Department of the Navy, Portsmouth Naval Shipyard (Respondent) and Portsmouth Federal Employees Metal Trades Council, AFL-CIO (Charging Party) 



[ v04 p619 ]
04:0619(82)CA
The decision of the Authority follows:


 4 FLRA No. 82
 
 DEPARTMENT OF THE NAVY
 PORTSMOUTH NAVAL SHIPYARD
 Respondent
 
 and
 
 PORTSMOUTH FEDERAL EMPLOYEES
 METAL TRADES COUNCIL, AFL-CIO
 Charging Party
 
                                            Case No. 1-CA-64
 
                            DECISION AND ORDER
 
    THE ADMINISTRATIVE LAW JUDGE ISSUED HIS RECOMMENDED DECISION AND
 ORDER IN THE ABOVE-ENTITLED PROCEEDING FINDING THAT THE RESPONDENT HAD
 NOT ENGAGED IN THE UNFAIR LABOR PRACTICE ALLEGED IN THE COMPLAINT AND
 AND RECOMMENDING THAT THE UNFAIR LABOR PRACTICE COMPLAINT BE DISMISSED
 IN ITS ENTIRETY.  THEREAFTER, THE GENERAL COUNSEL FILED EXCEPTIONS WITH
 RESPECT TO THE ADMINISTRATIVE LAW JUDGE'S RECOMMENDED DECISION AND
 ORDER.
 
    PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
 (5 CFR 2423.29) AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (5 U.S.C. 7101-7135), THE AUTHORITY HAS REVIEWED THE
 RULINGS OF THE ADMINISTRATIVE LAW JUDGE MADE AT THE HEARING AND FINDS
 THAT NO PREJUDICIAL ERROR WAS COMMITTED.  THE RULINGS ARE HEREBY
 AFFIRMED.  UPON CONSIDERATION OF THE ADMINISTRATIVE LAW JUDGE'S
 RECOMMENDED DECISION AND ORDER AND THE ENTIRE RECORD IN THE CASE,
 INCLUDING THE GENERAL COUNSEL'S EXCEPTIONS, THE AUTHORITY HEREBY ADOPTS
 THE ADMINISTRATIVE LAW JUDGE'S FINDINGS, CONCLUSIONS AND
 RECOMMENDATIONS, NOTING THAT, WHILE SOME OF THE BACKGROUND FACTS
 OCCURRED PRIOR TO THE EFFECTIVE DATE OF THE STATUTE, OUR FINDINGS AND
 CONCLUSIONS ARE MADE PURSUANT TO THE STATUTE.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 1-CA-64 BE, AND
 IT HEREBY IS, DISMISSED.
 
    ISSUED, WASHINGTON, D.C., NOVEMBER 12, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    RICHARD BLAZER, ESQUIRE
    RICHARD ZAIGER, ESQUIRE
    OFFICE OF THE GENERAL COUNSEL
    FEDERAL LABOR RELATIONS AUTHORITY
    441 STUART STREET, 8TH FLOOR
    BOSTON, MASSACHUSETTS 02116
                          FOR THE GENERAL COUNSEL
 
    A. GENE NIRO, ESQUIRE
    AREA REPRESENTATIVE
    NORTHERN FIELD DIVISION
    DEPARTMENT OF THE NAVY
    666 SUMMER STREET, BLDG. 113, ROOM 124
    BOSTON, MASSACHUSETTS 02210
                            FOR THE RESPONDENT
 
    BEFORE:  BURTON S. STERNBURG
    ADMINISTRATIVE LAW JUDGE
 
                            DECISION AND ORDER
 
                           STATEMENT OF THE CASE
 
    THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C.
 7101, ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER, FED.
 REG., VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV, PART
 2411, ET SEQ.
 
    PURSUANT TO AN AMENDED CHARGE FIRST FILED ON JUNE 4, 1979, BY THE
 PORTSMOUTH FEDERAL EMPLOYEES METAL TRADES COUNCIL, (HEREINAFTER CALLED
 THE UNION OR CHARGING PARTY), A COMPLAINT AND NOTICE OF HEARING WAS
 ISSUED ON NOVEMBER 8, 1979.  THE COMPLAINT ALLEGES THAT DEPARTMENT OF
 THE NAVY, PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE,
 (HEREINAFTER CALLED THE RESPONDENT OR NAVY), VIOLATED SECTIONS
 7116(A)(1) AND (5) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE, (HEREINAFTER CALLED THE STATUTE), BY VIRTUE OF ITS ACTION IN
 REFUSING THE UNION'S REQUEST FOR CERTAIN OVERTIME INFORMATION WHICH IS
 NECESSARY AND RELEVANT FOR INTELLIGENT BARGAINING.
 
