Department of Transportation, Federal Aviation Administration, Fort Worth, Texas (Respondent) and National Air Traffic Controllers Association, Local 171 (Charging Party/Union)

[ v57 p604 ]

57 FLRA No. 117

DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
FORT WORTH, TEXAS
(Respondent)

and

NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION, LOCAL 171
(Charging Party/Union)

DA-CA-90788

_____

DECISION AND ORDER

November 30, 2001

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

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 Respondent. The General Counsel filed an opposition to the Respondent's exceptions.

      The complaint alleges that the Respondent violated §§ 7114(b)(4) and 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to furnish certain information requested by the Union. The complaint also alleges that the Respondent violated § 7116(a)(1) and (5) of the Statute by acting in bad faith in withholding the same requested documents. The Judge recommended that, with the exception of one allegation in the complaint, the Respondent be found to have violated the Statute as charged.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with this decision.

II.     Background

      The Respondent and Union were engaged in a seven-year dispute concerning whether certain bargaining unit members participating in Navy military exercises were entitled to hazardous duty pay. On February 12 and 19, 1999, [n1]  in preparation for a March 9 arbitration hearing, the Union requested all information that the Respondent intended to rely upon at the hearing, including documentation related to the materials used in the military exercises. The Respondent responded on March 2 that the Union had already been given this information during the processing of a related unfair labor practice charge and that it would provide the Union with a copy, no later than five days before the hearing, of any new documents it planned to introduce at the hearing.

      On March 4, the Department of the Navy sent information to the Respondent, which: (1) supported approval of the Respondent's request to use a Navy expert witness at the hearing; (2) listed the types of explosives used during the military exercises; and (3) demonstrated the factual basis for the Respondent's denial of hazard pay. Also on March 4, the Union faxed the Respondent an expanded request for documents that the Respondent did not intend to introduce at the hearing. In addition, on March 4 the Respondent faxed to the Union a one-page Navy memorandum detailing the type of explosives used during the military exercises.

      On March 5, the Respondent received a fifteen-page fax from the Navy containing documents related to the planning of the military exercises, including an itemized list and description of the explosives used in the exercises. The Respondent did not provide the Union a copy of these documents until the March 9 arbitration hearing. The Arbitrator denied the Union's grievance based on these documents.

III.     Judge's Decision

      The Judge determined that § 7114(b)(4) of the Statute required the Respondent to furnish the Union with the documents that it received from the Navy on March 4 and 5. In this regard, the Judge determined that the Respondent acknowledged its obligation to furnish documents in its March 2 response by stating that it would provide the Union with a copy of any new documents it obtained. The Judge also determined that the documents in question were normally maintained in the regular course of business and reasonably available. The Judge found, however, that the General Counsel had not established that the Respondent's March 2 response, itself, violated the Statute.

      With respect to the documents that the Respondent received from the Navy on March 4 and 5, the Judge further concluded that the Respondent had failed to furnish the documents to the Union in a timely manner. [ v57 p605 ] The Judge found that withholding the documents from March 4 or 5 to March 9 "made [the Union's] preparation for the hearing impossible." Judge's Decision at 24. Accordingly, the Judge concluded that the Respondent violated §§ 7114(b)(4) and 7116(a)(1), (5) and (8) of the Statute. The Judge also concluded that the Respondent acted in bad faith, in violation of § 7116(a)(1) and (5) of the Statute, by withholding the information for the express purpose of hindering the Union's preparation for the arbitration hearing.

      To remedy the Respondent's violation of the Statute, the Judge recommended a cease and desist order and a notice posting. However, the Judge rejected the General Counsel's request that the Respondent bear the cost of the arbitration hearing.

IV.     Positions of the Parties

A.     Respondent's Exceptions

      The Respondent argues that the General Counsel did not pursue its allegations concerning the Respondent's March 2 conduct at the hearing and that the Judge therefore erred by addressing this issue. The Respondent also objects to the Judge's failure to make a finding that the Union had established a particularized need for the information it received on March 4 and 5.

