24:0292(36)CA - Army and Air Force Exchange Service, Dallas, TX and AFGE Local 1345 -- 1986 FLRAdec CA
[ v24 p292 ]
24:0292(36)CA
The decision of the Authority follows:
24 FLRA No. 36
ARMY AND AIR FORCE EXCHANGE
SERVICE, DALLAS, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1345,
Charging Party
Case No. 7-CA-50646
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding finding that the Respondent had committed
certain unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and to
take certain affirmative action. The Judge found that the Respondent
had not engaged in other unfair labor practices alleged in the complaint
and recommended that the portion of the complaint relating to those
unfair labor practices be dismissed. Thereafter, the Respondent filed
exceptions only to the Judge's recommendation that it be ordered to
provide without charge to the Union a copy of a video tape in connection
with an employee grievance.
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 prejudical error was
committed. The rulings are hereby affirmed. Upon consideration of the
Judge's Decision and the entire record, the Authority adopts the Judge's
findings, conclusions and recommended Order.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Army and Air Force Exchange Service, Dallas,
Texas, shall:
1. Cease and desist from:
(a) Failing and refusing to provide, without charge to the American
Federation of Government Employees, AFL-CIO, Local 1345 (hereinafter
referred to as "Local 1345"), the employees' exclusive representative, a
copy of the data requested by Local 1345 relating to disciplinary action
against employee Nancy Bundy.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Provide, without charge, to Local 1345 a copy of the video tape
for July 3, 1985, the day on which the alleged under ring by Nancy Bundy
occurred.
(b) Make available for inspection by Local 1345 5he entire cash
register tape for the cash register used by Nancy Bundy on the day of
the alleged under ring by Nancy Bundy and provide, without charge, to
Local 1345 a copy of such portions of said cash register tape as Local
1345 may designate.
(c) Post at its facilities at the Army and Air Force Exchange
Service, Fort Carson, Colorado, copies of the attached Notice on forms
to be furnished by the Federal Labor Relations Authority. Upon receipt
of such forms they shall be signed by a senior official of the Army and
Air Force Exchange Service, Fort Carson, Colorado, and shall be posted
and maintained by him for 60 consecutive days thereafter, in conspicuous
places, including all bulletin boards and other places where notices to
employees are customarily posted. The appropriate official shall take
reasonable steps to ensure that such Notices are not altered, defaced,
or covered by any other material.
(d) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region VII, Federal Labor
Relations Authority, 535 16th Street, Suite 310, Denver, Colorado 80202,
in writing, within 30 days of this Order, as to what steps have been
taken to comply herewith.
IT IS FURTHER ORDERED that that portion of the Complaint which
relates to Local 1345's request for data of August 23, 1985, be, and the
same is hereby, dismissed.
Issued, Washington, D.C., December 4, 1986.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE OF ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to provide, without charge to the American
Federation of Government Employees, AFL-CIO, Local 1345 (hereinafter
"Local 1345"), our employees' exclusive representative, a copy of the
requested data relating to disciplinary action against employee Nancy
Bundy.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL provide, without charge, to Local 1345 a copy of the video
tape for July 3, 1985, the day on which the alleged under ring by Nancy
Bundy occurred.
WE WILL make available for inspection by Local 1345 the entire cash
register tape for the cash register used by Nancy Bundy on the day of
the alleged under ring by Nancy Bundy, and we will provide, without
charge, to Local 1345 a copy of such portions of said cash register tape
as Local 1345 may designate.
(Agency or Activity)
Dated: . . . By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region 7,
whose address is: 535 16th Street, Suite 310, Denver, Colorado 80202
and whose telephone number is: (303) 837-5224.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 7-CA-50646
ARMY AND AIR FORCE EXCHANGE
SERVICE, DALLAS, TEXAS
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1345
Charging Party
Luther G. Jones, Esquire
For the Respondent
Nicholas J. LoBurgio, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
Section 7101, et seq., /1/ and the Final Rules and Regulations issued
thereunder, 5 C.F.R. Section 2423.1, et seq., in essence concerns
whether Respondent failed to comply with Section 14(b)(4) of the Statute
and thereby violated Sections 16(a)(1) and (8) of the Statute by failing
to provide the Union with a copy of a video-tape, although the Union had
been shown the tape, i.e., the tape had been run on a VCR and viewed on
a TV screen.
This case was initiated by a charge filed on September 30, 1985 (G.C.
Exh. 1(a)) which alleged violations of Sections 16(a)(1)(5) and (8); a
Complaint and Notice of Hearing issued on January 7, 1986 (G.C. Exh.
1(c)), which alleged violations of Sections 16(a)(1), (5) and (8); a
First Amended Charge was filed on January 17, 1986 (G.C. Exh. 1(b))
which alleged violations of Sections 16(a)(1), (5) and (8); and an
Amended Complaint and Amended Notice of Hearing issued on January 22,
1986, which alleged violations of Sections 16(a)(1), (5) and (8) and set
the hearing for February 18, 1986, pursuant to which a hearing was duly
held on February 18, 1986, in Colorado Springs, Colorado, before the
undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to introduce evidence bearing on the issues
involved, and were afforded the opportunity to present oral argument.
