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 documents critical
to the resolution of their problems or complaints. When security
regulations and directives prevent such review, originators shall
be requested by the Employer to consider releasing such
information, or declassifying or developing the necessary
information in an unclassified form of review. When permissible
under security regulations and necessary to the resolution of the
matter, grievants and/or their representatives will be furnished
copies of requested pertinent documents . . .
/7/ Based on the above it is unnecessary to decide whether Respondent
timely supplied the requested information to Omiya. Furthermore, the
complaint as suggested by Respondent does not include a broad allegation
which includes a timeliness argument.