      The Respondent further excepts to the Judge's findings that: (1) the Respondent had a continuing obligation to provide information; (2) the information was normally maintained by the Respondent; (3) the information was reasonably available; and (4) the information was not timely furnished. As to the first point, the Respondent contends that the elements of § 7114(b)(4) apply at the time of the request and response. Therefore, according to the Respondent, when it provided the Union with all the information it possessed on March 4, it fulfilled its statutory obligation and was not required to provide the Union with any information it received after March 4. The Respondent argues that the circumstances involved in this case are distinguishable from those present in United States Food and Drug Admin., and United States Food and Drug Administration Region VII, Kansas City, Missouri, 19 FLRA 555, 556-57 (1985) (FDA), relied on by the Judge, because at the time it responded to the March 4 request, it was not aware that documents it would subsequently receive existed. As to the second, third and fourth points, the Respondent states that information it received subsequent to March 4 could not have been normally maintained and reasonably available on March 4. It also asserts that, contrary to the Judge's finding, it did not request the documents received from the Navy on March 5. According to the Respondent, the Judge's error in holding that the Respondent had an obligation to provide this information necessarily means that the Judge also erred in finding a separate, bad faith bargaining violation. Also according to the Respondent, the Judge improperly relied on equitable considerations in finding bad faith.

      Finally, the Respondent argues that the decision is based on "non-facts." Exceptions at 3. Specifically, the Respondent contends that, contrary to the Judge's finding, the March 4 document was an e-mail, not a fax and that a determination of whether the e-mail satisfies the statutory requirements is necessary.

B.     General Counsel's Opposition

      The General Counsel contends that the Judge properly addressed the issue of the Respondent's March 2 response. It also asserts that the Respondent failed to raise the argument that the Union did not establish a particularized need at the hearing.

      The General Counsel asserts that the Judge's holding was not based on finding a "prospective" obligation to provide requested information, because the facts indicate that the Respondent obtained certain of the information it withheld prior to a conversation between the Respondent and Union on March 5. Opposition at 13. The General Counsel also argues that the Judge properly found that the information was normally maintained and reasonably available, that the Respondent did not timely furnish the requested information, and that the Respondent acted in bad faith.

      Finally, the General Counsel claims that the Judge did not err in finding that the Respondent received an e-mail on March 4 from the Navy and that the Respondent requested the information received on March 5.

V.     Preliminary Issues

A.     The Respondent's particularized need exception is barred by § 2429.5 of the Authority's Regulations.

      Under § 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented to the Judge. [n2]  As the General Counsel asserts, the Respondent did not argue before the Judge that the Union's request failed to establish that the information was necessary, as required by section 7114(b)(4)(B) of the Statute. Rather, at the hearing the Respondent conceded that the requested information was "necessary." Transcript at 97. Accordingly, pursuant to § 2429.5 of the Authority's Regulations, we refuse to consider this argument for the first time on exception. See FAA, 55 FLRA 1271, 1274 (2000). [ v57 p606 ]

B.     The Judge did not err by addressing the Respondent's March 2 conduct.

      Absent a concession, a judge errs by failing to address an issue that is expressly alleged in the complaint. See SSA, Reg'l Office of Quality Assurance and Performance Assessment, Dallas, Tex., 56 FLRA 1108, 1108 n.1 (2001) (SSA); United States Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 55 FLRA 968, 970-71 (1999). Here, the complaint alleged that the Respondent's conduct on March 2 violated the Statute. See G.C. Exhibit 1(b) at 3-5. The Respondent has not shown, and there is no indication in the record, that the General Counsel conceded this issue. Although the Judge acknowledged that the General Counsel appeared to abandon its allegations regarding this conduct, he did not find a concession regarding these allegations. Thus, it was proper for the Judge to address this issue. See SSA, 56 FLRA at 1108 n.1. Further, even if the Respondent were correct that the Judge erred in considering an abandoned argument, the Judge decided the issue in favor of the Respondent and, as a result, it was not harmed by any error.

VI.     Analysis and Conclusions

A.     The Respondent had an obligation to furnish requested information to the Union.

      Under § 7114(b)(4) of the Statute, an agency must, upon request, furnish to a union data that is: (1) normally maintained by the agency; (2) reasonably available; (3) necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (4) not guidance, advice, counsel or training. See HCFA, 56 FLRA 503, 506 (2000).