At the close of the hearing, March 18, 1986, was fixed as the date for
mailing post-hearing briefs, and General Counsel and Respondent each
filed a brief, received on, or before, March 18, 1986, which have been
carefully considered. Upon the basis of the entire record, /2/
including my observation of the witnesses and their demeanor, I make the
following findings and conclusions:
Findings
1. American Federation of Government Employees, AFL-CIO, Local 1345
(hereinafter referred to as the "Union"), represents employees in two
separate bargaining units at Fort Carson, Colorado. One unit
encompasses appropriated fund activities; and the other covers
non-appropriated fund Army and Air Force Exchange Service employees at
the Fort Carson Exchange and the Pueblo Army Depot (hereinafter referred
to as "AAFES") (G.C. Exh. 2, Tr. 16-17). The AAFES exchange at Fort
Carson is essentially similar to a department store.
2. Sometime in late June, 1985, about June 27, or 28, Respondent,
through electronic surveillance specialists from its Ohio Valley
Exchange Region, at the request of AAFES locally, began covert
video-tape surveillance of unit employee/cashier Nancy Bundy (Tr.
91-93). These specialists made 14 eight hour tapes of Ms. Bundy at work
(Tr. 95). Upon completion of the surveillance, the surveillance
specialists departed the area and left with Respondent's Area Security
Specialist, Janet Scruggs, one, July 3, 1985, video-tape which contained
an alleged infraction of procedures by Ms. Bundy.
3. Upon receipt of this video-tape, Ms. Scruggs took a VCR out of
stock (i.e., a VCR for sale through AAFES) and showed the video-tape to
management officials of AAFES (Tr. 96, 101-102). On July 12, 1985, Ms.
Bundy was issued a letter placing her on administrative leave (Tr. 60,
61; G.C. Exh. 3). Ms. Bundy reported to the Union that Mr. Harry
Reimann, at the time Fort Carson Exchange detective supervisor, when he
delivered the letter of July 12, told her that, " . . . they had her on
tape, that there was some alleged mishandling of merchandise, improper
scanning or something, and that she was going to be investigated with
possible termination." (Tr. 17). Ms. Carolyn Gudjonsson, a Senior
Health Technician at the Medical Activity, U.S. Army Community Hospital,
Fort Carson, and President of the Union, called Mr. Richard Miller,
Personnel Manager for the Rocky Mountain Area Exchange, which includes
Fort Carson, as well as Peterson Air Force Base, the U.S. Air Force
Academy, Lowry Air Force Base, Fitzsimons Army Medical Center, and F. E.
Warren Air Force Base in Cheyenne, Wyoming, and told him the Union was
concerned about Ms. Bundy being placed on administrative leave and asked
Mr. Miller what sort of tape were they talking about (Tr. 18). Mr.
Miller told Ms. Gudjonsson that ". . . they had a video film or video
tape, and also had a cash register tape that showed that she (Bundy) had
mishandled merchandise." (Tr. 18).
4. By letter dated July 24, 1985, and addressed to Mr. Miller (G.C.
Exh. 4), Ms. Gudjonsson, as President of the Union, pursuant to Section
14(b)(4) of the Statute requested copies of:
-1. Vidio (sic) -tape showing alleged under-ring by Nancy
Bundy
-2. Sales tape from the register used by Nancy Bundy on the
day of alleged under-ring."
(G.C. Exh. 4).
5. Mr. Miller testified that on the 25th or 26th of July, 1985,
although he had not received the request of July 24, he received another
telephone call from Ms. Gudjonsson in which she stated that, ". . . Mrs.
Toro, who is the main store manager, would not allow them to view a copy
of the video tape that contained the alleged under ring by Nancy Bundy.
I responded to her by saying that I would make certain that the tape was
made available to them for their viewing, and that I would contact Mrs.
Toro and make her aware that we were obliged to allow the union to view
the tape and they should arrange a mutually convenient time. She
mentioned the cash register tape and again, I stated that certainly we
would make that available to them to view to look at in any way they
wished, being this is potential evidence in a disciplinary action. Of
course, I didn't feel it was appropriate to simply give it to them at
that time, but I felt it was important that they see it certainly." (Tr.
65-66).
6. Notwithstanding Ms. Gudjonsson's formal written request of July
24, 1985, and her telephone conversation with Mr. Miller on July 25 or
26, 1985, Respondent did nothing with regard to the Union's requests
until August 16, 1985, when, at the conclusion of a meeting on other
matters, Mr. J.R. Cupples, Fort Carson Exchange Manager, told Ms. Clara
Benson, Union Exchange representative, and Ms. Marlene Moosman, Union
Executive Vice President, that the video tape on Ms. Bundy was available
for them to see. Mr. Cupples arranged for the viewing in the office of
Mr. Mark Polczynski, AAFES Sales and Merchandise Manager. Present in
the room at the viewing of the tape were: Moosman, Benson, Reimann, who
ran the tape, Polczynski and Ms. Eleanor Richards, AAFES Detective (Tr.
43-44). /3/ Shortly after Mr. Reimann started the tape, Ms. Benson
said, "Wait a minute. Where is Nancy (Bundy)? I thought she suppose(d)
to be in this meeting" (Tr. 45); and Ms. Benson said that Mr. Reimann
responded, "Nancy has already seen the film" (Tr. 45). Ms. Benson told
Mr. Polczynski, ". . . we need her to review the film with us . . ." and
Mr. Polczynski went out and paged Ms. Bundy to come to the office (Tr.
