[ v14 p564 ]
The decision of the Authority follows:
14 FLRA No. 82 DEPARTMENT OF THE NAVY PEARL HARBOR NAVAL SHIPYARD PEARL HARBOR, HAWAII Respondent and UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 811 Charging Party Case No. 8-CA-788 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 complaint and recommending that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Judge's Decision and a supporting brief, and the Respondent filed an opposition thereto. 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 hearings 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, conclusions and recommendations as modified below. The Judge found that the Respondent did not violate section 7116(a)(1), (5) and (8) of the Statute, /1/ as alleged in the complaint, by refusing to furnish to the Union, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 811, information necessary and relevant for it to process a grievance. According to the complaint, the information requested consisted of the names of employees rotated from the third shift to the first shift and the amount of time each such employee had worked on the third shift. The Judge found that the Union steward repeatedly requested information about the "amount of personnel" rotated, in connection with a grievance over shift rotation alleged to be in disregard of seniority under the parties' negotiated agreement. The information was first sought on October 3, 1980, and again at several steps of the grievance procedure, but no information was actually furnished until October 27, 1980. At that time, the Union was given information including the number of employees shifted, but not the names of employees involved. The Judge noted that the Union steward had been told where he could find the information he needed and that the Union steward testified that the information he received was sufficient. On this basis the Judge concluded the Union was not denied access to the necessary information, and that the General Counsel therefore failed to meet its burden of proving the Respondent refused to furnish names of employees and the time each had worked on the disputed shift. Further, he found that the Respondent met its obligation to supply the requested information by directing the Union to where the information was kept. The Authority finds it unnecessary to pass on whether the Respondent would have met its obligation under section 7114(b)(4) of the Statute to furnish data "which is reasonably available and necessary" /2/ by directing the Union to certain files or personnel to find the information. Although the information sought arguably would be necessary for the Union properly to process the grievance, the record is clear that the request made to the Respondent was for the "amount of personnel" rotated, and the Union steward involved affirmed that he had never asked for the names of employees rotated. Thus, the information furnished was exactly what had been sought. /3/ Accordingly, the Authority concludes that the Respondent did not violate section 7116(a)(1), (5) and (8) of the Statute, and the complaint shall be dismissed. ORDER IT IS ORDERED that the complaint in Case No. 8-CA-788 be, and it hereby is, dismissed. Issued, Washington, D.C., May 11, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 8-CA-788 E. A. Jones, Esq. For the General Counsel Robert F. Griem, Esq. and Bert Lederer For the Respondent Before: ELI NASH, JR. Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C. 7101 et seq. (hereinafter referred to as the Statute) and the Rules and Regulations of the Federal Labor Relations Authority, 5 C.F.R.Chapter XIV, Sec. 2410 et seq. On January 30, 1981, the Regional Director for Region 8 of the Federal Labor Relations Authority, herein called the Authority, pursuant to a charge originally filed by the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 811, herein called the "Union," on October 27, 1980, and amended on January 28, 1981, issued an Order Consolidating Cases, Consolidated Complaint and Notice of Hearing /4/ alleging that the Department of the Navy, Pearl Harbor Naval Shipyard, Pearl Harbor, Hawaii, herein called the "Respondent", had engaged in unfair labor practices within the meaning of Section 7116(a)(1), (5), and (8) of the Statute in that since or or about October 15, 1980, and continuing to date, Respondent has failed and refused to furnish the Union necessary and relevant information consisting of the names of employees rotated from the third shift to the first shift and the amount of time each such employee had worked on the third shift, which information was necessary and relevant to the processing of a grievance. On February 18, 1981, Respondent filed an answer denying the allegations of the consolidated complaint. A hearing in this matter was conducted before the undersigned in Honolulu, Hawaii. All parties were represented by Counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence and to argue orally. Also all parties filed timely briefs. Based upon the entire record in this matter, including my observation of the witnesses and their demeanor, and upon my evaluation of the evidence, I make the following findings, conclusions and recommendations. Findings of Fact Respondent operates a shipyard at