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18:0629(75)CA - Air Force, Scott AFB, IL and NAGE Local R7-23 -- 1985 FLRAdec CA

[ v18 p629 ]
The decision of the Authority follows:

 18 FLRA No. 75
 Charging Party
                                            Case No. 5-CA-30222
                            DECISION AND ORDER
    The Administrative Law Judge issued the attached 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.  Thereafter, the Charging Party and the
 General Counsel filed exceptions to the Judge's Decision, and the
 Respondent filed an opposition to the General Counsel's exceptions.
    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 recommended Order, as modified below.
    In agreement with the conclusion of the Judge, the Authority finds
 that, under the circumstances herein, the General Counsel failed to
 sustain the burden of proving that the work schedules of military
 personnel were "necessary" information within the meaning of section
 7114(b)(4) of the Statute.  Thus, the Respondent did not violate section
 7116(a)(1), (5) and (8) of the Statute by refusing to provide such
 information to the Charging Party.  In this regard, the Authority notes
 that the information requested by the Charging Party concerned the work
 schedules of non-bargaining unit military personnel, who are not
 similarly situated employees for the purposes of showing disparate
 treatment as between employees in the administration of grievances.  In
 such circumstances, the Authority holds that the General Counsel must
 affirmatively demonstrate the necessity of the particular information
 requested.  Where, as here, the General Counsel does not carry this
 burden, the Respondent cannot be found to have violated section
 7116(a)(1), (5) and (8) of the Statute by failing to provide information
 as to non-bargaining unit employees.  United States Environmental
 Protection Agency, Health Effects Research Laboratory, Cincinnati, Ohio,
 16 FLRA No. 16 (1984) and Social Security Administration and
 Northeastern Program Service Center, 18 FLRA No. 66 (1985).
    IT IS ORDERED that the complaint in Case No. 5-CA-30222 be, and it
 hereby is, dismissed in its entirety.  
 Issued, Washington, D.C., June 21, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 -------------------- ALJ$ DECISION FOLLOWS --------------------
    Major Wade B. Morrison, Esquire
    For the Respondent
    Mark Clevenger, Esquire
    For the Charging Party
    Sandra LeBold, Esquire
    For the General Counsel, FLRA
    Before:  GARVIN LEE OLIVER, Administrative Law Judge
                           Statement of the Case
    This decision concerns an unfair labor practice complaint issued by
 the Regional Director, Region Five, Federal Labor Relations Authority,
 Chicago, Illinois against the Department of the Air Force, Scott Air
 Force Base, Illinois (Respondent), based on charge filed by the National
 Association of Government Employees, Local R7-23 (Charging Party of
 Union).  The complaint alleged, in substance, that Respondent violated
 sections 7116(a)(1), (5) and (8) of the Federal Service Labor-Management
 Relations Statute, 5 U.S.C. 7101 et seq. (the Statute), by refusing to
 furnish to the Union copies of the work schedules of military personnel
 of the Medical Center Food Service pursuant to Section 7114(b)(4) of the
 Statute. Respondent's answer denied any violation of the Statute.
    A hearing was held at Scott Air Force Base, Illinois.  The
 Respondent, Charging Party, and the General Counsel were represented and
 afforded full opportunity to be heard, adduce relevant evidence, examine
 and cross-examine witnesses, and file post-hearing briefs.  Based on the
 entire record, including my observation of the witnesses and their
 demeanor, I make the following findings of fact, conclusions of law, and
                             Findings of Fact
    At all times material herein, the Union has been recognized as the
 exclusive representative of an appropriate unit of Air Force civilian
 employees assigned to Respondent.  (General Counsel's Exh. 6;  Tr. 8-9).
  On July 30, 1982, the parties signed a collective bargaining agreement.
  Article VII, Sections 1-11 deals with hours of work and the basic
 workweek, including shift assignments.  Article XXI, Section 2(a)
 provides that Respondent shall treat all employees fairly and that
 employees shall have the right to file grievances if they feel they have
 not been treated in such a manner. (General Counsel's Exh. 6).
    On October 13, 1982, Carl Denton, Union president, requested copies
 of the work schedules, Air Force Form 2578, for all Medical Center Food
 Service employees for the period of June 6, 1982 through October 31,
 1982.  Mr. Denton stated in the letter that the reason he wanted the
 information was because "(t)he Union has received complaints from
 employees at the Medical Center Food Service regarding their daily tours
 of duty." (General Counsel's Exh. 2;  Tr. 13).
