39:0650(54)CA - - SSA and SSA, Area II, Boston Region, Boston MA and AFGE Local 1164 - - 1991 FLRAdec CA - - v39 p650

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[ v39 p650 ]
39:0650(54)CA
The decision of the Authority follows:


39 FLRA No. 54

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

SOCIAL SECURITY ADMINISTRATION

BALTIMORE, MARYLAND

AND

SOCIAL SECURITY ADMINISTRATION

AREA II, BOSTON REGION

BOSTON, MASSACHUSETTS

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1164

AFL-CIO

(Charging Party/Union)

1-CA-80309

DECISION AND ORDER

February 15, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the exceptions and cross-exceptions.

The amended complaint alleged that the Respondent violated section 7116(a)(1), (5), and (8) of the Federal Service Labor-Management Relations Statute (the Statute) when it (1) failed to comply with the provisions of section 7114(b)(4) of the Statute, by refusing to furnish the Charging Party with copies of the Requests for Space (GSA SF-81s) and the GSA Lease Market Surveys for the Lynn, Lowell, Malden, and Salem District Offices within Area II of the Respondent's Boston Region; and (2) failed to inform the Charging Party that it does not maintain the GSA Lease Market Surveys or that they do not exist.

On or about May 2, 1988, the Charging Party requested that the Respondent furnish it with copies of the SF-81s(1) and the Lease Market Surveys(2) regarding Area II District Offices at four locations in Massachusetts: Lynn, Lowell, Malden and Salem. The Charging Party made this request because it believed that there was a potential that those offices might be relocated. In its original request, the Charging Party stated that it needed the information "to intelligently fulfill our bargaining obligations." ALJ Decision at 9. In a letter dated June 6, 1988, the Charging Party stated that it also needed the information to police its agreements. Id.

The Judge concluded that the Respondent failed to comply with section 7114(b)(4) by refusing to furnish to the Charging Party the SF-81s and thereby violated section 7116(a)(1), (5), and (8) of the Statute. The Judge also concluded that the Respondent's failure to furnish the Charging Party with the Lease Market Surveys did not violate section 7116(a)(1), (5), and (8) of the Statute. Finally, the Judge concluded that the Respondent's failure to inform the Charging Party that the Respondent did not maintain the Lease Market Surveys did not violate section 7116(a)(1), (5), and (8) of the Statute.

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 made at the hearing and find that no prejudicial error was committed. We affirm the rulings. After consideration of the Judge's Decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order, only to the extent they are consistent with this Decision.(3)

We agree with the Judge that the Respondent failed to comply with section 7114(b)(4) by refusing to furnish copies of its SF-81s and thereby violated section 7116(a)(1), (5), and (8). We also agree that the Respondent's failure to furnish the Lease Market Surveys did not violate section 7116(a)(1), (5), and (8). However, we disagree with the Judge concerning the Respondent's failure to inform the Charging Party that it did not maintain the Lease Market Surveys. We conclude that the Respondent's failure to inform the Charging Party that the Respondent did not maintain the Lease Market Surveys violated section 7116(a)(1), (5), and (8).

II. The Judge's Decision

The Judge found that the Respondent originates an SF-81 and normally maintains it in the regular course of business, and that the SF-81 is reasonably available and does not constitute guidance, advice, counsel, or training within the meaning of section 7114(b)(4)(C) of the Statute. The Judge observed that "[a]t the point an agency requests space to relocate it has taken action which will affect conditions of employment even though the effect is still entirely in the future." ALJ Decision at 10 (footnote omitted). The Judge continued: [t]he [Charging Party] cold (sic) not fulfill its obligation as exclusive representative if it: (a) did not know that a relocation was planned; (b) when the relocation was expected; (c) how much space was being requested and its allocation." Id. Accordingly, the Judge found that the SF-81s were necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining, and that the Respondent violated section 7116(a)(1), (5), and (8) by failing to furnish them to the Charging Party.

