15:0373(79)CA - Forces Korea/Eighth United States Army and NFFE Local 1363 -- 1984 FLRAdec CA
[ v15 p373 ]
The decision of the Authority follows:
15 FLRA No. 79 UNITED STATES FORCES KOREA/ EIGHTH UNITED STATES ARMY Respondent and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1363 Charging Party Case No. 8-CA-1051 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. The General Counsel filed exceptions to the Judge's Decision and a brief in support thereof. 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, for the reasons stated below. An exclusive representative's need for information to fulfill its representation rights and duties under the Statute has been provided for by Congress in section 7114(b)(4) of the Statute. /1/ The Authority has held that a request for information meeting the criteria of section 7114(b)(4) must be honored in a timely manner, Bureau of Prisons, Lewisburg Penitentiary, Lewisburg, Pennsylvania, 11 FLRA No. 111 (1983), and, in contrast to the provisions of the Freedom of Information Act (FOIA), which authorizes the charging of fees, a copy of the information provided to the exclusive representative under section 7114(b)(4) must be furnished free of charge, Veterans Administration Regional Office, Denver, Colorado, 10 FLRA 453, 456-57 (1982). This case involves the Respondent's change in policy with respect to charging fees for certain information requested by and provided to the Charging Party under the FOIA rather than under the provisions of section 7114(b)(4) of the Statute. Prior to the action giving rise to the complaint, the Respondent had established policies on providing information requested under the FOIA and on charging fees for such requests. Such policies were applied to the Charging Party as if it were a member of the general public. The Respondent's new policy with respect to charging fees for information requested under the FOIA has also been applied to the Charging Party as a member of the public. It is the Authority's view that the policy regarding fees for FOIA requests did not become a condition of employment simply because the Charging Party, having itself elected to seek information under the FOIA and consequently been treated as part of the general public, also happens to have been the exclusive representative for a unit of the Respondent's employees. On this basis, the Authority concludes that the Respondent did not change a condition of employment so as to give rise to a duty to bargain. /2/ In so concluding, we note that the Charging Party could have received, pursuant to section 7114(b)(4) of the Statute, free of charge, a copy of requested information which was necessary and relevant to enable it to fulfill its responsibilities as an exclusive representative under the Statute. Accordingly, we find that the Respondent did not violate section 7116(a)(1) and (5) of the Statute. ORDER IT IS ORDERED that the complaint in Case No. 8-CA-1051 be, and it hereby is, dismissed. Issued, Washington, D.C., July 24, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Sam Horn, Esquire Major Vincent C. Nealey For the Respondent Gerald M. Cole, Esquire For the General Counsel Mr. Don C. Terrill For the Charging Party Before: BURTON S. STERNBURG Administrative Law Judge DECISION This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101, et seq., and the Rules and Regulations issued thereunder, Fed. Reg., Vol. 45, No. 12, January 17, 1980, and Vol. 46, No. 154, August 11, 1981, 5 C.F.R.Chapter XIV, Part 2411, et seq. Pursuant to a charge filed on April 24, 1981, by Local 1363, National Federation of Federal Employees (hereinafter called NFFE or the Union), a Consolidated Complaint /3/ and Notice of Hearing was issued on July 6, 1981, by the Regional Director for Region VIII, Federal Labor Relations Authority, Los Angeles, California. The Consolidated Complaint alleges that United States Forces Korea/Eighth United States Army (hereinafter called the Respondent or Army), violated Section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (hereinafter called the Statute or Act), by virtue of its actions in the Freedom of Information Act (FOIA) and receive various and sundry requested documents without being assessed any costs for the preparation of such requested documents. A hearing was held in the captioned matter on October 28, 1981, in Seoul, Korea. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The parties submitted briefs on December 14, 1981, which have been duly considered. Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions and recommendations. Findings of Fact The Union is the certified representative of the four units of Respondent's employees. /4/ Mr. Don Terrill is President of the Union. Commencing in late 1979 or early 1980, Mr. Terrill submitted numerous requests for information under the Freedom of Information Act (FOIA), which, prior to April 2, 1981, were all honored by the Respondent without any charge being assessed therefor. Thus, the record indicates that Mr. Terrill submitted 39 FOIA requests in 1980 and 26 FOIA requests during the first three months of 1981. No fees were charged for the aforementioned requests because the search and duplication costs did not exceed $30 per request. /5/ Mr. Terrill signed the requests as Union President. On March 18, 1981, Mr. Terrill, in his capacity as President of the Union, submitted an FOIA request concerning the Chosun Gift Shop file. As was his past custom, Mr. Terrill requested that he be informed prior to any search for the requested information if the request would be subject to any fees. In reply to the FOIA request the Respondent, by letter dated April 2, 1981, informed Mr. Terrill, in pertinent part, as follows: Information available to this office reveals that you have