14:0564(82)CA - Navy, Pearl Harbor Naval Shipyard, Pearl Harbor, HI and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 811 -- 1984 FLRAdec CA



[ v14 p564 ]
14:0564(82)CA
The decision of the Authority follows:


 14 FLRA No. 82
 
 DEPARTMENT OF THE NAVY
 PEARL HARBOR NAVAL SHIPYARD
 PEARL HARBOR, HAWAII
 Respondent
 
 and
 
 UNITED ASSOCIATION OF JOURNEYMEN
 AND APPRENTICES OF THE PLUMBING
 AND PIPEFITTING INDUSTRY OF THE
 UNITED STATES AND CANADA, LOCAL 811
 Charging Party
 
                                            Case No. 8-CA-788
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued his Decision in the
 above-entitled proceeding, finding that the Respondent had not engaged
 in the unfair labor practices alleged in the complaint and recommending
 that the complaint be dismissed in its entirety.  Thereafter, the
 General Counsel filed exceptions to the Judge's Decision and a
 supporting brief, and the Respondent filed an opposition thereto.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearings and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions and recommendations as modified below.
 
    The Judge found that the Respondent did not violate section
 7116(a)(1), (5) and (8) of the Statute, /1/ as alleged in the complaint,
 by refusing to furnish to the Union, United Association of Journeymen
 and Apprentices of the Plumbing and Pipefitting Industry of the United
 States and Canada, Local 811, information necessary and relevant for it
 to process a grievance.  According to the complaint, the information
 requested consisted of the names of employees rotated from the third
 shift to the first shift and the amount of time each such employee had
 worked on the third shift.
 
    The Judge found that the Union steward repeatedly requested
 information about the "amount of personnel" rotated, in connection with
 a grievance over shift rotation alleged to be in disregard of seniority
 under the parties' negotiated agreement.  The information was first
 sought on October 3, 1980, and again at several steps of the grievance
 procedure, but no information was actually furnished until October 27,
 1980.  At that time, the Union was given information including the
 number of employees shifted, but not the names of employees involved.
 
    The Judge noted that the Union steward had been told where he could
 find the information he needed and that the Union steward testified that
 the information he received was sufficient.  On this basis the Judge
 concluded the Union was not denied access to the necessary information,
 and that the General Counsel therefore failed to meet its burden of
 proving the Respondent refused to furnish names of employees and the
 time each had worked on the disputed shift.  Further, he found that the
 Respondent met its obligation to supply the requested information by
 directing the Union to where the information was kept.
 
    The Authority finds it unnecessary to pass on whether the Respondent
 would have met its obligation under section 7114(b)(4) of the Statute to
 furnish data "which is reasonably available and necessary" /2/ by
 directing the Union to certain files or personnel to find the
 information.  Although the information sought arguably would be
 necessary for the Union properly to process the grievance, the record is
 clear that the request made to the Respondent was for the "amount of
 personnel" rotated, and the Union steward involved affirmed that he had
 never asked for the names of employees rotated.  Thus, the information
 furnished was exactly what had been sought.  /3/
 
    Accordingly, the Authority concludes that the Respondent did not
 violate section 7116(a)(1), (5) and (8) of the Statute, and the
 complaint shall be dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 8-CA-788 be, and it
 hereby is, dismissed.  
 
 Issued, Washington, D.C., May 11, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No. 8-CA-788
    E. A. Jones, Esq.
                For the General Counsel
 
    Robert F. Griem, Esq.
    and Bert Lederer
                For the Respondent
 
    Before:  ELI NASH, JR.
                Administrative Law Judge
 
                                 DECISION
 
                           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. (hereinafter referred to as the Statute) and the Rules and
 Regulations of the Federal Labor Relations Authority, 5 C.F.R.Chapter
 XIV, Sec. 2410 et seq.
 