The Judge also concluded that the Respondent's failure to furnish the Lease Market Surveys to the Charging Party did not violate section 7116(a)(1), (5), and (8). The Judge found that although the Lease Market Surveys existed, the Respondent neither received them nor maintained copies of them. The Judge expressed no opinion as to whether such information would have been "necessary", within the meaning of section 7114(b)(4)(B) of the Statute, if it had been maintained by the Respondent.

Finally, the Judge concluded that the Respondent's failure to inform the Charging Party that the Respondent did not maintain the Lease Market Surveys did not violate section 7116(a)(1), (5), and (8). The Judge found that the Respondent was required to "respond" and did provide a response to the Charging Party's request for the Lease Market Surveys, citing Veterans Administration, Washington, D.C. and Veterans Administration Regional Office, Buffalo, New York, 28 FLRA 260 (1987) (VA, Buffalo). The Judge further found that when the Respondent responded that it did not consider the Lease Market Surveys "necessary" within the meaning of section 7114(b)(4)(B) and therefore would not provide them, the Respondent satisfied the requirement set forth in VA, Buffalo. Accordingly, the Judge found that the Respondent's failure to tell the Charging Party that it did not maintain the Lease Market Surveys did not violate the Statute. The Judge noted that the Respondent's agent in this matter, an acting labor relations specialist, had no prior experience as a labor relations officer and did not discover that the Respondent had not received the Lease Market Surveys until the day before the hearing.

III. Positions of the Parties

A. The Respondent's Exceptions

The Respondent contends that the Judge erred in concluding that its decision not to furnish the requested SF-81s violated section 7116(a)(1), (5), and (8). The Respondent argues that furnishing the Charging Party with copies of the SF-81s was not necessary because "[a]n obligation to provide an SF-81 would not arise until after a specific decision had been made to relocate an office to a new site." Respondent Exceptions at 8. The Respondent also argues that the Charging Party's request concerning the office relocations was denied because it was premature and speculative. In this regard, the Respondent relies on a decision by the FLRA General Counsel's Office of Appeals. Department of Health and Human Services, Social Security Administration, Case No. 5-CA-70233 (June 17, 1988) (HHS) (General Counsel sustained the Acting Regional Director's decision not to issue a complaint based on an agency's refusal to provide a union with copies of intra-management communications regarding office site selection, finding that such a request was at that time not necessary to the union's stated purpose and was premature).

B. The General Counsel's Opposition to the Respondent's Exceptions

The General Counsel contends that the Judge did not err in finding that the SF-81s were necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining. The General Counsel argues that the data request was not premature or speculative as the Respondent had relocated nine of the nineteen offices in Area II during the past three years and that the Charging Party needed the SF-81s to fulfill its representational responsibilities. The General Counsel also argues that a union's right to data is not dependent on whether the parties are engaged in negotiations, as the Respondent suggests, citing Defense Mapping Agency, Washington, D.C. and Defense Mapping Agency Aerospace Center, St. Louis, Missouri, 24 FLRA 154 (1986).

The General Counsel contends that the Authority should give no consideration to the decision of the General Counsel's Office of Appeals cited by the Respondent. The General Counsel argues that the Appeals decision has "no probative value since a dismissal [of an unfair labor practice charge] does not constitute an adjudication on the merits and no res judicata effect can be given to the action" and that consideration of the Appeals decision is contrary to section 2429.5 of the Authority's Rules and Regulations because the Appeals decision was not offered into evidence at the hearing. General Counsel Brief at 3.

C. The General Counsel's Cross-Exceptions

In its first exception, the General Counsel contends that the Judge erred in failing to find that the Lease Market Surveys were necessary for the Charging Party to fulfill its representational responsibilities. The General Counsel argues that a Lease Market Survey, which sets forth available office space that meets an agency's requirements, is arguably more vital to a union than the SF-81s because "its completion is indicative of the fact that a decision is imminent." General Counsel Exceptions at 4.

