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15:0373(79)CA - Forces Korea/Eighth United States Army and NFFE Local 1363 -- 1984 FLRAdec CA

[ v15 p373 ]
The decision of the Authority follows:

 15 FLRA No. 79
 Charging Party
                                            Case No. 8-CA-1051
                            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.  The General Counsel
 filed exceptions to the Judge's Decision and a brief in support thereof.
    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, conclusions and recommendation that the complaint be
 dismissed, for the reasons stated below.
    An exclusive representative's need for information to fulfill its
 representation rights and duties under the Statute has been provided for
 by Congress in section 7114(b)(4) of the Statute.  /1/ The Authority has
 held that a request for information meeting the criteria of section
 7114(b)(4) must be honored in a timely manner, Bureau of Prisons,
 Lewisburg Penitentiary, Lewisburg, Pennsylvania, 11 FLRA No. 111 (1983),
 and, in contrast to the provisions of the Freedom of Information Act
 (FOIA), which authorizes the charging of fees, a copy of the information
 provided to the exclusive representative under section 7114(b)(4) must
 be furnished free of charge, Veterans Administration Regional Office,
 Denver, Colorado, 10 FLRA 453, 456-57 (1982).
    This case involves the Respondent's change in policy with respect to
 charging fees for certain information requested by and provided to the
 Charging Party under the FOIA rather than under the provisions of
 section 7114(b)(4) of the Statute.  Prior to the action giving rise to
 the complaint, the Respondent had established policies on providing
 information requested under the FOIA and on charging fees for such
 requests.  Such policies were applied to the Charging Party as if it
 were a member of the general public.  The Respondent's new policy with
 respect to charging fees for information requested under the FOIA has
 also been applied to the Charging Party as a member of the public.
    It is the Authority's view that the policy regarding fees for FOIA
 requests did not become a condition of employment simply because the
 Charging Party, having itself elected to seek information under the FOIA
 and consequently been treated as part of the general public, also
 happens to have been the exclusive representative for a unit of the
 Respondent's employees.  On this basis, the Authority concludes that the
 Respondent did not change a condition of employment so as to give rise
 to a duty to bargain.  /2/ In so concluding, we note that the Charging
 Party could have received, pursuant to section 7114(b)(4) of the
 Statute, free of charge, a copy of requested information which was
 necessary and relevant to enable it to fulfill its responsibilities as
 an exclusive representative under the Statute.  Accordingly, we find
 that the Respondent did not violate section 7116(a)(1) and (5) of the
    IT IS ORDERED that the complaint in Case No. 8-CA-1051 be, and it
 hereby is, dismissed.
    Issued, Washington, D.C., July 24, 1984
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 -------------------- ALJ$ DECISION FOLLOWS --------------------
    Sam Horn, Esquire
    Major Vincent C. Nealey
    For the Respondent
    Gerald M. Cole, Esquire
    For the General Counsel
    Mr. Don C. Terrill
    For the Charging Party
    Administrative Law Judge
    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., and the Rules and Regulations issued thereunder, Fed.
 Reg., Vol. 45, No. 12, January 17, 1980, and Vol. 46, No. 154, August
 11, 1981, 5 C.F.R.Chapter XIV, Part 2411, et seq.
    Pursuant to a charge filed on April 24, 1981, by Local 1363, National
 Federation of Federal Employees (hereinafter called NFFE or the Union),
 a Consolidated Complaint /3/ and Notice of Hearing was issued on July 6,
 1981, by the Regional Director for Region VIII, Federal Labor Relations
 Authority, Los Angeles, California.  The Consolidated Complaint alleges
 that United States Forces Korea/Eighth United States Army (hereinafter
 called the Respondent or Army), violated Section 7116(a)(1) and (5) of
 the Federal Service Labor-Management Relations Statute (hereinafter
 called the Statute or Act), by virtue of its actions in the Freedom of
 Information Act (FOIA) and receive various and sundry requested
 documents without being assessed any costs for the preparation of such
 requested documents.
