24:0292(36)CA - Army and Air Force Exchange Service, Dallas, TX and AFGE Local 1345 -- 1986 FLRAdec CA



[ v24 p292 ]
24:0292(36)CA
The decision of the Authority follows:


 24 FLRA No. 36
 
 ARMY AND AIR FORCE EXCHANGE 
 SERVICE, DALLAS, TEXAS
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 1345,
 Charging Party
 
                                            Case No. 7-CA-50646
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding finding that the Respondent had committed
 certain unfair labor practices alleged in the complaint, and
 recommending that it be ordered to cease and desist therefrom and to
 take certain affirmative action.  The Judge found that the Respondent
 had not engaged in other unfair labor practices alleged in the complaint
 and recommended that the portion of the complaint relating to those
 unfair labor practices be dismissed.  Thereafter, the Respondent filed
 exceptions only to the Judge's recommendation that it be ordered to
 provide without charge to the Union a copy of a video tape in connection
 with an employee grievance.
 
    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 prejudical error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority adopts the Judge's
 findings, conclusions and recommended Order.
 
                                   ORDER
 
    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 Army and Air Force Exchange Service, Dallas,
 Texas, shall:
 
    1.  Cease and desist from:
 
    (a) Failing and refusing to provide, without charge to the American
 Federation of Government Employees, AFL-CIO, Local 1345 (hereinafter
 referred to as "Local 1345"), the employees' exclusive representative, a
 copy of the data requested by Local 1345 relating to disciplinary action
 against employee Nancy Bundy.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing employees in the exercise of their rights guaranteed by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Provide, without charge, to Local 1345 a copy of the video tape
 for July 3, 1985, the day on which the alleged under ring by Nancy Bundy
 occurred.
 
    (b) Make available for inspection by Local 1345 5he entire cash
 register tape for the cash register used by Nancy Bundy on the day of
 the alleged under ring by Nancy Bundy and provide, without charge, to
 Local 1345 a copy of such portions of said cash register tape as Local
 1345 may designate.
 
    (c) Post at its facilities at the Army and Air Force Exchange
 Service, Fort Carson, Colorado, 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 a senior official of the Army and
 Air Force Exchange Service, Fort Carson, Colorado, and shall be posted
 and maintained by him for 60 consecutive days thereafter, in conspicuous
 places, including all bulletin boards and other places where notices to
 employees are customarily posted.  The appropriate official shall take
 reasonable steps to ensure that such Notices are not altered, defaced,
 or covered by any other material.
 
    (d) Pursuant to Section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director of Region VII, Federal Labor
 Relations Authority, 535 16th Street, Suite 310, Denver, Colorado 80202,
 in writing, within 30 days of this Order, as to what steps have been
 taken to comply herewith.
 
    IT IS FURTHER ORDERED that that portion of the Complaint which
 relates to Local 1345's request for data of August 23, 1985, be, and the
 same is hereby, dismissed.
 
    Issued, Washington, D.C., December 4, 1986.
 
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
                          NOTICE OF 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 provide, without charge to the American
 Federation of Government Employees, AFL-CIO, Local 1345 (hereinafter
 "Local 1345"), our employees' exclusive representative, a copy of the
 requested data relating to disciplinary action against employee Nancy
 Bundy.
 
    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 provide, without charge, to Local 1345 a copy of the video
 tape for July 3, 1985, the day on which the alleged under ring by Nancy
 Bundy occurred.
 
    WE WILL make available for inspection by Local 1345 the entire cash
 register tape for the cash register used by Nancy Bundy on the day of
 the alleged under ring by Nancy Bundy, and we will provide, without
 charge, to Local 1345 a copy of such portions of said cash register tape
 as Local 1345 may designate.
                                       (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 7,
 whose address is:  535 16th Street, Suite 310, Denver, Colorado 80202
 and whose telephone number is:  (303) 837-5224.
 
 
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case No. 7-CA-50646
 
    ARMY AND AIR FORCE EXCHANGE 
    SERVICE, DALLAS, TEXAS
         Respondent
 
                                    and
 
    AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 
    AFL-CIO, LOCAL 1345
         Charging Party
 
    Luther G. Jones, Esquire
    For the Respondent
 
    Nicholas J. LoBurgio, Esquire
    For the General Counsel
 
    Before:  WILLIAM B. DEVANEY
    Administrative Law Judge
 
                                 DECISION
 
                           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.
 Section 7101, et seq., /1/ and the Final Rules and Regulations issued
 thereunder, 5 C.F.R. Section 2423.1, et seq., in essence concerns
 whether Respondent failed to comply with Section 14(b)(4) of the Statute
 and thereby violated Sections 16(a)(1) and (8) of the Statute by failing
 to provide the Union with a copy of a video-tape, although the Union had
 been shown the tape, i.e., the tape had been run on a VCR and viewed on
 a TV screen.
 
    This case was initiated by a charge filed on September 30, 1985 (G.C.
 Exh. 1(a)) which alleged violations of Sections 16(a)(1)(5) and (8);  a
 Complaint and Notice of Hearing issued on January 7, 1986 (G.C. Exh.
 1(c)), which alleged violations of Sections 16(a)(1), (5) and (8);  a
 First Amended Charge was filed on January 17, 1986 (G.C. Exh. 1(b))
 which alleged violations of Sections 16(a)(1), (5) and (8);  and an
 Amended Complaint and Amended Notice of Hearing issued on January 22,
 1986, which alleged violations of Sections 16(a)(1), (5) and (8) and set
 the hearing for February 18, 1986, pursuant to which a hearing was duly
 held on February 18, 1986, in Colorado Springs, Colorado, before the
 undersigned.
 
