19:0790(96)CA - DOD Dependents Schools, Washington, DC and DOD Dependents Schools, Germany Region and North Germany Area Council, OEA, a/w NEA -- 1985 FLRAdec CA



[ v19 p790 ]
19:0790(96)CA
The decision of the Authority follows:


 19 FLRA No. 96
 
 DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS
 WASHINGTON, D.C. AND DEPARTMENT OF
 DEFENSE DEPENDENTS SCHOOLS, GERMANY REGION
 Respondent
 
 and
 
 NORTH GERMANY AREA COUNCIL, OVERSEAS
 EDUCATION ASSOCIATION, a/w NATIONAL
 EDUCATION ASSOCIATION
 Charging Party
 
                                            Case No. 1-CA-30322
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had engaged in
 certain unfair labor practices as alleged in the complaint, and
 recommending that it be ordered to cease and desist therefrom and take
 certain affirmative action.  Thereafter, the Respondent filed exceptions
 to the Judge's Decision and a supporting brief, and the General Counsel
 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 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 herein.
 
    The Judge found that the Respondent violated section 7116(a)(1), (5)
 and (8) of the Statute by failing to comply with section 7114(b)(4) of
 the Statute, when it failed to provide the Charging Party with certain
 information which the Charging Party requested in order to represent a
 unit employee under the parties' negotiated grievance procedure.  The
 Charging Party had requested all documents relating to disciplinary
 action taken by the Germany Region against unit and nonunit employees
 during the previous three years for making false statements.  The Judge
 found that the Respondent violated the Statute when it:  (1) furnished
 the Union with only selected documents from its disciplinary files on
 individual unit employees, i.e., the letter of proposed action and final
 decision letter rather than the complete file, as requested by the
 Union;  (2) failed to provide information with regard to all unit
 employees subject to such discipline;  (3) required the Union to request
 information from the Respondent's 27 Civilian Personnel Offices (CPOs),
 rather than agreeing to provide the information pursuant to a single
 request made at the Regional level;  and (4) refused to furnish
 information concerning the discipline of management officials and
 supervisors for similar conduct.  The Respondent excepted to each of
 these findings by the Judge and argued that it should not be found to
 have violated the Statute.  /1/
 
    The Authority agrees with the findings and conclusions of the Judge
 that the information requested with regard to bargaining unit employees
 was "necessary" for the Charging Party in its representation of the unit
 employee under the parties' negotiated grievance procedure.  Further, as
 to the information in the possession of Respondent's 27 CPOs, the
 Authority concludes, without adopting the Judge's finding and rationale
 to the effect that the Respondent's initial refusal to seek such
 information directly and its suggestion that the Charging Party should
 do so constituted an independent violation of the Statute, that the
 Respondent violated section 7116(a)(1), (5) and (8) of the Statute in
 the circumstances of this case by failing to provide the requested
 information to the Charging Party in a timely manner.  In so concluding,
 the Authority notes that the Respondent failed to provide the Charging
 Party with any information, pursuant to its July 5, 1983 request, until
 September 19, and that it then authorized the Charging Party to solicit
 requested information from its 27 CPOs but refused thereafter to give
 the Charging Party sufficient time to receive a response from these
 offices before requiring the Charging Party to present the employee's
 formal reply on September 29, 1983.  While section 7114(b)(4) of the
 Statute does not preclude the parties from establishing procedures for
 the furnishing of information to an exclusive representative, or
 preclude an agency from suggesting that the exclusive representative
 should take reasonable steps to secure information from the actual
 custodians of such records where appropriate, and an exclusive
 representative is not precluded from accepting the invitation to do so,
 the exclusive representative may not be denied the opportunity to secure
 the requested information in a timely manner and without undue burden or
 delay.  /2/ The Respondent's conduct herein did not afford the Charging
 Party an opportunity to obtain the necessary information requested but
 instead prejudiced the Charging Party's presentation of its defense on
 behalf of a unit employee by requiring the Charging Party to proceed
 without first having a response from the CPOs.  Accordingly, the
 Authority concludes that the Respondent failed to provide necessary
 information to the Charging Party in a timely manner.
 
