14:0772(105)CA - Marine Corps Logistics Base, Barstow, CA and AFGE Local 1482 -- 1984 FLRAdec CA



[ v14 p772 ]
14:0772(105)CA
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 bargain