    All parties were represented at the hearing, were afforded full
 opportunity to be heard, to introduce evidence bearing on the issues
 involved, and were afforded the opportunity to present oral argument.
 At the close of the hearing, March 18, 1986, was fixed as the date for
 mailing post-hearing briefs, and General Counsel and Respondent each
 filed a brief, received on, or before, March 18, 1986, which have been
 carefully considered.  Upon the basis of the entire record, /2/
 including my observation of the witnesses and their demeanor, I make the
 following findings and conclusions:
 
                                 Findings
 
    1.  American Federation of Government Employees, AFL-CIO, Local 1345
 (hereinafter referred to as the "Union"), represents employees in two
 separate bargaining units at Fort Carson, Colorado.  One unit
 encompasses appropriated fund activities;  and the other covers
 non-appropriated fund Army and Air Force Exchange Service employees at
 the Fort Carson Exchange and the Pueblo Army Depot (hereinafter referred
 to as "AAFES") (G.C. Exh. 2, Tr. 16-17).  The AAFES exchange at Fort
 Carson is essentially similar to a department store.
 
    2.  Sometime in late June, 1985, about June 27, or 28, Respondent,
 through electronic surveillance specialists from its Ohio Valley
 Exchange Region, at the request of AAFES locally, began covert
 video-tape surveillance of unit employee/cashier Nancy Bundy (Tr.
 91-93).  These specialists made 14 eight hour tapes of Ms. Bundy at work
 (Tr. 95).  Upon completion of the surveillance, the surveillance
 specialists departed the area and left with Respondent's Area Security
 Specialist, Janet Scruggs, one, July 3, 1985, video-tape which contained
 an alleged infraction of procedures by Ms. Bundy.
 
    3.  Upon receipt of this video-tape, Ms. Scruggs took a VCR out of
 stock (i.e., a VCR for sale through AAFES) and showed the video-tape to
 management officials of AAFES (Tr. 96, 101-102).  On July 12, 1985, Ms.
 Bundy was issued a letter placing her on administrative leave (Tr. 60,
 61;  G.C. Exh. 3).  Ms. Bundy reported to the Union that Mr. Harry
 Reimann, at the time Fort Carson Exchange detective supervisor, when he
 delivered the letter of July 12, told her that, " . . . they had her on
 tape, that there was some alleged mishandling of merchandise, improper
 scanning or something, and that she was going to be investigated with
 possible termination." (Tr. 17).  Ms. Carolyn Gudjonsson, a Senior
 Health Technician at the Medical Activity, U.S. Army Community Hospital,
 Fort Carson, and President of the Union, called Mr. Richard Miller,
 Personnel Manager for the Rocky Mountain Area Exchange, which includes
 Fort Carson, as well as Peterson Air Force Base, the U.S. Air Force
 Academy, Lowry Air Force Base, Fitzsimons Army Medical Center, and F. E.
 Warren Air Force Base in Cheyenne, Wyoming, and told him the Union was
 concerned about Ms. Bundy being placed on administrative leave and asked
 Mr. Miller what sort of tape were they talking about (Tr. 18).  Mr.
 Miller told Ms. Gudjonsson that ". . . they had a video film or video
 tape, and also had a cash register tape that showed that she (Bundy) had
 mishandled merchandise." (Tr. 18).
 
    4.  By letter dated July 24, 1985, and addressed to Mr. Miller (G.C.
 Exh. 4), Ms. Gudjonsson, as President of the Union, pursuant to Section
 14(b)(4) of the Statute requested copies of:
 
          -1.  Vidio (sic) -tape showing alleged under-ring by Nancy
       Bundy
 
          -2.  Sales tape from the register used by Nancy Bundy on the
       day of alleged under-ring."
 
          (G.C. Exh. 4).
 
    5.  Mr. Miller testified that on the 25th or 26th of July, 1985,
 although he had not received the request of July 24, he received another
 telephone call from Ms. Gudjonsson in which she stated that, ". . . Mrs.
 Toro, who is the main store manager, would not allow them to view a copy
 of the video tape that contained the alleged under ring by Nancy Bundy.
 I responded to her by saying that I would make certain that the tape was
 made available to them for their viewing, and that I would contact Mrs.
 Toro and make her aware that we were obliged to allow the union to view
 the tape and they should arrange a mutually convenient time.  She
 mentioned the cash register tape and again, I stated that certainly we
 would make that available to them to view to look at in any way they
 wished, being this is potential evidence in a disciplinary action.  Of
 course, I didn't feel it was appropriate to simply give it to them at
 that time, but I felt it was important that they see it certainly." (Tr.
 65-66).
 