    A hearing was held in the captioned matter on October 28, 1981, in
 Seoul, Korea.  All parties were afforded full opportunity to be heard,
 to examine and cross-examine witnesses, and to introduce evidence
 bearing on the issues involved herein.  The parties submitted briefs on
 December 14, 1981, which have been duly considered.
    Upon the basis of the entire record, including my observation of the
 witnesses and their demeanor, I make the following findings of fact,
 conclusions and recommendations.
                             Findings of Fact
    The Union is the certified representative of the four units of
 Respondent's employees.  /4/ Mr. Don Terrill is President of the Union.
    Commencing in late 1979 or early 1980, Mr. Terrill submitted numerous
 requests for information under the Freedom of Information Act (FOIA),
 which, prior to April 2, 1981, were all honored by the Respondent
 without any charge being assessed therefor.  Thus, the record indicates
 that Mr. Terrill submitted 39 FOIA requests in 1980 and 26 FOIA requests
 during the first three months of 1981.  No fees were charged for the
 aforementioned requests because the search and duplication costs did not
 exceed $30 per request.  /5/ Mr. Terrill signed the requests as Union
    On March 18, 1981, Mr. Terrill, in his capacity as President of the
 Union, submitted an FOIA request concerning the Chosun Gift Shop file.
 As was his past custom, Mr. Terrill requested that he be informed prior
 to any search for the requested information if the request would be
 subject to any fees.  In reply to the FOIA request the Respondent, by
 letter dated April 2, 1981, informed Mr. Terrill, in pertinent part, as
          Information available to this office reveals that you have
       submitted 26 requests for records under the Freedom of Information
       Act during the period 1 January 23 March 1981.  We are pleased to
       provide the information to you, but in view of the cumulative
       amount of file search and reproduction costs associated with
       processing these requests (which now exceed $30.00), this and
       future requests will be chargeable.
          The basis for assessing the search reproduction fees is
       contained in DOD Directive 5400.7, DOD Freedom of Information Act
       Program, effective 3 November 1980, as published in the Federal
       Register, Vol. 45, No. 236, Friday, December 5, 1980, Rules and
       Regulations.  The directive provides in subpart G - Fee Schedule,
       Section 286.60, General Provisions, paragraph (b)(2), that
       multiple requests from a single requestor or from those acting in
       behalf of a single requestor may create a situation in which
       waiver should be denied by the component.  /6/
    On April 3, 1981, Mr. Terrill wrote a letter to the Respondent
 wherein he requested that fees be waived for the instant as well as
 future FOIA requests and pointed out that he could have requested the
 information pursuant to Section 7114(b)(4) of the Statute without being
 responsible for any costs.  Mr. Terrill further pointed out that he had
 been receiving FOIA requests within 10 days and if forced to utilize the
 rights accorded the Union by Section 7114(b)(4) of the Statute he would
 except similar timely action.  failing timely action of its future
 requests for information, Mr. Terrill made it clear that he intended to
 file ULP charges alleging refusal to bargain in good faith.
 Subsequently, on April 5, 1981, Mr. Terrill sent letter to the Civilian
 Personnel Officer wherein he made it clear that the Union considered the
 "waiver of fees" to be a negotiable matter and intended to file an
 unfair labor practice if Respondent continued to change past practice
 and charge fees for the FOIA requests which individually were under
 $30.00.  On April 10, 1981, Respondent informed the Union that it
 intended to adhere to the position set forth in its April 2, 1981
    The record reveals that Army Regulation AR 340-17, which is
 applicable to FOIA requests, incorporated in the record as Respondent's
 Exhibit R-2, provides in pertinent part as follows:
          2.  A refusal to waive charges by the official responsible for
       the initial decision on the request for the record may be appealed
       to the head of the DOD component or his designee for purposes of
       final approval.