      The Respondent argues that it fulfilled its statutory obligation when it responded to the Union with all the information it possessed on March 4, and that it was not required to provide the Union with any information it received after that response. However, there is nothing in the terms of the Statute that supports the Respondent's position under the particular circumstances involved in this case.

      Here, the Union requested all information that the Respondent intended to rely upon at the hearing, including documentation related to the materials used in the military exercises. In its March 2 response, the Respondent stated that it would provide the Union with a copy of any new documents it received. See G.C. Exhibit 5. On March 4, the Union expanded its request to include documents that the Respondent did not intend to introduce at the hearing. Under these circumstances, where the Union made a request for specific documents for a specific purpose, and the Respondent acknowledged its obligation to provide new documents that it obtained that met the request, the Statute provides no support for the Respondent's position that it had no obligation to provide new documents once they were received.

      The Respondent relies on the principle that agencies are not required to supply information that they do not possess or control, citing Div. of Military and Naval Affairs, State of N.Y., Albany, N.Y., 8 FLRA 307 (1982) (Military and Naval Affairs). See also VA Hospital, Lexington, Ky. and VA Cent. Office, Wash., D.C., 3 FLRA 872 (1980) (VA); IRS and Brooklyn Dist. Office, IRS, 1 FLRA 796 (1979). The reliance is misplaced, however, because that principle does not undermine an agency's obligation, under some circumstances, to supply such information once it comes into the agency's possession. That such an obligation exists is illustrated by two cases relied on by the Judge -- FDA and Bureau of Prisons, Lewisburg Penitentiary, Lewisburg, Pa., 11 FLRA 639, 650-51 (1983) (Prisons) -- where the unions made requests for information that included items that were unavailable at the time of the requests. In FDA, the Authority found that the agency violated the Statute by not providing the information when it was eventually received, and specifically held that the union had not waived its right to the information by failing to renew its request for them at the time they were received. FDA, 19 FLRA at 556-57. In Prisons, the Authority held that the agency did not violate the Statute, because it had made a diligent effort to find the information and supplied information as it became available. See 11 FLRA at 641-42.

      In sum, neither the Statute nor the case law supports the per se rule proposed by the Respondent -- that an agency is never obligated to supply after-acquired documents once it has responded to a union's request for information. However, the lack of such a rule does not imply, as the Respondent argues, that its obligation would continue indefinitely. Here, the request for information was made in order to assist the Union in preparing for an arbitration hearing and the Respondent failed to provide information that it received prior to the hearing. There is nothing indefinite about the Respondent's obligation to provide information in this case.

      With respect to the timing of the Respondent's actions, the Authority has held that "information must be furnished in a timely manner under the circumstances." Prisons, 11 FLRA at 642. As the Judge noted, while the four or five days that elapsed between the receipt of the information and its disclosure at the [ v57 p607 ] hearing would be a reasonable amount of time under most circumstances, "in this case, it was clear to all parties that every day was crucial in making final preparations for the arbitration hearing." Judge's Decision at 23. Under these circumstances, the Respondent's furnishing of the information at the hearing was not timely, and the fact that only four or five days elapsed does not undermine the conclusion that the Respondent violated the Statute.

      In addition to its general argument that it had no continuing obligation to supply information to the Union, the Respondent argues specifically that the fact that it did not possess the documents at the time it responded on March 4 establishes that the requested information was not normally maintained and the requested information was not reasonably available. These arguments depend on the Respondent's obligation being evaluated only at the time it made its response to the Union on March 4. Because we have rejected this premise, these arguments must also be rejected. In particular, the Respondent does not dispute the Judge's findings that it normally maintained the requested documents once it received them or that the requested documents were reasonably available at such time.

      In these circumstances, we find that the Judge properly found that the Respondent violated the Statute in failing to supply information that was normally maintained and reasonably available.

B.     The Judge did not err by finding a separate, statutory bad faith violation.

      Section 7116(a)(5) of the Statute states that it is an unfair labor practice for an agency to refuse to consult or negotiate in good faith. See United States Immigration and Naturalization Serv., Wash., D.C., 55 FLRA 69, 71 (1999). The duty to negotiate in good faith requires an agency to comply with § 7114(b)(4) of the Statute. See FAA, United States Dep't of Transportation, N.Y. Tracon, Westbury, N.Y., 50 FLRA 338, 341 (1995).

