18:0629(75)CA - Air Force, Scott AFB, IL and NAGE Local R7-23 -- 1985 FLRAdec CA
[ v18 p629 ]
18:0629(75)CA
The decision of the Authority follows:
18 FLRA No. 75
DEPARTMENT OF THE AIR FORCE
SCOTT AIR FORCE BASE, ILLINOIS
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R7-23
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).
ORDER
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
Chairman
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
DECISION
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
recommendations.
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:
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
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(.)"
/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
hearing.