    A HEARING WAS HELD IN THE CAPTIONED MATTER ON JANUARY 31, 1980, IN
 BOSTON, MASSACHUSETTS.  ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE
 HEARD, TO EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE
 BEARING ON THE ISSUES HEREIN.  ALL PARTIES SUBMITTED BRIEFS WHICH HAVE
 BEEN DULY CONSIDERED.
 
    UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
 WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDINGS OF FACT AND
 CONCLUSIONS.
 
                             FINDINGS OF FACT
 
    THE RESPONDENT AND THE UNION, WHICH IS THE EXCLUSIVE BARGAINING
 REPRESENTATIVE OF ALL UNGRADED EMPLOYEES EMPLOYED AT THE PORTSMOUTH
 NAVAL SHIPYARD, ARE PARTIES TO A COLLECTIVE BARGAINING AGREEMENT
 COVERING THE PERIOD JUNE 8, 1977 THROUGH JUNE 8, 1980.  THE COLLECTIVE
 BARGAINING AGREEMENT PROVIDES IN PERTINENT PART AS FOLLOWS:
 
                                ARTICLE 10
 
                                 OVERTIME
 
    SECTION 1.  ASSIGNMENTS TO OVERTIME SHALL BE DISTRIBUTED AS FAIRLY
 AND EQUITABLY AS
 
    PRACTICABLE OVER THE LIFE OF THIS AGREEMENT UNDER THE FOLLOWING
 CONDITIONS:
 
    IN ORDER TO EFFECTIVELY AND EFFICIENTLY ACCOMPLISH THE TASKS OF THE
 SHIPYARD, THE EMPLOYER
 
    SHALL DETERMINE THE NUMBERS AND SKILLS REQUIRED FOR OVERTIME WORK AND
 THE EMPLOYEES THAT
 
    SATISFY THESE REQUIREMENTS, AND SHALL ASSIGN EMPLOYEES ACCORDINGLY.
 IN THE INTEREST OF
 
    EMPLOYEE MORALE, JOB CONTINUITY AND ECONOMY OF OPERATION, WHEN MAKING
 OVERTIME ASSIGNMENTS,
 
    FIRST CONSIDERATION SHALL BE GIVEN THOSE EMPLOYEES CURRENTLY ASSIGNED
 TO THE JOB.
 
    SECTION 5.  THE EMPLOYER WILL PROVIDE THE COUNCIL, UPON REQUEST,
 NECESSARY PERTINENT
 
    SANITIZED INFORMATION CONCERNING OVERTIME HOURS WORKED TO AID IN
 RESOLVING INEQUITIES IN
 
    OVERTIME DISTRIBUTION ALLEGED BY SPECIFIC EMPLOYEES.
 
    THE PREVIOUS CONTRACT BETWEEN THE PARTIES COVERING THE PERIOD
 1969-1971 CONTAINED LANGUAGE SIMILAR TO THAT APPEARING IN ARTICLE 10,
 SECTION 5 QUOTED ABOVE.  THE 1966-1968 CONTRACT, HOWEVER, CONTAINED
 DIFFERENT LANGUAGE WITH RESPECT TO THE SUPPLYING OF OVERTIME
 INFORMATION.  THUS, THE 1966-1968 CONTRACT PROVIDED IN PERTINENT PART AS
 FOLLOWS:
 
    THE EMPLOYER AGREES TO MAKE RECORDS OF OVERTIME AVAILABLE TO THE
 COUNCIL UPON ITS REQUEST
 
    FOR THE RESOLUTION OF SPECIFIC COMPLAINTS.
 