    6.  Notwithstanding Ms. Gudjonsson's formal written request of July
 24, 1985, and her telephone conversation with Mr. Miller on July 25 or
 26, 1985, Respondent did nothing with regard to the Union's requests
 until August 16, 1985, when, at the conclusion of a meeting on other
 matters, Mr. J.R. Cupples, Fort Carson Exchange Manager, told Ms. Clara
 Benson, Union Exchange representative, and Ms. Marlene Moosman, Union
 Executive Vice President, that the video tape on Ms. Bundy was available
 for them to see.  Mr. Cupples arranged for the viewing in the office of
 Mr. Mark Polczynski, AAFES Sales and Merchandise Manager.  Present in
 the room at the viewing of the tape were:  Moosman, Benson, Reimann, who
 ran the tape, Polczynski and Ms. Eleanor Richards, AAFES Detective (Tr.
 43-44).  /3/ Shortly after Mr. Reimann started the tape, Ms. Benson
 said, "Wait a minute.  Where is Nancy (Bundy)?  I thought she suppose(d)
 to be in this meeting" (Tr. 45);  and Ms. Benson said that Mr. Reimann
 responded, "Nancy has already seen the film" (Tr. 45).  Ms. Benson told
 Mr. Polczynski, ". . . we need her to review the film with us . . ." and
 Mr. Polczynski went out and paged Ms. Bundy to come to the office (Tr.
 45).  When Ms. Bundy arrived, Ms. Benson stated that she, Bundy had
 never seen the film (Tr. 45).  At any event, with Ms. Bundy present the
 video tape was run and then re-run at a slower speed and the tape was
 stopped on different actions, ". . . like for this second scan and the
 third scan." (Tr. 48).  After the video tape had been shown, Mr. Reimann
 handed Ms. Moosman the cash register receipt and stated there were ". .
 . three items on the register tape and four items on the film." (Tr.
 49).  Ms. Moosman looked at the cash register tape and then handed it to
 Ms. Benson and as Ms. Benson looked at the cash register tape, she said
 she stated, "Well, if there is four items listed, isn't it possible that
 the scanner did not pick up this item." at which point Mr. Polczynski
 said, "Well, that has happened to me several times" (Tr. 49) and Mr.
 Reimann said, "You (Polczynski) shouldn't have said that." (Tr. 49).
 Ms. Benson said she, ". . . saw four items go through over the scanner."
 (Tr. 46).
 
    7.  After review of the video tape, Ms. Moosman said she did not see
 the red light and Ms. Benson confirmed that she could not see a red
 light either (Tr. 49, 48).  The existence or non-existence of the red
 light is important to the Union's defense of Ms. Bundy because it could
 show whether or not she should have been aware that an item placed on
 the scanner had not actually been picked up by the scanner (Tr. 48, 54).
 
    8.  Mr. Reimann stated to Ms. Moosman, Ms. Benson and Ms. Bundy that,
 ". . . they had filmed Mrs. Bundy for over a week and that they had
 three to five more tapes";  but when Ms. Benson asked to see them
 because, according to Benson, "We are supposed to view all the video
 film that you have on Nancy (Bundy)", Mr. Reimann said they did not have
 them;  that they had been sent to the Ohio Valley Exchange Region in
 Charleston, Indiana, which was confirmed by Mr. Polczynski (Tr. 50).
 Ms. Benson testified that she understood that if a red light came on the
 light must cleared, by running the item over the scanner until it picks
 up the code or the price of the item is entered manually, before the
 register will give a total price of the purchases (Tr. 56).
 
    9.  After Mr. Benson and Ms. Moosman reported to Ms. Gudjonsson about
 the problems they had in reviewing the excerpt of the video tape which
 Respondent had shown, Ms. Gudjonsson, by letter dated August 19, 1985
 (G.C. Exh. 9), again requested copies of:
 
          "-1.  Copy of the video (sic) tape showing alleged under ring
       by Nancy Bundy.
 
          -2.  Copy of the sales register tape used on day of alleged
       under ring.
 
          -3.  Documentation reflecting any and all other data relied
       upon to substantiate the reasons for the proposed removal."
 
          (G.C. Exh. 9).
 
    10.  By letter dated August 23, 1985 (G.C. Exh. 10), Ms. Gudjonsson
 expanded her request and asked for,
 
          "1.  All vidio (sic) films or all employees for the last two
       months, to include the months of July and August, 1985."
 
          (G.C. Exh. 10).
 
    11.  In the meantime, on August 2, 1985, Ms. Bundy had been given an
 "Advance Notice of Separation for Cause" (G.C. Exh. 5), which was
 rescinded by letter dated August 6, 1985, "Due to a procedural error . .
 ." (G.C. Exh. 6);  however, a further "Advance Notice of Separation for
 Cause" was given to Ms. Bundy on August 7, 1985 (G.C. Exh. 7).  Ms.
 Bundy responded by letter dated August 9, 1985 (G.C. Exh. 8), and, inter
 alia designated as her representative," AFGE Local 1345 and Mary McRae,
 Union Steward or her designee." (G.C. Exh. 8).  By letter dated August
 28, 1985, Ms. Bundy was given "Final Notice of Separation for Cause"
 (G.C. Exh. 11).
 
    12.  On September 13, 1985, Ms. Bundy filed a 1st Step Grievance
 (G.C. Exh. 12).
 
    13.  On the same date that Ms. Bundy filed her grievance, September
 13, 1985, Mr. Miller, for the first time responded to Ms. Gudjonsson's
 information requests.  His letter, dated September 13, 1985 (G.C. Exh.
 13) stated as follows:
 
          "1.  Reference your letters . . . dated 19 and 23 August 1985.
       (Mr. Miller denied ever having received Ms. Gudjonsson's letter of
       July 24, 1985)
 
          "2.  A copy of the video tape showing the 'alleged under ring
       by Nancy Bundy' is not available.  Ms. Bundy and her
       representative reviewed his video tape on 16 August 1985, and the
       original tape is available for your further review at a mutually
       acceptable time.  Should you feel that a copy is required, we
       would create a copy of the tape provided the Union would be
       willing to reimburse Management for any expense incurred.  Please
       advise us if you should wish to again view the tape, or if a copy
       is required.  (Emphasis supplied).
 