45). When Ms. Bundy arrived, Ms. Benson stated that she, Bundy had
never seen the film (Tr. 45). At any event, with Ms. Bundy present the
video tape was run and then re-run at a slower speed and the tape was
stopped on different actions, ". . . like for this second scan and the
third scan." (Tr. 48). After the video tape had been shown, Mr. Reimann
handed Ms. Moosman the cash register receipt and stated there were ". .
. three items on the register tape and four items on the film." (Tr.
49). Ms. Moosman looked at the cash register tape and then handed it to
Ms. Benson and as Ms. Benson looked at the cash register tape, she said
she stated, "Well, if there is four items listed, isn't it possible that
the scanner did not pick up this item." at which point Mr. Polczynski
said, "Well, that has happened to me several times" (Tr. 49) and Mr.
Reimann said, "You (Polczynski) shouldn't have said that." (Tr. 49).
Ms. Benson said she, ". . . saw four items go through over the scanner."
(Tr. 46).
7. After review of the video tape, Ms. Moosman said she did not see
the red light and Ms. Benson confirmed that she could not see a red
light either (Tr. 49, 48). The existence or non-existence of the red
light is important to the Union's defense of Ms. Bundy because it could
show whether or not she should have been aware that an item placed on
the scanner had not actually been picked up by the scanner (Tr. 48, 54).
8. Mr. Reimann stated to Ms. Moosman, Ms. Benson and Ms. Bundy that,
". . . they had filmed Mrs. Bundy for over a week and that they had
three to five more tapes"; but when Ms. Benson asked to see them
because, according to Benson, "We are supposed to view all the video
film that you have on Nancy (Bundy)", Mr. Reimann said they did not have
them; that they had been sent to the Ohio Valley Exchange Region in
Charleston, Indiana, which was confirmed by Mr. Polczynski (Tr. 50).
Ms. Benson testified that she understood that if a red light came on the
light must cleared, by running the item over the scanner until it picks
up the code or the price of the item is entered manually, before the
register will give a total price of the purchases (Tr. 56).
9. After Mr. Benson and Ms. Moosman reported to Ms. Gudjonsson about
the problems they had in reviewing the excerpt of the video tape which
Respondent had shown, Ms. Gudjonsson, by letter dated August 19, 1985
(G.C. Exh. 9), again requested copies of:
"-1. Copy of the video (sic) tape showing alleged under ring
by Nancy Bundy.
-2. Copy of the sales register tape used on day of alleged
under ring.
-3. Documentation reflecting any and all other data relied
upon to substantiate the reasons for the proposed removal."
(G.C. Exh. 9).
10. By letter dated August 23, 1985 (G.C. Exh. 10), Ms. Gudjonsson
expanded her request and asked for,
"1. All vidio (sic) films or all employees for the last two
months, to include the months of July and August, 1985."
(G.C. Exh. 10).
11. In the meantime, on August 2, 1985, Ms. Bundy had been given an
"Advance Notice of Separation for Cause" (G.C. Exh. 5), which was
rescinded by letter dated August 6, 1985, "Due to a procedural error . .
." (G.C. Exh. 6); however, a further "Advance Notice of Separation for
Cause" was given to Ms. Bundy on August 7, 1985 (G.C. Exh. 7). Ms.
Bundy responded by letter dated August 9, 1985 (G.C. Exh. 8), and, inter
alia designated as her representative," AFGE Local 1345 and Mary McRae,
Union Steward or her designee." (G.C. Exh. 8). By letter dated August
28, 1985, Ms. Bundy was given "Final Notice of Separation for Cause"
(G.C. Exh. 11).
12. On September 13, 1985, Ms. Bundy filed a 1st Step Grievance
(G.C. Exh. 12).
13. On the same date that Ms. Bundy filed her grievance, September
13, 1985, Mr. Miller, for the first time responded to Ms. Gudjonsson's
information requests. His letter, dated September 13, 1985 (G.C. Exh.
13) stated as follows:
"1. Reference your letters . . . dated 19 and 23 August 1985.
(Mr. Miller denied ever having received Ms. Gudjonsson's letter of
July 24, 1985)
"2. A copy of the video tape showing the 'alleged under ring
by Nancy Bundy' is not available. Ms. Bundy and her
representative reviewed his video tape on 16 August 1985, and the
original tape is available for your further review at a mutually
acceptable time. Should you feel that a copy is required, we
would create a copy of the tape provided the Union would be
willing to reimburse Management for any expense incurred. Please
advise us if you should wish to again view the tape, or if a copy
is required. (Emphasis supplied).
"3. The cash register tape used on the day of the alleged
under ring was also reviewed by Ms. Bundy and her representative
on 16 August 1985. As we discussed in an earlier telephone
conversation, Management will provide a copy of the appropriate
segment of that cash register tape. Should you wish to review the
entire tape again, it can be made available at a mutually
acceptable time.
"4. There is no other documentation or data which was relied
upon by Management in making a decision to propose Ms. Bundy's
separation for cause.
"5. Your request for 'All video films on all employees for the
last two months to include the months of July and August, 1985,'
has been carefully considered, and Management is unconvinced that
those tapes would constitute relevant data in this matter. We
will consider any further input you might have on this matter."