    On October 18, 1982, Lt. Col. Mildred J. Chambers, Chief, Medical
 Center Food Service, provided the Union copies of the work schedules of
 all civilian employees.  (General Counsel's Exh. 3;  Tr. 14).  The Union
 reiterated on November 24, 1982 that it wanted copies of all work
 schedules, and specifically requested that it be furnished work
 schedules for the military personnel in the Medical Center Food Service
 as well.  (General Counsel's Exh. 4;  Tr. 14).
    By letter dated December 10, 1982, Lt. Col. Chambers responded:
          1.  As you are aware, the union's representation rights and
       obligation do not extend to military personnel.  Further, to grant
       the union's request would require an unreasonable amount of time.
          2.  In view of the above, it is my opinion that management has
       no obligation to provide the union copies of work schedules for
       military personnel.  Should you have evidence to refute this view,
       request same be provided not later than 27 December 1982.  Absent
       such, this matter will be considered closed.  (General Counsel's
       Exh. 5;  Tr. 9).
    Subsequently, Mr. Denton and Union vice-president Bryant discussed
 the information request with Ray Rush, labor relations officer, on
 several occasions.  Mr. Rush stated that there was no obligation to
 provide the information because it had to do with the military.  /1/
 (Tr. 14-15).  The Union reminded Mr. Rush that information on military
 personnel had been provided in the past.  /2/ Mr. Rush replied that this
 was a mistake which would not be repeated and had been based on a
 misinterpretation of advice he had previously given.
    Mr. Denton could not recall whether or not he gave Mr. Rush specific
 reasons why he felt the Union needed the information;  e.g., that
 civilians who left were not being replaced;  as a result, the remaining
 civilians had their shifts changed more frequently;  military personnel
 were not taking up the slack;  the Union wanted to make an effort to
 have the Union vice-president and chief steward assigned to the day
 shift.  In any event, he felt that Mr. Rush was already aware of these
 things because of their "ongoing relationship," which was not further
 described.  (Tr. 18-21).
                Discussion, Conclusion, and Recommendations
    As pertinent here, section 7114(b)(4) /3/ of the Statute requires an
 agency, upon request, to furnish an exclusive representative with data
 "which is reasonably available and necessary for full and proper
 discussion, understanding and negotiation of subjects within the scope
 of collective bargaining."
    It is well established that under this provision of the Statute a
 Union is entitled to receive information necessary to the performance of
 all of its representational responsibilities, including negotiations,
 administration of the collective bargaining agreement, and the effective
 evaluation and processing of grievances.
    Where the requested information concerns data intrinsically within
 the scope of these representational responsibilities, the information is
 presumptively relevant.  In such cases the employer has the burden of
 showing lack of evidence.  However, as to other matters, the burden is
 on the union to demonstrate the relevance of the requested information.
 Cf. Director of Administration, Headquarters, U.S. Air Force, 6 FLRA
 110, 121-122 (1981).
    The General Counsel argues in its brief that the Union needed the
 schedules of military as well as civilian employees in order to deal
 with the "complaints of employees," as mentioned by the Union in its
 request.  The General Counsel states:
          Why did the Union need the schedules of military as well as
       civilian employees?  Civilian and military employees work side by
       side in the Medical Food Service and their jobs are integrally
       related.  /4/ The Union had received complaints and in order to
       deal with those complaints in a responsible manner, it wanted to
       understand the total picture, not a fragment of the picture.  The
       Union did not request the information in order to bargain over
       military schedules or to represent military personnel, which it
       clearly had no right to do, but rather to review the work
       schedules in order to assess their impact upon the work schedules
       of civilian employees and to determine whether the Respondent's
       scheduling of civilian employees was consistent with its
       contractual obligations.