          "3.  The cash register tape used on the day of the alleged
       under ring was also reviewed by Ms. Bundy and her representative
       on 16 August 1985.  As we discussed in an earlier telephone
       conversation, Management will provide a copy of the appropriate
       segment of that cash register tape.  Should you wish to review the
       entire tape again, it can be made available at a mutually
       acceptable time.
 
          "4.  There is no other documentation or data which was relied
       upon by Management in making a decision to propose Ms. Bundy's
       separation for cause.
 
          "5.  Your request for 'All video films on all employees for the
       last two months to include the months of July and August, 1985,'
       has been carefully considered, and Management is unconvinced that
       those tapes would constitute relevant data in this matter.  We
       will consider any further input you might have on this matter."
       (G.C. Exh. 13).
 
    14.  Ms. Bundy's grievance was denied at the first step;  on
 September 23, 1985, was elevated to the second step (G.C. Exh. 14),
 where it was denied on September 26, 1985 (G.C. Exh. 16).  On the same
 day, that the second step grievance was denied, September 26, 1985, Mr.
 Miller provided Ms. Gudjonsson with a copy of a section of the cash
 register tape which shows the transaction in question (G.C. Exh. 15).
 On October 1, 1985, Ms. Bundy elevated her grievance to the third step
 (G.C. Exh. 17);  and on October 21, 1985, Mr. Cupples reduced the
 separation to a 14 calendar day suspension, which he considered to have
 been served, and reinstated Ms. Bundy to a non-cash-handling position,
 effective August 31, 1985 (G.C. Exh. 18).  By letter October 22, 1985,
 the "settlement offered" by Mr. Cupples at the third step was rejected
 (G.C. Exh. 19);  by letter dated October 24, 1985, Mr. Cupples advised
 Ms. Gudjonsson that his letter of October 21, was "not an offer of
 settlement, but rather my final decision on her grievance" (G.C. Exh.
 20).  Mr. Cupples further advised that by returning to work Ms. Bundy
 "does not waive any rights she may have to grieve the personnel action
 taken in my final decision." (G.C. Exh. 20).  By letter dated October
 28, 1985, Ms. Gudjonsson advised Mr. Cupples that Ms. Bundy would return
 to work on October 31, 1985, in a non-cash-handling position, with the
 understanding that this, ". . . in no way waivers any of her rights in
 the grievance/arbitration process . . . . ." (G.C. Exh. 21).  On October
 25, 1985, a request for arbitration panel was filed (G.C. Exh. 22).  At
 the time of the hearing, an arbitrator had not been selected and Ms.
 Gudjonsson testified that the Union still needs the requested data for
 the pending arbitration (Tr. 39, 40, 41).
 
    15.  In order to produce a copy of a video tape, two VCRs are
 required (Tr. 99, 100), with, of course, the necessary connections.  The
 tape in question was recorded at the slowest possible speed and, to play
 the tape back, the VCRs must be capable of speed adjustment to this slow
 speed, a feature not all VCRs have.  VCRs, if capable of the necessary
 speed adjustment, could be taken out of stock and used for this purpose;
  or the surveillance specialists, who have the necessary equipment,
 could make a copy.  The estimated cost of each blank video tape was
 $4.00 to 6.00 (Tr. 101) and, once started, the process is automatic (Tr.
 101).
 
    16.  Ms. Gudjonsson testified that the Union needed copies of both
 the video tape and the cash register tape for a variety of reasons:  a)
 because most of the Union's grievance work by representatives is done
 after normal business hours;  b) the need to show the video tape to
 co-workers of Ms. Bundy, either after hours or at their homes, to
 determine what the normal procedures for cashiers were and whether Ms.
 Bundy was being treated disparately (Tr. 25, 26, 28, 32);  c) the Union
 needed to review the video tape privately so that they could openly
 discuss the pros and cons of the case;  d) the Executive Board is
 required to review all available evidence before making a decision to
 take the case to arbitration (Tr. 30);  e) the Executive Board members
 are primarily appropriated fund employee and must take annual leave to
 work on AAFES cases;  f) review of the video tape alone is not
 satisfactory because to correlate events before, during and after the
 alleged infraction, the entire cash register receipt must be reviewed
 (Tr. 33).  Ms. Benson testified that copies of the data were needed for
 similar reasons (Tr. 51, 52, 53).
 
                                Conclusions
 
    Section 14(b)(4) of the Statute provides:
 
          "(b) The duty of an agency . . . 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 . . ."
 
          (5 U.S.C. Section 7114(b)(4)).
 
    It is well established that a union's right to receive, and the
 agency's obligation to furnish, such data pursuant to Section 14(b)(4)
 extends to the union's statutory representational obligation in the
 processing of an employee grievance.  Bureau of Alcohol, Tobacco and
 Firearms, National Office and Western Region, San Francisco, California,
 8 FLRA No. 108, 8 FLRA 547 (1985);  Veterans Administration Regional
 Office, Denver Colorado, 10 FLRA No. 78, 10 FLRA 453 (1982).
 
    At the hearing, counsel for Respondent conceded that video tapes and
 cash register tapes constituted "data", within the meaning of Section
 14(b)(4) of the Statute, for the purpose of this case (Tr. 107).  In any
 event, I specifically find that business records, regardless of physical
 form, constitute data within the meaning of Section 14(b)(4) of the
 Statute.  See, for example, Long v. Internal Revenue Service, 596 F.2d
 362 (9th Cir. 1979);  44 U.S.C. Section 3301.
 