submitted 26 requests for records under the Freedom of Information Act during the period 1 January 23 March 1981. We are pleased to provide the information to you, but in view of the cumulative amount of file search and reproduction costs associated with processing these requests (which now exceed $30.00), this and future requests will be chargeable. The basis for assessing the search reproduction fees is contained in DOD Directive 5400.7, DOD Freedom of Information Act Program, effective 3 November 1980, as published in the Federal Register, Vol. 45, No. 236, Friday, December 5, 1980, Rules and Regulations. The directive provides in subpart G - Fee Schedule, Section 286.60, General Provisions, paragraph (b)(2), that multiple requests from a single requestor or from those acting in behalf of a single requestor may create a situation in which waiver should be denied by the component. /6/ On April 3, 1981, Mr. Terrill wrote a letter to the Respondent wherein he requested that fees be waived for the instant as well as future FOIA requests and pointed out that he could have requested the information pursuant to Section 7114(b)(4) of the Statute without being responsible for any costs. Mr. Terrill further pointed out that he had been receiving FOIA requests within 10 days and if forced to utilize the rights accorded the Union by Section 7114(b)(4) of the Statute he would except similar timely action. failing timely action of its future requests for information, Mr. Terrill made it clear that he intended to file ULP charges alleging refusal to bargain in good faith. Subsequently, on April 5, 1981, Mr. Terrill sent letter to the Civilian Personnel Officer wherein he made it clear that the Union considered the "waiver of fees" to be a negotiable matter and intended to file an unfair labor practice if Respondent continued to change past practice and charge fees for the FOIA requests which individually were under $30.00. On April 10, 1981, Respondent informed the Union that it intended to adhere to the position set forth in its April 2, 1981 letter. The record reveals that Army Regulation AR 340-17, which is applicable to FOIA requests, incorporated in the record as Respondent's Exhibit R-2, provides in pertinent part as follows: 2. A refusal to waive charges by the official responsible for the initial decision on the request for the record may be appealed to the head of the DOD component or his designee for purposes of final approval. According to Mr. James McGill, a Command Records Administrator, who, among other things, is responsible for handling FOIA requests addressed to the Respondent, that when the "cumulative threshold" of requests exceeds $30.00 it is Respondent's policy to charge for the FOIA requests thereafter. Mr. McGill's interpretation of DOD Directive 5400.7 is based upon a telephone conversation he had with a Mr. Anderson who heads the Department of Army's Freedom of Information Act program. The information received from Mr. Anderson was subsequently verified by a telegram which reads as follows: Phone conversation between Mr. Anderson and Mr. McGill, subject as above, subject being Freedom of Information Act, 25 March 1981. When direct search and duplication costs for a single FOIA waived. However, when multiple requests are made by a single requestor or organization, the threshold becomes cumulative; once the threshold is reached, fees may be charged for all search and duplication costs above $30. Discussion and Conclusions The General Counsel takes the position that Respondent by virtue of its actions in changing its policy of waiving FOIA fees for Union requests under $30.00, unilaterally altered an established condition of employment in violation of Section 7116(a)(1) and (5) of the Statute. Respondent, on the other hand, relying on Section 7117(a)(2) of the Statute takes the position that inasmuch as DOD Directive 5400.7 was issued by the Department of Defense, an agency within the meaning of 5 U.S.C. 7103(a)(3), it was under no obligation to bargain with the Union concerning actions taken pursuant to the directive in the absence of a determination that no compelling need existed for the regulation. Alternatively, Respondent, relying on Section 7116(d) of the Statute, contends that the complaint should be dismissed because Respondent's adverse action can be attacked under an existing appeals procedure. Additionally, Respondent urges dismissal of the complaint on the grounds that the Union is not entitled to free data and that the FOIA requests are not "conditions of employment" over which Respondent is obligated to bargain with the Union before instituting changes therein. Prior to reaching the technical defenses relied upon by the Respondent as grounds for dismissing the complaint, a threshold question must be answered, namely, is the use of the rights set forth in the FOIA a "condition of employment" over which Respondent is obligated to give the Union notice and an opportunity to bargain prior to making changes in the procedures, etc., it will utilize in fulfilling FOIA requests for information. In considering the answer to this question it must be borne in mind that such issues as (1) the propriety of charging fees for information requested for intelligent bargaining and whether (2) the information requested involved herein does in fact concern the information necessary for intelligent bargaining, are not involved in the instant proceeding. Thus, as noted above, the sole issue for determination is whether the Respondent's year and one quarter practice of waiving fees under FOIA ripened into a "condition of employment" over which Respondent had an obligation to bargain prior to instituting any changes therein. The Statute defines a "condition of employment" to mean "personnel policies, practices