Pearl Harbor, Hawaii. At all times material herein Respondent and the Union were parties to a collective bargaining agreement. Article IV, Section 5, Rule 5-2 of the agreement provides: qualified employees who volunteer for second or third shift shall be rotated from the day shift to the requested shift on a 90 calendar day basis starting with the numbers required by the employer in the direct order of seniority in their current position from a group of work centers under the assigning supervisor. Volunteers who have served a 90 calendar day period under this provision shall not be selected again until each qualified volunteer has served a 90 calendar day period. However, there are no procedures set forth in the agreement to cover the order of return of employees to day shift due to lack of work on third shift before or after expiration of the 90-day period. Other portions of the agreement applicable herein are Article IV, Section 5, Rule 5-3, which provides for voluntary assignments to second and third shifts. Rule 5-4, providing that seniority in Article IV shall be based on the amount of continuous service with Respondent in the employees' present position. Also Rule 5-7 which provides that assignments of employees from one shift to another will be made only to the extent necessary to carry out Respondent's mission. Mr. Charlie Chang is a pipefitter with 8 years experience, who works in Respondent's Shop 56 under Supervisor David Blaylock. Mr. Chang was assigned to work third shift or from 11:30 p.m. to 7:30 a.m. on June 9, 1980. /5/ Effective September 29, 1980, Mr. Chang was rotated to first shift, his work hours there being 7:00 a.m. to 3:45 p.m. Mr. Chang's rotation was involuntary since he did not request to be rotated. Mr. Chang immediately requested to meet with a Union shop steward about his pending rotation, but no meeting was arranged until after he returned to day shift. In substance, Chang's complaint was that he was rotated out of seniority and that he should not have been rotated to first shift before employees who came to work after he was assigned to the third shift were rotated. Subsequently, Mr. Chang met with shop steward Raymond Arancon and complained about his rotation from third shift. Arancon conducted a preliminary investigation by talking to another pipefitter, Dennis Souza, who indicated that he and another employee had been rotated off the third shift at the same time as Chang though other employees had been on third shift longer in a longer period of time. Arancon because of his busy schedule assigned Chang's complaint to Newton Omiya, a new shop steward handling his first grievance. Arancon instructed Omiya to request records in order to verify whether Chang had been improperly rotated from third shift. Arancon also told Omiya to check the work load and check personnel still on third shift because there appeared to be preferential treatment on the shift. Arancon further indicated that Omiya should look for overtime work which would indicate a heavy work load. Arancon confidently told Omiya that Chang's case was "duck soup. All you got to do it request records to verify that Mr. Chang came back improperly." Arancon, an experienced steward, stated that there were several ways of requesting information. According to him, information could be requested verbally from a responsible agent of Respondent or in writing under Article 19, Section 5-14 of the collective bargaining agreement. Thereafter Chang and Omiya met in order to determine Chang's position on the shift rotation problem. Chang felt that a grievance was in order because his rotation off third shift was unfair, and that there were many employees who went on third shift before and after him who had not been rotated to day shift. Omiya investigated the Chang allegation by talking with employees Eugene Hall and Dennis Souza who had returned to day shift along with Chang. As a result of his investigation, Omiya determined that he should go forward with the Chang grievance. Around October 3, 1980 Omiya submitted the Chang grievance to Supervisor Blaylock. The grievance alleged a violation of Article IV, Section 5, Rule 5-2 and Rule 5-6 of the collective bargaining agreement. It requested basically that Chang be allowed to remain on the third shift and that he be paid retroactive night differential pay. In addition, under the notation "RECORDS OF WHICH EXAMINATION IS REQUESTED," /6/ the grievance stated: Records showing the amount of personnel that was rotated during the third shift rotation of the months, March 1980 to the present time, and the lengths of time personnel has and is serving. Also Records showing the amount of workload projected from June 1980 to Dec. 1980. Omiya testified that he sought the records in order to confirm information obtained in his preliminary investigation and to establish that Chang should not have been rotated to first shift under the terms of the agreement. At the hearing, Omiya testified that he wanted to know the amount of personnel rotated from third shift in order to find out how many people were rotated from third shift and the length of time they have spent on that shift. Omiya allegedly asked for the projected work load because he had heard that there was a low work load. According