    1.  Request for video tape showing alleged under ring.
 
    Respondent advances two defenses:  First, that in its requests /4/
 the Union did not set forth reasons why copies the data requested were
 necessary.  Thus, Respondent states,
 
          "There has been no refusal to provide data to the Union.  The
       obligation to provide the basis for the Union's conclusion that
       certain data is 'necessary,' as required by Section 7114
       (b)(4)(B), rests upon the Union.  The Activity cannot be compelled
       to guess.  At the time the letter of September 13, 1985 (G.C.
       Exhibit 13) was written, the Activity had no knowledge of the
       reason the Union sought a copy of the video tape.  In this letter
       the Activity's last sentence was a request for further input,
       i.e., "(w)e will consider any further input you might have on this
       matter.' Instead of providing the Activity an explanation, the
       Union filed its unfair labor practice charge (G.C. Exhibit 1a) and
       did not disclose, until the day of trial, the basis for its
       conclusion that a copy was 'necessary.' The Activity has been
       denied an opportunity to consider such basis and, therefore,
       cannot be considered to have refused." (Respondent's Brief, pp.
       1-2).
 
    It is certainly true that the Union did not set forth in detail the
 reasons for its need for copies of the video tape and cash register
 tapes in its requests.  The Union merely stated,
 
          "Such information is necessary /5/ to evaluate the grounds for
       a grievance or other applicable action beyond PL 95-454." (G.C.
       Exhs. 4, 9 and 10).
 
    Nevertheless, the short answer to Respondent's assertion is that
 Respondent never asked why the Union needed the copies of the data
 requested.  As I stated, in Internal Revenue Service, Memphis Service
 Center and National Treasury Employees Union, Case No. 4-CA-30371,
 OALJ-84-66, ALJ Decisions Report No. 38 (July 5, 1984), " . . . an
 agency acts at its peril if it refuses to furnish data without asking
 for a reason.  Then, of course, the union may subsequently show its
 justification for the request.  Where an agency sought clarification of
 the reason for a request and the union failed to respond, refusal to
 furnish the data requested was not an unfair labor practice.  Internal
 Revenue Service, Buffalo District, Buffalo, New York, 7 FLRA No. 102, 7
 FLRA 654 (1982)." (Case No. 4-CA-3071 at p. 7);  see, also, Department
 of Health and Human Services, Social Security Administration, Field
 Operations, New York Region, 21 FLRA No. 35, 21 FLRA 253 (1986).
 
    The Union's written requests of July 24 and August 19, 1985 had been
 for copies of:
 
          "-1.  Vidio (sic) - tape showing alleged under-ring by Nancy
       Bundy" (July 24;  G.C. Exh. 4)
 
          "-1.  Copy of the vidio (sic) tape showing alleged under ring
       by Nancy Bundy." (August 19;  G.C. Exh. 9)
 
          "-2.  Sales tape from the register used by Nancy Bundy on the
       day of alleged underring." (July 24;  G.C. Exh. 4)
 
          "-2.  Copy of the sales register tape used on day of alleged
       under ring." (August 19;  G.C. Exh. 9).
 
    On August 23, 1985, the Union requested copies of:  "-1 All vidio
 (sic) films on all employees for the last two months, to include the
 months of July and August, 1985." (G.C. Exh. 10).  Mr. Miller, in his
 letter of September 13, 1985, first responded to the request of August
 19, 1985 (he denied ever having received the request of July 24, 1985,
 although the request was addressed to him) and in the final paragraph
 responded to the request of August 23, 1985.  As the request of August
 23 was vastly different, as was the response, this request will be
 considered hereinafter.
 
    The Union's request of August 19, and the wholly identical request of
 July 24, for a copy of the video tape ". . . showing alleged under ring
 by Nancy Bundy" was not denied because the Union had not shown the
 reason for need of the copy;  nor did Respondent request further
 justification than, as the Union had asserted, "Such information is
 necessary in order to evaluate the grounds for a grievance or other
 applicable action beyond PL 95-454" (G.C. Exh. 9).  To the contrary,
 Respondent, in its response of September 13, 1985, stated:
 
          "2.  A copy of the video tape showing the 'alleged underring by
       Nancy Bundy' is not available . . .  Should you feel that a copy
       is required, we would create a copy of the tape provided the Union
       would be willing to reimburse Management for any expenses incurred
       . . .  Please advise us . . . if a copy is required." (G.C. Exh.
       13) (Emphasis supplied).
 
    Consequently, Respondent's assertion, that, "The Activity has been
 denied an opportunity to consider such basis (i.e. "that a copy was
 'necessary'") . . ." is without basis and is rejected.
 
    The Union has demonstrated that a copy of the video tape "showing
 alleged under ring" was ". . . both necessary and relevant to enable the
 Union to fulfill its legitimate representational role in processing the
 employee's grievance . . ." Veterans Administration Regional Office,
 Denver, Colorado, supra, 10 FLRA at 454.  Moreover, Mr. Miller,
 Respondent's Personnel manager, testified that, since the video tape and
 the cash register tape was the only evidence against Ms. Bundy (Tr. 77),
 it was "important" that the Union see it (Tr. 66);  "that the Union had
 a right to see all of the video tape and all of the cash register
 receipts . . ." (Tr. 79-80);  and counsel for Respondent at the hearing
 stated, ". . . I believe there is a basis to the union's position that
 they would have the right to review the video tape covering transactions
 that occurred previous to and after in order to satisfy themselves that
 there was nothing unusual or particularly misrepresentative of the
 particular transaction involved." (Tr. 112-113).
 