and matters, whether established by rule, regulation, or otherwise affecting working conditions, except that such term does not include policies, practices, and matters . . . (C) to the extent such matters are specifically provided for by Federal Statute." There is no doubt, and I do not understand any party to be contending to the contrary, that the request for information involved herein was made pursuant to the Freedom of Information Act, 5 U.S.C. 552, which accords the public the right to secure information within an agency's possession. In such circumstances it would appear that under a literal reading of the Statute that the denial of the requested information to the Union, absent the payment of a set fee, whether contrary to a past established practice or not, does not constitute a change in an established "condition of employment" over which the Respondent is obligated to bargain. The cases cited by the General Counsel in support of its position are distinguishable in that the past practices involved in such cases which rose to, or subsequently ripened into, conditions of employment, were practices which did not have their respective origins in a Federal Statute. Thus, the use of the internal mail system and an agency's typewriters were practices which were unrelated to any particular rights accorded by Federal Statutes. Such rights or practices were the product of the parties historical collective bargaining relationship. Moreover, the use of the FOIA procedure herein is not a practice unique to the Union, but rather is a right accorded to the public at large, of which the Union is a member. Although it is true that the Union was granted numerous requests for information free of charge for approximately fifteen months, there is no showing that the granting of such free information was in any way related to its status as the exclusive representative of Respondent's employees rather than its standing or status as a member of the general public. In such circumstances it is only entitled to the rights which flow from the FOIA Statute to the General Public. To hold otherwise would result in giving the Union preferential status over other members of the general public. In this latter respect, the provisions of the FOIA make it clear that while an agency is encouraged to make documents or information available at little or no fees, an agency may in its discretion charge for the direct cost involved in making the search and duplication necessitated by the information request. To the extent that one may argue that Respondent's action in charging for multiple requests is violative of the FOIA provisions, the Union's only recourse is utilization of the appeals procedure set forth in the FOIA, the final step of which is the appeal of an agency head's adverse decision to the U.S. District Court. /7/ Having found and concluded that the Respondent did not violate the Statute as alleged, it is recommended that the Federal Labor Relations Authority issue the following order pursuant to 5 C.F.R. 2423.29(c): ORDER It is hereby ordered that the complaint in Case No. 8-CA-1051 be, and hereby is dismissed. BURTON S. STERNBURG Administrative Law Judge Dated: January 13, 1982 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ Section 7114(b)(4) 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; and (C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining(.) /2/ See, e.g., Department of the Navy, Naval Construction Battalion Center, Port Hueneme, California, 14 FLRA No. 60 (1984). /3/ The Consolidated Complaint originally included a number of other allegations set forth in Case Nos. 8-CA-992, 8-CA-1052 and 8-CA-1098. During the course of the hearing the parties reached settlement agreements in the aforementioned cases and upon motion duly made, the cases were severed from the Consolidated Complaint. Accordingly, the hearing was confined solely to the allegations set forth in Case No. 8-CA-1051. /4/ The certified units are as follows: Career and career-conditional nonprofessional employees of the Department of the Army in the Republic of Korea; Career and career-conditional professional employees of the Department of the Army in the Republic of Korea; Career and career-conditional nonprofessional employees of the Department of the Navy in the Republic of Korea; and Career and career-conditional employees of the Joint U.S. Military Assistance Group-korea (JUSMAG-K) in the Republic of Korea. /5/ Many of the aforementioned 65 FOIA requests involved information to which the Union was entitled under Section 7116(b)(4) of the Statute, i.e. information necessary for intelligent bargaining. /6/ Section 286.60 of DOD Directive 5400.7, entitled General Provisions, reads in pertinent part as follows: (b) Fee Assessment. (1) Minimum fee shall not be charged. (2) When direct search and duplication costs for a single FOIA request total less than $30.00, fees should be waived automatically. The DOD Components, however, may set aside the automatic waiver provision when, on the basis of good evidence the Component can demonstrate that waiver of fees is not in the public interest. Multiple requests from a single requestor in an effort to take advantage of the waiver may create a situation in which waiver should be denied by the Component. /7/ The fact that the Respondent's actions in denying the requested information, absent payment of the requisite fees, may have been under the DOD and Army implementing regulations does not alter the foregoing conclusions since such regulations merely track the FOIA in all pertinent respects. Cf. 5 U.S.C. 552(4)(A), 4(B), and (6), wherein FOIA provides for the charging of fees and a final appeal to the District Court when requests for information are denied by the head of an agency.