    The Authority disagrees, however, with the Judge's determination that
 the Respondent was obligated to furnish the Charging Party with
 information concerning discipline given to supervisors or management
 officials.  In this regard, the Authority notes that the Judge concluded
 that, if disparate treatment between unit employees and managerial
 employees could be established for similar misconduct, an arbitrator
 might well take this factor into account when assessing what penalty, if
 any, to impose on the employee.  The Authority does not find this
 rationale or surmise by the Judge persuasive in determining whether the
 Charging Party's request for information regarding the Respondent's
 management officials and supervisors was for "necessary" data within the
 meaning of the Statute.  In the Authority's view, as supervisors and
 management officials perform different duties and functions, the
 Respondent would be governed by different considerations in deciding the
 degree of discipline appropriate for such persons.  Therefore,
 supervisors and management officials would ordinarily not be similarly
 situated employees for the purposes of showing in a grievance the
 disparity of treatment among employees.  See Social Security
 Administration and Northeastern Program Service Center, 18 FLRA No. 66
 (1985), and Department of the Air Force, Scott Air Force Base, Illinois,
 18 FLRA No. 75 (1985).  Accordingly, the Authority concludes that the
 information requested regarding management officials and supervisors has
 not been shown to have been necessary to assist the Charging Party in
 discharging its responsibilities under the Statute and therefore this
 portion of the complaint shall be dismissed.
 
                                 ORDER /3/
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute, the Authority hereby orders that the Department of Defense
 Dependents Schools, Washington, D.C. and Department of Defense
 Dependents Schools, Germany Region shall:
 
    1.  Cease and desist from:
 
    (a) Failing or refusing to furnish North Germany Area Council,
 Overseas Education Association, a/w National Education Association,
 agent for the employees' exclusive representative, with all documents,
 in sanitized form, relating to disciplinary or adverse actions in the
 Germany Region against bargaining unit employees proposed during the
 three year period prior to July 5, 1983, based upon allegations of
 making false statements and all documents relating to the outcome of the
 above actions.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute.
 
    (a) Furnish the North Germany Area Council, Overseas Education
 Association, a/w National Education Association, with all documents, in
 sanitized form, relating to disciplinary or adverse actions in the
 Germany Region against bargaining unit employees proposed during the
 three year period prior to July 5, 1983, based upon allegations of
 making false statements and all documents relating to the outcome of the
 above actions.
 
    (b) Post at its facilities in the Germany Region where unit employees
 are located copies of the attached Notice on forms to be furnished by
 the Federal Labor Relations Authority.  Upon receipt of such forms, they
 shall be signed by an appropriate official, and shall be posted and
 maintained for 60 consecutive days thereafter, excluding holiday and
 vacation periods, in conspicuous places, including all bulletin boards
 and other places where notices to employees are customarily posted.
 Reasonable steps shall be taken to insure that such Notices are not
 altered, defaced, or covered by any other material.
 
    (c) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region I, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply herewith.
 
    IT IS FURTHER ORDERED that the portion of the complaint pertaining to
 the refusal to provide the requested information regarding management
 officials and supervisors be, and it hereby is, dismissed.  
 
 Issued, Washington, D.C., August 19, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT fail or refuse to furnish North Germany Area Council,
 Overseas Education Association, a/w National Education Association,
 agent for the employees' exclusive representative, with all documents,
 in sanitized form, relating to disciplinary or adverse actions in the
 Germany Region against bargaining unit employees proposed during the
 three year period prior to July 5, 1983, based upon allegations of
 making false statements and all documents relating to the outcome of the
 above actions.  WE WILL NOT in any like or related manner interfere
 with, restrain, or coerce our employees in the exercise of their rights
 assured by the Federal Service Labor-Management Relations Statute.  WE
 WILL furnish the North Germany Area Council, Overseas Education
 Association, a/w National Education Association, with all documents, in
 sanitized form, relating to disciplinary or adverse actions in the
 Germany Region against bargaining unit employees proposed during the
 three year period prior to July 5, 1983, based upon allegations of
 making false statements and all documents relating to the outcome of the
 above actions.
                                       (Agency or Activity)
 
 Dated:  . . .  By:  (Signature) This Notice must remain posted for 60
 consecutive days from the date of posting, and must not be altered,
 defaced, or covered by any other material.  If employees have any
 questions concerning this Notice or compliance with its provisions, they
 may communicate directly with the Regional Director, Region I, Federal
 Labor Relations Authority, whose address is:  441 Stuart Street, 9th
 Floor, Boston, MA 02116, and whose telephone number is:  (617) 223-0920.
 
 
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
                                       Case No.: 1-CA-30322
 
    Captain Ralph A. Bauer
       For the Respondent For the Charging Party For the Charging Party
 
    Carol Waller Pope, Esq.
       For the General Counsel
 
    Before:  SALVATORE J. ARRIGO
       Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This case arose 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.
 