(G.C. Exh. 13).
14. Ms. Bundy's grievance was denied at the first step; on
September 23, 1985, was elevated to the second step (G.C. Exh. 14),
where it was denied on September 26, 1985 (G.C. Exh. 16). On the same
day, that the second step grievance was denied, September 26, 1985, Mr.
Miller provided Ms. Gudjonsson with a copy of a section of the cash
register tape which shows the transaction in question (G.C. Exh. 15).
On October 1, 1985, Ms. Bundy elevated her grievance to the third step
(G.C. Exh. 17); and on October 21, 1985, Mr. Cupples reduced the
separation to a 14 calendar day suspension, which he considered to have
been served, and reinstated Ms. Bundy to a non-cash-handling position,
effective August 31, 1985 (G.C. Exh. 18). By letter October 22, 1985,
the "settlement offered" by Mr. Cupples at the third step was rejected
(G.C. Exh. 19); by letter dated October 24, 1985, Mr. Cupples advised
Ms. Gudjonsson that his letter of October 21, was "not an offer of
settlement, but rather my final decision on her grievance" (G.C. Exh.
20). Mr. Cupples further advised that by returning to work Ms. Bundy
"does not waive any rights she may have to grieve the personnel action
taken in my final decision." (G.C. Exh. 20). By letter dated October
28, 1985, Ms. Gudjonsson advised Mr. Cupples that Ms. Bundy would return
to work on October 31, 1985, in a non-cash-handling position, with the
understanding that this, ". . . in no way waivers any of her rights in
the grievance/arbitration process . . . . ." (G.C. Exh. 21). On October
25, 1985, a request for arbitration panel was filed (G.C. Exh. 22). At
the time of the hearing, an arbitrator had not been selected and Ms.
Gudjonsson testified that the Union still needs the requested data for
the pending arbitration (Tr. 39, 40, 41).
15. In order to produce a copy of a video tape, two VCRs are
required (Tr. 99, 100), with, of course, the necessary connections. The
tape in question was recorded at the slowest possible speed and, to play
the tape back, the VCRs must be capable of speed adjustment to this slow
speed, a feature not all VCRs have. VCRs, if capable of the necessary
speed adjustment, could be taken out of stock and used for this purpose;
or the surveillance specialists, who have the necessary equipment,
could make a copy. The estimated cost of each blank video tape was
$4.00 to 6.00 (Tr. 101) and, once started, the process is automatic (Tr.
101).
16. Ms. Gudjonsson testified that the Union needed copies of both
the video tape and the cash register tape for a variety of reasons: a)
because most of the Union's grievance work by representatives is done
after normal business hours; b) the need to show the video tape to
co-workers of Ms. Bundy, either after hours or at their homes, to
determine what the normal procedures for cashiers were and whether Ms.
Bundy was being treated disparately (Tr. 25, 26, 28, 32); c) the Union
needed to review the video tape privately so that they could openly
discuss the pros and cons of the case; d) the Executive Board is
required to review all available evidence before making a decision to
take the case to arbitration (Tr. 30); e) the Executive Board members
are primarily appropriated fund employee and must take annual leave to
work on AAFES cases; f) review of the video tape alone is not
satisfactory because to correlate events before, during and after the
alleged infraction, the entire cash register receipt must be reviewed
(Tr. 33). Ms. Benson testified that copies of the data were needed for
similar reasons (Tr. 51, 52, 53).
Conclusions
Section 14(b)(4) of the Statute provides:
"(b) The duty of an agency . . . 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 . . ."
(5 U.S.C. Section 7114(b)(4)).
It is well established that a union's right to receive, and the
agency's obligation to furnish, such data pursuant to Section 14(b)(4)
extends to the union's statutory representational obligation in the
processing of an employee grievance. Bureau of Alcohol, Tobacco and
Firearms, National Office and Western Region, San Francisco, California,
8 FLRA No. 108, 8 FLRA 547 (1985); Veterans Administration Regional
Office, Denver Colorado, 10 FLRA No. 78, 10 FLRA 453 (1982).
At the hearing, counsel for Respondent conceded that video tapes and
cash register tapes constituted "data", within the meaning of Section
14(b)(4) of the Statute, for the purpose of this case (Tr. 107). In any
event, I specifically find that business records, regardless of physical
form, constitute data within the meaning of Section 14(b)(4) of the
Statute. See, for example, Long v. Internal Revenue Service, 596 F.2d
362 (9th Cir. 1979); 44 U.S.C. Section 3301.
1. Request for video tape showing alleged under ring.
Respondent advances two defenses: First, that in its requests /4/
the Union did not set forth reasons why copies the data requested were
necessary. Thus, Respondent states,
"There has been no refusal to provide data to the Union. The
obligation to provide the basis for the Union's conclusion that
certain data is 'necessary,' as required by Section 7114
(b)(4)(B), rests upon the Union. The Activity cannot be compelled
to guess. At the time the letter of September 13, 1985 (G.C.