to Omiya, he asked for all those records. He also testified that he would have used the information to determine whether there was a high or low work load. The length of time individuals spent on the shift would, according to Omiya, be used to show whether Respondent applied seniority properly. In referring to the "amount of personnel", Omiya states that he meant the identity or names of the individuals concerned. Omiya further testified that he felt the names of the people who were on third shift were important and that without the information requested he could not resolve the grievance. He testified that the names of the individuals were important to show first, who in fact, was rotated and who was on or back on third shift. Omiya asserted that there was no way-- other than through Blaylock-- of obtaining the requested information. He said that he had tried to obtain information through interviews with other employees, but received little cooperation. The record shows that the information requested was available from records maintained in the Administrative Office in Shop 56 and the personnel shop for the Structural Group in Shop 92. A log is maintained which indicates the amount of time employees have worked on third shift and identifies the employees by name and badge number. Overtime records are also maintained in Shop 56. The overtime records include employee names, badge numbers and shifts worked. Information regarding projected work load is also kept in Superintendent Fenicle's office. There is no record evidence that Omiya was denied access to any of the above records. Later on October 6, 1980, Omiya hand delivered a letter to Blaylock in which he requested records showing regular and overtime hours worked by second and third shifts from September 29, 1980 to October 6, 1980. Omiya indicated in the letter that the records were necessary to the processing of the grievance. When Omiya delivered this letter, Blaylock told him that the records he had requested would be denied since release of the records would violate the rights of individuals on second and third shift. Blaylock also told Omiya that in order to get the records he would have to obtain the permission of Shop 56 Superintendent Billy Leucke. Much later on October 15, 1980, Blaylock informed Omiya, by letter regarding Omiya's October 6 letter that unless "justification is provided concerning the pertinence of these records, the documents you requested need not be provided." On October 16, 1980, a first step meeting on the Chang grievance was held in Blaylock's office. At that meeting, which lasted between fifteen and thirty minutes, Omiya and Chang again asked for the records from Blaylock. Blaylock responded that he could not provide the names of employees due to the Privacy Act. Omiya then said he did not want the names, but Blaylock did not change his position. Omiya requested that Blaylock put his denial in writing. Blaylock wrote the following on the grievance form beneath the typed-in request for records: "I don't have the Authority to give you these Records, but the chief union steward may see them in X-92 personnel. D. Blaylock 10-16-80." Earlier, Blaylock told Omiya that, "if I wanted the records that I would have to get permission" either from the General Foreman Gordon Dung or Superintendent Billy Leucke. Regarding the merits of Chang's grievance, Blaylock stated that the grievance would not hold and that Chang would not be sent back to third shift. Chang and Omiya were informed by letter dated October 15, 1980, but received on October 16, 1980, that the grievance was denied. The denial noted that Rule 5-2 dealt only with assignments to third shift and did not apply to assignments from third shift. In addition Blaylock noted that Chang had provided no evidence of a compelling reason under Rule 5-6 for assignment to third shift. The following day, October 17, 1980, Omiya carried two letters to Superintendent George Fenicle's office. The first was a request to move the grievance to the second step. The second, referring to and enclosing the grievance form and the October 6, 1980, information request letter, which renewed the earlier request for records. On October 24, 1980, a second step meeting was held on the grievance with Chang and Omiya present for the Union and, Superintendent Fenicle, Shop Superintendent Leucke, Supervisor Blaylock, and Administrative Officer, Ella Dalton present for Respondent. Omiya again asked Fenicle if he was going to give him the requested records. Fenicle responded that he had already provided the records. The discussion then turned to the merits of the grievance. Leucke indicated that Chang had been rotated because of lack of skill and because of his leave usage. Omiya for the second time in that meeting asked for the records and Fenicle again said they had already been provided. However, at that time, Ella Dalton interrupted Fenicle and told him that the records had not been delivered. Dalton informed Omiya that she would contact him later and give him the records. Omiya suggested that they delay the meeting pursuant to Article XIX, but Superintendent Fenicle declined and the meeting proceeded. On October 27, 1980, Omiya filed the instant unfair labor practice charge. Subsequently