18:0629(75)CA - Air Force, Scott AFB, IL and NAGE Local R7-23 -- 1985 FLRAdec CA
[ v18 p629 ]
The decision of the Authority follows:
18 FLRA No. 75 DEPARTMENT OF THE AIR FORCE SCOTT AIR FORCE BASE, ILLINOIS Respondent and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R7-23 Charging Party Case No. 5-CA-30222 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. Thereafter, the Charging Party and the General Counsel filed exceptions to the Judge's Decision, and the Respondent filed an opposition to the General Counsel's exceptions. 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 recommended Order, as modified below. In agreement with the conclusion of the Judge, the Authority finds that, under the circumstances herein, the General Counsel failed to sustain the burden of proving that the work schedules of military personnel were "necessary" information within the meaning of section 7114(b)(4) of the Statute. Thus, the Respondent did not violate section 7116(a)(1), (5) and (8) of the Statute by refusing to provide such information to the Charging Party. In this regard, the Authority notes that the information requested by the Charging Party concerned the work schedules of non-bargaining unit military personnel, who are not similarly situated employees for the purposes of showing disparate treatment as between employees in the administration of grievances. In such circumstances, the Authority holds that the General Counsel must affirmatively demonstrate the necessity of the particular information requested. Where, as here, the General Counsel does not carry this burden, the Respondent cannot be found to have violated section 7116(a)(1), (5) and (8) of the Statute by failing to provide information as to non-bargaining unit employees. United States Environmental Protection Agency, Health Effects Research Laboratory, Cincinnati, Ohio, 16 FLRA No. 16 (1984) and Social Security Administration and Northeastern Program Service Center, 18 FLRA No. 66 (1985). ORDER IT IS ORDERED that the complaint in Case No. 5-CA-30222 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., June 21, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Major Wade B. Morrison, Esquire For the Respondent Mark Clevenger, Esquire For the Charging Party Sandra LeBold, Esquire For the General Counsel, FLRA Before: GARVIN LEE OLIVER, Administrative Law Judge DECISION Statement of the Case This decision concerns an unfair labor practice complaint issued by the Regional Director, Region Five, Federal Labor Relations Authority, Chicago, Illinois against the Department of the Air Force, Scott Air Force Base, Illinois (Respondent), based on charge filed by the National Association of Government Employees, Local R7-23 (Charging Party of Union). The complaint alleged, in substance, that Respondent violated sections 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq. (the Statute), by refusing to furnish to the Union copies of the work schedules of military personnel of the Medical Center Food Service pursuant to Section 7114(b)(4) of the Statute. Respondent's answer denied any violation of the Statute. A hearing was held at Scott Air Force Base, Illinois. The Respondent, Charging Party, and the General Counsel were represented and afforded full opportunity to be heard, adduce relevant evidence, examine and cross-examine witnesses, and file post-hearing briefs. Based on the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations. Findings of Fact At all times material herein, the Union has been recognized as the exclusive representative of an appropriate unit of Air Force civilian employees assigned to Respondent. (General Counsel's Exh. 6; Tr. 8-9). On July 30, 1982, the parties signed a collective bargaining agreement. Article VII, Sections 1-11 deals with hours of work and the basic workweek, including shift assignments. Article XXI, Section 2(a) provides that Respondent shall treat all employees fairly and that employees shall have the right to file grievances if they feel they have not been treated in such a manner. (General Counsel's Exh. 6). On October 13, 1982, Carl Denton, Union president, requested copies of the work schedules, Air Force Form 2578, for all Medical Center Food Service employees for the period of June 6, 1982 through October 31, 1982. Mr. Denton stated in the letter that the reason he wanted the information was because "(t)he Union has received complaints from employees at the Medical Center Food Service regarding their daily tours of duty." (General Counsel's Exh. 2; Tr. 13). On October 18, 1982, Lt. Col. Mildred J. Chambers, Chief, Medical Center Food Service, provided the Union copies of the work schedules of all civilian employees. (General Counsel's Exh. 3; Tr. 14). The Union reiterated on November 24, 1982 that it wanted copies of all work schedules, and