30:0331(41)CA - 22nd Combat Support Group (SAC), March AFB, CA and AFGE Local 3854 -- 1987 FLRAdec CA



[ v30 p331 ]
30:0331(41)CA
The decision of the Authority follows:


30 FLRA No. 41

22ND COMBAT SUPPORT GROUP (SAC),
MARCH AIR FORCE BASE, CALIFORNIA

                    Respondent

      and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, INTERDEPARTMENTAL LOCAL
3854, AFL-CIO

                    Charging Party

Case No. 8-CA-60265

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the General Counsel. The Respondent filed an opposition to the exceptions. The issue is whether, as alleged in the complaint, the Respondent violated section 7116(a)(1), (5) and (8) of the Federal Service Labor - Management Relations Statute (the Statute) when it refused to provide the Charging Party (the Union) with certain regulations concerning military leave for civilian employees.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge and find that no prejudicial error was committed. The rulings are affirmed. In agreement with the Judge, we find that the Respondent has not committed the unfair labor practice as alleged. However, we reach this determination for different reasons than the Judge.

II. Background

The Union is the exclusive representative of a unit of the Respondent's employees. On October 23, 1985, the Union filed a grievance alleging that the Respondent had forced employees &into military leave status without the consent of the employees.& On February 27, 1986, the Respondent denied the grievance, citing Air Force Regulations (AFRs) 40-630 and 40-631 as authority for its position. [PAGE]

On May 21, 1985, the Union and the Respondent entered into a memorandum of agreement in settlement of a previous unfair labor practice charge. The agreement had no expiration date and set forth a specific procedure to be followed by the union for requesting information for representational purposes. Under the agreement, the Union was required to file requests for such information with the Respondent's labor relations officer. On January 23, 1986, the Union sent a letter to the Respondent stating that it cancelled the memorandum of agreement. The Respondent did not reply to the Union's letter.

On March 28, April 8, and April 16, 1986, the president of the Union wrote letters to the Respondent's commander requesting "a full and complete copy of all applicable regulations that address military leave for civilian employees including Federal Personnel Manual 630 series and appropriate Air Force Regulations." The commander returned the first two requests explaining that they had not been addressed to the Respondent's labor relations officer as required by the memorandum of agreement between the parties. The labor relations officer orally repeated the same explanation to the president in response to the third request.

III. Administrative Law Judge's Decision

Before the Judge, the General Counsel argued that under the terms of section 7114(b)(4) of the Statute, the Respondent was obligated to furnish the requested information. In addition, the General Counsel maintained that the Union was not required to submit its request for the information to any specific officer of the Respondent. The General Counsel argued that the Union had properly terminated the memorandum of agreement because it involved a permissive subject of bargaining. Before the Judge, the Respondent argued that there was no violation because the Union had not submitted its request as required by the memorandum of agreement, which the Respondent maintained was still applicable despite the Union's cancellation letter.

The Judge concluded that the Respondent was not obligated under section 7114(b)(4) to furnish the information requested by the Union. He found that section 7114(b)(4) applies only to information in an agency's sole possession and not easily obtainable by the exclusive representative from any other source. In this case he found that both the AFRs and the Federal Personnel Manual (FPM) were available [ v30 p2 ] in libraries to which all employees have easy and unlimited access. in addition, he found that the unchanged AFR 40-630 and AFR 40-631 had been previously supplied the Union by the Respondent and that the FPM was not necessary within the meaning of section 7114(b)(4) because the FPM had not been relied on by the Respondent in denying the grievance.

Consequently, the Judge determined that the Respondent had not violated the Statute and recommended that the complaint be dismissed. In view of this determination, the Judge found it unnecessary to consider the validity of the memorandum of agreement.