    On January 30, 1981, the Regional Director for Region 8 of the
 Federal Labor Relations Authority, herein called the Authority, pursuant
 to a charge originally filed by the United Association of Journeymen and
 Apprentices of the Plumbing and Pipefitting Industry of the United
 States and Canada, Local 811, herein called the "Union," on October 27,
 1980, and amended on January 28, 1981, issued an Order Consolidating
 Cases, Consolidated Complaint and Notice of Hearing /4/ alleging that
 the Department of the Navy, Pearl Harbor Naval Shipyard, Pearl Harbor,
 Hawaii, herein called the "Respondent", had engaged in unfair labor
 practices within the meaning of Section 7116(a)(1), (5), and (8) of the
 Statute in that since or or about October 15, 1980, and continuing to
 date, Respondent has failed and refused to furnish the Union necessary
 and relevant information consisting of the names of employees rotated
 from the third shift to the first shift and the amount of time each such
 employee had worked on the third shift, which information was necessary
 and relevant to the processing of a grievance.
 
    On February 18, 1981, Respondent filed an answer denying the
 allegations of the consolidated complaint.
 
    A hearing in this matter was conducted before the undersigned in
 Honolulu, Hawaii.  All parties were represented by Counsel and were
 afforded full opportunity to be heard, to examine and cross-examine
 witnesses, to introduce evidence and to argue orally.  Also all parties
 filed timely briefs.
 
    Based upon the entire record in this matter, including my observation
 of the witnesses and their demeanor, and upon my evaluation of the
 evidence, I make the following findings, conclusions and
 recommendations.
 
                             Findings of Fact
 
    Respondent operates a shipyard at Pearl Harbor, Hawaii.  At all times
 material herein Respondent and the Union were parties to a collective
 bargaining agreement.  Article IV, Section 5, Rule 5-2 of the agreement
 provides:
 
          qualified employees who volunteer for second or third shift
       shall be rotated from the day shift to the requested shift on a 90
       calendar day basis starting with the numbers required by the
       employer in the direct order of seniority in their current
       position from a group of work centers under the assigning
       supervisor.  Volunteers who have served a 90 calendar day period
       under this provision shall not be selected again until each
       qualified volunteer has served a 90 calendar day period.
 
    However, there are no procedures set forth in the agreement to cover
 the order of return of employees to day shift due to lack of work on
 third shift before or after expiration of the 90-day period.  Other
 portions of the agreement applicable herein are Article IV, Section 5,
 Rule 5-3, which provides for voluntary assignments to second and third
 shifts.  Rule 5-4, providing that seniority in Article IV shall be based
 on the amount of continuous service with Respondent in the employees'
 present position.  Also Rule 5-7 which provides that assignments of
 employees from one shift to another will be made only to the extent
 necessary to carry out Respondent's mission.
 
    Mr. Charlie Chang is a pipefitter with 8 years experience, who works
 in Respondent's Shop 56 under Supervisor David Blaylock.  Mr. Chang was
 assigned to work third shift or from 11:30 p.m. to 7:30 a.m. on June 9,
 1980.  /5/ Effective September 29, 1980, Mr. Chang was rotated to first
 shift, his work hours there being 7:00 a.m. to 3:45 p.m.  Mr. Chang's
 rotation was involuntary since he did not request to be rotated.  Mr.
 Chang immediately requested to meet with a Union shop steward about his
 pending rotation, but no meeting was arranged until after he returned to
 day shift.  In substance, Chang's complaint was that he was rotated out
 of seniority and that he should not have been rotated to first shift
 before employees who came to work after he was assigned to the third
 shift were rotated.
 
    Subsequently, Mr. Chang met with shop steward Raymond Arancon and
 complained about his rotation from third shift.  Arancon conducted a
 preliminary investigation by talking to another pipefitter, Dennis
 Souza, who indicated that he and another employee had been rotated off
 the third shift at the same time as Chang though other employees had
 been on third shift longer in a longer period of time.  Arancon because
 of his busy schedule assigned Chang's complaint to Newton Omiya, a new
 shop steward handling his first grievance.  Arancon instructed Omiya to
 request records in order to verify whether Chang had been improperly
 rotated from third shift.  Arancon also told Omiya to check the work
 load and check personnel still on third shift because there appeared to
 be preferential treatment on the shift.  Arancon further indicated that
 Omiya should look for overtime work which would indicate a heavy work
 load.  Arancon confidently told Omiya that Chang's case was "duck soup.
 All you got to do it request records to verify that Mr. Chang came back
 improperly."
 
