[ v26 p324 ]
The decision of the Authority follows:
26 FLRA No. 41 U.S. NAVAL SUPPLY CENTER SAN DIEGO, CALIFORNIA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1399 Charging Party Case No. 8-CA-60071 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The issue is whether the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by refusing to furnish to the American Federation of Government Employees, Local 1399, AFL-CIO (the Union) with information relating to an alleged change in the smoking policy. We find, contrary to the Judge, that the Respondent did commit the unfair labor practices as alleged. II. Background The dispute arose on September 6, 1985, when two supervisors stopped an employee, who also served as a Union steward, as he was leaving a warehouse, Building 3304, with a lighted cigarette in his hand. It is uncontroverted that smoking is not permitted in certain areas of Building 3304 and in the outside staging area. The employee had been smoking or carrying a lighted cigarette in a "no smoking" areas on his way through the building. One of the supervisors reminded the employee that he was in a "no smoking" area. The employee disagreed and argued that he was then outside the building and that the outside area had always been a smoking area for employees. Moreover, the employee argued that there were no signs posted establishing that the outside area was a "no smoking" area. He claimed that as a union representative he considered the supervisor's statement to be a change in working conditions. The employee asked the supervisor if the Union had been notified of this "change" and if the supervisor could provide information on the new smoking policy. Thereafter, the Union on a number of occasions requested information from the Respondent concerning any new instructions or changes in policy regarding smoking/no smoking areas, particularly the area outside Building 3304. The Respondent either did not reply or did not furnish any information. On September 23, 1985, the Respondent proposed to suspend the employee for five days for misconduct on September 6, specifically: (1) disrespectful conduct; (2) failure to carry out a supervisor's instruction; and (3) failure to observe safety precautions. On October 3, 1985, the Respondent notified the employee of the decision to suspend him for the reasons set forth in the notice of proposed disciplinary action. The Union filed a grievance concerning the suspension. The Union also renewed its earlier request for information on new instructions and policy changes regarding smoking/no smoking areas. The Union claimed at that time that it also needed the information for purposes of the employee's grievance, which was then scheduled for arbitration. Again, the Respondent did not provide the Union with any information. III. Administrative Law Judge's Decision The Judge concluded that the Respondent did not violate section 7116(a)(1), (5) and (8) of the Statute by refusing to furnish information relating to an alleged change in the smoking policy. In reaching that conclusion, the Judge found that the evidence in the record did not establish that there was any change in the Respondent's policy. The Judge determined that on the contrary it was clear that the Respondent had not changed its policy as alleged. The Judge further found that the record, including the employee's testimony, established that the employee violated existing requirements, that he knew about the "no smoking" rules at the time of the violation and that he alleged that the Respondent had changed its policy as a defense for his misconduct. The Judge also found that the General Counsel's argument that the information was necessary for the Union to process the employee's grievance lacked merit. In that regard, the Judge noted that the issue in the grievance concerned the employee's misconduct and enforcement of existing safety requirements. Moreover, the Judge found that since there was no change in existing instructions or policy, the Respondent had no information to furnish the Union. The Judge therefore recommended that the complaint be dismissed. IV. Positions of the Parties The General Counsel contends that the Judge erred in not making a specific finding with respect to the Respondent's alleged failure and refusal to respond to the Union's requests for information. The General Counsel argues that on five separate occasions the Union requested information concerning the Respondent's smoking policy and that on each occasion the Respondent failed and refused to reply. The General Counsel notes that the Judge made no specific finding with regard to the General Counsel's allegation that the failure to respond to the Union's requests constituted a separate 7116(a)(1) and (5) violation of the Statute, despite specifically finding that on each occasion the Union requested information, the Respondent furnished no information although it had assured the Union that it would do so. V. Analysis and Conclusion We find that the Respondent violated section 7116(a)(1), (5) and (8) of the Statute by its failure and refusal to reply to the Union's numerous requests for information concerning an alleged change in the Respondent's smoking policy. We find, in agreement with the Judge, that there was no change in the Respondent's "no