    Once it is established that data, which in this case obviously was
 "reasonably available," is necessary to enable the Union to process the
 employee's grievance, and as shown this was readily admitted by
 Respondent, I do not agree with Respondent that the Union must show
 further necessity for a copy of the data which has already been shown to
 be "necessary for full and proper discussion, understanding, and
 negotiation of subjects within the scope of collective bargaining"
 (Section 14(b)(4)(B)), "collective bargaining", of course, encompassing
 the processing of grievances).  When a request for data covers various
 different items, production of the requested items for examination by
 the Union may be sufficient initial compliance with the "furnish"
 requirement of Section 14(b)(4);  and a request for copies of some, or
 all, of the items "furnished" may be subject to a showing that they are
 "necessary" since there has not been a determination that any particular
 item is necessary for the purposes of Section 14(b)(4).  But when, as
 here, the video tape has been shown to be, and conceded to be, necessary
 for the purposes of Section 14(b)(4), no further showing of necessity
 may be required.  In any event, General Counsel in this case has shown
 the particular need of the Union for a copy of the video tape "showing
 alleged under ring."
 
    In truth, Respondent's actual concern relates to whether it should
 have to make a copy of a video tape as it conceded at the hearing that
 if this had been a written document, "Under the present state of law,
 they would be entitled to have copies of those documents without cost."
 (Tr. 108).  Since this is Respondent's second defense, it will be
 addressed hereinafter.
 
    If Respondent had provided the Union with a copy of the segment of
 the video tape which showed the "alleged under ring," i.e. the
 approximately 30 second segment shown to the Union on August 16, 1985, I
 would have found no violation since the Union's requests easily could
 have been construed to have asked for no more;  but, from the record it
 is clear that the Union asked for a copy of the entire video tape which
 showed the alleged under ring;  that Respondent so understood the
 Union's request;  and Counsel for Respondent conceded that the Union had
 ". . . the right to review the video tape covering transactions that
 occurred previous to and after . . ." (Tr. 112-113).  Indeed, Respondent
 has made no distinction between providing a copy of a segment of the
 video tape and the entire video tape.
 
    2.  All video tapes on all employees.
 
    The Union's request of August 23, 1985, was for:
 
          "-1.  All vidio (sic) films on all employees for the last two
       months, to include the months of July and August, 1985" (G.C. Exh.
       10).
 
    As to this request, Mr. Miller responded, in relevant part,
 
          ". . . Management is unconvinced that those tapes would
       constitute relevant data in this matter . . ." (G.C. Exh. 13).
 
    With regard to the August 23, 1985, request, Respondent clearly
 questioned the relevancy of additional tapes and, effectively, asked for
 justification to which the Union failed to respond and for this reason
 alone, Respondent's refusal to furnish the tapes requested on August 23,
 1985, was not an unfair labor practice.  Internal Revenue Service,
 Buffalo District, Buffalo, New York, supra;  Department of Health and
 Human Services, Social Security Administration and Social Security
 Administration, Field Operations, New York Region, supra.  Moreover,
 nothing in the record shows any relevancy or materiality of such
 additional tapes and/or that such data is necessary for the purposes of
 Section 14(b)(4)(B).  To the contrary, although Ms. Bundy was taped for
 fourteen days and possibly other employees would have used the same cash
 register, e.g., during Ms. Bundy's absence on breaks, etc., when the
 surveillance specialists left Fort Carson they took all tapes with them
 except the one tape, for July 3, 1985, on which the alleged under ring
 was shown.  Not only was no portion of any other tape used or relied
 upon in any manner by management in regard to the proposed disciplinary
 action taken against Ms. Bundy, but no representative of management ever
 saw any portion of any of the other thirteen tapes.  Accordingly, I find
 that such data was not necessary and Respondent's failure to furnish
 such data was not an unfair labor practice.
 
    Respondent's second defense is stated as follows:
 
          "It is not consistent with effective and efficient government
       to require an activity to provide a file copy of a video tape to
       the unions for the purposes of a 'private showing' where access to
       the original video tape is made available to the union.  The
       Union's basis for establishing the necessity required by Section
       7114(b)(4)(B) is a need for a 'private showing.' There is no
       question that such a 'private showing' is of value to the Union.
       The question presented here is whether the Activity should bear
       the costs of providing a copy of the video tape for the Union's
       private showing.' Where the Activity has provided the Union access
       to the original video tape, having otherwise not interfered with
       all access necessary to the Union, it is not consistent with an
       'efficient' government, as required by Section 7101(b), to require
       government agencies and activities to pay the cost of this
       'private showing.'
 
          "There is no obligation under the statute or legislative
       history to provide, free of charge, any data to the Union.  The
       Respondent is aware of Authority precedent prohibiting the release
       of data conditioned upon the payment of a reasonable fee.  The
       Respondent makes this assertion to preserve its rights to raise
       the issue upon appeal." (Respondent's Brief, pp. 2-3).
 
    Respondent's "private showing" argument would be no different whether
 the data in question was a written document or a video tape.  There is
 at least the same need for a copy of written document, i.e., for a
 'private showing', as for a copy of a video tape, and perhaps an even
 greater need for a copy of a video tape since it would be far more
 difficult to make notations of all that was seen than to make notes of
 what appeared in a written document.  The right to inspect and copy is
 well established, e.g., Rules 26(b) and 34 of the Federal Rules of Civil
 Procedure;  /6/ by decision under the National Labor Relations Act, The
 Cincinnati Steel Castings Company, 86 NLRB 592 (1949);  /7/ is not
 questioned here;  nor may it be, inasmuch as the Statute requires that,
 
          "(b) The duty of an agency . . . shall include the obligation
       --
 
                       . . .
 