In its second exception the General Counsel contends that the Judge erred in concluding that the Respondent did not violate the Statute when it failed to inform the Charging Party that it did not maintain the Lease Market Surveys. The General Counsel argues that the Judge misconstrued VA, Buffalo. The General Counsel maintains that under the Statute an agency is required to tell a union that it does not maintain requested data regardless of whether the agency responds to a union's request for data. The General Counsel states that had the Charging Party known that the Respondent did not maintain the Lease Market Surveys, other avenues might have been pursued to resolve this matter without filing an unfair labor practice charge. Further, the General Counsel takes issue with the Judge's comments concerning the limited knowledge and experience of the Respondent's labor relations officer as a factor in the Respondent's failure to notify the Charging Party. The General Counsel asserts that the Respondent must be held accountable for the conduct of individuals assigned to labor management responsibilities, citing United States Department of the Treasury, Internal Revenue Service and United States Department of the Treasury, Internal Revenue Service, Houston District, 25 FLRA 843, 848 (1987), enforced as to other matters sub nom. National Treasury Employees Union v. FLRA, 910 F.2d 964 (1990).

IV. Analysis and Conclusions

We find, in agreement with the Judge and based on his reasoning and the cases cited, that the Respondent failed to comply with section 7114(b)(4) of the Statute by refusing to furnish copies of its SF-81s and thereby violated section 7116(a)(1), (5), and (8) of the Statute. ALJ Decision at 8-10. See also U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas, 37 FLRA 1310, 1321-22 (1990), petition for review filed sub nom. U.S. Department of Justice, Immigration and Naturalization Service, Border Patrol, El Paso, Texas v. FLRA, No. 90-4960 (5th Cir. Dec. 28, 1990) (information requested concerning a union's investigation of a potential grievance found to be necessary to the performance of the union's representational function).

We do not find HHS, in which the General Counsel's Office of Appeals upheld the dismissal of a portion of a charge by an Acting Regional Director, to be relevant to our disposition of this case. Clearly, an adjudicatory body is not bound by prosecutorial decisions made in the processing of cases not before it. See, for example, Betts Cadillac Olds, Inc., 96 NLRB 268, 272 (1951) (quoting West Texas Utilities Company, Inc., 85 NLRB 1396, 1399 (1949)), in which the National Labor Relations Board (the Board) held that it was not bound by an interpretation of the National Labor Relations Act advanced by the General Counsel of the Board. The Board stated that the General Counsel's "primary function is to investigate charges and prosecute cases before the Board[] [whereas] [t]he task of making binding interpretations of the meaning of the Act is a judicial function, vested in the Board Members with ultimate power of review in the courts."

We also agree with the Judge that the Respondent's failure to furnish the Lease Market Surveys did not violate section 7116(a)(1), (5), and (8) because the Respondent neither receives those documents nor maintains them. We reject the General Counsel's contention that the Judge must address whether the Lease Market Surveys were "necessary" within the meaning of section 7114(b)(4)(B). A data request filed under section 7114(b(4) must meet all the requirements set forth in the three subsections of section 7114(b)(4). See Department of Health and Human Services, Social Security Administration, 36 FLRA 943, 952 (1990). Accordingly, when the Judge concluded that the Respondent did not maintain the Lease Market Surveys, and that therefore the request did not meet the requirements of section 7114(b)(4)(A), the Judge was not required to decide whether the Lease Market Surveys were "necessary" within the meaning of section 7114(b)(4)(B) of the Statute.