specifically requested that it be furnished work schedules for the military personnel in the Medical Center Food Service as well. (General Counsel's Exh. 4; Tr. 14). By letter dated December 10, 1982, Lt. Col. Chambers responded: 1. As you are aware, the union's representation rights and obligation do not extend to military personnel. Further, to grant the union's request would require an unreasonable amount of time. 2. In view of the above, it is my opinion that management has no obligation to provide the union copies of work schedules for military personnel. Should you have evidence to refute this view, request same be provided not later than 27 December 1982. Absent such, this matter will be considered closed. (General Counsel's Exh. 5; Tr. 9). Subsequently, Mr. Denton and Union vice-president Bryant discussed the information request with Ray Rush, labor relations officer, on several occasions. Mr. Rush stated that there was no obligation to provide the information because it had to do with the military. /1/ (Tr. 14-15). The Union reminded Mr. Rush that information on military personnel had been provided in the past. /2/ Mr. Rush replied that this was a mistake which would not be repeated and had been based on a misinterpretation of advice he had previously given. Mr. Denton could not recall whether or not he gave Mr. Rush specific reasons why he felt the Union needed the information; e.g., that civilians who left were not being replaced; as a result, the remaining civilians had their shifts changed more frequently; military personnel were not taking up the slack; the Union wanted to make an effort to have the Union vice-president and chief steward assigned to the day shift. In any event, he felt that Mr. Rush was already aware of these things because of their "ongoing relationship," which was not further described. (Tr. 18-21). Discussion, Conclusion, and Recommendations As pertinent here, section 7114(b)(4) /3/ of the Statute requires an agency, upon request, to furnish an exclusive representative with data "which is reasonably available and necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining." It is well established that under this provision of the Statute a Union is entitled to receive information necessary to the performance of all of its representational responsibilities, including negotiations, administration of the collective bargaining agreement, and the effective evaluation and processing of grievances. Where the requested information concerns data intrinsically within the scope of these representational responsibilities, the information is presumptively relevant. In such cases the employer has the burden of showing lack of evidence. However, as to other matters, the burden is on the union to demonstrate the relevance of the requested information. Cf. Director of Administration, Headquarters, U.S. Air Force, 6 FLRA 110, 121-122 (1981). The General Counsel argues in its brief that the Union needed the schedules of military as well as civilian employees in order to deal with the "complaints of employees," as mentioned by the Union in its request. The General Counsel states: Why did the Union need the schedules of military as well as civilian employees? Civilian and military employees work side by side in the Medical Food Service and their jobs are integrally related. /4/ The Union had received complaints and in order to deal with those complaints in a responsible manner, it wanted to understand the total picture, not a fragment of the picture. The Union did not request the information in order to bargain over military schedules or to represent military personnel, which it clearly had no right to do, but rather to review the work schedules in order to assess their impact upon the work schedules of civilian employees and to determine whether the Respondent's scheduling of civilian employees was consistent with its contractual obligations. The request was for the work schedules of military personnel, employees clearly outside the bargaining unit. The Statute prescribes certain rights and obligations with respect to collective bargaining in the civil (as opposed to military) service. Therefore, as recognized by the General Counsel, such information would not ordinarily be relevant to the Union's duties as the exclusive representative "to act for, and negotiate collective bargaining agreements covering, all employees in the unit." See section 7114(a)(1) of the Statute. Military personnel would also not be "similarly situated employees" for purposes of showing in a grievance disparity of treatment among employees. Compare Internal Revenue Service, Western Region, San Francisco, California, 9 FLRA 480 (1982). Therefore, in order to meet its burden regarding information concerning employees outside the unit, the Union was required to