    Upon an unfair labor practice charge filed by the North Germany Area
 Council, Overseas Education Association, a/w National Education
 Association (herein referred to as the Union) against Department of
 Defense Dependents Schools, Washington, D.C. and Department of Defense
 Dependents Schools, Germany Region (herein sometimes referred to as
 Respondent), the General Counsel of the Authority, by the Regional
 Director for Region I, issued a Complaint and Notice of Hearing on
 January 14, 1984 essentially alleging Respondent violated the Statute by
 failing and refusing to furnish the Union with various documents it
 desired to review in connection with the representation of a unit
 employee in a disciplinary action.
 
    A hearing on the Complaint was conducted in Wiesbaden, West Germany
 at which all parties were represented by counsel and afforded full
 opportunity to adduce evidence, call, examine and cross-examine
 witnesses and argue orally.  Briefs were filed and have been carefully
 considered.
 
    Upon the entire record in this matter, /4/ my observation of the
 witnesses and their demeanor and from my evaluation of the evidence, I
 make the following:
 
                             Findings of Fact
 
    At all times material herein the Overseas Education Association has
 been the exclusive collective bargaining representative for a unit
 comprised of Respondent's nonsupervisory professional school-level
 personnel (excluding local nationals) employed by Respondent in its
 Germany Region and the North Germany Area Council has been the Union's
 agent in representing these employees.
 
    In January 1983 Respondent's North Germany Region and the South
 Germany Region merged into the Department of Defense Dependents Schools
 (DODDS) Germany Region.  The Germany Region has a Personnel Director who
 provides a personnel program for the Regional Director as well as
 providing advice and assistance to managers, supervisors and the various
 Civilian Personnel Offices within the Region.  The Regional Director's
 contact with the Union on all management-employee relations within DODDS
 Germany occurs through the office of the Chief of the Management
 Employee Relations Branch.  That office provides guidance and assistance
 to management regarding disciplinary actions, adverse actions and
 interpretation of the negotiated agreement.
 
    In June 1983 bargaining unit employee Dale Fritchman, a teacher,
 received a notice of proposed removal from employment with Respondent.
 Fritchman sought representation in that matter from Michael Mauer, Union
 General Counsel.  By letter dated July 5, 1983, Mauer wrote to
 Respondent requesting, "all documents in DODDS' possession relating to
 disciplinary/adverse actions in this Region against either bargaining
 unit employees or management, proposed during the last three years on
 the basis of the alleged making of false statements . . . (and) all
 documents relating to the outcome of the above actions." Mauer indicated
 the information was being requested in order to prepare a reply to the
 proposed action as it appeared to the Union that Fritchman was "facing
 disparate treatment for his alleged offenses . . ." /5/ Mauer went on to
 state:
 
          "If this information is not directly available to you, it will
       will be appreciated if this request is forwarded to whatever DoDDS
       officials have this information at their disposal.  If you refuse
       for some reason to voluntarily furnish this material, please
       consider this a request under the Freedom of Information Act"
       (FOIA).
 
    Respondent's FOIA Officer, E. P. Farrell, denied Mauer's request in
 its entirety taking the position that disclosure "would be a direct
 violation of the Privacy Act" and "would result in the invasion of the
 personal privacy of others whom you do not represent." Mauer and Farrell
 talked about the matter in a telephone conversation sometime shortly
 prior to September 1, 1983 at which time Farrell refused to comply with
 Mauer's request for the information in a sanitized form, i.e., with
 individual employees' names and other identifying characteristics
 removed.
 
