[ v21 p595 ]
The decision of the Authority follows:
21 FLRA No. 77 DEFENSE MAPPING AGENCY AEROSPACE CENTER ST. LOUIS, MISSOURI Respondent and NATIONAL FEDERATION 0F FEDERAL EMPLOYEES, LOCAL 1827 Charging Party Case No. 7-CA-30165 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 in its entirety. Thereafter, the General Counsel filed exceptions to the Judge's Decision, and the Respondent filed an opposition to the exception. 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. In agreement with the Judge, the Authority concludes that the General Counsel has not met the burden of proving that the Respondent failed to comply with Section 7114(b)(4) of the Statute when it refused to furnish requested information to the Charging Party in the particular circumstances of this case. See Department of the Treasury, United States Customs Service, Region IV, Miami, Florida 18 FLRA no. 53 (1985); Social Security Administration and Northeastern Program Service Center, 18 FLRA No. 66 (1985); Department of the Air Force, Scott Air Force Base, Illinois, 18 FLRA No. 75 (1985; and United States Environmental Protection Agency, Health Effects Research Laboratory, Cincinnati, Ohio, 16 FLRA 52 (1984). We shall therefore dismiss the complaint. /1/ ORDER IT IS ORDERED that the complaint in Case No. 7-CA-30165 be, and it hereby is, dismissed in its entirety. Issued, Washington, D.C., April 30, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier, III, Member FEDERAL LABOR RELATIONS AUTHORITY -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 7-CA-30165 DEFENSE MAPPING AGENCY AEROSPACE CENTER, ST. LOUIS, MISSOURI Respondent and NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1827 Charging Party Mr. Louis P. Eaves For the Respondent Mr. Virgil Haun For the Charging Party Daniel Minahan, 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 Seven, Federal Labor Relations Authority, Denver, Colorado against the Defense Mapping Agency Aerospace Center, St. Louis Missouri (Respondent), based on a charge filed by the National Federation of Federal Employees, Local 1827 (Charging Party or Union). The complaint alleged in substance, that Respondent violated sections 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relatons Statute, 5 U.S.C. Section 7101 et seq. (the Statute), by refusing to furnish to the Union copies of certain documents sought by the Union to properly represent an employee who had not been selected for an engraver foreman position. The complaint alleged that the Union was and is entitled to the data under Section 7114(b)(4). Respondent's answer denied any violation of the Statute. A hearing was held in St. Louis, Missouri. 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. Respondent and the General Counsel filed helpful briefs. /2/ Based on the entire record, /3/ including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations. Findings of Fact 1. At all times material, the Union is and has been a labor organization within the meaning of 5 U.S.C. 7103 (a)(4). (GC-1(C); GC-1(D). 2. At all times material, Respondent is and has been an agency within the meaning of 5 U.S.C. 7103(a)(3). (GC-1(C); GC-1(D). 3. At all times, material, the Union has been certified as the exclusive representative of all General Schedule and wage grade employees of Respondent, exclusing management officials, professional employees, confidential employees, employees engaged in Federal personnel work in other than a purely clerical capacity, and supervisors as defined in Title VII, Public Law 95-454. (GC 1(c)), 1(d). There are approximately 1,300 employees in the unit. Respondent has approximately 2,400 employees outside the unit. (TR.90). 4. At all times material, Respondent and the Union have been parties to a collective bargaining agreement with an effective date of 19 February 1982. (GC-2). a. Article 9 contains a "broad-scope" grievance procedure. (Tr 59, 103). Among other things, it defines a grievance as a complaint by the Union or any unit employee concerning any matter relating to the employment of any unit employee and any complaint by the Union or any employee concerning any claimed violation, misinterpretation, or misapplication of any law, rule or regulation affecting conditions of employment. b. Since the February 1982 effective date of the agreement, the negotiated grievance procedure has never been applied to the filing of supervisory or other non-bargaining unit positions. (TR. 89-91). c. Article 9-3c. provides, in part, that raising an EEO complaint with an EEO counselor shall consittute an election by an employee and shall preclude raising the same issue(s) as a grievance. d. Article 9-4e. provides, in part, that a grievance must be filed within 21 calendar days of the date of occurence of the matter grieved or within 21 calender days of the date that the aggrieved party could reasonably be expected to have been aware of the occurrence grieved. e. Article 14 deals with providing the Union information "relevant and necessary for the proper discharge of its obligation under Public Law 95-454 and this agreement." Article 14-1g. provides that specific information requested for investigating and/or processing complaints/grievances/appeals will be provided without undue delay, normally within 7 workdays. f. Article 36 deals with employee details, reassignments and temporary promotions. Article 37 deals with the merit staffing program. (G.C. Ex. 2). 