Exhibit 13) was written, the Activity had no knowledge of the
reason the Union sought a copy of the video tape. In this letter
the Activity's last sentence was a request for further input,
i.e., "(w)e will consider any further input you might have on this
matter.' Instead of providing the Activity an explanation, the
Union filed its unfair labor practice charge (G.C. Exhibit 1a) and
did not disclose, until the day of trial, the basis for its
conclusion that a copy was 'necessary.' The Activity has been
denied an opportunity to consider such basis and, therefore,
cannot be considered to have refused." (Respondent's Brief, pp.
1-2).
It is certainly true that the Union did not set forth in detail the
reasons for its need for copies of the video tape and cash register
tapes in its requests. The Union merely stated,
"Such information is necessary /5/ to evaluate the grounds for
a grievance or other applicable action beyond PL 95-454." (G.C.
Exhs. 4, 9 and 10).
Nevertheless, the short answer to Respondent's assertion is that
Respondent never asked why the Union needed the copies of the data
requested. As I stated, in Internal Revenue Service, Memphis Service
Center and National Treasury Employees Union, Case No. 4-CA-30371,
OALJ-84-66, ALJ Decisions Report No. 38 (July 5, 1984), " . . . an
agency acts at its peril if it refuses to furnish data without asking
for a reason. Then, of course, the union may subsequently show its
justification for the request. Where an agency sought clarification of
the reason for a request and the union failed to respond, refusal to
furnish the data requested was not an unfair labor practice. Internal
Revenue Service, Buffalo District, Buffalo, New York, 7 FLRA No. 102, 7
FLRA 654 (1982)." (Case No. 4-CA-3071 at p. 7); see, also, Department
of Health and Human Services, Social Security Administration, Field
Operations, New York Region, 21 FLRA No. 35, 21 FLRA 253 (1986).
The Union's written requests of July 24 and August 19, 1985 had been
for copies of:
"-1. Vidio (sic) - tape showing alleged under-ring by Nancy
Bundy" (July 24; G.C. Exh. 4)
"-1. Copy of the vidio (sic) tape showing alleged under ring
by Nancy Bundy." (August 19; G.C. Exh. 9)
"-2. Sales tape from the register used by Nancy Bundy on the
day of alleged underring." (July 24; G.C. Exh. 4)
"-2. Copy of the sales register tape used on day of alleged
under ring." (August 19; G.C. Exh. 9).
On August 23, 1985, the Union requested copies of: "-1 All vidio
(sic) films on all employees for the last two months, to include the
months of July and August, 1985." (G.C. Exh. 10). Mr. Miller, in his
letter of September 13, 1985, first responded to the request of August
19, 1985 (he denied ever having received the request of July 24, 1985,
although the request was addressed to him) and in the final paragraph
responded to the request of August 23, 1985. As the request of August
23 was vastly different, as was the response, this request will be
considered hereinafter.
The Union's request of August 19, and the wholly identical request of
July 24, for a copy of the video tape ". . . showing alleged under ring
by Nancy Bundy" was not denied because the Union had not shown the
reason for need of the copy; nor did Respondent request further
justification than, as the Union had asserted, "Such information is
necessary in order to evaluate the grounds for a grievance or other
applicable action beyond PL 95-454" (G.C. Exh. 9). To the contrary,
Respondent, in its response of September 13, 1985, stated:
"2. A copy of the video tape showing the 'alleged underring by
Nancy Bundy' is not available . . . Should you feel that a copy
is required, we would create a copy of the tape provided the Union
would be willing to reimburse Management for any expenses incurred
. . . Please advise us . . . if a copy is required." (G.C. Exh.
13) (Emphasis supplied).
Consequently, Respondent's assertion, that, "The Activity has been
denied an opportunity to consider such basis (i.e. "that a copy was
'necessary'") . . ." is without basis and is rejected.
The Union has demonstrated that a copy of the video tape "showing
alleged under ring" was ". . . both necessary and relevant to enable the
Union to fulfill its legitimate representational role in processing the
employee's grievance . . ." Veterans Administration Regional Office,
Denver, Colorado, supra, 10 FLRA at 454. Moreover, Mr. Miller,
Respondent's Personnel manager, testified that, since the video tape and
the cash register tape was the only evidence against Ms. Bundy (Tr. 77),
it was "important" that the Union see it (Tr. 66); "that the Union had
a right to see all of the video tape and all of the cash register
receipts . . ." (Tr. 79-80); and counsel for Respondent at the hearing
stated, ". . . I believe there is a basis to the union's position that
they would have the right to review the video tape covering transactions
that occurred previous to and after in order to satisfy themselves that
there was nothing unusual or particularly misrepresentative of the
particular transaction involved." (Tr. 112-113).
Once it is established that data, which in this case obviously was
"reasonably available," is necessary to enable the Union to process the
employee's grievance, and as shown this was readily admitted by
Respondent, I do not agree with Respondent that the Union must show
further necessity for a copy of the data which has already been shown to
be "necessary for full and proper discussion, understanding, and
negotiation of subjects within the scope of collective bargaining"
(Section 14(b)(4)(B)), "collective bargaining", of course, encompassing
the processing of grievances). When a request for data covers various
different items, production of the requested items for examination by
the Union may be sufficient initial compliance with the "furnish"
requirement of Section 14(b)(4); and a request for copies of some, or
all, of the items "furnished" may be subject to a showing that they are
"necessary" since there has not been a determination that any particular
item is necessary for the purposes of Section 14(b)(4). But when, as
here, the video tape has been shown to be, and conceded to be, necessary
for the purposes of Section 14(b)(4), no further showing of necessity
may be required. In any event, General Counsel in this case has shown
the particular need of the Union for a copy of the video tape "showing
alleged under ring."