    On September 15, 1983 Respondent's representative, Dr. Joyce Wilson,
 Education Program Administrator and Kenneth Bumpass, a Labor Relations
 Specialist in the Management Employee Relations Branch at the Regional
 level, met with Mauer and Fritchman to receive an oral reply to
 Fritchman's notice of proposed removal.  Mauer stated that he was unable
 to fully present a reply since he had not received any of the
 information he requested.  Bumpass was unaware of how Mauer's request
 was handled and unaware that he filed an unfair labor practice charge
 with the Authority on the preceding day concerning the refusal to
 furnish the requested information.  Mauer gave Bumpass copies of the
 charge.  During a discussion of the matter Mauer was requested by
 management's representatives to make a second request for the data under
 the FOIA signed by both himself and Fritchman, asking for basically a
 chart of disciplinary actions that had been proposed and the final
 outcome.  Mauer refused to make such a request contending that he was
 entitled to substantially more.  Mauer stated he was entitled to
 complete files which would include any evidence that was compiled in the
 course of management's investigation of alleged infractions, any replies
 that were submitted by employees, management officials or their
 representatives on their behalf, and any follow-up action that was
 taken.  Mauer went on to state he was willing to possibly settle for
 less than that but at least needed an offer first of what management
 would be willing to give before he could say what he would be willing to
 do without.  Mauer indicated he wasn't interested in identifying
 particular individuals at particular schools and had no objection to
 receiving sanitized documents.  Bumpass mentioned the question of the
 availability of files since it was Bumpass' understanding that the
 Regional Office, with which Bumpass was associated, only had documents
 relating to matters handled at the Regional level and documents
 concerning matters resolved at lower levels would be maintained by the
 local Civilian Personnel Offices (CPOs) servicing those facilities,
 infra.  The matter was not resolved and Bumpass indicated he would
 attempt to obtain a response, not necessarily the documents but at least
 a response, that addressed what Mauer was requesting by early the
 following week after which another date would be set for Mauer's reply
 on Fritchman's behalf.
 
    Bumpass telephoned Mauer on September 19 and informed him that with
 respect to management officials, he had ascertained there were three
 instances where disciplinary action had been at least proposed.
 However, it was management's position that they were not obligated to
 furnish information to the Union on management officials and would not
 do so.
 
    With respect to bargaining unit employees, Bumpass stated there were
 two files in the Region's possession and he would give Mauer some
 documents relative to those two cases.  Bumpass went on to reiterate his
 comments made at the previous week's meeting to the effect that the
 Regional Office had only those documents in its possession where the
 deciding official was at the Regional level.  He stated that the
 Regional Office wouldn't necessarily have copies of those cases where
 the deciding official had been at lower than the Regional level,
 specifically the school level, and those files would be maintained by
 the CPOs but management had no obligation to furnish Mauer with files
 they didn't have at the Regional Office.  Bumpass told Mauer if he
 wanted information from CPOs, Respondent would give him the addresses
 and he could make that request on his own.  Mauer indicated he would
 review the documents which Bumpass sent but insisted he wasn't agreeing
 that Bumpass was providing him with what he was requesting.  Mauer
 further stated that if he was compelled to make his reply to Dr. Wilson
 based on what was given to him, he would do so without necessarily
 agreeing that his request had been satisfied.
 
    By letter dated September 19, 1983 Bumpass sent Mauer, in sanitized
 form, the notice of proposed action and final decision letters
 concerning two bargaining unit employees and a partial list of servicing
 CPOs.  /6/
 
    On September 29, 1983 Mauer and Fritchman again met with Wilson and
 Bumpass to present an oral reply to Fritchman's notice of proposed
 removal.  Mauer restated his contention that, while he did not object to
 receiving sanitized documents, he was entitled to complete files and
 such would consist of more than the letter of proposed action and a
 final letter.  Mauer presented a letter to management's representatives
 which indicated the reply was being made under protest;  a complete
 presentation on behalf of Fritchman could not be made without "full
 knowledge" concerning other similar proposed actions;  to date he had
 been supplied only with selected documents from files involving only
 bargaining unit employees at the Regional level;  he had been refused
 files pertaining to DODDS' supervisors and unit employees which might be
 in the possession of CPOs or others;  he was entitled to be furnished
 all documents;  and, in view of the foregoing he was contacting CPOs per
 Bumpass' suggestion.  The letter concluded with a request for an
 extension of time in making the reply until the documents presented were
 obtained.  The request was denied and Mauer presented an oral reply on
 Fritchman's behalf.
 
    Mauer wrote to the twenty-seven CPOs requesting all documents
 regarding disciplinary/adverse actions against DODDS' employees or
 administrators taken or proposed during the past three years for making
 false statements.  Some CPOs did not respond;  others indicated they had
 no records of the type sought;  and others referred him to the Regional
 Office or informed him the information sought was not releasable.  No
 documents were forwarded to Mauer by any CPO.
 
    By letter of October 20, 1983 Wilson wrote to Fritchman informing him
 that while his removal was not warranted, it was her final decision to
 suspend him without pay for 14 days effective November 13, 1983 and to
 involuntarily transfer him to another school.  Thereafter, the Union
 filed grievance on Fritchman's behalf and the matter is awaiting
 "scheduling and selection of an arbitrator."
 
