20:0696(83)CA - SSA and Northeastern Program Service Center and AFGE Local 1760 -- 1985 FLRAdec CA



[ v20 p696 ]
20:0696(83)CA
The decision of the Authority follows:


 20 FLRA No. 83
 
 SOCIAL SECURITY ADMINISTRATION AND 
 NORTHEASTERN PROGRAM SERVICE CENTER
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1760, AFL-CIO
 Charging Party
 
                                            Case No. 2-CA-50021
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision granting
 the Respondent's motion to dismiss the complaint in the above-entitled
 proceeding.  Thereafter, the General Counsel filed exceptions to the
 Judge's Decision with an accompanying brief.
 
    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.
 
    The Respondent's motion to dismiss was based upon its position that
 the record evidence did not show that the information requested by the
 Charging Party (the Union), pursuant to section 7114(b)(4) of the
 Statute, /1/ was necessary for it to discharge its representational
 responsibilities under the Statute.  The Union's information request
 concerned visits by the Respondent's managers to the construction site
 of its new Jamaica, New York facilities, (e.g., the names of managers
 who had visited the site and their reasons for doing so, the number of
 times they had visited the site and whether such visits were on duty
 time, and whether the managers were reimbursed for travel expenses).
 Such information was sought by the Union in connection with a potential
 grievance with respect to the denial of official time for Union
 representatives to visit such construction site.
 
    The Authority concludes, in agreement with the Judge and based on his
 rationale, that the information requested by but not furnished to the
 Union concerning the managers' visits to the construction site was not
 necessary for it to fulfill its representational responsibilities under
 the Statute.  See Department of Defense Dependents Schools, Washington,
 D.C. and Department of Defense Dependents Schools, Germany Region, 19
 FLRA No. 96 (1985), and Social Security Administration and Northeastern
 Program Service Center, 18 FLRA No. 66 (1985).  Accordingly, in
 agreement with the Judge, the Respondent's motion to dismiss must be,
 and it hereby is, granted.
 
                                   ORDER
 
    IT IS HEREBY ORDERED that the complaint in Case No. 2-CA-50021 be,
 and it hereby is, dismissed.
 
    Issued, Washington, D.C., November 22, 1985
 
                                       (s)---
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       (s)---
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
 
    /1/ Section 7114(b)(4) provides:
 
       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(.)
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
 SOCIAL SECURITY ADMINISTRATION AND 
 NORTHEASTERN PROGRAM SERVICE CENTER
    Respondent
 
    and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1760, AFL-CIO
    Charging Party
 
    Mr. Herbert Collender For the Charging Party
 
    Irving L. Becker, Esquire For the Respondent
 
    Alfred R. Johnson, Jr., Esquire For the General Counsel
 
    Before:  WILLIAM B. DEVANEY Administrative Law Judge
 
                  DECISION ON MOTION DISMISSING COMPLAINT
 
                           Statement of the Case
 
    This proceeding, under the Federal Service Labor-Management Relations
 Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. 7101,
 et seq.  /1/ and the Final Rules and Regulations issued thereunder, 5
 C.F.R. 2423.1, et seq., concerns whether Respondent violated the Statute
 by refusing to provide the American Federation of Government Employees,
 Local 1760, AFL-CIO (hereinafter referred to as the "Union"), the names
 of its managers who had visited the construction site of its new
 Jamaica, New York, facilities, the number of times such managers had
 visited the site, whether such managers visited the site on duty time,
 whether they were reimbursed for travel expenses, and the reason(s) why
 they visited the site, which information was sought in connection with a
 potential grievance by the Union seeking allowance of official time and
 travel expenses for its representatives to visit the construction site.
 This case was initiated by a charge filed on October 15, 1984 (G.C. Exh.
 1(a)).  The Complaint and Notice of Hearing issued on November 30, 1984
 (G.C. Exh. 1(c)), alleging violations of 16(a)(1), (5) and (8) of the
 Statute, and set the matter for a calendar call on January 7, 1985, at
 which time hearing was fixed for January 8, 1985, before the
 undersigned.
 