In truth, Respondent's actual concern relates to whether it should
have to make a copy of a video tape as it conceded at the hearing that
if this had been a written document, "Under the present state of law,
they would be entitled to have copies of those documents without cost."
(Tr. 108). Since this is Respondent's second defense, it will be
addressed hereinafter.
If Respondent had provided the Union with a copy of the segment of
the video tape which showed the "alleged under ring," i.e. the
approximately 30 second segment shown to the Union on August 16, 1985, I
would have found no violation since the Union's requests easily could
have been construed to have asked for no more; but, from the record it
is clear that the Union asked for a copy of the entire video tape which
showed the alleged under ring; that Respondent so understood the
Union's request; and Counsel for Respondent conceded that the Union had
". . . the right to review the video tape covering transactions that
occurred previous to and after . . ." (Tr. 112-113). Indeed, Respondent
has made no distinction between providing a copy of a segment of the
video tape and the entire video tape.
2. All video tapes on all employees.
The Union's request of August 23, 1985, was for:
"-1. All vidio (sic) films on all employees for the last two
months, to include the months of July and August, 1985" (G.C. Exh.
10).
As to this request, Mr. Miller responded, in relevant part,
". . . Management is unconvinced that those tapes would
constitute relevant data in this matter . . ." (G.C. Exh. 13).
With regard to the August 23, 1985, request, Respondent clearly
questioned the relevancy of additional tapes and, effectively, asked for
justification to which the Union failed to respond and for this reason
alone, Respondent's refusal to furnish the tapes requested on August 23,
1985, was not an unfair labor practice. Internal Revenue Service,
Buffalo District, Buffalo, New York, supra; Department of Health and
Human Services, Social Security Administration and Social Security
Administration, Field Operations, New York Region, supra. Moreover,
nothing in the record shows any relevancy or materiality of such
additional tapes and/or that such data is necessary for the purposes of
Section 14(b)(4)(B). To the contrary, although Ms. Bundy was taped for
fourteen days and possibly other employees would have used the same cash
register, e.g., during Ms. Bundy's absence on breaks, etc., when the
surveillance specialists left Fort Carson they took all tapes with them
except the one tape, for July 3, 1985, on which the alleged under ring
was shown. Not only was no portion of any other tape used or relied
upon in any manner by management in regard to the proposed disciplinary
action taken against Ms. Bundy, but no representative of management ever
saw any portion of any of the other thirteen tapes. Accordingly, I find
that such data was not necessary and Respondent's failure to furnish
such data was not an unfair labor practice.
Respondent's second defense is stated as follows:
"It is not consistent with effective and efficient government
to require an activity to provide a file copy of a video tape to
the unions for the purposes of a 'private showing' where access to
the original video tape is made available to the union. The
Union's basis for establishing the necessity required by Section
7114(b)(4)(B) is a need for a 'private showing.' There is no
question that such a 'private showing' is of value to the Union.
The question presented here is whether the Activity should bear
the costs of providing a copy of the video tape for the Union's
private showing.' Where the Activity has provided the Union access
to the original video tape, having otherwise not interfered with
all access necessary to the Union, it is not consistent with an
'efficient' government, as required by Section 7101(b), to require
government agencies and activities to pay the cost of this
'private showing.'
"There is no obligation under the statute or legislative
history to provide, free of charge, any data to the Union. The
Respondent is aware of Authority precedent prohibiting the release
of data conditioned upon the payment of a reasonable fee. The
Respondent makes this assertion to preserve its rights to raise
the issue upon appeal." (Respondent's Brief, pp. 2-3).
Respondent's "private showing" argument would be no different whether
the data in question was a written document or a video tape. There is
at least the same need for a copy of written document, i.e., for a
'private showing', as for a copy of a video tape, and perhaps an even
greater need for a copy of a video tape since it would be far more
difficult to make notations of all that was seen than to make notes of
what appeared in a written document. The right to inspect and copy is
well established, e.g., Rules 26(b) and 34 of the Federal Rules of Civil
Procedure; /6/ by decision under the National Labor Relations Act, The
Cincinnati Steel Castings Company, 86 NLRB 592 (1949); /7/ is not
questioned here; nor may it be, inasmuch as the Statute requires that,
"(b) The duty of an agency . . . shall include the obligation
--
. . .
"(4) . . . to furnish to the exclusive representative involved
. . . data . . ." (5 U.S.C. Section 7114(b)(4).
Respondent made at least the segment of the video tape showing the
"alleged under ring by Nancy Bundy" available to the Union for viewing
and offered to "create a copy of the tape provided the Union would be
willing to reimburse Management for any expense incurred." Thus, as
Respondent recognizes the "bottom line" is whether Respondent failed to
comply with the requirements of Sections 14(b)(4) and thereby violated
Sections 16(a)(1),(5) and (8) of the Statute by failing and refusing to
provide the Union a copy of the videotape without cost.