    After learning of Mauer's unsuccessful attempts with the CPOs, on
 December 2, 1983 Respondent wrote to all the CPO offices requesting
 appropriate case files of teachers charged with making false statements
 or misrepresentations.  By early January 1984 all CPOs had responded
 that no such case files existed in their offices.  No attempt was made
 to obtain similar information for management employees.  However, by
 letter of January 24, 1984 Respondent notified Mauer that although under
 no obligation to furnish such information, a search of the Regional
 Office files disclosed one case involving a supervisory employee charged
 with fraudulent misrepresentation and falsification of time and
 attendance reports.  Mauer was provided with a three line summary of
 this case.  Mauer replied to this letter on February 1, 1984 stating
 that he considered Respondent's cumulative responses to his request for
 information to be incomplete, irresponsive and a deliberate withholding
 of information in its possession.
 
    Evidence disclosed at the hearing in this case reveals that two
 additional unit employees were involved in situations concerning making
 false statements but whose identity or files were not made known to
 Mauer in response to his requests for information.  Documents concerning
 one employee (Rogers) were not furnished since the complete file was
 already in Mauer's possession as Mauer represented Rogers during his
 disciplinary proceeding.  Apparently the file concerning the other
 employee (Woods) which was not furnished the Union was simply overlooked
 when the files were searched.  /7/ It also appears that, as part of the
 Woods' matter, a management employee was involved in falsifying a
 document.  Further, it also appears that two or three other situations
 exist which involve management employees making false statements.
 
                        Discussion and Conclusions
 
    Counsel for the General Counsel contends that Respondent violated the
 Statute when it:  (1) furnished the Union with only selected documents
 and failed to provide the complete files of unit employees who were
 involved in disciplinary actions involving making false statement;  (2)
 failed to provide information on all unit employees involved in such
 actions;  (3) required the Union to request information from CPOs;  and
 (4) failed and refused to furnish information involving non-bargaining
 unit employees.
 
    Respondent maintains:  (1) completeness of the information furnished
 regarding unit employees was not within the scope of the Complaint nor
 did Mauer indicate he was dissatisfied with what he received;  (2) a
 good faith effort was made to obtain and provide information on all unit
 employees including information from CPOs after it came to Respondent's
 attention that the Union was having difficulty in obtaining responses
 from CPOs;  and, (3) Respondent was under no obligation to furnish
 information regarding management employees since such documents are not
 necessary and relevant to disciplinary actions concerning unit
 employees.
 
    It is well settled that under section 7114(b)(4) of the Statute /8/
 management is required to furnish an exclusive representative with
 necessary and relevant information which would enable it to effectively
 carry out its representational obligations.  Cf. United States
 Environmental Protection Agency, Health Effects Research Laboratory,
 Cincinnati, Ohio, 16 FLRA No. 16 (1984) and cases cited therein.  More
 specifically, in Internal Revenue Service, Western Region, San
 Francisco, California, 9 FLRA 480 (1982), the Authority held that a
 union is entitled to relevant and necessary information to enable it to
 properly represent a unit employee at an oral presentation prior to
 management's consideration of a proposed adverse action, where, as with
 the case herein, the opportunity for reply is provided for in the
 negotiated agreement.  In that case the activity was found to have
 violated the Statute when it refused to furnish the union various
 requested information quite similar to that requested herein.  Thus, the
 activity was required to provide copies of disciplinary or adverse
 actions for a three year period dealing, in whole or in part, with a
 broadly defined subject which included:  copies of materials replied
 upon to support the charges in the actions;  oral and written replies;
 letters of final disposition;  reports of any subsequent mitigation or
 alteration of dispositions;  and relevant parts of investigations or
 interviews in actions concerning the general subject matter in which
 discipline or adverse action was not proposed for the employee subject
 to the investigation.
 
    In the case herein, on July 5, 1983 the Union requested all documents
 in DODDS' possession relating to disciplinary or adverse actions in the
 Germany Region against unit or management employees proposed during the
 prior three year period concerning allegations of false statements and
 documents relating to the outcome of such actions.  The Union
 subsequently notified management that the information in sanitized form
 was acceptable.  During the meeting with Wilson and Bumpass on September
 15, 1983, Mauer specifically conveyed his entitlement to complete files,
 indicating he might narrow the request depending upon a counter-offer
 from management which did not materialize.  Some documents were
 furnished by management but on September 19 Mauer informed Bumpass that
 he was not agreeing that he had been provided with what he had
 requested.  On September 29 Mauer again conveyed to Wilson and Bumpass
 his contention that he was entitled to complete files, albeit sanitized,
 and not merely letters of proposed and final action.  Mauer informed
 management that he needed full knowledge of other proposed similar
 actions and clearly indicated that providing selected documents did not
 comply with his request.  In his letters to the 27 CPOs, Mauer again
 requested all documents.
 