5. Respondent has consistently refused to engage in negotiations regarding the filling of supervisory positions. (Tr. 66-67, 69, 89). 6. At all times material, Louis Paul Eaves. (hereinafter Eaves), has occupied the position of labor relations officer for Respondent, and has been and is now a supervisor and/or management official within the meaning of 5 U.S.C. 7103(a)(10) and/or (11), and an agent of Respondent (GC-1 (c); GC-1(D). 7. On 12 November 1982, Respnodent issued a vacancy announcement for an engraver foreman position. The position is a supervisory position. (G.C. 3; Tr.20). As such, it is excluded from the bargaining unit represented by the Union. 8. Bargaining unit employees were eligible to apply for the position. (TR. 20). Applicants would be evaluated and ranked in accordance with the agency's merit staffing plan. (G.C. 3; Res. Ex. 5; Tr. 20). According to the merit staffing plan, a panel is convened to identify essential knowledge, skills, abilities, and personal characteristics (KSAPS) for the position and to establish ranking levels. The Union is not represented on the panel for supervisory and other non-bargaining unit positions. Applicants submit self-rating sheets, also commonly called KSAPS, which describe how they meet the rating and ranking criteria established by the panel. The panel scores the KSAPS submitted by the applicants and compiles a register of the applicant who will be referred for an interview with the selecting official. (Tr. 20-22; 92-93, Res. Ex. 5). 9. Herbert Foster is a bargaining unit employee of the Respondent who works as a negative engraver. (Tr. 17). He is now a special representative of the Union and, from 1977 through 1982, Foster applied for the engraver foreman position. (Tr. 20). 10. By notice dated December 10, 1983, Foster was notified that he would not be referred for an interview for the engraver foreman position. (Res. Ex. 2; Tr. 77.) Upon receipt of the notice, Foster decided to investigate the process that led to his nonselection. On December 14, 1983, he asked a staffing specialist in Respondent's personnel office for copies of the KSAPS submitted by other applicants so he could compare them with his own. He also requested that the rating panel be reconvened, so he could persuade it to raise his score, as was once done in the case of another employee. Both requests were refused. (Tr. 24-25). 11. Foster contacted an EEO Counselor regarding his non-selection on December 16, 1982. He alleged various forms of racial discrimination. The EEO Counselor recorded the informal complaint and set forth a plan to investigate it. (Res. Ex. 1.). Foster also asked the EEO Counselor for help in obtaining copies of the KSAPS submitted by other applicants. The EEO counselor said he could not do this; that Foster could only see his own KSAPS. (Tr. 26) 12. Foster then asked his Union steward, Brady Barr, for assistance in securing the documents. (Tr. 26), Foster had not decided what action to take, but wanted to make that determination after a review of the documents. (Tr. 29, 31). By letter dated January 4, 1983, Union steward Barr sent the following letter to Respondent: In order for the Union to discharge its obligation under Title VII, CSRA, P.l. 95-454, Local 1827, NFFE hereby request the following: (1) Copies of all KSAPS and Rating Sheets for all candidates referred for selection on Referral Certificate for above vacancy announcement. (2) Copy of Position Description for position indicated on announcement, also indicate position number. (3) POW (Class & Wages) rationale for making position supervisory rather than non-supervisory. (4) Copy of SF 52 requesting establishment of position. (5) Copy of WP0-4413-28 (Supervisory) position description. (6) Copy of referred certificate. I. A.W. 14-1(g) of Agreement, please expedite - time constraints. (G.C. Exh. 4). 13. Respondent, by L. P. Eaves, denied Barr's request by letter dated January 10, 1983. The letter provided as follows: This will respond to your letter of 4 January 1983 requesting information relevant to Vacancy Announcement No. 155-82A, dated 12 November 1982. The position is a supervisory position (Engraver Foreman, WP-413-30) and is, thus beyond the scope of the bargaining unit. Article 37 (Merit Staffing Program) is applicable only to positions within the bargaining unit as is the rest of the Agreement. There has been a number of decisions by the Federal Labor Relations Authority to the effect that management is not obligated to negotiate with regard to the filling of positions outside of the bargaining unit. There is no provision of the Agreement by which management waived its right to exclude from the bargaining unit. There is no provision of the Agreement by which management waived its right to exclude from the bargaining process the filling of non-bargaining unit positions and, accordingly, management actions, with regard to such positions, are not subject to challenge under the negotiated grievance procedures. In view of the above, your request must be denied. Your letter does not specify any relationship between conditions of employment of unit employees and filling of the position in question so as to establish a need for the information relevant to any right of representation. If you wish to clarify this matter for me, I will reconsider my decision. 