14:0772(105)CA - Marine Corps Logistics Base, Barstow, CA and AFGE Local 1482 -- 1984 FLRAdec CA
[ v14 p772 ]
The decision of the Authority follows:
14 FLRA No. 105 MARINE CORPS LOGISTICS BASE BARSTOW, CALIFORNIA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1482, AFL-CIO Charging Party Case No. 8-CA-1263 DECISION AND ORDER The Administrative Law Judge issued the attached 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. 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 hearing 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 recommendation that the complaint be dismissed. In the course of a continuing dispute between the parties with respect to random gate searches which are periodically conducted on vehicles entering and leaving Respondent's facility, the American Federation of Government Employees, Local 1482, AFL-CIO (the Union), on May 27, 1981, requested in writing that the Respondent furnish it a copy of a document, the Commanding General's directive to the Provost Marshall's Office dated April 28, 1981. This request, as well as a subsequent request for the directive made by the Union on June 8, was rejected by the Respondent, who alleged it was an "intra-management" communication. The Judge found, and the Authority agrees, that the Union requested the Commanding General's directive because it believed the document contained information pertaining to entitlement to a Union representative and the time allowed for an employee to obtain a steward upon being stopped for a random gate search. The evidence further established that such information was not contained in the document. Therefore, in agreement with the Judge, the Authority finds that the requested document was not relevant and necessary within the meaning of section 7114(b)(4) of the Statute. /1/ Accordingly, the Respondent did not violate the Statute when it refused to furnish the Union with the Commanding General's directive to the Provost Marshall's Office dated April 28, 1981. See Director of Administration, Headquarters, U.S. Air Force, 6 FLRA 110 (1981). ORDER IT IS ORDERED that the complaint in Case No. 8-CA-1263 be, and it hereby is, dismissed. Issued, Washington, D.C., May 30, 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-1263 Joseph Swerdzewski, Esq. For the General Counsel Richard A. Schultz, Esq. 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.section 7101, et seq. Upon an unfair labor practice charge filed by the American Federation of Government Employees, Local 1482, AFL-CIO (herein referred to as the Union), on August 24, 1981 against the Marine Corps Logistics Base, Barstow, California (herein referred to as Respondent), the General Counsel of the Authority, by the Regional Director for Region 8, issued a Complaint and Notice of Hearing on October 19, 1981 alleging that since on or about May 27, 1981, Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing to comply with section 7114(b)(4) in that it did not supply certain information which was reasonably available and necessary to full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining. The Complaint also alleged that the refusal to supply such information constituted a failure to bargain in good faith. Respondent's Answer denied the commission of any unfair labor practices. A hearing on the Complaint was conducted on January 14, 1982 in Barstow, California at which time all parties were represented and afforded full opportunity to adduce evidence, call, examine and cross-examine witnesses, and argue orally. Briefs were filed by Respondent and Counsel for the General Counsel. Upon the entire record in this matter, my observation of the witnesses and their demeanor, and from my evaluation of the evidence, I make the following findings of fact, conclusions of law, and recommendation: Findings of Fact Pursuant to the Internal Security Act of 1950, which is the basic law involving internal security on military bases, random gate searches at the Base are periodically conducted on vehicles entering and leaving the Base. According to Major William C. Pedrick, the Provost Marshall at the Base approximately 18 to 24 such random searches have been conducted since his tenure began at the Base in March 1981, to the date of the hearing. The random searches involved both civilian and military employees. The Vehicle Search Program, as it is formally called, is a security method used to prevent the introduction of narcotics, control substances, weapons, and to prevent the theft of government property from the Base. Each random gate search is conducted pursuant to a written order from the Base Commanding Officer to the Provost Marshall. That order states the specific date, time, and location of each search. Each employee of the Base who desires to obtain driving and parking privileges on the Base is required on a Form 5560 to state that he or she "will submit to a search of my vehicle as may be ordered by competent authority." Also, signs containing relevant portions of the Internal Security Act of 1950 are posted on the facility. Since random gate searches apparently escalated beginning around February 1981, the Union assigned second vice-president and steward Dale Boyce the primary responsibility for representing employees on actions taken as a result of the gate searches. A substantial number of grievances were filed concerning gate searches conducted in February through April 1981. At least one of those grievances involving employee Trujillio was subsequently scheduled for arbitration. Those grievances basically involved employee reprimands resulting from discovery of