    In these circumstances I conclude that at no time did Mauer indicate
 he was willing to accept anything but full compliance with his June 1983
 request for documents except that the documents could be furnished in
 sanitized form.  I also conclude that under section 7114(b)(4) of the
 Statute the Union was entitled to receive all the documents requested
 regarding all unit employees, and by its failure to fully comply with
 such request Respondent violated sections 7116(a)(1)(5) and (8) of the
 Statute.  /9/
 
    Respondent contends that the issue of the failure to furnish all the
 documents requested by the Union was beyond the scope of the Complaint
 and should therefore be dismissed.  While the Complaint might be read so
 as to suggest this interpretation, Council for the General Counsel's
 opening statement at the hearing fully apprised Respondent that the
 completeness of the information supplied was at issue and Respondent
 acknowledged it understood the nature of the allegations to be
 litigated.  Respondent did not indicate it was taken by surprise or put
 to any disadvantage or undue difficulty in presenting its case.  See
 Federal Mediation and Conciliation Service, 9 FLRA 199 (1982).  In
 addition, the allegation Respondent protests are clearly related to the
 allegations in the charge /10/ and the Complaint.  Cf. Bureau of Land
 Management, Richfield District Office, Richfield, Utah, 12 FLRA No. 133
 (1983) and section 2423.19(d) of the Authority's Rules and Regulations.
 I therefore reject Respondent's contention.
 
    With regard to Respondent's initial refusal to seek from the CPOs
 information which the Union requested, I conclude Respondent violated
 the Statute by such conduct.  Management's representative in this matter
 was Kenneth Bumpass, a Labor Relations Specialist in the Management
 Employee Relations Branch in the Regional Office.  The Management
 Employee Relations Branch was responsible for management-employee
 relations within DODDS Germany.  Respondent is the custodian of its
 files and how it maintains these files, i.e. centrally or in dispensed
 local offices, is its own concern.  However, it is the responsibility of
 the agency to furnish information "which is reasonably available and
 necessary for the full and proper discussion, understanding and
 negotiation of subjects within the scope of collective bargaining." In
 my view an agency does not comply with that responsibility when it
 requires a requesting union to canvass local facilities to obtain
 information which the agency is required to produce.  Nor do I find
 Respondent's belated efforts to obtain the information from CPOs to have
 nullified its prior improper conduct.  Accordingly, I conclude
 Respondent's refusal to obtain from CPOs the information sought herein
 by Mauer, the Union's representative, in the circumstances herein,
 violated section 7116(a)(1), (5) and (8) of the Statute.
 
    Finally, Respondent contends that information regarding management
 employees is not necessary and relevant vis a vis disciplinary actions
 concerning unit employees.  The Union request was for data concerning
 both unit and managerial employees who were involved in situations
 similar to that of Fritchman.  The Union clearly conveyed to Respondent
 that it desired this data in order to ascertain whether a disparate
 treatment argument might be made on Fritchman's behalf.  Obviously, if
 disparate treatment favorable to Fritchman could be established, the
 evidence would be used to attempt to persuade Respondent, an arbitrator
 or deciding official to reduce or withhold any discipline against
 Fritchman.
 
    Respondent did not contend either to the Union nor in this proceeding
 that the information relative to unit employees was not necessary or
 relevant.  Indeed, it is beyond question that the data sought as applied
 to unit employees under the circumstances herein was necessary and
 relevant to assist the Union in fulfilling its responsibilities under
 the Statute.  In my view the data concerning managerial employees was
 similarly necessary and relevant.  While Respondent's standards of
 expected behaviour from unit employees and managerial employees may
 differ and Respondent might not have ever attempted to make disciplinary
 actions between unit and managerial employees consistent, if disparate
 treatment between unit employees and managerial employees could be
 established for similar misconduct an arbitrator or deciding authority
 might well take this factor into account when assessing what penalty, if
 any, to impose on Fritchman.  It is generally accepted in arbitration
 that enforcement of rules and assessment of discipline must be exercised
 in a consistent manner unless a reasonable basis exists for the
 variation.  Elkouri and Elkouri, How Arbitration Works, 643-644 (3rd ed.
 BNA 1981).  /11/ Although an arbitrator or deciding authority might
 ultimately conclude that because different standards of conduct apply to
 unit and management employees, disparity of discipline, if it exists, is
 not persuasive, that is a matter for determination by the arbitrator or
 deciding official.  Therefore, I conclude the underlying information is
 sufficiently relevant to require production by Respondent so that the
 Union can evaluate the data and, if favorable, put the matter before the
 party who will decide what weight to give evidence of disparity of
 discipline.  Cf. United States Environmental Protection Agency, Health
 Effects Research Laboratory, Cincinnati, Ohio, 16 FLRA No. 16.
 Accordingly, I conclude Respondent violated section 7116(a)(1), (5) and
 (8) by its failure to furnish requested data relative to managerial
 employees.
 