14. On January 19, 1983, Union chief steward Francis Jett responded to Eaves. He requested the exact same information and stated, "(T)his information is necessary and relevant to process a grievance. This informaton is being requested in accordance with the Labor-Management Agreement Article 14-1-G." (G.C. Ex. 6). 15. Upon receipt of Jett's letter of January 19, 1983, Evans contacted Jett by telephone and requested additional clarification regarding the relevancy of the information. The conversation took place between 19 January and 25 January 1983, the date of Eaves' written response to Jett. Eaves requested clarification regarding the need or relevancy of the information. Jett stated that the information was relevant to grievances which the Union intended to process under the negotiated grievance procedures. (G.C. 7; Tr. 75-76). Eaves learned from the EEO office that Foster had an EEO complaint pending. (Tr. 104). On January 25, 1983 Eaves replied to Jett's request of January 19, 1983 in part, as follows: In your letter you state that the requested information is for the purpose of processing a grievance. In our recent conversation, you indicated that you intended to process the grievance under the negotiated grievance procedures (Article 9). I continue to be of the opinion that disputes regarding the filling of supervisory position are not subject to resolution under the negotiated grievance procedures. I have also been informed that Mr. Louis Foster has filed an EEO complaint regarding the same matter. Thus, any grievance filed by Mr. Foster would also be precluded by Article 9-3c. Please provide the name(s) of the employee(s) whom you propose to represent in this matter under the negotiated grievance procedure. We obviously have a very basic grievability/arbitrability issue. I suggest we submit the issue to arbitration and if the Union ultimately prevails, I will provide the appropriate information and accept any subsequently filed grievance under the negotiated grievance procedures. 16. Sometime after the exchange of correspondence, Eaves again asked Jett for the name of the employee the Union proposed to represent. Jett replied that it was Louis Foster. (Tr. 76.). 17. On January 25, 1983, Foster filed a formal EEO complaint. (Tr. 37). 18. The Union was never furnished the data in its letters. 19. Basically, the data requested by the Union would have shown the relative scores and qualifications of the applicants and whether the criteria developed by the rating panel for the position, a newly-established position. (Tr. 31-37, 58). The Union has characteristically reviewed data of this nature before deciding whether, or how, to represent an employee not selected for a promotion to a bargaining unit position. (Tr. 46, 57-58). However, as noted, the Union has never before sought to represent an employee with respect to a position outside the bargaining unit. (Tr. 66,90). Similarly, Respondent would have routinely provided much or all of the data, perhaps in a sanitized form, if the position for which Foster was not selected had been a bargaining unit position. (Tr. 104-105. 20. Testimony at the hearing disclosed the Union desired to review the data to determine whether or not to assist Foster in filing a grievance or complaint in a number of possible forums. These included the possibilities of a grievance under the negotiated grievance procedure, a prohibited personnel practice complaint before the Merit Systems Protection Board, an EEO complaint under Equal Employment Opportunity regaulations, or an unfair labor practice charge with the Federal Labor Relations Authority for discrimination against a union representative. 21. The data requested by the Union is normally maintained by the agency in the regular course of business and does not constitute guidance, advice, counsel or training provided for management officials or supervisors relating to collective bargaining. (G.C. Ex. 1(c), 1(d). Discussion, Conclusions, and Recommendations The General counsel contends that the data sought by the Union in its reuquests to Respondent was "necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining," within the meaning of section 7114(b)(4) /4/ of the Statute. Respondent notes that the Authority has held that procedures for the filling of supervisory or other non-bargaining unit positions do not constitute a condition of employment within the meaning of the Statute, and that an employer is not obligated to bargain regarding such matters. /5/ Respondent claims that the parties negotiated grievance procedures does not extend to disputes regarding supervisory and other non-bargaining unit positions, and Respondent has consistently refused to engage in such bargaining. Therefore, Respondent asserts that the Union is not entitled to information under section 7114(b)(4) regarding a matter beyond the scope of collective bargaining and which does not constitute a condition of employment. Respondent also maintains that the question of the Union's entitlement to the requested information is a matter of contract interpretation which should have been resolved via arbitration. In addition, Respondent contends that a grievance by, or on behalf of Foster, even if otherwise viable, would have been precluded by Article 9-3c. of the agreement, since Foster raised the matter with an EEO counselor, and it would also have been untimely under Article 9-4e. of the agreement. Respondent also argues that the Union failed to demonstrate the requested information was relevant to any