 
          "(4) . . . to furnish to the exclusive representative involved
       . . . data . . ." (5 U.S.C. Section 7114(b)(4).
 
    Respondent made at least the segment of the video tape showing the
 "alleged under ring by Nancy Bundy" available to the Union for viewing
 and offered to "create a copy of the tape provided the Union would be
 willing to reimburse Management for any expense incurred." Thus, as
 Respondent recognizes the "bottom line" is whether Respondent failed to
 comply with the requirements of Sections 14(b)(4) and thereby violated
 Sections 16(a)(1),(5) and (8) of the Statute by failing and refusing to
 provide the Union a copy of the videotape without cost.
 
    In Veterans Administration Regional Office, Denver, Colorado, 10 FLRA
 No. 78, 10 FLRA 453 (1982), the Authority held that the agency, or
 activity, violated its duty to negotiate in good faith, and failed to
 comply with the requirements of Section 14(b)(4), in violation of
 Sections 16(a)(1), (5) and (8) of the Statute, by requiring payment for
 a copy of necessary data requested by the union in order to fulfill its
 representational role in connection with an employee's grievance.  Judge
 Arrigo, in a well reasoned decision and in reliance upon:  a) the
 silence of the Statute, as to the conditions under which the information
 is to be furnished, including whether a charge may be exacted;  b) that
 the legislative history does not address the matter of a charge for
 data;  c) that no counterpart to Section 14(b)(4) existed under the
 Executive Order and the question of requiring a fee for providing such
 information had not resolved under the Order;  and d) decisions by the
 National Labor Relations Board which do not require the employer to bear
 the burden of the cost of duplicating material (10 FLRA at 466-467), had
 concluded that under the Statute the respondent ". . . was not obligated
 to provide the Union copies of the documents in question without
 charge." (10 FLRA at 467).  The Authority reversed and stated,
 
          "Section 7114 of the Statute prescribes the representation
       rights and duties of the parties in a collective bargaining
       relationship.  Part of an agency's statutory duty to negotiate in
       good faith, as set forth in section 7114(b)(4) is 'to furnish to
       the exclusive representative . . . upon request and, to the extent
       not prohibited by law, data, as further described therein.
       (footnote omitted).  In using the term 'furnish,' Congress did not
       specify either in the Statute or its legislative history whether
       an agency may assess a charge for such data requested by an
       exclusive representative.  However, noting particularly that the
       obligation to furnish such data is an integral part of an agency's
       duty to negotiate in good faith under section 7114(b)(4), as
       mandated by Congress, the Authority concludes that it would
       further Congressional intent to require an agency to furnish the
       data, subject to the limitations and conditions of section
       7114(b)(4)(A), (B) and (C), without charge to the exclusive
       representative.
 
          "Such conclusion is also consistent with the common meaning of
       the term 'furnish.' In accordance with the general rules of
       statutory construction, words in the Statute are given their
       common meaning unless a contrary legislative intent is indicated.
       (footnote omitted).  There is nothing in the language of the
       Statute or in the relevant legislative history which suggests that
       the term 'furnish' as used in section 7114(b)(4) should be given
       any meaning other than that commonly ascribed to it.  In this
       regard, the common meaning of the term 'furnish' is to provide,
       supply or give (footnote omitted).  Thus, in the context of
       section 7114(b)(4), the Authority's conclusion that an agency's
       obligation to 'furnish' the exclusive representative with a copy
       of necessary data upon requests means to give such data without
       cost to the exclusive representative is consistent with the
       literal language of the statute.  /8/
 
          "In addition, the foregoing conclusion gives meaning to section
       7114(b)(4), whereas a contrary interpratation would render that
       section merely duplicative of rights already established under the
       Freedom of Information Act (FOIA) . . .
 
          "Accordingly, contrary to the Judge, the Authority concludes
       that the Respondent herein violated its duty to negotiate in good
       faith, and failed to comply with the requirements of section
       7114(b)(4), in violation of section 7116(a)(1), (5) and (8) of the
       Statute, by requiring the Union to pay for a copy of necessary
       data requested by the Union (footnote omitted) in order to fulfill
       its representational role in connection with an employee's
       grievance.  (footnote omitted).  (10 FLRA 456-458).
 
    Veterans Administration Regional Office, Denver, Colorado, supra, has
 been consistently followed;  however, I am aware that the Authority has
 stated, for example in Bureau of Alcohol, Tobacco and Firarms, National
 Office, Washington, D.C., 18 FLRA No. 74, 18 FLRA 611, 613 (1985);  U.S.
 Equal Employment Opportunity Commission, Washington D.C., 20 FLRA No.
 37, 20 FLRA 357, 358 (1985), that:
 
          "The duty to supply data under section 7114(b)(4) thus turns
       upon the nature of the request and the circumstances in each
       particular case."
 
    Although such statement did not relate to furnishing a copy of data
 without charge to the exclusive representative, I have no doubt that in
 a proper case the difficulty and cost of producing a copy, together with
 the circumstances of use and access to the original data afforded would
 be proper considerations;  but that is not presented in this case.
 Respondent permitted the Union to view only a short 30 second segment of
 the video tape and only in the presence of various management officials,
 which prevented detailed and careful analysis;  inhibited frank and open
 discussion by Union representatives;  afforded no opportunity for the
 Union to show the video tape to other necessary representatives and
 employees to evaluate the procedures shown;  to correlate visual
 transaction with cash register tape entries;  or, indeed, to evaluate
 the presumed identity of Ms. Bundy as the person on the video tape.
 Moreover, the only cost shown was the estimated $4.00 to $6.00 cost for
 a video tape cassette.  Although the VCRs would have to be started, once
 started the process is automatic.  Further, the video tape cassette,
 when no longer required, is fully reusable and could be returned for
 further use.  Respondent does not deny its capacity, whether by its
 surveillance specialists or by use of VCRs at the Exchange, to produce a
 copy of the video tape -- indeed, Respondent stated, ". . . we would
 create a copy of the tape provided the Union would be willing to
 reimburse Management for any expense incurred."
 
