[ v13 p392 ]
The decision of the Authority follows:
13 FLRA No. 65 ARMY AND AIR FORCE EXCHANGE SERVICE (AAFES) LOWRY AIR FORCE BASE EXCHANGE FT. CARSON, COLORADO Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2865 Labor Organization Case Nos. 7-CA-653 7-CA-712 DECISION AND ORDER The Administrative Law Judge issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the consolidated complaint and recommending that the complaint be dismissed. Thereafter, the General Counsel filed exceptions to the Judge's Decision. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Authority has reviewed the rulings of the Judge made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's Decision and the entire record, the Authority hereby adopts the Judge's findings and conclusions as modified herein, and rejects his recommendation that the complaint be dismissed. The Judge found that the Respondent did not violate section 7116(a)(1), (5) and (8) of the Statute /1/ when it required the Union to pay $93.50 as a condition precedent to providing the Union with certain overtime records. While the Judge found that the Respondent had a duty under section 7114(b)(4) of the Statute /2/ to provide the Union with data normally maintained relating to unit employees' overtime, he concluded that the Respondent's obligation did not extend, as alleged, to providing the Union, free of charge, with copies of relevant documents. The Authority adopts the Judge's threshold finding that the Respondent had a duty under section 7114(b)(4) to provide the Union with the unit employees' overtime data sought herein. /3/ However, contrary to the Judge, and in accordance with our decision in Veterans Administration Regional Office, Denver, Colorado, 10 FLRA No. 78 (1982) (issued subsequent to the Judge's Decision herein), the Authority finds for the reasons stated in Veterans Administration that the Respondent's obligation to "furnish" such data requires the Respondent to provide a copy without cost to the exclusive representative. Accordingly, the Respondent's refusal to do so constituted a failure to meet the duty to bargain in good faith and noncompliance with section 7114(b)(4) of the Statute in violation of section 7116(a)(1), (5) and (8) of the Statute. /4/ ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that Army and Air Force Exchange Service (AAFES), Lowry Air Force Base Exchange, Ft. Carson, Colorado, shall: 1. Cease and desist from: (a) Failing and refusing to provide, without charge, to the American Federation of Government Employees, AFL-CIO, Local 2865, the employees' exclusive representative, a copy of the requested data relating to unit employees' overtime. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their 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) Provide, without charge, to the American Federation of Government Employees, AFL-CIO, Local 2865, the employees' exclusive representative, a copy of the requested data relating to unit employees' overtime. (b) Post at its facilities at the Army and Air Force Exchange Service, Lowry Air Force Base Exchange, Ft. Carson, Colorado, 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 an appropriate official of the Army and Air Force Exchange Service, Lowry Air Force Base Exchange, Ft. Carson, Colorado, and shall be posted and maintained by him for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. The appropriate official shall take reasonable steps to insure that such Notices are 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 VII, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the other allegations of the consolidated complaint in Case Nos. 7-CA-653 and 7-CA-712 be, and they hereby are, dismissed. Issued, Washington, D.C., November 9, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT fail or refuse to provide, without charge to the American Federation of Government Employees, AFL-CIO, Local 2865, our employees' exclusive representative, a copy of the requested data relating to unit employees' overtime. 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 Statute. WE WILL provide, without charge to the American Federation of Government Employees, AFL-CIO, Local 2865, our employees' exclusive representative, a copy of the requested data relating to unit employees' overtime. (Agency or 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 VII, Federal Labor Relations Authority, whose address is: Federal Building & U.S. Customs House, 1531 Stout Street, Suite 301, Denver, Colorado 80202 and whose telephone number is: (303) 837-5224. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 7-CA-653, 7-CA-712 Luther G. Jones, III, Esq. For the Respondent Gavin K. Lodge, Esq. For the General Counsel Before: ALAN W. HEIFETZ Administrative Law Judge DECISION Statement of the Case This proceeding arose pursuant to the Federal Service Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., as a result of unfair labor practice charges filed on July 15 and August 19, 1980, with the Federal Labor Relations Authority. Consequently, on September 24, 1980, the Regional Director, Region VII, of the Authority issued an Order Consolidating Cases, Complaint and Notice of Hearing alleging that Respondent had violated Section 7116(a)(1), (5) and (8) by: (1) refusing to furnish the Union data that the Union had requested consisting of certain overtime and compensatory records of unit employees; and (2) requiring the Union to pay $93.50 as a condition precedent to its furnishing the Union certain sanitized overtime records. A hearing was held on February 23, 1981, in Denver Colorado. All parties were afforded full opportunity to examine witnesses and to introduce evidence. Post hearing briefs have been filed and considered. Upon the entire record, including my observation of the witnesses and their demeanor, I make the following findings, conclusions and recommendation. Findings of Fact During