    ACCORDING TO THE UNCONTRADICTED AND UNCHALLENGED TESTIMONY OF MR.
 JOSEPH DERWIECKI, PERSONNEL OFFICER OF THE DIRECTOR OF INDUSTRIAL
 RELATIONS, WHO PARTICIPATED IN THE DISCUSSIONS LEADING UP TO THE
 1969-1971 CONTRACT AND THE CURRENT CONTRACT, THE MORE RESTRICTIVE
 LANGUAGE, I.E., REQUIRING THE NAMES OF THE SPECIFIC EMPLOYEES ALLEGING
 INQUITIES IN OVERTIME DISTRIBUTION, WAS INSERTED INTO THE CONTRACTS TO
 LESSEN THE BURDEN ON THE RESPONDENT.  PRIOR TO THE INSERTION OF THE
 RESTRICTIVE LANGUAGE, RESPONDENT, IN RESPONSE TO THE UNION'S REQUEST FOR
 OVERTIME INFORMATION, WAS FORCED TO ASSEMBLY MANY NEEDLESS AND
 IRRELEVANT OVERTIME RECORDS SINCE IT WAS NOT NECESSARILY AWARE OF THE
 SPECIFIC EMPLOYEE OR EMPLOYEES INVOLVED.  THE MATTER WAS FURTHER
 COMPLICATED BY THE FACT THAT THE UNIT EMPLOYEES, MANY OF WHOM POSSESSED
 DIFFERENT TRAINING AND SKILLS, WERE SENT OUT TO WORK ON A TEMPORARY
 BASIS IN DIFFERENT AREAS THROUGHOUT THE WORLD WHERE SHIP REFITTING WORK
 WAS BEING CARRIED ON.  SUCH AREAS INCLUDE NEW LONDON, CONNECTICUT AND
 SCOTLAND.  ACCORDINGLY, EMPLOYEES ON ERP (EXTENDED REFIT PERIODS) MIGHT
 WELL ACHIEVE MORE OVERTIME WORK THAN SIMILAR EMPLOYEES POSSESSING LIKE
 SKILLS WHO WERE WORKING SOLELY IN PORTSMOUTH.  DUE TO THE DISTANCES
 INVOLVED, IT WAS NOT ECONOMICALLY FEASIBLE TO INTERCHANGE EMPLOYEES FOR
 PURPOSES OF EQUITABLY DISTRIBUTING OVERTIME.  WITHOUT THE NAMES OF THE
 SPECIFIC EMPLOYEES INVOLVED, RESPONDENT APPARENTLY WAS FORCED IN THE
 PAST TO GIVE THE INFORMATION ON ALL WORKERS IRRESPECTIVE OF THE GRADES,
 SKILLS, AND LOCATION INVOLVED.  BY HAVING THE SPECIFIC COMPLAINANTS
 NAMED, RESPONDENT COULD THEN PIN POINT THE SPECIFIC AREA AND SKILLS
 INVOLVED AND CONFINE ITS INVESTIGATION OF THE OVERTIME RECORDS TO THE
 PARTICULAR AREA WHERE THE NAMED EMPLOYEES WORKED.  LASTLY, ACCORDING TO
 MR.  DERWIECKI, THE ABOVE PROBLEMS FACED BY THE RESPONDENT WERE
 THOROUGHLY DISCUSSED WITH THE UNION AND AGREED TO BY ALL PARTIES PRIOR
 TO THE INSERTION OF THE MORE RESTRICTIVE LANGUAGE IN THE 1969 CONTRACT.
 THE OVERTIME PROVISION WAS CARRIED OVER TO THE CURRENT CONTRACT WITH
 LITTLE OR NO DISCUSSION, SAVE FOR THE INSERTION OF THE WORD "SANITIZED."
 THE WORD "SANITIZED" WAS INSERTED TO COMPLY WITH THE PRIVACY ACT.
 LASTLY, MR. DERWIECKI COULD NOT RECALL ANY OCCASION SINCE 1969 WHEN AN
 INFORMATION REQUEST WAS ACCEDED TO WITHOUT THE NAMES OF SPECIFIC
 EMPLOYEES.  THE ONLY EVIDENCE TO THE CONTRARY APPEARS IN THE TESTIMONY
 OF MR. O'BRIEN, PRESIDENT OF THE UNION.  ACCORDING TO MR. O'BRIEN IN
 1974 HE REQUESTED AND RECEIVED OVERTIME INFORMATION
 
    "FOR A THREE MONTH PERIOD IN RELATIONSHIP TO A PARTICULAR GROUP OF
 EMPLOYEES THAT WERE
 
    WORKING ON A MISSILE BOAT, RECEIVING MORE OVERTIME THAN THE OTHER
 EMPLOYEES THAT WERE ASSIGNED
 
    TO A TACK BOAT."
 