show, by reference to the circumstances of the case, more precisely the relevance of the data it desired. Cf. Curtiss-Wright Corp v. NLRB, 347 F.2d 61, 69, 59 LRRM 2433 (3rd Cir. 1968). It could not merely leave the relevancy open to conjecture or surmise. Cf. San Diego Newspaper Guild v. NLRB, 548 F.2d 863, 868, 94 LRRM 2923 (9th Cir. 1977). It had to show more than an abstract relevance based on the need to "understand the total picture." Furthermore, the Union had the duty to demonstrate the relevance and necessity for the information at the time the request was made so that problems could possibly be worked out after some further minimal effort at the bargaining table. It is only after such effort that the problem is properly presented to the Authority and the courts. Cf. Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055, 1098-1099, 107 LRRM 2781, 2806 (1st Cir. 1981) and cases cited therein; Emeryville Research Center, Shell Development Co. v. NLRB, 441 F.2d 880, 77 LRRM 2043 (9th Cir. 1971); 438th Air Base Group, McGuire Air Force Base, 2-CA-609, 4 ALJDR (1982). In this case, Respondent, upon receipt of the Union's request for the work schedules of the military personnel, advised the Union that its representational rights and responsibilities did not extend to military personnel. Accordingly, Respondent stated that it was of the opinion that it had no obligation to provide the Union copies of work schedules of military personnel. Respondent invited the Union to provide any evidence it had to refute this view. There is no evidence that the Union did so. The General Counsel contends that any further explanation would have been fruitless in view of Respondent's announced position that the Union had no right to information about military personnel. I disagree. In this instance, as noted above, the burden was on the Union to affirmatively demonstrate at the time of the request that the information was necessary and relevant in order to enable it to carry out its statutory representational obligations. There was no showing that the relevance was already known by Respondent. Even assuming that Mr. Rush was aware of the reasons why the Union wanted the information, as described by Mr. Denton at the hearing, these reasons on their face do not demonstrate the precise relevance of the requested data to the situation. The fact that similar information had been voluntarily supplied by Respondent on two previous occasions is not particularly significant. The General Counsel does not contend that this amounted to a past practice, and the explanation offered by Respondent for this is not unreasonable. In view of the Union's failure to initially demonstrate to Respondent that the information requested in this instance was necessary and relevant in order to enable it to discharge its responsibilities under the Statute, it is concluded that Respondent did not violate sections 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the information pursuant to section 7114(b)(4), as alleged. Internal Revenue Service, Buffalo District, Buffalo, New York, 7 FLRA 654 (1982); Director of Administration, Headquarters, U.S. Air Force, supra. Based on the foregoing findings and conclusions, it is recommended that the Authority issue the following Order: ORDER IT IS HEREBY ORDERED that the complaint in Case No. 5-CA-30222 be, and it hereby is, DISMISSED. GARVIN LEE OLIVER Administrative Law Judge Dated: December 15, 1983 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ Respondent's earlier position that to grant the request would also require an unreasonable amount of time was apparently dropped. It was not made an issue at the hearing. /2/ The record reflects that on two previous occasions the Union requested and received military work schedules. The first Union request, dated January 11, 1982, requested work schedules of all employees to determine the validity of "several complaints and some grievances, of various magnitudes." Respondent replied that the request was not "sufficient specific," and subsequently furnished the information only after the Union set out the nature of the complaints and grievances. (General Counsel's Exh. 7). The second Union request for all work schedules of Medical Center Food Service employees, dated May 28, 1982, was provided based on the Union's representation that it had "received complaints from employees . . . regarding their assignments of duties and their daily tours of duties." (General Counsel's Exh. 8). /3/ Section 7114(b)(4) provides that the "duty of an agency and an exclusive representative to negotiate in good faith shall 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(.)" /4/ No evidence as to civilian and military employees working side by side or of the integral relationship of their jobs was adduced at the hearing.