    All parties were represented at the hearing, General Counsel Exhibit
 1(a) through 1(e), formal documents, were received into evidence,
 together with Joint Exhibits 1 through 8 (Joint Exhibit 1 is the present
 National Agreement;  Joint Exhibit 2 consists of Article 10, "Official
 Time" of the prior Master Agreement, incorporated by reference by
 Article 30, Appendix B of Joint Exhibit 1;  Joint Exhibit 3 is a
 Stipulation signed by all parties;  Joint Exhibit 4 is a request for
 official time to visit the Jamaica site;  Joint Exhibit 5 is the denial
 of the request;  Joint Exhibit 6 is the request for information (from
 which this case arises);  Joint Exhibit 7 is a statement that the
 information requested in Joint Exhibit 6 was sought ". . . for the
 purpose of assessing the merits of a Union grievance with respect to the
 denial of official time to undertake a field trip to Jamaica";  and
 Joint Exhibit 8 is a denial of the request for information).  General
 Counsel's Exhibit 2, for identification, is a charge in a different
 cases, No. 2-CA-40425, and was rejected (Tr. 44-45) as having no
 materiality or relevance to this proceeding /2/ and that ruling is
 hereby affirmed.
 
    The facts were fully presented by written exhibits and by stipulation
 and when the undersigned requested General Counsel to demonstrate,
 pursuant to 14(b)(4)(B) of the Statute how the information requested was
 ". . . necessary for full and proper discussion, understanding, and
 negotiation of subjects within the scope of collective bargaining",
 extensive oral argument was heard and General Counsel made a proffer of
 proof as follows:
 
          "Mr. Collender would say that the purpose of his information
       request . . . was to determine if management had used official
       time to survey the Jamaica, N.Y., site to assess transportation,
       security and other facilities available to unit employees at the
       time of relocation.
 
          "If management had used official time for these purposes, or
       its representatives, then the union would be in a position to
       determine if a grievance filed under Article 24 of the negotiated
       agreement, alleging a breach of Article 10(c)(1) and (3) of the
       predecessor agreement would be viable." (Tr. 34-35).
 
    General Counsel's proffer was rejected (Tr. 37, 41) for the reason
 that what management does with its supervisors has no materiality as to
 a grievance concerning entitlement of union representatives to official
 time;  Respondent's notion to dismiss was granted;  subject, however, to
 reconsideration if General Counsel's brief convinced me that my initial
 conclusion were incorrect.  February 8, 1985 was fixed as the date for
 mailing briefs and/or proposed findings and conclusions of law.
 Respondent filed an "Order Dismissing Complaint" which was received by
 this Office on January 28, 1985, and General Counsel filed a brief on
 February 8, 1985, which has been carefully considered.  For reasons set
 forth hereinafter, the Complaint is dismissed.
 
                        Discussion and Conclusions
 
    The entitlement of union representatives to official time is governed
 by 31 of the Statute which, as applicable, /3/ provides as follows:
 
          "(d) Except as provided in the preceding subsection of this
       section--
 
          (1) any employee representing an exclusive representative, or
 
          (2) in connection with any other matter covered by this
       chapter, any employee in an appropriate unit represented by an
       exclusive representative, shall be granted official time in any
       amount the agency and the exclusive representative involved agree
       to be reasonable, necessary, and in the public interest." (5
       U.S.C. 7131(d)).
 
    Article 30 of the parties' current agreement sets forth the agreement
 of the parties with respect to Official Time (Jt.  Exh. 1, Art. 30, pp.
 73-89), which incorporates by reference in Appendix B the provisions of
 Article 10 of the prior "Master Agreement" with respect to Program
 Service Centers.  Charging Party and General Counsel rely specifically
 on Section C, paragraphs 1 and 3 of Article 10 which provides as
 follows:
 
       "Section C. In accordance with Section a. and b. of this Article
       Executive Order 11491, as amended, and applicable HEW
       instructions, official time will be granted to Council and Local
       Union Officers, Stewards, and other designated representatives
       during the regular workweek for the following approved labor--
       management activities:
 
          1. Consultation with management on personnel policies,
       practices, and working conditions which are within the discretion
       of the Bureau or Program Service Center.
 
          3. Participation in joint union-management activities
       authorized by the Program Service Center, or by this Agreement, or
       by a local supplemental agreement.  Any matters for which official
       time is requested that do not fall within the above categories or
       that have not been mutually agreed to by the local parties, shall
       be the subject of consultation between the parties prior to
       approval.  /4/ (Jt.  Exh. 2, Art. 10, C).
 