In Veterans Administration Regional Office, Denver, Colorado, 10 FLRA
No. 78, 10 FLRA 453 (1982), the Authority held that the agency, or
activity, violated its duty to negotiate in good faith, and failed to
comply with the requirements of Section 14(b)(4), in violation of
Sections 16(a)(1), (5) and (8) of the Statute, by requiring payment for
a copy of necessary data requested by the union in order to fulfill its
representational role in connection with an employee's grievance. Judge
Arrigo, in a well reasoned decision and in reliance upon: a) the
silence of the Statute, as to the conditions under which the information
is to be furnished, including whether a charge may be exacted; b) that
the legislative history does not address the matter of a charge for
data; c) that no counterpart to Section 14(b)(4) existed under the
Executive Order and the question of requiring a fee for providing such
information had not resolved under the Order; and d) decisions by the
National Labor Relations Board which do not require the employer to bear
the burden of the cost of duplicating material (10 FLRA at 466-467), had
concluded that under the Statute the respondent ". . . was not obligated
to provide the Union copies of the documents in question without
charge." (10 FLRA at 467). The Authority reversed and stated,
"Section 7114 of the Statute prescribes the representation
rights and duties of the parties in a collective bargaining
relationship. Part of an agency's statutory duty to negotiate in
good faith, as set forth in section 7114(b)(4) is 'to furnish to
the exclusive representative . . . upon request and, to the extent
not prohibited by law, data, as further described therein.
(footnote omitted). In using the term 'furnish,' Congress did not
specify either in the Statute or its legislative history whether
an agency may assess a charge for such data requested by an
exclusive representative. However, noting particularly that the
obligation to furnish such data is an integral part of an agency's
duty to negotiate in good faith under section 7114(b)(4), as
mandated by Congress, the Authority concludes that it would
further Congressional intent to require an agency to furnish the
data, subject to the limitations and conditions of section
7114(b)(4)(A), (B) and (C), without charge to the exclusive
representative.
"Such conclusion is also consistent with the common meaning of
the term 'furnish.' In accordance with the general rules of
statutory construction, words in the Statute are given their
common meaning unless a contrary legislative intent is indicated.
(footnote omitted). There is nothing in the language of the
Statute or in the relevant legislative history which suggests that
the term 'furnish' as used in section 7114(b)(4) should be given
any meaning other than that commonly ascribed to it. In this
regard, the common meaning of the term 'furnish' is to provide,
supply or give (footnote omitted). Thus, in the context of
section 7114(b)(4), the Authority's conclusion that an agency's
obligation to 'furnish' the exclusive representative with a copy
of necessary data upon requests means to give such data without
cost to the exclusive representative is consistent with the
literal language of the statute. /8/
"In addition, the foregoing conclusion gives meaning to section
7114(b)(4), whereas a contrary interpratation would render that
section merely duplicative of rights already established under the
Freedom of Information Act (FOIA) . . .
"Accordingly, contrary to the Judge, the Authority concludes
that the Respondent herein violated its duty to negotiate in good
faith, and failed to comply with the requirements of section
7114(b)(4), in violation of section 7116(a)(1), (5) and (8) of the
Statute, by requiring the Union to pay for a copy of necessary
data requested by the Union (footnote omitted) in order to fulfill
its representational role in connection with an employee's
grievance. (footnote omitted). (10 FLRA 456-458).
Veterans Administration Regional Office, Denver, Colorado, supra, has
been consistently followed; however, I am aware that the Authority has
stated, for example in Bureau of Alcohol, Tobacco and Firarms, National
Office, Washington, D.C., 18 FLRA No. 74, 18 FLRA 611, 613 (1985); U.S.
Equal Employment Opportunity Commission, Washington D.C., 20 FLRA No.
37, 20 FLRA 357, 358 (1985), that:
"The duty to supply data under section 7114(b)(4) thus turns
upon the nature of the request and the circumstances in each
particular case."
Although such statement did not relate to furnishing a copy of data
without charge to the exclusive representative, I have no doubt that in
a proper case the difficulty and cost of producing a copy, together with
the circumstances of use and access to the original data afforded would
be proper considerations; but that is not presented in this case.
Respondent permitted the Union to view only a short 30 second segment of
the video tape and only in the presence of various management officials,
which prevented detailed and careful analysis; inhibited frank and open
discussion by Union representatives; afforded no opportunity for the
Union to show the video tape to other necessary representatives and
employees to evaluate the procedures shown; to correlate visual
transaction with cash register tape entries; or, indeed, to evaluate
the presumed identity of Ms. Bundy as the person on the video tape.
Moreover, the only cost shown was the estimated $4.00 to $6.00 cost for
a video tape cassette. Although the VCRs would have to be started, once
started the process is automatic. Further, the video tape cassette,
when no longer required, is fully reusable and could be returned for
further use. Respondent does not deny its capacity, whether by its
surveillance specialists or by use of VCRs at the Exchange, to produce a
copy of the video tape -- indeed, Respondent stated, ". . . we would
create a copy of the tape provided the Union would be willing to
reimburse Management for any expense incurred."
Respondent conceded the need of the Union to examine the cash
register tape used on the day of the alleged under ring and, eventually,
furnished a copy of a short segment of the cash register tape which
concerned the particular transaction. The record does show that to copy
the entire cash register tape would be difficult and the copy of poor
quality. The record devoted scant attention to either the asserted need
or desire of the Union for a copy of the entire cash register tape for
the day in question. Accordingly, I shall order the entire cash
register tape for the day in question to be made available to the Union
for its examination and, further, that a copy of such portions as
requested by the Union be furnished.
