36:0943(89)CA - - HHS, SSA and AFGE Local 3302 - - 1990 FLRAdec CA - - v36 p943
[ v36 p943 ]
The decision of the Authority follows:
36 FLRA No. 89
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF HEALTH AND HUMAN SERVICES
SOCIAL SECURITY ADMINISTRATION
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
August 31, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice case is before the Authority on an exception filed by the Respondent to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the exception.
The complaint alleges that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to furnish the Union with information requested under section 7114(b)(4) of the Statute. The Judge found that the Respondent violated the Statute as alleged in the complaint.
For the following reasons, we agree with the Judge's findings, conclusions, and recommended Order.
On May 24, 1988, a unit employee, who also is president of the Union, submitted a travel voucher claiming reimbursement for expenses incurred while she was travelling on official time between her duty station in Baltimore, Maryland and Washington, D.C. On June 16, 1988, the Respondent informed the employee that she needed to supply a travel order to support her claim for reimbursement.
On July 1, 1988, the employee filed a grievance protesting the Respondent's denial of her claim for travel expenses.(1) On the same day, the Union requested that the Respondent provide the following information:
(a) All the travel authority actions, travel orders and travel vouchers for all employees in the SSA Headquarters, Woodlawn, Baltimore, Maryland for the period 1/1/87 through 6/30/88 who travelled to Washington, D.C.
(b) All the travel authority actions, travel orders and travel vouchers for all employees in the Baltimore, Maryland Field offices for the period 1/1/87 through 6/30/88. (For the complete areas including Westminster, Bel Air, Elkton and Annapolis.)
Judge's Decision at 3 (emphasis in original).
On July 8, 1988, the Respondent's Labor Relations Specialist requested that the Union explain its need for the information. The Respondent's representative also pointed out that the request encompassed management officials as well as other employees not represented by the Union. On July 25, 1988, the Union renewed the request for information, but limited the request to "forms 1164 and 1012 for those employees who travelled by privately owned vehicles between Baltimore and the Washington, D.C. area from January 1, 1987 through June 30, 1988." Id. at 4.
On August 3, 1988, the Respondent denied the Union's request on the basis that "the Union's explanation for the data requested was insufficient due to the enormity of the request and the fact that the Union sought travel vouchers for employees it did not represent." Id.
III.Administrative Law Judge's Decision
The Judge rejected the Respondent's arguments that it was not required to supply the requested information under section 7114(b)(4) of the Statute because the information (1) was not necessary for processing the grievance; (2) was not reasonably available; and (3) involved employees not included in the bargaining unit represented by the Union.
First, the Judge found that although the complaint alleged that the information was related to the grievance over a denial of official time, it was clear from the Union's request as well as the grievance itself that the grievance also encompassed a claim for travel expenses.(2) The Judge concluded, therefore, that "[a]lthough the complaint misstated the nature of the grievance," the Respondent was not "misled" by that misstatement. Id. at 6. The Judge also concluded that, as the requested information "would bear on the issue" of whether the Respondent had treated the grievant's request for travel expenses differently from other requests, it was necessary, within the meaning of section 7114(b)(4) of the Statute, for the Union to pursue the grievance. Id.
Next, the Judge addressed the Respondent's assertion that the request was "burdensome." Id. The Judge found that it would take approximately 2 weeks for the Respondent to review folders for employees at the Respondent's Headquarters office in Baltimore, and 1 to 2 weeks to review travel vouchers which are maintained in a Department of Health and Human Services office in Philadelphia, Pennsylvania. The Judge noted, in this regard, that the folders for the Respondent's Headquarters employees were maintained in one room in the Respondent's Travel Unit and that an employee in that unit testified that the folders were readily available. The Judge also noted his agreement with the General Counsel's assertion that a review of travel orders would reduce the time necessary to supply the information. The Judge concluded that although supplying the information might be "somewhat onerous," that "difficulty" did not justify the Respondent's refusal to supply the information. Id. at 7.