    According to Mr. James McGill, a Command Records Administrator, who,
 among other things, is responsible for handling FOIA requests addressed
 to the Respondent, that when the "cumulative threshold" of requests
 exceeds $30.00 it is Respondent's policy to charge for the FOIA requests
 thereafter.  Mr. McGill's interpretation of DOD Directive 5400.7 is
 based upon a telephone conversation he had with a Mr. Anderson who heads
 the Department of Army's Freedom of Information Act program.  The
 information received from Mr. Anderson was subsequently verified by a
 telegram which reads as follows:
          Phone conversation between Mr. Anderson and Mr. McGill, subject
       as above, subject being Freedom of Information Act, 25 March 1981.
        When direct search and duplication costs for a single FOIA
       waived.  However, when multiple requests are made by a single
       requestor or organization, the threshold becomes cumulative;  once
       the threshold is reached, fees may be charged for all search and
       duplication costs above $30.
                        Discussion and Conclusions
    The General Counsel takes the position that Respondent by virtue of
 its actions in changing its policy of waiving FOIA fees for Union
 requests under $30.00, unilaterally altered an established condition of
 employment in violation of Section 7116(a)(1) and (5) of the Statute.
    Respondent, on the other hand, relying on Section 7117(a)(2) of the
 Statute takes the position that inasmuch as DOD Directive 5400.7 was
 issued by the Department of Defense, an agency within the meaning of 5
 U.S.C. 7103(a)(3), it was under no obligation to bargain with the Union
 concerning actions taken pursuant to the directive in the absence of a
 determination that no compelling need existed for the regulation.
 Alternatively, Respondent, relying on Section 7116(d) of the Statute,
 contends that the complaint should be dismissed because Respondent's
 adverse action can be attacked under an existing appeals procedure.
 Additionally, Respondent urges dismissal of the complaint on the grounds
 that the Union is not entitled to free data and that the FOIA requests
 are not "conditions of employment" over which Respondent is obligated to
 bargain with the Union before instituting changes therein.
    Prior to reaching the technical defenses relied upon by the
 Respondent as grounds for dismissing the complaint, a threshold question
 must be answered, namely, is the use of the rights set forth in the FOIA
 a "condition of employment" over which Respondent is obligated to give
 the Union notice and an opportunity to bargain prior to making changes
 in the procedures, etc., it will utilize in fulfilling FOIA requests for
 information.  In considering the answer to this question it must be
 borne in mind that such issues as (1) the propriety of charging fees for
 information requested for intelligent bargaining and whether (2) the
 information requested involved herein does in fact concern the
 information necessary for intelligent bargaining, are not involved in
 the instant proceeding.  Thus, as noted above, the sole issue for
 determination is whether the Respondent's year and one quarter practice
 of waiving fees under FOIA ripened into a "condition of employment" over
 which Respondent had an obligation to bargain prior to instituting any
 changes therein.
    The Statute defines a "condition of employment" to mean "personnel
 policies, practices and matters, whether established by rule,
 regulation, or otherwise affecting working conditions, except that such
 term does not include policies, practices, and matters . . . (C) to the
 extent such matters are specifically provided for by Federal Statute."
    There is no doubt, and I do not understand any party to be contending
 to the contrary, that the request for information involved herein was
 made pursuant to the Freedom of Information Act, 5 U.S.C. 552, which
 accords the public the right to secure information within an agency's
 possession.  In such circumstances it would appear that under a literal
 reading of the Statute that the denial of the requested information to
 the Union, absent the payment of a set fee, whether contrary to a past
 established practice or not, does not constitute a change in an
 established "condition of employment" over which the Respondent is
 obligated to bargain.  The cases cited by the General Counsel in support
 of its position are distinguishable in that the past practices involved
 in such cases which rose to, or subsequently ripened into, conditions of
 employment, were practices which did not have their respective origins
 in a Federal Statute.  Thus, the use of the internal mail system and an
 agency's typewriters were practices which were unrelated to any
 particular rights accorded by Federal Statutes.  Such rights or
 practices were the product of the parties historical collective
 bargaining relationship.