smoking" requirements. Therefore, the specific information requested by the Union, that is, information concerning alleged new instructions and changes in policy, did not exist. The Respondent could not provide information that did not exist and could not commit an unfair labor practice by not doing so. See Department of Justice, United States Immigration and Naturalization Service, United States Border Patrol, 23 FLRA No. 31 (1986) and Army and Air Force Exchange Service, (AAFES), Lowry Air Force Base Exchange, Ft. Carson, Colorado, 13 FLRA No. 392 (1983). We also note the absence of exceptions to this aspect of the Judge's decision. However, the fact that the specific information sought did not exist did not relieve the Respondent of an obligation to reply to the Union's requests. We find that section 7114(b)(4) of the Statute /1/ requires an agency to reply to a request for information from an exclusive representative even if the response is that the information sought does not exist. We find that a reply is "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)(B). In this case, a reply from the Respondent was necessary for the Union's full and proper understanding of the disciplinary action against the employee and for the Union to effectively represent the grievant in the related grievance. We conclude that the Respondent committed an unfair labor practice by failing and refusing to reply to the Union's repeated requests for information. The General Counsel seeks a finding that the Respondent violated section 7116(a)(1) and (5) of the Statute. However, since we have concluded that the Respondent failed to reply to the Union's requests for information in violation of section 7114(b)(4) of the Statute, we find that the Respondent's unfair labor practice constituted violations of section 7116(a)(8), as well as sections 7116(a)(1) and (5). As a remedy for the Respondent's conduct, we have determined that the following order is appropriate. ORDER Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, the U.S. Naval Supply Center, San Diego, California shall: 1. Cease and desist from: (a) Failing and refusing to reply to requests for information from the American Federation of Government Employees, Local 1399, AFL-CIO, the exclusive representative of its employees, which reply is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining. (b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of the rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute: (a) Reply to requests for information made by the American Federation of Government Employees, Local 1399, AFL-CIO, the exclusive representative of its employees, which reply is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining. (b) Post at its San Diego, California facility, 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 the Commander, U.S. Naval Supply Center, San Diego, California, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by any other material. (c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VIII, Federal Labor Relations Authority, in writing, within 30 days from the date of the Order, as to what steps have been taken to comply. Issued, Washington, D.C., March 20, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY 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 WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT fail and refuse to reply to requests for information from the American Federation of Government Employees, Local 1399, AFL-CIO, the exclusive representative of our employees, which reply is necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining. 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 reply to requests for information made by the American Federation of Government Employees, Local 1399, AFL-CIO, the exclusive representative of our employees, which reply is necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining. (Activity) Dated: By: (Signature) (Title) 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 its provisions, they may communicate directly with the Regional Director, Region VIII, Federal Labor Relations Authority whose address is: 350 South Figueroa Street, 10th Floor, Los Angeles, California 90071, and whose telephone number is: (213) 798-3805. -------------------- ALJ$ DECISION FOLLOWS -------------------- Case No. 8-CA-60071 U.S. NAVAL SUPPLY CENTER SAN DIEGO, CALIFORNIA Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1399, AFL-CIO Charging Party John R. Pannozzo, Jr., Esq. For the General Counsel Alfred M. Jackson, Esq. For the Respondent Before: ELI NASH, JR. Administrative Law Judge DECISION Statement of the Case This is a proceeding under the Federal Service Labor-Management Relations Statute, 92 Stat. 1191, 5 U.S.C. section 7101 et seq. (herein called the Statute). It was instituted by the Regional Director of Region 8 based upon an unfair labor practice charge filed on December 9, 1985 and amended on February 27, 1986 by the American Federation of Government Employees, Local 1399, AFL-CIO (hereinafter called the Union) against U.S. Naval Supply Center, San Diego, California (hereinafter called Respondent). The Complaint alleged that Respondent violated section 7116(a)(1), (5) and (8) of the Statute by refusing to furnish to the Union necessary and relevant information