    Arancon, an experienced steward, stated that there were several ways
 of requesting information.  According to him, information could be
 requested verbally from a responsible agent of Respondent or in writing
 under Article 19, Section 5-14 of the collective bargaining agreement.
 
    Thereafter Chang and Omiya met in order to determine Chang's position
 on the shift rotation problem.  Chang felt that a grievance was in order
 because his rotation off third shift was unfair, and that there were
 many employees who went on third shift before and after him who had not
 been rotated to day shift.  Omiya investigated the Chang allegation by
 talking with employees Eugene Hall and Dennis Souza who had returned to
 day shift along with Chang.  As a result of his investigation, Omiya
 determined that he should go forward with the Chang grievance.
 
    Around October 3, 1980 Omiya submitted the Chang grievance to
 Supervisor Blaylock.  The grievance alleged a violation of Article IV,
 Section 5, Rule 5-2 and Rule 5-6 of the collective bargaining agreement.
  It requested basically that Chang be allowed to remain on the third
 shift and that he be paid retroactive night differential pay.  In
 addition, under the notation "RECORDS OF WHICH EXAMINATION IS
 REQUESTED," /6/ the grievance stated:
 
          Records showing the amount of personnel that was rotated during
       the third shift rotation of the months, March 1980 to the present
       time, and the lengths of time personnel has and is serving.  Also
       Records showing the amount of workload projected from June 1980 to
       Dec. 1980.
 
    Omiya testified that he sought the records in order to confirm
 information obtained in his preliminary investigation and to establish
 that Chang should not have been rotated to first shift under the terms
 of the agreement.
 
    At the hearing, Omiya testified that he wanted to know the amount of
 personnel rotated from third shift in order to find out how many people
 were rotated from third shift and the length of time they have spent on
 that shift.  Omiya allegedly asked for the projected work load because
 he had heard that there was a low work load.  According to Omiya, he
 asked for all those records.  He also testified that he would have used
 the information to determine whether there was a high or low work load.
 The length of time individuals spent on the shift would, according to
 Omiya, be used to show whether Respondent applied seniority properly.
 In referring to the "amount of personnel", Omiya states that he meant
 the identity or names of the individuals concerned.  Omiya further
 testified that he felt the names of the people who were on third shift
 were important and that without the information requested he could not
 resolve the grievance.  He testified that the names of the individuals
 were important to show first, who in fact, was rotated and who was on or
 back on third shift.  Omiya asserted that there was no way-- other than
 through Blaylock-- of obtaining the requested information.  He said that
 he had tried to obtain information through interviews with other
 employees, but received little cooperation.
 
    The record shows that the information requested was available from
 records maintained in the Administrative Office in Shop 56 and the
 personnel shop for the Structural Group in Shop 92.  A log is maintained
 which indicates the amount of time employees have worked on third shift
 and identifies the employees by name and badge number.  Overtime records
 are also maintained in Shop 56.  The overtime records include employee
 names, badge numbers and shifts worked.  Information regarding projected
 work load is also kept in Superintendent Fenicle's office.  There is no
 record evidence that Omiya was denied access to any of the above
 records.
 
    Later on October 6, 1980, Omiya hand delivered a letter to Blaylock
 in which he requested records showing regular and overtime hours worked
 by second and third shifts from September 29, 1980 to October 6, 1980.
 Omiya indicated in the letter that the records were necessary to the
 processing of the grievance.  When Omiya delivered this letter, Blaylock
 told him that the records he had requested would be denied since release
 of the records would violate the rights of individuals on second and
 third shift.  Blaylock also told Omiya that in order to get the records
 he would have to obtain the permission of Shop 56 Superintendent Billy
 Leucke.  Much later on October 15, 1980, Blaylock informed Omiya, by
 letter regarding Omiya's October 6 letter that unless "justification is
 provided concerning the pertinence of these records, the documents you
 requested need not be provided."
 