Finally, based on a previous Authority decision, the Judge concluded that the fact that the Union's request encompassed nonunit employees did not excuse the Respondent's failure to provide the requested information. Accordingly, the Judge found that the Respondent's failure to supply the requested information violated section 7116(a)(1), (5), and (8) of the Statute and recommended, among other things, that the Respondent be directed to supply the Union with the requested information.
IV.The Respondent's Exception
The Respondent excepts only to the Judge's conclusion that the requested information was reasonably available within the meaning of section 7114(b)(4) of the Statute. The Respondent contends that the Judge's finding on this point is "based on a nonfact and [is] therefore, contrary to law[.]" Exceptions at 1.
The Respondent argues first that the Judge's statement that supplying the requested information might be "'somewhat onerous'" constitutes the Judge's agreement with the Respondent's assertion that the request was "burdensome." Brief in Support of Exception at 6 (quoting Judge's Decision at 7). The Respondent next asserts that the Judge's finding that the requested information was "readily available" does not satisfy the statutory requirement that the information be "reasonably available." Id. at 7.
In addition, the Respondent maintains that the Judge's agreement with the General Counsel that a review of travel orders would reduce the time necessary to supply the requested information is based on a nonfact. According to the Respondent, "to have the Respondent go to every field office to retrieve the alleged travel orders would have resulted in twice as much work or burden on the agency since both records, the travel orders and vouchers . . . are kept at Health and Human Services (HHS), Philadelphia Regional Office." Brief in Support of Exceptions at 9. The Respondent also claims that there is no evidence that copies of travel orders maintained in field offices contain information concerning the payment of travel expenses and that "only the travel voucher[s]," which are not maintained in field offices, would show payment of travel expenses. Id.
Finally, the Respondent claims that the Judge effectively has interpreted the requirement in section 7114(B)(4) that information be reasonably available to require only that the information be available. The Respondent concludes that "the burdensome nature of the [U]nion's request . . . on the Respondent's work operations and the amount of time it would take to provide such information to the [U]nion" necessitate a finding that the Respondent's failure to supply the information did not violate the Statute. Id. at 13.
V.The General Counsel's Opposition
The General Counsel asserts that the record in this case "totally refutes" the Respondent's claim that the requested information is not reasonably available. Opposition at 3. According to the General Counsel, it would "eviscerate section 7114(b)(4) . . . if an exclusive representative could be denied data which is necessary for intelligent handling of a grievance solely on the ground that it would take management a week or two to gather the data." Id. at 4.
VI.Analysis and Conclusion
As relevant here, section 7114(b)(4) of the Statute requires an agency to furnish a union, upon request, with data which is (1) normally maintained by the agency in the regular course of business and (2) reasonably available and necessary for discussion, understanding, and negotiation of subjects within the scope of collective bargaining. It is "well-settled in both private and public sector labor law" that the obligation "applies not only to information needed to negotiate an agreement, but also to data relevant to its administration." American Federation of Government Employees, AFL-CIO, Local 1345 v. FLRA, 793 F.2d 1360, 1363 (D.C. Cir. 1986). See also American Federation of Government Employees, AFL-CIO v. FLRA, 811 F.2d 769, 774-75 (2d Cir. 1987).
The Respondent does not except to the Judge's findings that the information requested by the Union is normally maintained by the Respondent in the regular course of business and is necessary for the Union to process the grievance involved in this case.(3) Accordingly, we adopt those findings. Further, there is no basis in the record before us on which to conclude that, with the exception of the issue concerning the reasonable availability of the information, there is any other reason that the requested information should not be disclosed under section 7114(b)(4) of the Statute. We will, therefore, confine our decision to the matter on which the Respondent filed an exception: whether the requested information is reasonably available, within the meaning of section 7114(b)(4).
With respect to the issue which is before us, it is important to note, at the outset, what is not in dispute. First, there is no dispute that the requested information (travel orders and vouchers) is available. In fact, the Respondent "openly admit[s]" that both travel orders and travel vouchers "are maintained by HHS in the Philadelphia Regional Office and Headquarters." Brief in Support of Exception at 11 n.6. Second, there is no dispute that reviewing the available records so as to identify those encompassed by the Union's request would take, at a maximum, approximately 3 weeks.