a publicity drive for the Union, William Bleau, then a national representative for the Union, began an investigation of Respondent's pay practices as a result of certain information brought to his attention by employees at the Army and Air Force Exchange Service (AAFES), Lowry Air Force Base Exchange. By letter dated June 26, 1980, Mr. Bleau requested under Section 7114(b)(4) of the Statute "all records on overtime or compensatory time given to Bargaining Unit employees from 30 March 1978 to present." Responding on July 2, 1980, not to Mr. Bleau, but rather to Carol Harper, president of the Union, Respondent advised that " . . . since this matter carries Privacy Act and Freedom of Information Act (FOIA) implications, (it has been forwarded) as a FOIA request to Headquarters, AAFES, for disclosure determination." /5/ On July 8, 1980, Mr. Bleau again made a written request under Section 7114(b)(4) of the Statute for the data he had requested in his June 26 letter. A "Memo Routing Slip" dated July 10, 1980, informed Mr. Bleau that the matter was "being reviewed by General Counsel as previously indicated in our letter to Carol Harper dated 2 July 1980." Shortly thereafter, Mr. Bleau filed the first charge in this case. By letter dated July 30, 1980, Respondent advised the Union that (1) "compensatory records cannot be provided"; (2) overtime records would be provided in a sanitized form to comply with the Privacy Act; and (3) the Union would have to pay, in advance, $93.50 to cover the estimated cost to Respondent for processing the request. This response prompted the second charge in this case. The Union made no further request or inquiry with regard to the records it sought. It never sought merely to inspect the records or to copy them by its own means. Respondent does not maintain any records of compensatory time. The charges required of the Union for reproduction of the data were estimated under its Freedom of Information Request regulations and those charges have not been challenged as being unreasonable. Respondent's regulations provide several reasons for waiving charges for document reproduction including one when the recipient is engaged in "a nonprofit activity . . . for public safety, health or welfare." On one occasion, Mr. Bleau received at no charge a copy of an affidavit in Respondent's possession. Respondent does not charge its contractors and vendors for copies of materials sent in the regular course of business. Discussion and Conclusions The General Counsel correctly argues that AAFES has a duty under Section 7114(b)(4) of the Statute to provide the Union with data, normally maintained by it, relating to employee overtime and compensatory time, for use in investigation of employee concerns regarding pay matters. Respondent does not deny this obligation, but it correctly counters that it is not an unfair labor practice to fail to produce documents that do not exist. /6/ The General Counsel concedes this point with regard to the nonexistent compensatory time records, but also argues persuasively that Respondent's less than candid statement that "compensatory records cannot be provided" reveals less than a forthright approach to labor-management relations. Respondent, on brief, acknowledges a "poor choice of words". The sole issue remaining in this case is whether a Union is entitled to receive, free of charge, copies of documents to which it may lawfully have access under the Statute. /7/ The Statute is silent as to the conditions under which an agency is to "furnish" information. The legislative history is similarly silent, and Counsel for the General Counsel has not cited, nor is there any, decisional authority for the proposition that an agency must assume the financial obligation arising out of the Union's request for information. As a matter of fact, my learned colleague, Administrative Law Judge Salvatore J. Arrigo, after analyzing similar cases before the National Labor Relations Board which found that an employer was not obligated to assume such a financial burden, concluded that the same result should obtain in the public sector. /8/ I reach the same conclusion and find additional support for it in the legislative history as it pertains to official time. Section 7131 of the Statute pertains to official time to be granted employees conducting activities on behalf of their unions. That section and its legislative history speak to four circumstances under which is raised the question who should bear the cost of an employee's time: /9/ (1) where the employee represents an exclusive representative in the negotiation of a collective bargaining agreement; (2) where the employee engages in activities relating to the internal business of a labor organization; (3) where the employee participates in a proceeding before the Authority; and (4) in other circumstances where the employee represents, or is represented by, an exclusive representative. In (1), official time shall be granted; in (2), the employee shall be in nonduty status; in (3), the Authority shall determine whether to authorize official time; and in (4), the agency and the union, together, are to determine the amount of official time which will be "reasonable, necessary, and in the public interest". The Statute recognizes then, that certain specified activity warrants the "expenditure" of official time by the agency; certain specified conduct does not; and all other related activity requires agreement of labor and management as to what is "reasonable, necessary, and in the public interest." Although the Senate version of the Statute contained only two parts in its provision for official time, one disallowing official time for internal union activities and the other providing for limited negotiation of official time for contract negotiations, the legislative history noted that nothing in the provision prohibited an agency and a union from negotiating