    On October 16, 1980, a first step meeting on the Chang grievance was
 held in Blaylock's office.  At that meeting, which lasted between
 fifteen and thirty minutes, Omiya and Chang again asked for the records
 from Blaylock.  Blaylock responded that he could not provide the names
 of employees due to the Privacy Act.  Omiya then said he did not want
 the names, but Blaylock did not change his position.  Omiya requested
 that Blaylock put his denial in writing.  Blaylock wrote the following
 on the grievance form beneath the typed-in request for records:  "I
 don't have the Authority to give you these Records, but the chief union
 steward may see them in X-92 personnel.  D. Blaylock 10-16-80." Earlier,
 Blaylock told Omiya that, "if I wanted the records that I would have to
 get permission" either from the General Foreman Gordon Dung or
 Superintendent Billy Leucke.  Regarding the merits of Chang's grievance,
 Blaylock stated that the grievance would not hold and that Chang would
 not be sent back to third shift.
 
    Chang and Omiya were informed by letter dated October 15, 1980, but
 received on October 16, 1980, that the grievance was denied.  The denial
 noted that Rule 5-2 dealt only with assignments to third shift and did
 not apply to assignments from third shift.  In addition Blaylock noted
 that Chang had provided no evidence of a compelling reason under Rule
 5-6 for assignment to third shift.
 
    The following day, October 17, 1980, Omiya carried two letters to
 Superintendent George Fenicle's office.  The first was a request to move
 the grievance to the second step.  The second, referring to and
 enclosing the grievance form and the October 6, 1980, information
 request letter, which renewed the earlier request for records.
 
    On October 24, 1980, a second step meeting was held on the grievance
 with Chang and Omiya present for the Union and, Superintendent Fenicle,
 Shop Superintendent Leucke, Supervisor Blaylock, and Administrative
 Officer, Ella Dalton present for Respondent.  Omiya again asked Fenicle
 if he was going to give him the requested records.  Fenicle responded
 that he had already provided the records.  The discussion then turned to
 the merits of the grievance.  Leucke indicated that Chang had been
 rotated because of lack of skill and because of his leave usage.  Omiya
 for the second time in that meeting asked for the records and Fenicle
 again said they had already been provided.  However, at that time, Ella
 Dalton interrupted Fenicle and told him that the records had not been
 delivered.  Dalton informed Omiya that she would contact him later and
 give him the records.  Omiya suggested that they delay the meeting
 pursuant to Article XIX, but Superintendent Fenicle declined and the
 meeting proceeded.
 
    On October 27, 1980, Omiya filed the instant unfair labor practice
 charge.
 
    Subsequently on October 29, 1980, Chang received the second step
 answer from Fenicle denying the grievance and noting, "As to the records
 you requested, we have provided you with a list of employees rotated."
 On that very day Omiya received a letter dated October 27, 1980, from
 Fenicle which stated, "In response to your request, the number of
 employees rotated to the third shift from the period Mr. Chang was
 rotated to the third shift is provided:  (Effective date June 1980)."
 The letter listed the number of employees (but not their names) rotated
 to third shift and the number reassigned to first shift by grade for the
 period from June 9, 1980, to September 29, 1980.  As already noted it
 included no employee names.
 