    While not controlling, I note the conclusion herein comports
 generally with the approach taken by the National Labor Relations Board
 in similar cases arising under the National Labor Relations Act.  That
 approach was recently summarized by the sixth circuit in E. I. Dupont de
 Nemours v. NLRB, Fd.2d (6th Cir. 1984), No. 82-1767-1903 decided
 September 26, 1984, the court stating:
 
          "When a union seeks information concerning the bargaining unit
       itself, that information is presumptively relevant and will be
       ordered disclosed without any showing of relevant by the union
       unless the employer itself rebuts the presumption.  When a union
       seeks nonunit information, however, the burden is upon the union,
       and in this case upon the General Counsel, to establish relevance
       without the benefit of any presumption.  NLRB v. Rockwell-Standard
       Corp., 410 F.2d 953, 957 (6th Cir. 1969);  see also NLRB v. Leland
       Stanford Junior Univ., 715 F.2d 473, 474 (9th Cir. 1983);
       Curtiss-Wright Corp. v. NLRB, 347 F.2d 61, 69 (3d Cir. 1965).  The
       Board's determination concerning whether information is relevant
       to the collective bargaining process is entitled to deference from
       the courts.  See Stanford, 715 F.2d at 474;  Press Democrat
       Publishing Co. v. NLRB, 629 F.2d 1320, 1326 (9th Cir. 1980);  NLRB
       v. Brazos Elec. Power Co-op., Inc., 615 F.2d 1100, 1101 (5th Cir.
       1980).  The Board need only find a "probability that the desired
       information (is) relevant . . . and that it would be of use to the
       union in carrying out its statutory duties and responsibilities."
       NLRB v. Acme Indus. Co., 385 U.S. 432, 437 (1967);  see also
       Rockwell-Standard, 410 F.2d at 957;  General Elec. Co. v. NLRB,
       466 F.2d 1177, 1182 (6th Cir. 1972).  Each case involving this
       issue "must turn upon its particular facts.  The inquiry must
       always be whether or not under the circumstances . . . the
       statutory obligation to bargain in good faith has been met." NLRB
       v. Truitt Mfg. Co., 351 U.S. 149, 153-54 (1956) . . ..
 
    In view of the entire foregoing I recommend the Authority issue the
 following:
 
                                Order /12/
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the Department of Defense Dependents Schools,
 Washington, D.C. and the Department of Defense Dependents Schools,
 Germany Region shall:
 
    1.  Cease and desist from:
 
          (a) Failing or refusing to furnish North Germany Area Council,
       Overseas Education Association, a/w National Education
       Association, agent for the employees' exclusive representative,
       with all documents, in sanitized form, relating to disciplinary or
       adverse actions in the Germany Region against bargaining unit or
       management employees proposed during the three year period prior
       to July 5, 1983 based upon allegations of making false statements
       and all documents relating to the outcome of the above actions.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing employees in the exercise of their rights
       assured by the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Federal Service Labor-Management Relations
 Statute:
 
          (a) Furnish the North Germany Area Council, Overseas Education
       Association, a/w National Education Association, with all
       documents, in sanitized form, relating to disciplinary or adverse
       actions in the Germany Region against bargaining unit or
       management employees proposed during the three year period prior
       to July 5, 1983 based upon allegations of making false statements
       and all documents relating to the outcome of the above actions.
 
          (b) Post at its facilities in the Germany Region where unit
       employees are located copies of the attached notice marked
       "Appendix" on forms to be furnished by the Federal Labor Relations
       Authority.  Upon receipt of such forms, they shall be signed by
       the Regional Director and shall be posted and maintained by him
       for 60 consecutive days thereafter, excluding holiday and vacation
       periods, in conspicuous places, including all bulletin boards and
       other places where notices to employees are customarily posted.
       The Regional Director shall take reasonable steps to insure that
       notices are not altered, defaced, or covered by any other
       material.
 