    ON JANUARY 10, 1979, CHIEF STEWARD LAWRENCE COOPER SENT A MEMORANDUM
 TO THE RESPONDENT WHEREIN HE REQUESTED "THE RECORDS OF ASSIGNMENT OF
 SHOP 38 EMPLOYEES TO ALL PAST AND THE CURRENT ERP IN SCOTLAND." HE
 FURTHER REQUESTED "A SUMMARY OF OVERTIME WORKED BY EMPLOYEES IN PAST ERP
 ASSIGNMENTS." ACCORDING TO THE MEMORANDUM, THE "INFORMATION IS NECESSARY
 TO INVESTIGATE AND PROCESS PENDING GRIEVANCE." ON JANUARY 15, 1979,
 RESPONDENT SENT A MEMORANDUM TO THE UNION WHEREIN IT DENIED THE REQUEST
 FOR INFORMATION ON THE GROUND THAT IT HAD "NOT RECEIVED ANY NOTICE OF
 ANY ALLEGED GRIEVANCE UNDER ARTICLE 10" OF THE CONTRACT.
 
    ON JANUARY 22, 1979, THE UNION, UNDER THE SIGNATURE OF MR. JOHN
 O'BRIEN, ITS PRESIDENT, REITERATED ITS REQUEST AND CITED VARIOUS REASONS
 WHY THE RESPONDENT WAS IN ERROR IN NOT ACCEDING TO THE EARLIER REQUEST.
 THE LETTER CONTAINED A NUMBER OF ENCLOSURES APPARENTLY SUPPORTING THE
 UNION'S POSITION.  /1/
 
    ON FEBRUARY 28, 1979, CHIEF STEWARD COOPER SENT ANOTHER MEMORANDUM TO
 THE RESPONDENT WHEREIN HE STATED THAT "SOME EMPLOYEES IN SHOP 38 HAVE
 ALLEGED THAT THERE IS, AND HAS BEEN, GROSS INEQUITIES IN THE
 DISTRIBUTION OF OVERTIME DURING THE LIFE OF THE CURRENT AGREEMENT." MR.
 COOPER THEN WENT ON TO REQUEST "THE LISTS OF OVERTIME DISTRIBUTION FROM
 22 JULY TO THE PRESENT DATE." /2/ BY MEMORANDUM /3/ DATED MARCH 15,
 1979, RESPONDENT DENIED THE UNION'S FEBRUARY 28, 1979, REQUEST STATING
 IN PERTINENT PART AS FOLLOWS:
 
    ARTICLE 10, SECTION 5 OF THE AGREEMENT DOES NOT PROVIDE FOR THE
 WHOLESALE RELEASE OF SUCH
 
    INFORMATION AND YOUR REQUEST IS CLEARLY INCONSISTENT WITH THE INTENT
 OF THAT PROVISION.  THAT
 
    ARTICLE AND SECTION MAKE PROVISION FOR THE RELEASE TO THE COUNCIL OF
 NECESSARY, PERTINENT, AND
 
    SANITIZED OVERTIME INFORMATION IN ORDER TO RESOLVE SPECIFIC PROBLEMS,
 ALLEGED BY SPECIFIC
 
    EMPLOYEES, CONCERNING SPECIFIC OVERTIME ASSIGNMENTS.  YOUR LETTER OF
 FEBRUARY 28, 1979, DOES
 
    NOT INDICATE A SPECIFIC PROBLEM, IDENTIFY A SPECIFIC EMPLOYEE NOR
 REFER TO A SPECIFIC OVERTIME
 
    ASSIGNMENT.  YOUR LETTER IS CONSTRUED TO BE NOTHING MORE THAN A
 "FISHING EXPEDITION." YOUR
 
    REQUEST IS CONSIDERED UNREASONABLE AND IS DENIED.
 