      The Respondent argues that the Judge's finding that it violated the Statute by acting in bad faith is improper because it was not obligated to notify the Union of the receipt of the information and because violations should not be based on equitable considerations. We have rejected the first argument above in Part VI., A. With respect to the second, the Respondent has not established that the Judge's decision was based on equitable -- as opposed to legal -- considerations. As such, the Respondent has provided no basis for concluding that the Judge erred in finding that the Respondent separately violated § 7116(a)(1) and (5) of the Statute.

C.     The Judge's factual errors do not undermine his decision.

      The Authority looks to the preponderance of the record evidence in determining whether a judge's factual findings are supported. See Dep't of the Treasury, United States Customs Serv., El Paso, Tex., 55 FLRA 43, 47 (1998). Errors of fact that do not affect the outcome of the case will be disregarded. See, e.g., United States Dep't of Justice, Immigration and Naturalization Serv., Wash., D.C. 55 FLRA 93, 96 n.4 (1999); AFGE, Local 1457, AFL-CIO, 43 FLRA 575, 585 n.2 (1991).

      The Respondent argues that the Judge erred in finding that the Respondent received the March 4 document by fax, rather than e-mail. According to the Respondent, this error undermines the Judge's conclusion as to when the document was received and presents an unresolved issue as to whether an e-mail is a document.

      Our review of the record evidence demonstrates that the Respondent is correct that the March 4 document was sent by e-mail, not by fax. The Respondent has not, however, demonstrated that this fact affects the outcome of the case. As explained above, in Part VI., A., the Respondent's obligation to supply information was not satisfied when it provided information to the Union on March 4, so the exact time that the Respondent received the e-mail does not determine whether it violated the Statute. Regarding the status of an e-mail as a document, § 7114(b)(4) requires an agency to furnish "data" that is responsive to a request. The Respondent has not argued that this e-mail was not "data" or that it was not responsive to the request.

      The Respondent also objects to the Judge's factual finding that it requested the documents in question, maintaining that it could not have requested documents it did not know existed. Assuming that the Respondent is correct, that fact would not undermine the Judge's conclusion that the Respondent violated the Statute. The Respondent has not denied that it was in possession of the documents, and the Judge's conclusion that the Respondent violated the Statute is based on the fact that the Respondent possessed and withheld documents responsive to the Union's request, not whether the Respondent requested the documents.

      Based on the foregoing, neither of the factual errors alleged by the Respondent is sufficient to reverse the Judge's conclusion that the Respondent violated the Statute. [ v57 p608 ]

VII.     Order

      Pursuant to § 2423.41 of the Authority's Regulations and § 7118 of the Federal Service Labor-Management Relations Statute, the Department of Transportation, Federal Aviation Administration, Fort Worth, Texas, shall:

      1.     Cease and desist from:

           (a)     Failing or refusing to furnish the National Air Traffic Controllers Association, Local 171 (Union) with information requested under § 7114(b)(4) of the Statute when the information is necessary for the Union to discharge its obligation as the exclusive representative of unit employees.

           (b)     Acting in bad faith by withholding such necessary information requested under § 7114(b)(4) of the Statute.

           (c)     In any like or related manner interfering with, restraining or coercing 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 Statute:

           (a)     Post at its facilities 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 Administrator of the FAA's Southwestern Region 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.

           (b)     Pursuant to § 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Dallas Regional Office, Federal Labor Relations Authority, 525 Griffin Street, Suite 926, LB 107, Dallas, Texas 75202-1906, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Department of Transportation, Federal Aviation Administration, Fort Worth, Texas, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice.

We hereby notify employees that:

WE WILL NOT fail or refuse to furnish the National Air Traffic Controllers Association, Local 171 (Union) with information requested under § 7114(b)(4) of the Statute when the information is necessary for the Union to discharge its obligation as the exclusive representative of unit employees.

WE WILL NOT act in bad faith by withholding such necessary information requested under § 7114(b)(4) of the Statute.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.

_________________________________
(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, Federal Labor Relations Authority, Dal