for official time to cover representational activities, other than contract negotiations, where consistent with the purposes of the Statute, one purpose being the efficient operation of the government. /10/ In the legislative history of the House of Representatives version, which did become law, Congressman Ford noted that official time for preparation for such "interface" activities as "negotiations, grievances, negotiability disputes, and unfair labor practices" is the subject of negotiated agreement between the agency and the exclusive representative. /11/ And as passed, the Statute provides at the outset in Section 7101 that, "The provisions of this chapter should be interpreted in a manner consistent with the requirement of an effective and efficient Government." Thus Congress, in its consideration specifically of official time, recognized that consistent with "efficient" operation of the government, expenditure of official time for various unenumerated labor-management activities should be permitted where it is negotiated between the agency and the union and where such expenditure would be "reasonable, necessary, and in the public interest". Parallel considerations dictate application of such a principal to an agency's obligation to furnish photocopies of records. Efficient operation of government would not be consistent with an obligation to furnish photocopies of whatever an exclusive representative may demand willy-nilly. Conversely, a reasonable response to a request for photocopies of a few pages, especially where the request would save the exclusive representative the time of hand copying and might also save the agency time in resolving any related dispute, would not be to require the union to fill out a long series of forms and to submit a check for a few cents. Somewhere in between there is grounds for negotiation over what would be "reasonable, necessary, and in the public interest". In considering the obligation of an agency to "furnish" data to an exclusive representative, Congress made no finding of any specified circumstance under which the agency must assume a financial obligation in connection with the requirement that it furnish the data. Since the Statute is silent in that regard, the inescapable conclusion is that an agency has no affirmative obligation to provide photocopies of data at no charge. However, since the Statute is likewise silent as to any circumstances under which an agency may not provide free photocopies, one must also conclude that there is no statutory prohibition against that practice. Finally, since nothing in the Statute prohibits an agency and a union from negotiating for free photocopies of data where consistent with the purposes of the Statute, that avenue provides a proper approach to resolving such requests. Having found and concluded that the Respondents did not violate the Statute as alleged, I recommend that the Federal Labor Relations Authority issue the following order pursuant to 5 CFR 2423.29(c): ORDER ORDERED, that the complaint in Case Nos. 7-CA-653 and 7-CA-712 is dismissed. ALAN W. HEIFETZ Administrative Law Judge Dated: April 24, 1981 Washington, D.C. --------------- FOOTNOTES$ --------------- /1/ Section 7116(a)(1), (5) and (8) provides: Sec. 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency-- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; . . . . (5) to refuse to consult or negotiate in good faith with a labor organization as required by this chapter; . . . . (8) to otherwise fail or refuse to comply with any provision of this chapter. /2/ Section 7114(b)(4) provides: Sec. 7114. Representation rights and duties . . . . (b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation-- . . . . (4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data-- (A) which is normally maintained by the agency in the regular course of business; (B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining(.) /3/ There is no contention before the Authority that the data requested herein is "prohibited by law" from being furnished. Veterans Administration Regional Office, Denver, Colorado, 10 FLRA No. 78, n. 5 (1982). /4/ See also Veterans Administration, Iron Mountain, Michigan, 10 FLRA No. 79 (1982). /5/ Mr. Bleau did not see this letter until some time after July 2. /6/ Internal Revenue Service and Brooklyn District Office, IRS, 1 FLRA No. 89 (July 31, 1979). /7/ In his opening statement, Counsel for Respondent opined that the obligation to provide information was subject to the Privacy Act, 5 U.S.C. 552; however, this contention was not pressed on brief. Counsel for the General Counsel, in his brief, correctly cites cases under the Executive Order which recognize that the right to information arises independently from the Privacy Act and the Freedom of Information Act. However, Counsel for the General Counsel would have me go further and find that an offer of sanitized records violates the Union's rights under the Statute. That I cannot do. In order to reach that issue, the records themselves would have to be in evidence in order to balance the conflicting rights of the Union's access to the information and the individual's right to privacy. Here those records are not in evidence and, therefore, the question whether they may be sanitized is not properly before me. /8/ Veterans Administration Regional Office, Denver, Colorado, Case No. 7-CA-365, OALJ-81-032 (January 23, 1981). /9/ An employee's time is no less a cost than is a photocopy of a document. It is no less true today that "our costliest expenditure is time." Theophrastus (c. 370-287 B.C.), quoted in Diogenes Laertius' Lives and Opinions of Eminent Philosophers (3rd c. A.D.). /10/ Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, Committee Print No. 96-97, Committee on Post Office and Civil Service, House of Representatives, 96th Cong., 1st Sess., Nov. 19, 1979; pp. 772-773. /11/ Id. at p. 957.