    Moreover, the use of the FOIA procedure herein is not a practice
 unique to the Union, but rather is a right accorded to the public at
 large, of which the Union is a member.  Although it is true that the
 Union was granted numerous requests for information free of charge for
 approximately fifteen months, there is no showing that the granting of
 such free information was in any way related to its status as the
 exclusive representative of Respondent's employees rather than its
 standing or status as a member of the general public.  In such
 circumstances it is only entitled to the rights which flow from the FOIA
 Statute to the General Public.  To hold otherwise would result in giving
 the Union preferential status over other members of the general public.
    In this latter respect, the provisions of the FOIA make it clear that
 while an agency is encouraged to make documents or information available
 at little or no fees, an agency may in its discretion charge for the
 direct cost involved in making the search and duplication necessitated
 by the information request.  To the extent that one may argue that
 Respondent's action in charging for multiple requests is violative of
 the FOIA provisions, the Union's only recourse is utilization of the
 appeals procedure set forth in the FOIA, the final step of which is the
 appeal of an agency head's adverse decision to the U.S. District Court.
    Having found and concluded that the Respondent did not violate the
 Statute as alleged, it is recommended that the Federal Labor Relations
 Authority issue the following order pursuant to 5 C.F.R. 2423.29(c):
    It is hereby ordered that the complaint in Case No. 8-CA-1051 be, and
 hereby is dismissed.
                                       BURTON S. STERNBURG
                                       Administrative Law Judge
    Dated:  January 13, 1982
    Washington, D.C.
 --------------- FOOTNOTES$ ---------------
    /1/ 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(.)
    /2/ See, e.g., Department of the Navy, Naval Construction Battalion
 Center, Port Hueneme, California, 14 FLRA No. 60 (1984).
    /3/ The Consolidated Complaint originally included a number of other
 allegations set forth in Case Nos. 8-CA-992, 8-CA-1052 and 8-CA-1098.
 During the course of the hearing the parties reached settlement
 agreements in the aforementioned cases and upon motion duly made, the
 cases were severed from the Consolidated Complaint.  Accordingly, the
 hearing was confined solely to the allegations set forth in Case No.
    /4/ The certified units are as follows:  Career and
 career-conditional nonprofessional employees of the Department of the
 Army in the Republic of Korea;  Career and career-conditional
 professional employees of the Department of the Army in the Republic of
 Korea;  Career and career-conditional nonprofessional employees of the
 Department of the Navy in the Republic of Korea;  and Career and
 career-conditional employees of the Joint U.S. Military Assistance
 Group-korea (JUSMAG-K) in the Republic of Korea.
    /5/ Many of the aforementioned 65 FOIA requests involved information
 to which the Union was entitled under Section 7116(b)(4) of the Statute,
 i.e. information necessary for intelligent bargaining.
    /6/ Section 286.60 of DOD Directive 5400.7, entitled General
 Provisions, reads in pertinent part as follows:
          (b) Fee Assessment.  (1) Minimum fee shall not be charged.
          (2) When direct search and duplication costs for a single FOIA
       request total less than $30.00, fees should be waived
       automatically.  The DOD Components, however, may set aside the
       automatic waiver provision when, on the basis of good evidence the
       Component can demonstrate that waiver of fees is not in the public
       interest.  Multiple requests from a single requestor in an effort
       to take advantage of the waiver may create a situation in which
       waiver should be denied by the Component.
    /7/ The fact that the Respondent's actions in denying the requested
 information, absent payment of the requisite fees, may have been under
 the DOD and Army implementing regulations does not alter the foregoing
 conclusions since such regulations merely track the FOIA in all
 pertinent respects.  Cf. 5 U.S.C. 552(4)(A), 4(B), and (6), wherein FOIA
 provides for the charging of fees and a final appeal to the District
 Court when requests for information are denied by the head of an agency.