In addition, it appears that two of the Respondent's arguments are based on its misreading of the Judge's decision. First, the Respondent asserts that the Judge confused the standard of "readily available" with that of "reasonably available." The Judge did not find that the requested information was readily available, however. The Judge stated only that an employee in the Respondent's Travel Office testified at the unfair labor practice hearing that the requested information was readily available. Judge's Decision at 7. The Judge clearly found that "the requested information was reasonably available." Id. The Respondent's assertion to the contrary is without merit.
Second, much of the Respondent's exception is based on the following statement by the Judge:
Although the record reflects it would take one to two weeks to gather the information for the field employees who travel from Baltimore to Washington, I would agree with the General Counsel that a review of travel orders would aid in reducing the time required to furnish the data.
Brief in Support of Exception at 7 (quoting Judge's Decision at 7) (emphasis added by Respondent). In particular, the Respondent asserts that the underscored portion of the Judge's statement is based on a nonfact because (1) the General Counsel did not prove that travel orders in field offices were reasonably available; (2) the General Counsel did not prove that review of travel orders would reduce the time necessary to retrieve the requested data; and (3) reviewing travel orders would increase the time necessary to retrieve the requested information. Id. at 7-10.
In our view, the Respondent's assertions regarding the Judge's statement are irrelevant to the issue before us. It is clear, in this regard, that the Respondent may use whatever means it deems appropriate to retrieve the requested information. That is, the Judge did not require the Respondent to search travel orders in order to provide the information. If, as the Respondent asserts, it would increase rather than decrease the time necessary to retrieve the requested information by searching travel orders, the Respondent is free to use another method to retrieve the information. Moreover, there is no basis in the Judge's decision on which to conclude that the Judge relied on his statement concerning review of travel orders in finding that the requested information was reasonably available. It is clear, in our view, that the Judge's conclusion regarding the reasonable availability of the requested information was based on his findings concerning the time necessary to retrieve the data without the reduction he found would occur if the Respondent first searched travel orders.
Finally, as noted above, the Respondent does not dispute that the requested information is available in its Headquarters office and in the HHS Regional Office in Philadelphia and that it would take approximately 3 weeks to retrieve the data from those sources. These findings, in our view, were the bases of the Judge's conclusion regarding the reasonable availability of the requested information.
Accordingly, whether the requested data also is available in other places, and whether it would reduce the time necessary to retrieve the data by searching travel orders in those places, is irrelevant.
Consistent with the foregoing, the specific issue before us is whether the requested data, which would take 3 weeks to retrieve (from clearly identified locations), is reasonably available. We conclude, for the following reasons, that the data requested by the Union is reasonably available.
We note, at the outset, our agreement with the Respondent that a finding that requested information is available does not, alone, satisfy the requirement of section 7114(b)(4) that the information be reasonably available. In fact, using the ordinary meaning of the word, "available" information simply is information that is "accessible, obtainable." Webster's Ninth New Collegiate Dictionary 119 (1985). In practical terms, any information which exists presumably is capable of being "reached."
The Statute does not require an agency to provide all data that exists or is accessible, however. Instead, only that data which is reasonably available must be provided. In this regard, we are again guided by the ordinary definition of "reasonable": "not extreme, or excessive." Id. at 981. Consistent with this definition, the statutory requirement that data be reasonably available would exclude data which, although available, is available only through extreme or excessive means. Determining whether extreme or excessive means are required to retrieve available data requires case-by-case analyses of relevant facts and circumstances. See, for example, Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio; and Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 21 FLRA 529, 531-32 (1986) (although data contained in personnel files maintained by over 6,000 supervisors as well as hundreds of disciplinary files in various personnel offices was not reasonably available, Authority stated that a request for necessary data "separately maintained in the [p]ersonnel [o]ffices of the various facilities . . . might have been deemed reasonably available.").