Accordingly, having found that Respondent failed to comply with the
requirements of Section 14(b)(4) of the Statute and thereby violated
Sections 16(a)(1), (5) and (8) of the Statute by its refusal to furnish
the Union a copy of necessary data requested in order to fulfill its
representational role in connection with an employee's grievance, I
recommend that the Authority adopt the following:
ORDER
Pursuant to Section 18(a)(7) of the Statute, 5 U.S.C. Section
7118(a)(7), and Section 2423.29 of the Regulations, 5 C.F.R. Section
2423.29, the Authority hereby orders that Army and Air Force Exchange
Service, Dallas, Texas, shall:
1. Cease and desist from:
(a) Failing and refusing to provide, without charge to the
American Federation of Government Employees, AFL-CIO, Local 1345
(hereinafter referred to as "Local 1345"), the employees'
exclusive representative, a copy of the data requested by Local
1345 relating to disciplinary action against employee Nancy Bundy.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their rights
guaranteed by the Federal Service Labor-Management Relations
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Provide, without charge, to Local 1345 a copy of the video
tape for July 3, 1985, the day on which the alleged under ring by
Nancy Bundy occurred.
(b) Make available for inspection by Local 1345 the entire cash
register tape for the cash register used by Nancy Bundy on the day
of the alleged under ring by Nancy Bundy and provide, without
charge, to Local 1345 a copy of such portions of said cash
register tape as Local 1345 may designate.
(c) Post at its facilities at the Army and Air Force Exchange
Service, Fort Carson, Colorado, copies of the attached Notice on
forms to be furnished by the Federal Labor Relations Authority.
Upon receipt of such forms they shall be signed by an appropriate
official of the Army and Air Force Exchange Service, Fort Carson,
Colorado, and shall be posted and maintained by him for 60
consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. The appropriate official shall take
reasonable steps to insure that such Notices are not altered,
defaced, or covered by any other material.
(d) Pursuant to Section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of Region VII, Federal
Labor Relations Authority, Suite 310, 535 16th Street, Denver,
Colorado 80202, in writing, within 30 days of this Order, as to
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that that portion of the Complaint which
relates to Local 1345's request for data of August 23, 1985, be, and the
same is hereby, dismissed.
/s/ WILLIAM B. DEVANEY
Administrative Law Judge
Dated: May 15, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) For convenience of reference, sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
statutory reference, e.g. Section 7114(b)(4) will be referred to,
simply, as "Section 14(b)(4)."
(2) General Counsel filed a Motion to Correct Transcript of the
Proceedings; Respondent made no objection; and having found the
requested corrections entirely proper. General Counsel's motion is
hereby granted and the transcript is hereby corrected as more fully set
forth in the Appendix hereto.
(3) It would appear that the video tape was shown to the Union on a
second occasion when the tape was released, at Mr. Cupples request, to
Ms. Richards to "show it again." (Tr. 97, 98).
(4) Inasmuch as the Union renewed its request on August 19, 1985, I
find it unnecessary to decide whether Respondent did, or did not,
receive the request of July 24, 1985.
(5) The words "in order" were added, following "necessary" and before
"to" in the requests of August 19, and 23, 1985.
(6) Rule 34 provides, in part, that,
"(a) Scope. Any party may . . . inspect and copy, any
designated documents (including writings, drawings, graphs,
charts, photographs, phono-records, and other data complications
from which information can be obtained, translated, if necessary,
by the respondent through detection devices into reasonably usable
form) . . . "
Copying is by the party requesting the data and at that party's cost;
but such cost may be recovered if that party prevails and is awarded
costs.
(7) The LMRA contains no provision comparable to Section 14(b)(4);
but the NLRB does not require an employee to furnish such information
without cost, absent some evidence of bad faith. Abercrombie & Fitch
Co., 206 NLRB 464 (1973).
(8) The Judge's discussion of private sector cases in reaching a
contrary conclusion is deemed inopposite, noting particularly the
absence of any provisions similar to section 7114(b)(4) in the Labor
Management Relations Act (LMRA) and the difference between federal and
private sector labor Management relations recognized by Congress. See
section 7101(b) of the Statute.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to provide, without charge to the American
Federation of Government Employees, AFL-CIO, Local 1345 (hereinafter
"Local 1345"), our employees' exclusive representative, a copy of the
requested data relating to disciplinary action against employee Nancy
Bundy.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL provide, without charge, to Local 1345 a copy of the video
tape for July 3, 1985, the day on which the alleged under ring by Nancy
Bundy occurred.
WE WILL make available for inspection by Local 1345 the entire cash
register tape for the cash register used by Nancy Bundy on the day of
the alleged under ring by Nancy Bundy, and we will provide, without
charge, to Local 1345 a copy of such portions of said cash register tape
as Local 1345 may designate.
(Agency or Activity)
Dated: . . . By: (Signature)
This Notice must remain posted for 60 consecutive days from the date
of posting and must not be altered, defaced or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region 7,
whose address is: 535 - 16th Street, Suite 310, Denver, Colorado 80202
and whose telephone number is: (303) 837-5224.