    If the Union were entitled to official time to visit the construction
 site, it was pursuant to its agreement and whether Respondent did, or
 did not, send supervisors to the construction site is wholly immaterial.
  If the Union were entitled to official time for this purpose by
 agreement, it would be entitled to official time if Respondent never
 sent supervisors to visit the construction site;  and it were not
 entitled to official time for this purpose by agreement, it would not be
 entitled to official time no matter how many supervisors may have been
 sent by Respondent to visit the construction site, nor for what purpose
 they may have been sent.  Supervisors are not part of the bargaining
 unit and, of course, are not subject to the provisions of Article 30, or
 Article 10, Section C of the prior agreement.  Indeed, the duty to
 bargain under the Statute extends only to the conditions of employment
 of bargaining unit employees.  While a request for information may be
 broader than the duty to bargain, the obligation of 14(b)(4)(B) does not
 attach in this case to information which is not necessary or material to
 the prospective grievance.  I express no opinion as to the merits, or to
 the lack of merit, of any such grievance for official time;  but I do
 conclude that information concerning whether supervisors were sent to
 the construction site is wholly immaterial to any such grievance.  In
 United States Environmental Protection Agency, Health Effects Research
 Laboratory, Cincinnati, Ohio, 16 FLRA No. 16, 16 FLRA 52 (1984), the
 Authority stated, in part, as follows:
 
          "The Authority has previously held that section 7114(b)(4) of
       the Statute requires management to furnish an exclusive
       representative with information which would enable the union to
       effectively carry out its representational obligation in
       connection with the processing of an employee grievance or the
       determination whether to file a grievance, and that management
       violates the Statute if it refuses to do so.  See, e.g., U.S.
       Customs Service, Region VII, Los Angeles, California, 10 FLRA 251
       (1982);  Veterans Administration Regional Office, Denver,
       Colorado, 7 FLRA 629 (1982);  Department of the Navy, Portsmouth
       Naval Shipyard, 4 FLRA 619 (1980).  However, the information
       sought must be necessary and relevant to assist the exclusive
       representative in discharging its responsibilities under the
       Statute, and therefore the Authority has dismissed complaints
       where the requirement has not been established.  See, e.g.,
       Internal Revenue Service, Buffalo District, Buffalo, New York, 7
       FLRA 654 (1982);  Director of Administration, Headquarters, U.S.
       Air Force, 6 FLRA
 
          "In the instant case, the Authority concludes that the
       performance appraisal work sheets of the three non-bargaining unit
       employees, requested by but not furnished to the Union, were not
       necessary and relevant to assist the Union in fulfilling its
       responsibilities under the Statute." (16 FLRA at 54-55).
 
    I have considered carefully Judge Chaitovitz' decision, in Department
 of Health and Human Services, Region II and Social Security
 Administration and SSA, Office of Hearings and Appeals, Region II, Case
 Nos. 2-CA-30181 and 2-CA-30182, Administrative Law Judge Decision Report
 No. 40 (August 9, 1984), upon which General Counsel principally relied
 at the hearing and which he cites and relies in his brief (see, e.g. pp.
 14, 15), and find nothing that supports General Counsel's position.
 There, the information request concerned "the entire promotion package
 for Merit Promotion Announcement Number S 82-2001." Judge Chaitovitz
 determined that, ". . . the requested information is reasonably related
 to the grievance, and that the request is not frivolous . . ." Here, of
 course, the requested information is wholly immaterial to the grievance,
 as an award of official time for the purpose requested is either granted
 by agreement or there is no entitlement to official time and an award
 based on established or assumed grant of official time to supervisors
 could not lawfully be sustained.  I have also given careful
 consideration to the decision of Judge Arrigo, in Department of Defense
 Dependents Schools, Washington, D.C. and Department of Defense
 Dependents Schools, Germany Region and North Germany Area Council,
 Overseas Education Association, a/w National Education Association, Case
 No. 1-CA-30322, OALJ-85-015 (November 16, 1984), in which he found the
 refusal to furnish information regarding disciplinary action of
 managerial employees involved in situations similar to that confronting
 a bargaining unit employee violated the Statute.  There Judge Arrigo
 found such information necessary and relevant for the reason that, ". .
 . 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 . . ." But here, whether Respondent did, or
 did not, send supervisors to the construction site on duty time is
 wholly immaterial as to whether Union representatives are entitled to
 official time to visit the construction site.
 
    Accordingly, because the information sought was neither necessary or
 relevant to assist the Union in fulfilling its responsibilities under
 the Statute, the Complaint is dismissed.
 
                                       WILLIAM B. DEVANEY
                                       Administrative Law Judge
 
    Dated:  March 15, 1985
    Washington, D.C.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ For convenience of reference, sections of the Statute hereinafter
 are, also, referred to without inclusion of the initial "71" of the
 Statute reference, e.g., Section 7116(a)(1) will be referred to, simply,
 as 16(a)(1).
 
 
    /2/ As instructed, the Reporter placed this document in the rejected
 exhibit file.
 
 
    /3/ 31(a) governs official time for "Any employee representing an
 exclusive representative in the negotiation of a collective bargaining
 agreement . . ." and it is not asserted that 31(a) has any application
 in this case. 31(b) relates to internal business of a labor organization
 which shall be performed during ". . . the time the