certain proscribed objects or from an employee's refusal to submit to a search. In addition, several unfair labor practices were filed involving these searches. Sometime around May 26, 1981, Steward Boyce met with Major Pedrick for the purpose of discussing the loss of the vehicle sticker at a gate search of employee Carey. The incident with Carey occurred much earlier and apparently the 15-day period for filing a grievance under the collective bargaining agreement had expired. However, Carey subsequently filed an unfair labor practice charge concerning the incident which resulted in his sticker loss. Loss of sticker results in an employee losing his driving and parking privileges at the Base. Apparently Carey's conduct was rather severe, as Pedrick testified that only two stickers had been removed during the gate searches. During the meeting, Pedrick handed Boyce a letter dated April 30, 1981, which stated why Carey's sticker was scrapped. The letter indicated that the authority for suspending driving privileges was contained in "CG's directive to PMO of April 28, 1981." According to Boyce, he then asked Pedrick what was contained in CG's directive to PMO of April 28, 1981. Pedrick related in an offhand way what was contained in the document. Pedrick then apparently proceeded to read from the document, but according to Boyce read so fast that Boyce could not write all that he had read. After Pedrick read the document Boyce asked for a copy. Pedrick responded that he did not know if he could give the document to Boyce and that Boyce should go through proper channels. Boyce also recalls that Pedrick said, in response to a question of what would happen if an employee would be given 6 minutes to get a union steward and, at that time, if he did not have a steward the employee would either have to submit to a gate search or lose the sticker. Boyce states that he was curious where Pedrick got the authority to do this. Clearly the authority for the search was contained in the April 28, 1981 directive. Boyce states that at that time he was handling cases pertaining to employee grievances and was trying to enforce Article 14 of the collective bargaining agreement concerning parking at the Base. /2/ Although Boyce testified that several other matters were involved, the parties were dealing with Article 14, at the time. Interestingly, when Boyce was shown a copy of a February 12, 1981 authorization which in camera review established follows the identical format and procedures contained in the May 27, 1981 request for information, he stated that it did "not look like what Major Pedrick quoted to me." Thus, he could establish no relationship between this almost identical document and the requested information. On cross-examination Boyce testified that the document he was requesting contained guidelines as to "what would happen" if an employee requested a steward. Major Pedrick denies that he read Boyce anything from the April 28, 1981, directive, but states that the two talked in general terms as to the directions he had received from the Commanding General. Pedrick does recall Boyce asking for a copy of the CG to PMO dated April 28, 1981, but states that he would not release it. With regard to search authorizations, Pedrick assumed that the authorization would be somewhat similar to a search warrant. He also stated that in a criminal case an individual would be entitled to receive such a warrant. Pedrick added that, after the fact, he saw nothing in the document requested which could jeopardize internal security. Subsequently, on May 27, 1981, Boyce requested a copy of the CG's directive to PMO of 28 April 1981. Boyce had not previously requested this directive because prior to the meeting with Pedrick, he did not know it existed. On June 3, 1981, Boyce received a denial of his request for information because the directive requested by him was an "intra-management communication" not available to non-managerial officials. Boyce had no communications with management officials concerning clarification of his request on whether or not it was indeed relevant and necessary information. On June 8, 1981 a second request for the directive was made by the Union. This request was also rejected by management on the same basis as the initial denial. Discussion and Conclusions Scores of cases under the Executive Order, the Statute and private sector law establish that a labor organization has a right to information solely within an employer's possession which is necessary and relevant to the representational responsibilities and to the administration of the parties collective-bargaining agreement. Also, the Authority has recently stated in several cases that under section 7114(b)(4) of the Statute such an obligation extends to the processing of an employee grievance. Veterans Administration Regional Office, Denver, Colorado, 10 FLRA No. 78 (1982); Veterans Administration Regional Office, Denver, Colorado, 7 FLRA No. 100 (1982). While the key element to furnishing information such as sought herein is its relevance, Respondent in an ultrazealous attempt to exercise its power raised a myriad of issues which had no connection with this matter whatsoever. Notwithstanding the fact that this matter could very easily have been resolved, even during hearing, Respondent engaged in conduct, while not violative of the Statute most certainly is not within its spirit and intent. In its brief, Respondent quotes language from United States Air Force, Air Force Logistics Command, Aerospace Guidance and Metrology Center, Newark, Ohio, 4 FLRA No. 70 (1980) that: Among equals, each