    ON MARCH 15, 1979, A SECOND MEMORANDUM WAS SENT TO MR. JOHN O'BRIEN,
 UNION PRESIDENT.  THIS MEMORANDUM EXPLAINED WHY RESPONDENT HAD DENIED
 CHIEF STEWARD COOPER'S ORIGINAL REQUEST OF JANUARY 10 FOR THE OVERTIME
 AND ERP RECORDS OF ALL EMPLOYEES ASSIGNED TO SCOTLAND, NOTED THAT
 "DURING THE PROCESSING OF THIS GRIEVANCE" THE UNION HAD MADE ITS REQUEST
 MORE SPECIFIC, AND MADE AVAILABLE TO THE UNION ALL THE INFORMATION
 REQUESTED BY MR. COOPER IN HIS JANUARY 10TH MEMORANDUM, I.E. A SUMMARY
 OF OVERTIME WORKED BY EMPLOYEES ON PAST ERP ASSIGNMENTS AND THE RECORDS
 OF ASSIGNMENTS OF SHOP 38 EMPLOYEES TO ERP WORK IN SCOTLAND.
 
    ON JUNE 4, 1979, THE UNION FILED THE CHARGE UNDERLYING THE INSTANT
 COMPLAINT.  THE CHARGE IS BASED SOLELY UPON THE RESPONDENT'S REFUSAL TO
 SUPPLY THE OVERTIME RECORDS FOR ALL SHOP 38 EMPLOYEES WHICH WERE
 REQUESTED BY MR. COOPER IN HIS FEBRUARY 28, 1979, MEMORANDUM.  IN
 CONNECTION WITH THIS REQUEST, THE RECORD INDICATES THAT PRIOR TO THE
 FILING OF PRE-COMPLAINT CHARGE ON APRIL 9, 1979, RESPONDENT WAS NEVER
 GIVEN THE NAMES OF ANY SPECIFIC EMPLOYEES.  ATTACHED TO THE
 PRE-COMPLAINT CHARGE WERE FIVE GRIEVANCE FORMS SIGNED BY 6 DIFFERENT
 EMPLOYEES FROM SHOP 38.  ALL THE GRIEVANCES, WHICH BORE DATES
 1/10/79-1/22/79, READ AS FOLLOWS:
 
    1.  I HAVE NOT BEEN GIVEN FAIR OR EQUITABLE CONSIDERATION FOR
 OVERTIME ASSIGNMENTS, SPECIFICALLY, ERP'S TO SCOTLAND.
 
    2.  ALL ERP'S ARE SCHEDULED OVERTIME ASSIGNMENTS.
 
    3.  OVERTIME ASSIGNMENTS HAVE NOT BEEN AND ARE NOT BEING DISTRIBUTED
 FAIRLY AND EQUITABLY IN ACCORDANCE WITH THE UNION AGREEMENT.
 
    ACCORDING TO MR. MASON, RESPONDENT'S LABOR RELATIONS SPECIALIST,
 RESPONDENT CONSIDERED THE ATTACHED GRIEVANCES QUOTED ABOVE TO BE PART
 AND PARCEL OF THE ORIGINAL REQUEST OF ERP DATA WHICH HAD BEEN SUPPLIED
 ON MARCH 15, 1979.  BASED UPON THIS CONCLUSION, RESPONDENT WAS OF THE
 OPINION THAT THE UNION HAD NOT COMPLIED WITH THE CONTRACTUAL PROVISION
 REQUIRING THE NAMES OF THE SPECIFIC EMPLOYEES CLAIMING INEQUITABLE
 DISTRIBUTION OF OVERTIME.  ACCORDINGLY, THE INFORMATION REQUESTED IN MR.
 COOPER'S FEBRUARY 28, 1979 MEMORANDUM WAS NOT SUPPLIED.
 
    THE RECORD FURTHER DISCLOSES THAT MR. COOPER, WHOSE NAME WAS THE ONLY
 ONE ON THE FEBRUARY 28, 1979, MEMORANDUM, SPENT ALL OF HIS TIME ON UNION
 BUSINESS.
 
                        DISCUSSION AND CONCLUSIONS
 
    IT IS WELL SETTLED AND ACKNOWLEDGED BY ALL PARTIES TO THIS PROCEEDING
 THAT A UNION HAS A RIGHT TO INFORMATION SOLELY WITHIN AN EMPLOYER'S
 POSSESSION WHICH IS NECESSARY AND RELEVANT TO THE UNION'S
 REPRESENTATIONAL RESPONSIBILITIES.  SUCH RIGHT EXTENDS NOT ONLY TO
 INFORMATION NECESSARY TO PROCESS A PENDING GRIEVANCE BUT ALSO TO
 INFORMATION NECESSARY TO DETERMINE WHETHER OR NOT TO FILE A GRIEVANCE IN
 THE FIRST INSTANCE.  DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE
 AND IRS MILWAUKEE DISTRICT, A/SLMR NO. 1133;  UNITED STATES DEPARTMENT
 OF AGRICULTURE, FOREST SERVICE, BERKELEY, CALIFORNIA, A/SLMR NO. 573;
 DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, SOCIAL SECURITY
 ADMINISTRATION, KANSAS CITY PAYMENT CENTER, A/SLMR NO. 411.
 