on October 29, 1980, Chang received the second step answer from Fenicle denying the grievance and noting, "As to the records you requested, we have provided you with a list of employees rotated." On that very day Omiya received a letter dated October 27, 1980, from Fenicle which stated, "In response to your request, the number of employees rotated to the third shift from the period Mr. Chang was rotated to the third shift is provided: (Effective date June 1980)." The letter listed the number of employees (but not their names) rotated to third shift and the number reassigned to first shift by grade for the period from June 9, 1980, to September 29, 1980. As already noted it included no employee names. According to Omiya, he was provided neither names, records nor information pursuant to his October 3 and October 6, 1980 requests. Omiya received no records regarding the time and length the individual employees spent on third shift or the work load projection for the regular and overtime hours worked. Further, Omiya states that he was never permitted to review the records on which the October 27 letter was based nor was he permitted to review any records pursuant to his requests. Omiya's testimony was, that based on the information he turned up prior to filing the grievance, the information in the October 27 letter was not accurate. The October 27 letter showed but one person returning to day shift on September 29, 1980, while Omiya's investigation indicated that at least three employees had been returned. However, Omiya does not deny that this information was available in Shop 92 and that he did visit Shop 92 to request records. Furthermore, Omiya testified that the October 29 information, which did not contain any employee names was sufficient information to permit him to process the Chang grievance. Finally on November 6, 1980, Chang's October 3, 1980, grievance form and the information request was submitted to Respondent's Commanding Officer, T. A. Marnane, Capt., USN, along with a letter of all the information requested. By letter dated November 21, 1980, and received by Chang on November 25, 1980, the grievance was denied by Capt. Marnane. There was no reference in the denial to the information request. Thereafter, the grievance was submitted to arbitration on December 5, 1980. Decision and Conclusion The Complaint alleges that Respondent violated the Statute by refusing to furnish necessary and relevant information consisting of the names of employees rotated from the third shift to the first shift and the amount of time each such employee had worked on the third shift. The General Counsel asserts that this allegation is sufficiently specific to encompass Respondent's failure to permit the Union to inspect and review the relevant requested records which contained the names of the employees involved. Respondent urges that the only allegation at issue is Respondent's failure to provide names that the Union did not want and that all other matters involved were not subject to adjudication. Omiya's original request for information and his testimony at the hearing reveals that the Union was not interested in names, but records showing the amount of personnel rotated, the length of service of individuals on third shift and the projected workload from June to December 1980. Further, Omiya repeatedly testified that he was interested in the amount of personnel rotated and was admittedly not specifically interested in names. The General Counsel further contends that Supervisor Blaylock's refusal to supply records under the Privacy Act is clear evidence that Blaylock understood Omiya's request to be for names. In view of the specific request "(r)ecords showing the amount" made on October 3 such an inference cannot be drawn. Further, Omiya's testimony sheds no further light on the nature of his request to Blaylock. Moreover, if the request was for names and the actual names were not necessary and relevant, as Omiya's testimony suggests, the denial of names, even for the reason stated by Blaylock would not be violative of the Statute. The complaint must be read that Omiya was seeking the individual names and records of employees on the third shift and based on the record as a whole this information was necessary and relevant to process the Chang grievance. However, Omiya testified that the material furnished on October 29, 1980 was sufficient for his purpose in processing the grievance and that this information did not then contain names of any employees. /7/ Furthermore, Omiya's testimony as to what he was seeking through his requests is confusing and could well have been misunderstood by Blaylock. It is noted that Blaylock did not perceive the relevancy of the information since obviously, in his view, seniority had nothing to do with Chang's being moved from the third shift. What is clear, however, is that Blaylock, on more than one occasion, directed Omiya to other sources in order to obtain the information and that Omiya ignored those sources since he concluded that Blaylock was responsible for supplying the records. Much of the confusion can be laid to Omiya's inexperience as a steward and his reliance on Arancon's instructions. While this type case would have been "duck soup" for Arancon it was