20:0696(83)CA - SSA and Northeastern Program Service Center and AFGE Local 1760 -- 1985 FLRAdec CA
[ v20 p696 ]
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 employee is in a non duty status. 31(c) governs official time, to be determined by the Authority, for ". . . any employee participation . . . in any . . . proceedings before the Authority . . ." and it is not asserted that 31(c) has any application to this case. /4/ This case does not involve the denial of official time and I express no opinion whatever as to whether "consultation" means "consult" and not "negotiate", but see, Department of Health, Education and Welfare, Social Security Administration, BRSI, Northeastern Program Center, A/SLMR No. 1101, 8 A/SLMR 893 (1978); Department of Health, Education and Welfare, Social Security Administration, Great Lakes Program Service Center, Chicago, Illinois, 2 FLRA No. 73, 2 FLRA 559 (1980); or whether Respondent complied fully with whatever obligation was imposed by Article 10, Section C.