    Respondent conceded the need of the Union to examine the cash
 register tape used on the day of the alleged under ring and, eventually,
 furnished a copy of a short segment of the cash register tape which
 concerned the particular transaction.  The record does show that to copy
 the entire cash register tape would be difficult and the copy of poor
 quality.  The record devoted scant attention to either the asserted need
 or desire of the Union for a copy of the entire cash register tape for
 the day in question.  Accordingly, I shall order the entire cash
 register tape for the day in question to be made available to the Union
 for its examination and, further, that a copy of such portions as
 requested by the Union be furnished.
 
    Accordingly, having found that Respondent failed to comply with the
 requirements of Section 14(b)(4) of the Statute and thereby violated
 Sections 16(a)(1), (5) and (8) of the Statute by its refusal to furnish
 the Union a copy of necessary data requested in order to fulfill its
 representational role in connection with an employee's grievance, I
 recommend that the Authority adopt the following:
 
                                   ORDER
 
    Pursuant to Section 18(a)(7) of the Statute, 5 U.S.C. Section
 7118(a)(7), and Section 2423.29 of the Regulations, 5 C.F.R. Section
 2423.29, the Authority hereby orders that Army and Air Force Exchange
 Service, Dallas, Texas, shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to provide, without charge to the
       American Federation of Government Employees, AFL-CIO, Local 1345
       (hereinafter referred to as "Local 1345"), the employees'
       exclusive representative, a copy of the data requested by Local
       1345 relating to disciplinary action against employee Nancy Bundy.
 
          (b) In any like or related manner interfering with,
       restraining, or coercing employees in the exercise of their rights
       guaranteed by the Federal Service Labor-Management Relations
       Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Provide, without charge, to Local 1345 a copy of the video
       tape for July 3, 1985, the day on which the alleged under ring by
       Nancy Bundy occurred.
 
          (b) Make available for inspection by Local 1345 the entire cash
       register tape for the cash register used by Nancy Bundy on the day
       of the alleged under ring by Nancy Bundy and provide, without
       charge, to Local 1345 a copy of such portions of said cash
       register tape as Local 1345 may designate.
 
          (c) Post at its facilities at the Army and Air Force Exchange
       Service, Fort Carson, Colorado, 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 of the Army and Air Force Exchange Service, Fort Carson,
       Colorado, and shall be posted and maintained by him for 60
       consecutive days thereafter, in conspicuous places, including all
       bulletin boards and other places where notices to employees are
       customarily posted.  The appropriate official shall take
       reasonable steps to insure that such Notices are not altered,
       defaced, or covered by any other material.
 
          (d) Pursuant to Section 2423.30 of the Authority's Rules and
       Regulations, notify the Regional Director of Region VII, Federal
       Labor Relations Authority, Suite 310, 535 16th Street, Denver,
       Colorado 80202, in writing, within 30 days of this Order, as to
       what steps have been taken to comply herewith.
 
    IT IS FURTHER ORDERED that that portion of the Complaint which
 relates to Local 1345's request for data of August 23, 1985, be, and the
 same is hereby, dismissed.
 
                                       /s/ WILLIAM B. DEVANEY
                                       Administrative Law Judge
 
    Dated:  May 15, 1986
    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
 statutory reference, e.g. Section 7114(b)(4) will be referred to,
 simply, as "Section 14(b)(4)."
 
    (2) General Counsel filed a Motion to Correct Transcript of the
 Proceedings;  Respondent made no objection;  and having found the
 requested corrections entirely proper.  General Counsel's motion is
 hereby granted and the transcript is hereby corrected as more fully set
 forth in the Appendix hereto.
 
    (3) It would appear that the video tape was shown to the Union on a
 second occasion when the tape was released, at Mr. Cupples request, to
 Ms. Richards to "show it again." (Tr. 97, 98).
 
    (4) Inasmuch as the Union renewed its request on August 19, 1985, I
 find it unnecessary to decide whether Respondent did, or did not,
 receive the request of July 24, 1985.
 
    (5) The words "in order" were added, following "necessary" and before
 "to" in the requests of August 19, and 23, 1985.
 
    (6) Rule 34 provides, in part, that,
 
          "(a) Scope.  Any party may . . . inspect and copy, any
       designated documents (including writings, drawings, graphs,
       charts, photographs, phono-records, and other data complications
       from which information can be obtained, translated, if necessary,
       by the respondent through detection devices into reasonably usable
       form) . . . "
 
    Copying is by the party requesting the data and at that party's cost;
  but such cost may be recovered if that party prevails and is awarded
 costs.
 
    (7) The LMRA contains no provision comparable to Section 14(b)(4);
 but the NLRB does not require an employee to furnish such information
 without cost, absent some evidence of bad faith.  Abercrombie & Fitch
 Co., 206 NLRB 464 (1973).
 
    (8) The Judge's discussion of private sector cases in reaching a
 contrary conclusion is deemed inopposite, noting particularly the
 absence of any provisions simi