obviously a little more difficult to Omiya. Thus, I conclude from the exchanges between Omiya and Blaylock, that Omiya was not denied access to or the ability to inspect the records originally requested by him on October 3, but that he denied himself the opportunity to inspect those records by not pursuing Blaylock's suggestions. Based on the foregoing, I agree with Respondent that the General Counsel did not establish by a preponderance of the evidence that it refused to furnish names of employees and the amount of time each such employee had worked on third shift. Indeed it is found that Respondent pointed Omiya to the records, and Omiya did not take advantage of the opportunity to inspect the records which included all the information sought by him. Furthermore, if what Omiya sought was raw data involving employees on the shift there is no question that such information was open and available for inspection in Shop 92 and Shop 56, but as Blaylock told him, the request for such information should have been made to either the General Foreman or to Superintendent Leucke and not to Blaylock. Turning to the question of whether Respondent refused to supply any necessary and relevant information to the Union. As Arancon testified, there were several established methods of obtaining records both orally and under the agreement. Omiya concluded that the request should be made directly to Blaylock, which he did. The record clearly established that Blaylock, on more than one occasion, directed Omiya to the records which he sought saying that he had no authority to give him the records, but telling him how the requested information could be obtained. The General Counsel contends that the information sought by Omiya was not where Blaylock suggested. In my view, Respondent met its obligation to supply the requested information. The record establishes that Omiya was not denied access to any of the information he sought and that he did go to Shop 92 to request a portion of the records. Further, there is no evidence that Respondent sought to withhold any information or records from Shop 92, but only that Omiya's inexperience prevented him from obtaining the information which he needed. In such circumstances, where a steward is informed where the requested information is kept and there is no record evidence that Respondent sought to deny access to those records it cannot be found, as suggested by the General Counsel, that Respondent refused to supply necessary and relevant information. For the aforementioned reasons, it is recommended that the Authority issue the following order: ORDER It is hereby ordered that the complaint in case No. 8-CA-788 be, and it hereby is, dismissed. ELI NASH, JR. Administrative Law Judge Dated: September 2, 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) of the Statute 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(.) /3/ While this information was furnished after the grievance process had begun, and at about the same time the charge was filed herein, the Authority notes, in agreement with the Judge, that the complaint does not allege a violation based on the Respondent's untimeliness in furnishing information but rather alleges that the information sought was not furnished at all. The Authority has determined that the information given was what was sought. /4/ Case Nos. 8-CA-757 and 8-CA-821 were severed at the hearing. /5/ Pipefitters work on three different shifts. /6/ The agreement, Article XIX, "Employee Grievance Procedure," provides at Section 5(h) as follows: h. When requested on the grievance form or in writing at any other appropriate time, in the grievance process, the Employer will permit inspection of pertinent records by either the grievant or his Council representative. If such records cannot be made available promptly any discussion, meeting or hearing scheduled to be held shall be held in abeyance until at least five calendar days after such records are made available. If such records cannot be made directly available for inspection because of applicable security or higher authority regulations, the Employer will exert every reasonable effort to present such records in a declassified form. Article II, "Administration of Agreement," provides, in pertinent part, in Section 1 as follows: Within the limits of security regulations, directives, and considerations governing the protection of classified, official and sensitive information, every effort shall be made to permit employees and their representatives to review documents critical to the resolution of their problems or complaints. When security regulations and directives prevent such review, originators shall be requested by the Employer to consider releasing such information, or declassifying or developing the necessary information in an unclassified form of review. When permissible under security regulations and necessary to the resolution of the matter, grievants and/or their representatives will be furnished copies of requested pertinent documents . . . /7/ Based on the above it is unnecessary to decide whether Respondent timely supplied the requested information to Omiya. Furthermore, the complaint as suggested by Respondent does not include a broad allegation which includes a timeliness argument.