IV. Positions of the Parties

In its exceptions to the Judge's decision, the General Counsel contends that section 7111(b)(4) requires an agency to furnish information to the exclusive representative. Consequently, the General Counsel argues that this statutory obligation cannot be fulfilled by directing the Union to the Air Force Base libraries. The General Counsel also contends that the Respondent cannot be relieved of its obligation to furnish the information on the ground that the information had previously been provided because the Respondent failed to object to the requests on this basis. Finally, the General Counsel repeats his view that the Respondent cannot rely on the memorandum of agreement because it was properly rescinded by the Union.

In its opposition the Respondent supports the decision of the Judge. In addition, the Respondent repeats its argument that it could properly refuse to furnish the requested information because of the Union's failure to submit the request as required by the memorandum of agreement. The Respondent maintains that the Union's unilateral abrogation of the agreement was not effective.

V. Analysis

We agree with the Judge that the complaint must be dismissed. However, we base our dismissal on the parties' 1985 memorandum of agreement setting forth a specific procedure to be followed by the Union for requesting information for representational purposes.

As found by the Judge, the memorandum of agreement clearly required Union requests for information to be submitted to the Respondent's labor relations officer. The [ v30 p3 ] Union submitted its request to the commander because in its view, the memorandum of agreement had been terminated. The Respondent maintains that the Union's unilateral cancellation of the agreement is not effective.

In our view, this case involves differing and arguable interpretations of the memorandum of agreement. In cases such as this one, involving disputed interpretations of a negotiated agreement, the aggrieved party's remedy is through the grievance and arbitration procedures available to the parties rather than through unfair labor practice procedures. See, for example, Department of Health and Human Services, Social Security Administration and Social Security Administration Field Operations, New York Region, 23 FLRA 422 (1986).

VI. Conclusion

We conclude that the Respondent's refusal to furnish information requested by the Union on March 28, April 9 and April 16, 1986, did not violate section 7116(a)(1), (5) and (8) of the Statute because it was based on an arguable interpretation of the parties' 1985 memorandum of agreement.

VII. Order

The complaint in Case No. 8-CA-60265 is dismissed.

Issued, Washington, D.C., November 30, 1987.

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY [ v30 p4 ]

22 COMBAT SUPPORT GROUP
(SAC) MARCH AIR FORCE BASE,
CALIFORNIA

              Respondent

    and

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
INTERDEPARTMENTAL LOCAL
3854, AFL-CIO

              Charging Party

Case No. 8-CA-60265

John R. Pannozzo, Jr., Esquire
Kenneth P. Russell, Esquire
         For the General Counsel

Lt. Colonel Lewis G. Brewer
         For the Respondent

Before: BURTON S. STERNBURG
         Administrative Law Judge

DECISION

Statement of the Case

This is a proceeding under the Federal Service Labor - Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. Section 7101, et seq. and the Rules and Regulations issued thereunder.

Pursuant to amended charges first filed on April 28, 1986, by American Federation of Government Employees, Interdepartmental Local 3854, AFL - CIO, (hereinafter called the Union or Charging Party), a Complaint and Notice of Hearing was issued on August 12, 1986, by the Regional [PAGE] Director for Region VIII, Federal Labor Relations Authority, Los Angeles, California. The Complaint alleges that the 22 Combat Support Group (SAC), March Air Force Base, California, (hereinafter called the Respondent or SAC) violated Sections 7116(a)(1), (5) and (8) of the Federal Service Labor - Management Relations Statute, (hereinafter called the Statute), by refusing to furnish the union certain regulations dealing with military leave for civilian employees.

A hearing was held in the captioned matter on November 21, 1986, in Los Angeles, California. All parties were afforded the full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues involved herein. The General Counsel and the Respondent submitted post hearing briefs which have been duly considered.

Upon the basis of the entire record, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions and recommendations.