    According to Omiya, he was provided neither names, records nor
 information pursuant to his October 3 and October 6, 1980 requests.
 Omiya received no records regarding the time and length the individual
 employees spent on third shift or the work load projection for the
 regular and overtime hours worked.  Further, Omiya states that he was
 never permitted to review the records on which the October 27 letter was
 based nor was he permitted to review any records pursuant to his
 requests.  Omiya's testimony was, that based on the information he
 turned up prior to filing the grievance, the information in the October
 27 letter was not accurate.  The October 27 letter showed but one person
 returning to day shift on September 29, 1980, while Omiya's
 investigation indicated that at least three employees had been returned.
  However, Omiya does not deny that this information was available in
 Shop 92 and that he did visit Shop 92 to request records.  Furthermore,
 Omiya testified that the October 29 information, which did not contain
 any employee names was sufficient information to permit him to process
 the Chang grievance.
 
    Finally on November 6, 1980, Chang's October 3, 1980, grievance form
 and the information request was submitted to Respondent's Commanding
 Officer, T. A. Marnane, Capt., USN, along with a letter of all the
 information requested.  By letter dated November 21, 1980, and received
 by Chang on November 25, 1980, the grievance was denied by Capt.
 Marnane.  There was no reference in the denial to the information
 request.  Thereafter, the grievance was submitted to arbitration on
 December 5, 1980.
 
                          Decision and Conclusion
 
    The Complaint alleges that Respondent violated the Statute by
 refusing to furnish necessary and relevant information consisting of the
 names of employees rotated from the third shift to the first shift and
 the amount of time each such employee had worked on the third shift.
 The General Counsel asserts that this allegation is sufficiently
 specific to encompass Respondent's failure to permit the Union to
 inspect and review the relevant requested records which contained the
 names of the employees involved.  Respondent urges that the only
 allegation at issue is Respondent's failure to provide names that the
 Union did not want and that all other matters involved were not subject
 to adjudication.  Omiya's original request for information and his
 testimony at the hearing reveals that the Union was not interested in
 names, but records showing the amount of personnel rotated, the length
 of service of individuals on third shift and the projected workload from
 June to December 1980.  Further, Omiya repeatedly testified that he was
 interested in the amount of personnel rotated and was admittedly not
 specifically interested in names.
 
    The General Counsel further contends that Supervisor Blaylock's
 refusal to supply records under the Privacy Act is clear evidence that
 Blaylock understood Omiya's request to be for names.  In view of the
 specific request "(r)ecords showing the amount" made on October 3 such
 an inference cannot be drawn.  Further, Omiya's testimony sheds no
 further light on the nature of his request to Blaylock.  Moreover, if
 the request was for names and the actual names were not necessary and
 relevant, as Omiya's testimony suggests, the denial of names, even for
 the reason stated by Blaylock would not be violative of the Statute.
 
    The complaint must be read that Omiya was seeking the individual
 names and records of employees on the third shift and based on the
 record as a whole this information was necessary and relevant to process
 the Chang grievance.  However, Omiya testified that the material
 furnished on October 29, 1980 was sufficient for his purpose in
 processing the grievance and that this information did not then contain
 names of any employees.  /7/ Furthermore, Omiya's testimony as to what
 he was seeking through his requests is confusing and could well have
 been misunderstood by Blaylock.  It is noted that Blaylock did not
 perceive the relevancy of the information since obviously, in his view,
 seniority had nothing to do with Chang's being moved from the third
 shift.  What is clear, however, is that Blaylock, on more than one
 occasion, directed Omiya to other sources in order to obtain the
 information and that Omiya ignored those sources since he concluded that
 Blaylock was responsible for supplying the records.  Much of the
 confusion can be laid to Omiya's inexperience as a steward and his
 reliance on Arancon's instructions.  While this type case would have
 been "duck soup" for Arancon it was obviously a little more difficult to
 Omiya.  Thus, I conclude from the exchanges between Omiya and Blaylock,
 that Omiya was not denied access to or the ability to inspect the
 records originally requested by him on October 3, but that he denied
 himself the opportunity to inspect those records by not pursuing
 Blaylock's suggestions.
 