representational need. Respondent's argument that since the Union referenced Article 14-1g. of the negotiated agreement in making its request for the data, any dispute as to the Union's entitlement to the information involves the interpretation and application of that article and should be resolved under the negotiated grievance procedure rather than as un unfair labor practice is rejects. Article 14-1g basically provides a time frame for responding to requests for information. This dispute does not involve essentially an interpretation of article 14-1g., but rather whether Respondent has engaged in un unfair labor practice by refusing to supply information within the scope of section 7114(b)(4) to the Union. The Union's right, if any, to the requested data in the present case stems from that section of the Statute rather than from the collective bargaining agreement. The refusal to supply information within the scope of section 7114(b)(4) consittutes a violation of sections 7116(a)(1), (5) and (8) of the Statute irrespective of whether the refusal might also constitute a breach of the parties' agreement. Cf. Department of Defense Dependents Schools, 12 FLRA No. 12 (1983); Internal Revenue Service and Brookhaven Service Center, 6 FLRA No. 127 (1981). The next issue is whether and to what extent the authority must or may consider the grievability or arbitrability of a potential grievance in deciding whether a Union is entitled to data under Section 7114(b)(4). Section 7121(a)(1) of the Statute requires that all collective bargaining agreements contain procedures for the settlement of questions of arbitrability. It also declares that these procedures "shall be the exclusive procedures for resolving grievances which fall within its coverage." The Authority has strictly construed this language. In Portsmouth Naval Shipyard, 11 FLRA No. 80, 11 FLRA 456 (1983), the Administrative Law Judge recommended dismissal of a complaint against an agency that had refused to proceed to arbitration, on the ground that the grievance submitted by the union was clearly and unmistakably excluded from the reach of the parties' agreement. The Authority held to the contrary, finding that "all questions of arbitrabilty must be submitted to an arbitrator." The Authority found that the Judge had erred "by attempting to resolve the arbitrability question himself." See also Truman Memorial Veterans Hospital, Columbia, Missour, 11 FLRA No. 90, 11 FLRA 516 (1983). The Authority reiterated this view in the context of a request for data in U.S. Customs Service, Region VII Los Angeles, California, 10 FLRA No. 47, 10 FLRA 251 (1982). The Authority rejected the agency's contention that it had no duty to furnish the requested information because the employee's grievance involved a matter which was nongrievable under the parties' negotiated agreement. Without passing upon merits of the agency's contention and noting its previous interpretations of section 7121 in Interpretation and Guidance, 2 FLRA 273 at 279, n.7 (1979), that questions of arbitrability must be submitted to arbitration unless the parties mutually agree otherwise, the Authority observed simply that the request satisfied the criteria in Section 7114 (b)(4) and ordered the activity to furnish the data requested. In light of the Customs case, it would be improper in this proceeding to pass upon the merits of Respondent's contentions that a grievance relating to nonselection for supervisory positions is not subject to resolution under the negotiated grievance procedure, or that any grievance filed for Foster would, under the procedure, have been both untimely and barred by Foster's EEO complaint. As the Authority emphasized in Portsmouth Naval Shipyard, supra, "all questions of arbitrability must be submitted to an arbitraror. " 11 FLRA at 457. The Authority has ruled that data falls within the standard of section 7114(b)(4) of being "necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining" in a case of this nature if it is "necessary and relevant in order to enable the union to effectively carry out its statutory representational obligation in the processing of an employee grievance." Veterans Administration Regional Office. Denver, Colorado, 10 FLRA 453, 455 (1982). The fact that matters pertaining to non-bargaining unit positions do not relate to conditions of employment of unit employees and are outside the duty to bargain under the Statute does not preclude disclosure of information relating to non-bargaining unit positions to an exclusive representative if such information is otherwise shown to be necessary and relevant to the performance of the statutory rights and duties of the exclusive representative. The statutory representational rights and duties of an exclusive representative include the rights to represent the interest of all employees in the unit and to present and process their grievances through tne negotiated grievance procedure and to binding arbitration. See sections 7114(a)(1) and 7121(b)(3)(A)-(C). While a union has no obligation to file a grievance for any employee, it must fairly represent the interests of all bargaining unit employees. It is well settled that a union has a right to information necessary and relevant to determine whether or not to file a grievance in the first instance. Department of the Navy, Portsmouth, Naval Shipyard, 4 FLRA 619, 624 (1980). The record establishes that the Union