    The request was for the work schedules of military personnel,
 employees clearly outside the bargaining unit.  The Statute prescribes
 certain rights and obligations with respect to collective bargaining in
 the civil (as opposed to military) service.  Therefore, as recognized by
 the General Counsel, such information would not ordinarily be relevant
 to the Union's duties as the exclusive representative "to act for, and
 negotiate collective bargaining agreements covering, all employees in
 the unit." See section 7114(a)(1) of the Statute.  Military personnel
 would also not be "similarly situated employees" for purposes of showing
 in a grievance disparity of treatment among employees.  Compare Internal
 Revenue Service, Western Region, San Francisco, California, 9 FLRA 480
 (1982).  Therefore, in order to meet its burden regarding information
 concerning employees outside the unit, the Union was required to show,
 by reference to the circumstances of the case, more precisely the
 relevance of the data it desired.  Cf. Curtiss-Wright Corp v. NLRB, 347
 F.2d 61, 69, 59 LRRM 2433 (3rd Cir. 1968).  It could not merely leave
 the relevancy open to conjecture or surmise.  Cf. San Diego Newspaper
 Guild v. NLRB, 548 F.2d 863, 868, 94 LRRM 2923 (9th Cir. 1977).  It had
 to show more than an abstract relevance based on the need to "understand
 the total picture." Furthermore, the Union had the duty to demonstrate
 the relevance and necessity for the information at the time the request
 was made so that problems could possibly be worked out after some
 further minimal effort at the bargaining table.  It is only after such
 effort that the problem is properly presented to the Authority and the
 courts.  Cf. Soule Glass and Glazing Co. v. NLRB, 652 F.2d 1055,
 1098-1099, 107 LRRM 2781, 2806 (1st Cir. 1981) and cases cited therein;
 Emeryville Research Center, Shell Development Co. v. NLRB, 441 F.2d 880,
 77 LRRM 2043 (9th Cir. 1971);  438th Air Base Group, McGuire Air Force
 Base, 2-CA-609, 4 ALJDR (1982).
    In this case, Respondent, upon receipt of the Union's request for the
 work schedules of the military personnel, advised the Union that its
 representational rights and responsibilities did not extend to military
 personnel.  Accordingly, Respondent stated that it was of the opinion
 that it had no obligation to provide the Union copies of work schedules
 of military personnel.  Respondent invited the Union to provide any
 evidence it had to refute this view.  There is no evidence that the
 Union did so.
    The General Counsel contends that any further explanation would have
 been fruitless in view of Respondent's announced position that the Union
 had no right to information about military personnel.  I disagree.  In
 this instance, as noted above, the burden was on the Union to
 affirmatively demonstrate at the time of the request that the
 information was necessary and relevant in order to enable it to carry
 out its statutory representational obligations.  There was no showing
 that the relevance was already known by Respondent.  Even assuming that
 Mr. Rush was aware of the reasons why the Union wanted the information,
 as described by Mr. Denton at the hearing, these reasons on their face
 do not demonstrate the precise relevance of the requested data to the
 situation.  The fact that similar information had been voluntarily
 supplied by Respondent on two previous occasions is not particularly
 significant.  The General Counsel does not contend that this amounted to
 a past practice, and the explanation offered by Respondent for this is
 not unreasonable.
    In view of the Union's failure to initially demonstrate to Respondent
 that the information requested in this instance was necessary and
 relevant in order to enable it to discharge its responsibilities under
 the Statute, it is concluded that Respondent did not violate sections
 7116(a)(1), (5), and (8) of the Statute by refusing to furnish the
 information pursuant to section 7114(b)(4), as alleged.  Internal
 Revenue Service, Buffalo District, Buffalo, New York, 7 FLRA 654 (1982);
  Director of Administration, Headquarters, U.S. Air Force, supra.
    Based on the foregoing findings and conclusions, it is recommended
 that the Authority issue the following Order:
    IT IS HEREBY ORDERED that the complaint in Case No. 5-CA-30222 be,
 and it hereby is, DISMISSED.
                                       GARVIN LEE OLIVER
                                       Administrative Law Judge
    Dated:  December 15, 1983
    Washington, D.C.
 --------------- FOOTNOTES$ ---------------
    /1/ Respondent's earlier position that to grant the request would
 also require an unreasonable amount of time was apparently dropped.  It
 was not made an issue at the hearing.
    /2/ The record reflects that on two previous occasions the Union
 requested and received military work schedules.  The first Union
 request, dated January 11, 1982, requested work schedules of all
 employees to determine the validity of "several complaints and some
 grievances, of various magnitudes." Respondent replied that the request
 was not "sufficient specific," and subsequently furnished the
 information only after the Union set out the nature of the complaints
 and grievances.  (General Counsel's Exh. 7).  The second Union request
 for all work schedules of Medical Center Food Service employees, dated
 May 28, 1982, was provided based on the Union's representation that it
 had "received complaints from employees . . . regarding their
 assignments of duties and their daily tours of duties." (General
 Counsel's Exh. 8).
    /3/ Section 7114(b)(4) provides that the "duty of an agency and an
 exclusive representative to negotiate in good faith shall the
          (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(.)"
    /4/ No evidence as to civilian and military employees working side by
 side or of the integral relationship of their jobs was adduced at the