    Based on the foregoing, I agree with Respondent that the General
 Counsel did not establish by a preponderance of the evidence that it
 refused to furnish names of employees and the amount of time each such
 employee had worked on third shift.  Indeed it is found that Respondent
 pointed Omiya to the records, and Omiya did not take advantage of the
 opportunity to inspect the records which included all the information
 sought by him.  Furthermore, if what Omiya sought was raw data involving
 employees on the shift there is no question that such information was
 open and available for inspection in Shop 92 and Shop 56, but as
 Blaylock told him, the request for such information should have been
 made to either the General Foreman or to Superintendent Leucke and not
 to Blaylock.
 
    Turning to the question of whether Respondent refused to supply any
 necessary and relevant information to the Union.  As Arancon testified,
 there were several established methods of obtaining records both orally
 and under the agreement.  Omiya concluded that the request should be
 made directly to Blaylock, which he did.  The record clearly established
 that Blaylock, on more than one occasion, directed Omiya to the records
 which he sought saying that he had no authority to give him the records,
 but telling him how the requested information could be obtained.  The
 General Counsel contends that the information sought by Omiya was not
 where Blaylock suggested.  In my view, Respondent met its obligation to
 supply the requested information.  The record establishes that Omiya was
 not denied access to any of the information he sought and that he did go
 to Shop 92 to request a portion of the records.  Further, there is no
 evidence that Respondent sought to withhold any information or records
 from Shop 92, but only that Omiya's inexperience prevented him from
 obtaining the information which he needed.  In such circumstances, where
 a steward is informed where the requested information is kept and there
 is no record evidence that Respondent sought to deny access to those
 records it cannot be found, as suggested by the General Counsel, that
 Respondent refused to supply necessary and relevant information.
 
    For the aforementioned reasons, it is recommended that the Authority
 issue the following order:
 
                                   ORDER
 
    It is hereby ordered that the complaint in case No. 8-CA-788 be, and
 it hereby is, dismissed.
 
                                      ELI NASH, JR.
                                      Administrative Law Judge
 
 Dated:  September 2, 1981
          Washington, D.C.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Section 7116(a)(1), (5) and (8) provides:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                .  .  .  .
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter;
 
                                .  .  .  .
 
          (8) to otherwise fail or refuse to comply with any provision of
       this chapter(.)
 
 
    /2/ Section 7114(b)(4) of the Statute provides:
 
          Sec. 7114.  Representation rights and duties
 
                                .  .  .  .
 
          (b) The duty of an agency and an exclusive representative to
       negotiate in good faith under subsection (a) of this section shall
       include the obligation--
 
                                .  .  .  .
 
          (4) in the case of an agency, to furnish to the exclusive
       representative involved, or its authorized representative, upon
       request and, to the extent not prohibited by law, data--
 
          (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(.)
 
 
    /3/ While this information was furnished after the grievance process
 had begun, and at about the same time the charge was filed herein, the
 Authority notes, in agreement with the Judge, that the complaint does
 not allege a violation based on the Respondent's untimeliness in
 furnishing information but rather alleges that the information sought
 was not furnished at all.  The Authority has determined that the
 information given was what was sought.
 
 
    /4/ Case Nos. 8-CA-757 and 8-CA-821 were severed at the hearing.
 
 
    /5/ Pipefitters work on three different shifts.
 
 
    /6/ The agreement, Article XIX, "Employee Grievance Procedure,"
 provides at Section 5(h) as follows:
 
          h.  When requested on the grievance form or in writing at any
       other appropriate time, in the grievance process, the Employer
       will permit inspection of pertinent records by either the grievant
       or his Council representative.  If such records cannot be made
       available promptly any discussion, meeting or hearing scheduled to
       be held shall be held in abeyance until at least five calendar
       days after such records are made available.  If such records
       cannot be made directly available for inspection because of
       applicable security or higher authority regulations, the Employer
       will exert every reasonable effort to present such records in a
       declassified form.
 
    Article II, "Administration of Agreement," provides, in pertinent
 part, in Section 1 as follows:
 
          Within the limits of security regulations, directives, and
       considerations governing the protection of classified, official
       and sensitive information, every effort shall be made to permit
       employees and their representatives to review do