Findings of Fact

On October 23, 1985, the Union, which is the exclusive representative of all employees, with certain named exceptions, paid from appropriated funds and located at March Air Force Base, California, filed a grievance under Article 32, Section 11(a) of the negotiated procedure alleging that Respondent had forced certain named employees "into military leave status without the consent of the employees." 1

On February 11, 1986, a meeting was held between Mr. Antonio Carraway, the Union's President, Mr. John Walker, a Union Steward, Mr. Clay Fruit, the Respondent's Labor Relations Officer, and Colonel Clayton Ford, Commander of the Respondent's 943rd Tactical Airlift Group. Although the parties are in disagreement as to whether the meeting was held pursuant to the provisions of the grievance procedure, the parties all acknowledge that a discussion of the substance of the grievance did take place. [ v30 p2 ]

At the February 11, 1986, meeting the Union contended that military leave was similar to annual leave or vacation time and could only be scheduled at the convenience and request of the employee. Respondent citing Air Force Regulation 40-631 took the position that military leave was not to be utilized at the pleasure or request of the employees. According to the credited testimony of Mr. Fruit, during the meeting there was no mention of the Federal Personnel Manual (FPM) by Respondent. Further, according to Mr. Fruit, at the meeting he gave the Union the pertinent page of AFR 40-631. According to the record AFR 40-631 is a three to five page document. AFR 40-630, which will be mentioned infra, is a twelve to fifteen page document.

On February 27, 1986, Colonel Ford, acting as the "designee" for the Respondent, responded to the Union's pending grievance as follows:

2. Unlike annual leave, which is requested by employees at various times to use for vacation and other matters personal to the employee, military leave is a benefit which allows reservists time off from their jobs without charge to annual leave when in active duty status. Because a reservist cannot always control when active duty is to be performed, it is not appropriate to schedule the military leave in the same manner as annual leave.

3. Further, AFR 40-631 clearly specifies that military leave must be exhausted before an employee may use annual or leave without pay in order to perform active duty. The next civilian newsletter will contain an article on leave administration. I cannot grant your requested remedy to negotiate implementation of leave policy because there has been no change in policies established in AFR 40-630 AFR 40-631.

On March 28, 1986, the Union wrote a letter to the Commander of the 22nd Combat Support Group wherein it requested "A full and complete copy of all applicable regulations that address military leave for civilian employees including Federal Personnel Manual 630 series and appropriate Air Force Regulations." [ v30 p3 ]

On April 1, 1986, the Respondent, under the signature of Colonel Covert, Commander of the 22nd Combat Support Group, returned the March 28, 1986 request for information to the Union because it had not been addressed to Mr. Clay Fruit, Respondent's Labor Relations Officer. 2

On April 8, 1986, and again on April 16, 1986, the Union wrote letters to the Respondent wherein it repeated its request for information. The March 28, 1986, letter was either attached to, or referenced in, the letters.

On April 9, 1986, the Respondent returned the Union's April 8, 1986, request without action. Respondent noted that the subject matter of the April 8th letter was identical to the March 28, 1986 letter. Although the Respondent did not respond to the April 16th letter in writing, Mr. Fruit orally informed Mr. Carraway, the Union president, that the request should have been addressed to him as the Labor Relations Officer.

With respect to Air Force Regulations 40-630 and 40-631 the record, particularly the credited testimony of Mr. Fruit, establishes that such regulations were available to any bargaining unit employee at Respondent's Master Publications Library, the publications library in the Civilian Personnel [ v30 p4 ] Office and the publications library in the 943rd Tactical Air Lift Group, 3 all of which are located on March Air Force Base.

Article 15, Section 2 of the expired collective bargaining agreement between Respondent and the Union provides in Article 15, Section 2 as follows:

The Employer agrees to place the Union on the distribution list for AF 40 series regulations in accordance with AFM 40-13. Local supplements to the above regulations or manuals will be discussed with the Union before publication. AF Regulation 0-2 (Numerical Index of Standard and Recurring Air Force Publications) lists location of all 40 series.

Pursuant to Article 15, Section 2 of the expired collective bargaining agreement the Union utilizes "AFR 0-2," in order to inform the Respondent which Air Force regulations, etc., are needed to complete the Union's file. 4 According to the record exhibits as well as the credited testimony of Mr. Fruit, the Union as of July 1983 possessed copies of AFR 40-630 and 40-631. Further, according to the uncontradicted testimony of Mr. Fruit, at the time of the Union's request for AFR 40-630 and AFR 40-631 there had been no change in such regulations.

