45:0120(12)CA - - Air Force, Scott AFB, Illinois and NAGE Local R7-23 - - 1992 FLRAdec CA - - v45 p120
[ v45 p120 ]
The decision of the Authority follows:
45 FLRA No. 12
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in Department of the Air Force, Scott Air Force Base v. FLRA, 956 F.2d 1223 (D.C. Cir. 1992) (Scott Air Force Base v. FLRA). 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 refusing to provide the Union with documentation concerning disciplinary action taken against a supervisor who allegedly used physical force against a bargaining unit employee. In a motion filed on May 11, 1992, the Respondent requested that the Authority remand the case to the Administrative Law Judge for the taking of additional evidence. For the following reasons, we conclude that the complaint must be remanded to the Administrative Law Judge for further proceedings.
A bargaining unit employee submitted a grievance concerning the alleged use of physical force against him by his supervisor. The grievant requested as a remedy that the supervisor be examined for medical fitness and that the supervisor receive appropriate discipline. Under the parties' collective bargaining agreement questions as to the grievability or arbitrability of a particular matter are referred to arbitration. The Union processed the grievance through each step of the negotiated grievance procedure up to and including the selection of an arbitrator. The Respondent denied the grievance at the final step of the grievance procedure prior to arbitration, claiming that it had taken appropriate action regarding the supervisor involved in the grievance.
After the Respondent denied the grievance at the third step, the Union requested from the Respondent "'all documentation concerning any disciplinary action taken against" the grievant's supervisor "'as referenced in'" the Respondent's denial of the grievance. Department of the Air Force, Scott Air Force Base, Illinois, 38 FLRA 410, 411 (1990). The Union stated that it needed the information "'in order to prepare the case for arbitration, specifically in regards (sic) to the remedial actions requested.'" Id. The Union further stated that it needed the information "'to assess the need to pursue arbitration.'" Id. The Respondent refused to provide the requested information because "'it identified the disciplined supervisor by name.'" Id. at 412. The Union then filed the unfair labor practice charge in this case, and the parties agreed to hold the arbitration proceeding in abeyance pending the outcome of the case.
After a hearing before an Administrative Law Judge, the Judge found that the Union was entitled to the requested information un