In this case, we are unable to conclude that the requested information was available only through extreme or excessive means. As noted above, it is uncontested that all requested information was available in identified locations and could be retrieved in approximately 3 weeks. We are unable to conclude that 3 weeks' effort, standing alone, renders the information not reasonably available. Indeed, it appears that some of the time necessary to retrieve the information results from the fact that the requested records of the Respondent's employees are intermingled with records of other employees of the Department of Health and Human Services. The Respondent does not assert, and it is not otherwise apparent, that the Respondent or the Department is required to employ this method of recordkeeping. Accordingly, to some extent, the amount of time necessary to retrieve the requested information is attributable to a matter within the sole control of the Respondent--the manner in which the Respondent keeps its records.
In addition, we note, as did the Judge, the Authority's decision in Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 28 FLRA 306 (1987) (AFLC), reversed as to other matters sub nom. FLRA v. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, No. 87-1387 (D.C. Cir. Aug. 9, 1990). In that case, the Authority concluded that the respondent's failure to provide the union with the names and home addresses of bargaining unit employees violated the Statute despite the fact that retrieval of the requested information would require the respondent to write a new computer program and would take from 3 to 4 weeks.
The Respondent maintains that because AFLC pertained to the release of names and homes addresses, it "does not apply in regard to other issues which fall in legal application of [s]ection 7114(b)(4)." Brief in Support of Respondent's Exception at 12 (underscoring omitted). We disagree with the Respondent's contention. Nothing in section 7114(b)(4) or Authority precedent supports the assertion that, with respect to the requirement that information be reasonably available, different standards apply depending on the nature of the requested information. Rather, as stated above, determinations as to the reasonable availability of data are made on a case-by-case basis, examining the relevant facts and circumstances presented. Such an analysis formed the basis for the conclusion in AFLC that the information was reasonably available. Similarly, in this case, noting that the records in which the requested data is maintained clearly are identifiable and available and could be retrieved in approximately 3 weeks, we conclude that the requested data is reasonably available, within the meaning of section 7114(b)(4).
Finally, the Respondent's reliance on the Judge's statement that complying with the request might be "somewhat onerous" is misplaced. The applicable standard is whether requested data is reasonably available. A finding that complying with a request is somewhat onerous, does not, without more, constitute a finding that compliance would require the use of extreme or excessive means, so as to render the information not reasonably available. That is, compliance with a request that is merely "somewhat onerous" does not create an "undue burden" that has necessitated the use of extreme or excessive means. Here, the respondent has failed to establish that retrieval of the information creates such an undue burden so as to compel the conclusion that the information is not reasonable available.
Accordingly, we conclude that the data requested by the Union was reasonably available and satisfied all the other requirements of section 7114(B)(4). As such, the Respondent was required to supply the requested data and its failure to do so violated section 7116(a)(1), (5), and (8) of the Statute. We will, therefore, direct the Respondent to cease and desist from its violation of the Statute and to supply the Union with the requested data.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Department of Health and Human Services, Social Security Administration, shall:
1. Cease and desist from:
(a) Failing and refusing to furnish the American Federation of Government Employees, Local 3302, AFL-CIO, the exclusive representative of an appropriate unit of its employees, with the information requested by the Union in order to process the July 1, 1988, grievance concerning the denial of an employee's claim for travel expenses.
(b) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:
(a) Upon request, furnish the American Federation of Government Employees, Local 3302, AFL-CIO, with the information requested by the Union in order to process the July 1, 1988 grievance concerning the denial of an employee's claim for travel expenses.
(b) Post at its facilities within Region III where employees represented by the Union are employed, 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 the Regional Commissioner and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous placed, including bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that the Notice is not altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to furnish the American Federation of Government Employees, Local 3302, AFL-CIO, the exclusive representative of an appropriate unit of our employees, with the information requested by the Union in order to process the July 1, 1988 grievance concerning the denial of an employee's claim for travel expenses.