The record further reveals that since 1983 the Union has changed presidents and has also moved its offices a number of times. Mr. Carraway, the current Union president, was unaware that Union had been previously supplied AFR 40-630 and AFR 40-631.

With respect to the Federal Personnel Manual, Mr. Fruit credibly testified that the Manual was in the Respondent's Civilian Personnel Office and accessible to any employee on [ v30 p5 ] request. Further, according to Mr. Fruit, Union President Carraway had been informed of both the location and the accessibility of the Federal Personnel Manual prior to, and after, the February 11, 1986 meeting. Similarly, Mr. Frost credibly testified that prior to, and after, the February 11, 1986 meeting he had informed Union President Carraway that AFR 40-630 and AFR 40-631 were located in the base libraries.

Finally, the record discloses that subsequent to the expiration of the collective bargaining agreement Respondent on February 26, 1985, had revoked a Memorandum of Agreement dated March 23, 1984, dealing with the use of seat belts. In support of its action Respondent took the position that since it was a permissive subject of bargaining it was free to take such action after the expiration of the agreement. Thereafter, the matter was resolved when Respondent agreed to bargain over the impact and implementation of its decision.

Discussion and Conclusions

The General Counsel takes the position, that since Respondent relied upon AFR 40-630, AFR 40-631 and "series 630 of the FPM" to support its position that it, Respondent, could involuntarily place civilians on military leave, the requested data is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining. In such circumstances, Respondent was obligated, upon request, to supply the Union the requested information, namely AFR 40-630, AFR 40-631 and the FPM.

The General Counsel would find that the memorandum of agreement executed in settlement of the prior unfair labor practice which required the Union to direct all requests for information to the Labor Relations Officer had been legally terminated by the Union since it involved a permissive subject of bargaining. In such circumstances, according to the General Counsel, the Union was not required to submit its request for information to any specific agent of the Respondent.

Finally, the General Counsel contends, contrary to Respondent, that the Union was not in possession of the requested information. Additionally, it appears to be the position of the General Counsel that the fact that the requested information is available in numerous libraries on the Air Force Base, to which the Union had free access, does not excuse the Respondent from the obligation imposed upon it by Section 7114(b) to supply same. [ v30 p6 ]

Respondent, 5 on the other hand, takes the position that it was not obligated to honor the Union's request since the Union did not follow the memorandum of agreement and submit the request to the Labor Relations Officer. To the extent that Union cites as justification for its actions in cancelling the memorandum of understanding the fact that Respondent unilaterally terminated the agreement relative to the use of seat belts, Respondent would distinguish its action since it involved an agreement concerning a permissive subject of bargaining executed as a supplement to an existing collective bargaining agreement which subsequently expired. While the memorandum cancelled by the Union was independent of any collective bargaining agreement and entered to at a time when no collective bargaining agreement was in effect.

Alternatively, Respondent takes the position that it was under no obligation to honor the Union's request because it did not at any time rely on the FPM and had in the past, pursuant to both the Union's request and existing collective bargaining agreement, supplied the Union with copies of AFR 40-630 and AFR 40-631 which were still current. As a further justification for its refusal, the Respondent cites the fact that the requested materials were not in the exclusive possession of Respondent, but rather available to all employees in numerous libraries located upon the Air Force Base to which the employees had access.

A review of the above cited facts and the respective positions of the parties makes it clear that AFR 40-630 and AFR 40-631 are necessary for full and proper discussion, understanding and negotiation of the pending grievance concerning Respondent's action in involuntarily placing civilians on military leave.

However, there is a disagreement among the parties with respect to the FPM. Inasmuch as I have credited Mr. Fruit's testimony that at no time did Respondent rely on or cite the [ v30 p7 ] FPM in connection with the pending grievance, I find that the FPM is not necessary for full and proper discussion, etc., of the grievance. In such circumstances, and for reasons to be discussed infra, I further find that Respondent did not violate the Statute when it failed to honor the Union's request for the FPM.