          (c) Notify the Regional Director of Region I, 441 Stuart
       Street, 9th Floor, Boston, MA 02116, in writing within 30 days
       from the date of this Order as to what steps have been taken to
       comply herewith.
 
                                       SALVATORE J. ARRIGO
                                       Administrative Law Judge
 
 Dated:  November 16, 1984
         Washington, D.C.
 
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 STATUTE WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
 WE WILL NOT fail or refuse to furnish North Germany Area Council,
 Overseas Education Association, a/w National Education Association,
 agent for the employees' exclusive representative, with all documents,
 in sanitized form, relating to disciplinary or adverse actions in the
 Germany Region against bargaining unit or management employees proposed
 during the three year period prior to July 5, 1983 based upon
 allegations of making false statements and all documents relating to the
 outcome of the above actions.  WE WILL NOT in any like or related manner
 interfere with, restrain, or coerce employees in the exercise of their
 rights assured by the Federal Service Labor-Management Relations
 Statute.  WE WILL furnish the North Germany Area Council, Overseas
 Education Association, a/w National Education Association, with all
 documents, in sanitized form, relating to disciplinary or adverse
 actions in the Germany Region against bargaining unit or management
 employees proposed during the three year period prior to July 5, 1983
 based upon allegations of making false statements and all documents
 relating to the outcome of the above actions.
                                       (Agency or Activity)
 
 Dated:  . . .  By:  (Signature) This Notice must remain posted for 60
 consecutive days from the date of posting and must not be altered,
 defaced or covered by any other material.  If employees have any
 questions concerning this Notice or compliance with any of its
 provisions, they may communicate directly with the Regional Director of
 the Federal Labor Relations Authority, Region I, whose address is:  441
 Stuart Street, 9th Floor, Boston, MA 02116 and whose telephone number
 is:  (617) 223-0920.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In its exceptions, the Respondent additionally asserted that the
 Judge's finding as to the adequacy of its response concerning unit
 employees went beyond the scope of the complaint.  The Authority finds,
 for the reasons stated by the Judge, that this issue was properly
 considered and decided.
 
 
    /2/ United States Forces Korea/Eighth United States Army, 15 FLRA No.
 79 (1984).
 
 
    /3/ With regard to the posting provisions of this Order, holiday and
 vacation periods are excluded from the required posting period due to
 the nature of teachers' work periods during the school year.
 
 
    /4/ Respondent's unopposed Motion to Correct Transcript is hereby
 granted.
 
 
    /5/ The union-management negotiated agreement sets out procedures
 relative to imposing discipline and adverse actions which include a
 provision providing for oral or written replies to proposed notices.
 The agreement also provides:
 
          "No teacher shall be reduced in rank or compensation, demoted,
       transferred, reassigned, terminated, or adversely evaluated
       without good cause nor disciplined, reprimanded, or suspended
       without just cause."
 
    The agreement defines "good cause" and "just cause" as follows:
 
          "Good Cause:  When a non-disciplinary action taken against a
       teacher is not arbitrary or capricious or punitive in nature."
 
          "Just Cause:  A term of art used by Arbitrators and the Civil
       Service Commission which, in summary, ensures that disciplinary
       action taken by Management against a teacher is not arbitrary and
       capricious.  It requires, among other things, that when
       disciplinary action is taken, the teacher must have been
       forewarned of possible disciplinary consequences of his/her
       conduct, that the teacher be given the right to reply and be
       heard, and that Management's final decision be fair, reasonable,
       and based on the offense committed."
 
 
    /6/ Bumpass had inadvertently sent Mauer an incomplete list.  Upon
 being notified of this by Mauer in early October, Respondent furnished
 Mauer with all the addresses of all CPOs in the Region.
 
 
    /7/ It is not clear from the record when the Woods file first
 surfaced.  However, it appears that the Woods' data was maintained in a
 CPO file and was overlooked when those files were first reviewed at the
 CPO level.
 
 
    /8/ Section 7114(b)(4) 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(.)
 
 
    /9/ Since Mauer was aware of the Rogers' matter and indeed already
 had the complete file and never specifically mentioned this case when
 dealing with Respondent, I do not find Mauer was seeking these documents
 nor did Respondent violate the Statute by failing to provide these
 documents.  However, with regard to the Woods' matter, the file was
 never furnished the Union and I do not consider Respondent's vague and
 conclusionary testimony regarding the circumstances surrounding the late
 discovery of this situation to constitute a valid defense