    RESPONDENT, WHICH ACKNOWLEDGES THE FOREGOING RIGHT OF THE UNION TO
 NECESSARY AND RELEVANT INFORMATION, TAKES THE POSITION THAT BY AGREEING
 TO ARTICLE 10, SECTION 5, OF THE CURRENT COLLECTIVE BARGAINING AGREEMENT
 THE UNION RESTRICTED OR WAIVED ITS BROAD RIGHT TO OVERTIME INFORMATION.
 IN SUPPORT OF ITS POSITION IT CITES THAT PART OF ARTICLE 10, SECTION 5,
 WHICH LIMITS THE INFORMATION TO "INEQUITIES IN OVERTIME DISTRIBUTION
 ALLEGED BY SPECIFIC EMPLOYEES." ADDITIONALLY, RESPONDENT RELIES UPON THE
 TESTIMONY OF MR. JOSEPH DERWIECKI CONCERNING THE DISCUSSIONS LEADING UP
 THE INCORPORATION OF THE PROVISION IN THE 1969-71 CONTRACT.
 
    THE GENERAL COUNSEL, ON THE OTHER HAND, TAKES THE POSITION THAT
 INASMUCH AS THE LANGUAGE APPEARING IN ARTICLE 10, SECTION 5 IS NOT CLEAR
 AND UNEQUIVOCAL ON ITS FACE, INSUFFICIENT BASIS EXISTS TO SUPPORT A
 FINDING OF WAIVER.  THE GENERAL COUNSEL ALSO OBJECTS TO RELIANCE UPON
 THE EXPLANATORY TESTIMONY OF MR. DERWIECKI, CITING THE PAROLE EVIDENCE
 RULE.  I FIND THIS LATTER CONTENTION TO BE WITHOUT MERIT SINCE THE RULES
 OF EVIDENCE ARE NOT APPLICABLE TO PROCEEDINGS BEFORE THE FEDERAL LABOR
 RELATIONS AUTHORITY AND BECAUSE IT IS VIRTUALLY IMPOSSIBLE TO DETERMINE
 WHETHER OR NOT THERE WAS A CONSCIOUS WAIVER OF A RIGHT WITHOUT
 CONSIDERING OR EXPLORING THE NEGOTIATIONS LEADING UP TO A CONTRACTUAL
 PROVISION WHICH ON ITS FACE INDICATES A RESTRICTION UPON A UNION'S
 STATUTORY RIGHT.
 
    CONTRARY TO THE CONTENTION OF THE GENERAL COUNSEL, I FIND THAT THE
 LANGUAGE IN ARTICLE 10, SECTION 5, CONSTITUTES A RESTRICTION UPON THE
 UNION'S GENERAL OR BROAD RIGHT TO OVERTIME INFORMATION.  TO HOLD
 OTHERWISE WOULD MAKE THE WORDS "TO AID IN RESOLVING INEQUITIES IN
 OVERTIME DISTRIBUTION ALLEGED BY SPECIFIC EMPLOYEES" BOTH SUPERFLUOUS
 AND MEANINGLESS.  THIS CONCLUSION IS FURTHER BUTTRESSED BY THE
 UNCONTESTED TESTIMONY OF MR. DERWIECKI CONCERNING THE DISCUSSION LEADING
 UP THE INCORPORATION OF THE QUALIFYING WORDS IN THE 1969-71 PREDECESSOR
 AGREEMENT.  PRIOR TO THIS CHANGE, THE UNION ONLY HAD TO MAKE A "SPECIFIC
 COMPLAINT" ABOUT OVERTIME AND NOT NAME ANY SPECIFIC EMPLOYEES IN ORDER
 TO GET THE OVERTIME RECORDS.
 
    HAD THE INSTANT DEMAND OCCURRED DURING NEGOTIATIONS FOR A NEW
 CONTRACT I MIGHT WELL