party should deal with the other with directness and dignity appropriate to partners on a equal footing, one party should not be required to continually pursue the others murky intent, with no regard of how specious and irrelevant that intent might be. Although adopting that language, Respondent most certainly did not apply such candor in this matter. Respondent's zeal, in my view, has cost the government a considerable amount of time, money, and effort to defend a matter which could very easily have been solved by making a good faith effort to inform the Union, outside a combative posture it assumed in this matter, that the information which it sought was not contained in the directive or by merely making the Union aware that the directive was merely an authorization from the commanding general to conduct the April searches. Such a position could in no way compromise Respondent's internal security. The end result is that after considerable expense to the government, a resolution of the matter in this proceeding regardless of whether an unfair labor practice is found makes the Union aware of what was contained in the directive. In this matter there is, however, a loser, the government. In review, Respondent steadfastly asserts that the April 23, 1981 letter involved internal security. Nevertheless, Respondent's own witness testified that revealing this letter, after the fact, would not violate internal security. I agree. Clearly this directive or letter contained no element of internal security and the same type letter had already been offered and placed into evidence at a previous Merit Systems Protection Board hearing. Respondent was even unwilling to inform the Union that this was the same type directive that was earlier introduced. Even an offer of the above information would have been sufficient to settle the matter for it would have revealed to the Union that it sought information which was not contained in documented form as Steward Boyce had thought. Respondent further contends that the information sought was "intra-management communications," but without any justification for this position. While not determinative, it might well be that some "intra-management communications" might be necessary and relevant to policing an agreement and which the exclusive representative might be entitled to be furnished under section 7114(b)(4). Respondent made no effort to discover whether or not this was the case. Respondent also argues that the request had no relationship to any pending grievances and argues that it was not necessary for representational functions. It should be brought to Respondent's attention that there were numerous actions being considered by the Union at the time of the May 27, 1981 request including grievances, potential arbitration and unfair labor practices. All matters within the ambit of the collective bargaining agent's responsibility. Unfortunately for the Union, the in camera review of the document coupled with Boyce's testimony failed to establish that the document was indeed relevant to any collective bargaining or representational need at that time. The test for relevancy must be measured against the nature of the request. Boyce's request was based on his conversation with Major Pedrick, in which Boyce recalls Pedrick reading from a document or directive indicating that an employee caught up in a random gate search who requested Union representation would have 6 minutes to obtain a steward or, if not, submit to a search or have his decal scratched. Pedrick denies that he read from any directive or document and states that his comments were merely a general discussion with Boyce concerning Union representation. Boyce confirmed this by stating that an almost identical directive which he was shown at the hearing was not what Pedrick discussed with him. I credit Pedrick that the statement was made in general conversation and not read from a directive. I also credit Boyce that his interest was in the area of entitlement to a union representative and the time allowed for an employee to obtain a steward upon being stopped for a random gate search, in finding that the directive was not relevant or necessary to the purpose for which he admittedly sought the information. As previously stated, Respondent's conduct herein is not in my view compatible with the spirit and intent of the Statute. However, since the requested information is found not to be relevant to administering the collective bargaining agreement, the General Counsel's theory that Respondent did not engage in good faith bargaining must be rejected. In light of the above, specifically since it is found that the directive was not relevant it is found that Respondent did not violate section 7116(a)(1), (5), and (8) by refusing to furnish the April 28, 1981 directive to the Union. Accordingly, it is recommended that the Authority dismiss the Complaint in the instant matter, in its entirety. /3/ ELI NASH, JR. Administrative Law Judge Dated: November 24, 1982 Washington, DC --------------- FOOTNOTES$ --------------- /1/ Section 7114(b)(4) of the Statute provides: (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; and (C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining(.) /2/ Article 14, Section 1 provides: Employees will be afforded the opportunity of parking their private vehicles aboard the Base during the employees' working hours, as close to their work area as possible, providing the vehicle and driver are properly registered at the Provost Marshall's Office. /3/ The general counsel's unopposed Motion to Correct Transcript is granted.