D.C., the data requested by the Union in letters dated April 12, 1990 and April 30, 1990.

WE WILL NOT fail or refuse to make a timely reply to requests for information from the American Federation of Government Employees, Local 476, AFL-CIO, which reply is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining.

WE WILL NOT in any like or related manner, interfere with, restrain or coerce 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 476, AFL-CIO, copies of the data requested by the Union in its letters dated April 12, 1990 and April 30, 1990.

(Activity)

Dated: By:

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Washington Region, whose address is: 1111

• 18th Street, NW, 7th Floor, Washington, DC 20033-0758, and
  whose telephone number is: (202) 653-8500.

FOOTNOTES:

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

1. The Respondent submitted a request to file exceptions out
   of time. The Judge's decision was served on the Respondent by mail on June 19, 1991. Exceptions to a decision of an Administrative Law Judge must be filed with the Authority within 25 days after service of the decision. Pursuant to section 2429.22 of the Authority's Rules and Regulations, when service has been made by mail, 5 days are added to the prescribed period for filing certain documents, including exceptions to a Judge's decision. Accordingly, the Respondent's exceptions, which were filed on July 18, 1991, were timely filed and its request is denied as moot.

2. Before the Judge, the Respondent argued that because the
   Union failed to avail itself of the Respondent's offer to allow a Union representative to review the applications and related documents, other than the crediting plan, the Union waived its right to those documents. In its exceptions, the Respondent contends that the Judge failed to address this argument. The Judge found, and we agree, that the Respondent's offer to allow the Union to review the documents did not satisfy the Respondent's duty under the Statute to furnish such data to the Union. Accordingly, the Union's failure to avail itself of the Respondent's offer could not constitute a waiver of the Union's statutory right to be furnished the data by the Respondent because the offer itself did not satisfy the Respondent's duty under the Statute to furnish such data to the Union.