initially requested the documents "in order to discharge its obligation under Title VII, CSRA, P.L. 95-454." It later stated that the information was necessary and relevant to process a grievance and that the grievance was on behalf of a bargaining unit employee, Louis Foster. However, despite the agency's request for clarification, the Union did not specify the grievant's charges or indicate the issues involved in the potential grievance. An agency is not obligated to provide information regarding a grievance which is so vague and ill-defined that the relevancy of the requested information cannot be ascertined. Internal Revenue Service, Buffalo District, Buffalo, New York, 7 FLRA 644 (1982). The General Counsel points out that the value of the data in evaluating unfairness or disparate treatment concerning promotion to unit positions is well established and should be equally recognized in this instance. It is true that certain information /6/ used by a panel considering candidates for promotion to a unit position would be presumptively relevant to a unit employee's grievance. U.S. Customs Service, Region VII, supra. However, where the information sought pertains to a position outside the bargaining unit, as here, the information is not presumptively relevant. In such circumstances, the Union is required to show, by reference to the circumstances of the case, more precisely the relevance of the data it desires. Cf. Curtiss-Wright Corp v. NLRB, 347 F. 2d 61, 69, 59 LRRM 2433 (3rd Cir. 1965). The General counsel claims that Foster could grieve his nonselection for the supervisory position, but, even if he could not, he would be entitled to file a grievance, given the broad definition of "grievance" in the agreement, for example, by seeking the removal of any records adversely commenting on his Union activities, or, based on a review of the records, he might be able to claim that the criteria established for the selection were contrary to law or regulation. The Union did not set forth in its request to Respondent any facts which might raise such issues. It cannot 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. When seeking information to which the presumption does not apply, a union must demonstrate that the information is of probable or potential relevance under a "discovery - type" standard. Cf. Oil, Chemical & Atomic Workers v. NLRB, 113 LRRM 3163 (D.C. Cir., 1983); NLRB, v. Acme Industrial Co., 385 U.S. 432, 437, 64 LRRM 2069 (1967). 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 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, a preponderance of the evidence does not support a violation by respondent of sections 7116(a)(1), (5) and (8) of the Statute by refusing to furnish the information prusuant to section 7114(b)(4), as alleged. Internal Revenue Service, buffalo District, Buffalo, New York, supra; Director of Administration, Headquarters, U.S. Air Force, 6 FLRA 110, 121-122 (1981). 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. 7-CA-30165 be, and it hereby is, DISMISSED. /s/ Garvin Lee Oliver Administrative Law Judge Dated: January 24, 1984 Washington, D.C. FOOTNOTES$ ----------- (1) In so concluding, however, the Authority does not adopt the Judge's comment that certain requested information relating to position within the bargaining unit is "presumptively relevant" whereas information sought pertaining to positions outside the bargaining unit is not presumptively relevant. As the Authority has previously stated, a determination must be made in the particular circumstances of each case whether data requested by an exclusive representative is "necessary" within the meaning of section 7114(b)(4) of the Statute and whether such information must be disclosed. See, e.g., Army and Air Force Exchange Service (AAFES), Fort Carson, colorado, 17 FLRA 624 (1985), petition for review filed, sub nom. American Federation of Government Employees, Local 1345 v. FLRA, No. 85-1378 (D.C. Cir. June 21, 1985); Bureau of Alcohol, Tobacco and Firearms, National Office, Washington, D.C., 18 FLRA No. 74 (1985). (2) Respondent's request to file a limited reply brief is hereby denied. (3) The motions of Respondent and the General Counsel to correct the transcript are granted; the transcript is hereby corrected as set forth therein. Respondent's Exhibit 4, an informal settlement agreement in Case No. 57-CO-20012, should not have been received. Accordingly, no consideration has been given to that Exhibit. The General Counsel's request that the receipt of Respondent's Exhibit 6 be reconsidered is denied. However, I agree with the General Counsel that Respondent's Exhibit 6 and the testimony supporting its introduction into evidence fail to establish that the Union waived its rights under section 7114(b)(4). (4) Section 7114(b)(4) provides that the duty of an agency and an exclusive representative to negotiate in good faith 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, under standing, and negotiation of subjects within the scope of collective bargaining; and "(C) which does not constitute guidance, advice, cousel, or training provided for management officials or supervisors, relating to collective bargaining(.)" (5) See, e.g., National Council or Field Labor Locals, 3 FLRA 289 (1980). (6) See National Federation of Federal Employees, Local 1745, 13 FLRA No. (1983), concerning the applicability of the Privacy Act to records used by promotion panels.