With respect to AFR 40-630 and AFR 40-631 I find, again based upon the credited testimony of Mr. Fruit as well as certain documentary exhibits produced at the hearing and duly made a part of the record, that the Union had been given copies of the aforementioned Air Force regulations several years prior to the current request. 6 Additionally, I find that the obligation, imposed by Section 7114(b) of the Statute, to supply information to a Union upon request, applies only to information peculiarly in the Respondent's possession and not easily obtainable by the Union from any other source. Where, however, the requested information, like here, has either been previously supplied by Respondent or is nothing more than manuals or regulations maintained in numerous on-base libraries to which all employees have easy and unlimited access, the Respondent is not under an obligation to provide same.

Basic to the Respondent's duty to supply requested information to the Union, is a finding that without same the Union would not be able to participate in intelligent and knowledgeable bargaining. Where, however, the Union has such information there is certainly no necessity for Respondent to duplicate the information since the Union is not at any disadvantage. The sole purpose for Section 7114(b), which is a codification of the case law under the NLRA, is to provide relevant data to the Union not easily available from any other source. It was not designed to make the Respondent act as a "duplicator" of readily available information. Had Respondent relied upon the Constitution of the United States in support of its position that it had a right to involuntarily place civilian employees on military leave, I dare say that no one would contend that Respondent was under an obligation to honor a Union's request for a copy of the Constitution. Why, because the Constitution, which might well be maintained by the Respondent in its library, is a public document easily obtainable by the Union. Similarly, inasmuch as the sought after Air Force regulations, as well as the FPM, are easily [ v30 p8 ] obtainable by the Union from the numerous libraries on the base, I find that such documents do not fall within the type of "information" envisioned by Section 7114(b) of the Statute, and that Respondent's failure to supply same did not constitute a violation of the Statute.

Accordingly, in view of the above conclusions I find it unnecessary to consider the current validity of the May 21, 1985, Memorandum of Agreement which obligated the Union to request information solely through Respondent's Labor Relations Officer. 7

Having found that Respondent did not violate the Statute by virtue of its action in failing and refusing to honor the Union's March 28, April 9, and April 16, 1986, requests for information, it is hereby recommended that the Federal Labor Relations Authority adopt the following Order dismissing the Complaint in its entirety. 8

ORDER

IT IS HEREBY ORDERED, that the Complaint should be, and hereby is, dismissed in its entirety.

BURTON S. STERNBURG
Administrative Law Judge

Date:  March 31, 1987
       Washington, D.C.

[ v30 p9 ]

FOOTNOTES

Footnote 1 The record establishes that the collective bargaining agreement between the parties expired on or about August 1984. However, the parties were still honoring the established grievance and arbitration provisions of the expired contract.

Footnote 2 The record establishes that on May 21, 1985, the Union and the Respondent, in settlement of an unfair labor practice charge, entered into a Memorandum of Agreement which set forth a specific procedure to be followed by the Union in requesting information for representation purposes. According to the agreement, the Union was to file such requests for information with the Labor Relations Officer. The record further establishes that on January 23, 1986, the Union sent a letter to Colonel Covert which read as follows: This is to notify your office that the Memorandum of Agreement established on 21 May 1985 for requests for information is hereby cancelled as of this date. The record does not indicate any response or voiced objection from Respondent in reply to the Union's January 23, 1986, cancellation letter.

Footnote 3 Union President Carraway is employed at the 943rd Tactical Air Lift Group.

Footnote 4 AFR 0-2 is an index of all Air Force Regulations, publications, manuals, pamphlets, etc. The Union submits the index on a regular basis and indicates which publications, regulations, etc. they do not possess in their library.

Footnote 5 In it's post hearing brief Respondent makes it clear that it does not contend that the information sought constitutes guidance, advice, counsel, or training. Further, Respondent concedes that AFR 40-630 and AFR 40-631 dealing with military leave were normally maintained in the regular course of business and that such r