However, we disagree with the Judge's conclusion that the Respondent did not violate the Statute when it failed to inform the Charging Party that it did not maintain the Lease Market Surveys. Section 7114(b)(4) requires an agency to respond to a request from an exclusive representative for information even if the response is that the information sought does not exist. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 30 FLRA 127, 145 (1987) (citing VA, Buffalo, 28 FLRA at 266-67). In our view, the Judge misapplied VA, Buffalo. Section 7114(b)(4) not only requires that an agency "respond" to a data request but also requires the agency to tell an exclusive representative that it does not maintain the information which the exclusive representative seeks. A response that the specific information sought does not exist is "necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining." See U.S. Naval Supply Center, San Diego, California, 26 FLRA 324, 326-27 (1987). Therefore, it was not sufficient for the Respondent to respond to the Charging Party's data request without stating that the Respondent did not maintain the Lease Market Surveys, and the Respondent's failure to so state violated section 7116(a)(1), (5), and (8) of the Statute.

Finally, the fact that an inexperienced and uninformed labor relations officer may have served as the Respondent's agent in this matter does not excuse the Respondent's failure to inform the Charging Party that the Respondent did not maintain the Lease Market Surveys. In particular, we note the labor relations official's inability to determine, until one day before the hearing, that the Respondent did not receive the Lease Market Surveys. Section 7114(b)(2) requires that an agency "be represented . . . by duly authorized representatives prepared to discuss and negotiate on any condition of employment" (emphasis added). U.S. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 36 FLRA 524, 532-33 (1990); United States Department of the Treasury, Internal Revenue Service and United States Department of the Treasury, Internal Revenue Service, Houston District, 25 FLRA 843, 848 (1987).

V. Order

Pursuant to section 2423.29 of the our Rules and Regulations and section 7118 of the Statute, we order that the Social Security Administration, Baltimore, Maryland, and the Social Security Administration, Area II, Boston Region, Boston, Massachusetts, shall:

1. Cease and desist from:

(a) Failing and refusing to furnish copies of its Requests for Space (GSA SF-81s) for the Lynn, Lowell, Malden, and Salem District Offices, requested by the American Federation of Government Employees, Local 1164, AFL-CIO, the employees' exclusive representative.

(b) Failing and refusing to inform the American Federation of Government Employees, Local 1164, AFL-CIO, the employees' exclusive representative, that it did not maintain the requested GSA Lease Market Surveys.

(c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Furnish copies of its Requests for Space (GSA SF-81s) for the Lynn, Lowell, Malden, and Salem District Offices to the American Federation of Government Employees, Local 1164, AFL-CIO.

(b) Post at its facilities in Area II, Boston Region, Boston, Massachusetts, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt, the forms shall be signed by the Regional Administrator and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of our Rules and Regulations, notify the Regional Director, Region 1, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order of 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 and refuse to furnish copies of our Requests for Space (GSA SF-81s) for the Lynn, Lowell, Malden, and Salem District Offices, requested by the American Federation of Government Employees, Local 1164, AFL-CIO, the employees' exclusive representative.

WE WILL NOT fail and refuse to inform the American Federation of Government Employees, Local 1164, AFL-CIO, the employees' exclusive representative, that we do not maintain GSA Lease Market Surveys.

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 furnish copies of our Requests for Space (GSA SF-81s) for the Lynn, Lowell, Malden, and Salem District Offices to the American Federation of Government Employees, Local 1164, AFL-CIO.

___________________________
(Activity)

Dated:______________ By:_________________________

(Signature) (Title)

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 its provisions, they may communicate directly with the Regional Director, Region 1, of the Federal Labor Relations Authority, whose address is: Room 1017, 10 Causeway Street, Boston, MA 02222-1046, and whose telephone number is: (617) 565-7280.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. A Request for Space (GSA SF-81) is a form on which an agency lists its space requirements in terms of square footage and special needs. ALJ Decision at 3-4.

2. A Lease Market Survey is a document prepared by GSA that describes specified information concerning each building surveyed in response to an agency's submission of an SF-81. ALJ Decision at 4.

3. The Judge's recommended Order did not require the Respondent to furnish copies of its SF-81s for the Lynn, Lowell, Malden, and Salem District Offices to the American Federation of Government Employees, Local 1164, AFL-CIO. The Order has been modified accordingly.