relating to an alleged change in smoking policy and to the processing of a grievance pursuant to the parties' collective bargaining agreement. Respondent's Answer denied the commission of any unfair labor practices. A hearing was held before the undersigned in San Diego, California at which the parties were represented by counsel and afforded full opportunity to adduce evidence and to call, examine, and cross-examine witnesses and to argue orally. Timely briefs were filed by the parties and have been duly considered. Upon consideration of the entire record in this case, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendations. Findings of Fact A. Incident which prompted information request. Around 7:00 a.m. on September 6, 1985, union steward Roger Grainger was drinking a cup of coffee and having a cigarette in the dispatcher's office prior to beginning work. Grainger, who is employed as a truck driver left the dispatcher's office apparently with cigarette in hand and proceeded downstairs in Building 3304 and out of the building to work. When proceeding to the yard, Grainger passed Supervisors John Evans and Russell Young. Grainger states that he passed Evans and Young right outside the large semi-truck door which serves as a passage way into the warehouse. It is uncontroverted that smoking is not permitted in certain areas of Building 3304, which constitute the warehouse; in certain doorways of the warehouse; and in the outside staging area. From a reconstruction of Grainger's route from the dispatcher's office and his admission that he had a cigarette in hand when he passed Evans and Young it is abundantly clear that Grainger was smoking or carrying a lighted cigarette, which is tantamount to smoking, at sometime during his journey to his truck in a "no smoking" area. While it is not clear from the testimony of either party that Grainger was insubordinate it is clear that he had a lighted cigarette when he passed Young and Evans standing in the doorway. Thus, Grainger was in breach of the "no smoking" policy as it then existed i.e. no smoking in the warehouse, doorways or in the outside staging area. Accepting Grainger's testimony as to what occurred, Evans called out to him and he turned around and began walking towards Evans and Young, whom Evans had been speaking with at the time. Evans stated, "this is a no smoking area" and Grainger replied "is it?" Grainger proceeded to inform Evans that the area outside Building 3304 had always been a smoking area for employees and supervisors alike for they had always smoked in the area. Moreover, Grainger added that there were no signs posted stating that this was a no-smoking area and as a union representative he considered this to be a change in working conditions. Grainger then asked Evans if the Union had been notified. Evans did not respond. However, it is clear that Evans was not talking about any area outside the warehouse. Grainger asked Evans, if he "could provide the information on a new smoking policy or a change in instructions to him or what brought about the change in the no-smoking policy?" Evans represented that he would give it to Grainger in writing. B. Building 3304 and the Surrounding Areas on September 6, 1985. Building 3304 is a large warehouse used for receiving and storing materials located at the activity. The building has been occupied by employees somewhere between 1 and 3 years. The areas which are designated "no smoking" are signified by large white signs with red lettering; on the inside of Building 3304 these signs are conspicuously posted on the wall, however, smoking is permitted in the lunchroom, break and office area located near the semi-trailer opening leading out to the yard area. The semi-trailer opening is located about 8 to 15 feet away from the lunchroom area; this area is taped with yellow tape. On the outside of Building 3304 in the yard area on September 6, 1985, there were no white and red "no smoking" signs posted, even near the hazardous material area which is located in the far north corner approximately 100-200 feet away from the semi-trailer door opening. /2/ The General Counsel asserts that Respondent's own regulations served as a basis for concluding that smoking was permitted outside Building 3304 in that the Naval Supply Centers Manual for Fire Protection and Prevention, on page III-3, Section 0304, B. permits smoking in open areas and office sections unless, "No Smoking" signs have been posted to indicate otherwise. And, Department of Defense Directive 4145.19-R-1, Storage and Materials Handling, at page VI-17, f(1) states in regard to outside storage areas that: where smoking is prohibited, "No Smoking" signs must be posted in those locations to assure compliance. Finally, according to the General Counsel, Naval Supply Center, San Diego, Instruction 5100.13A, Hazardous Material Safety Program, page 9, Section 29, entitled Local Delivery, is inapplicable to this matter since Grainger was merely walking out of the warehouse not making a delivery. It is interesting to note that the above listed regulations or instructions would appear to be the very documents that the Union would have received if its numerous requests had been complied with. These instructions not only pertain to smoking/nonsmoking at the Naval Supply Center Annex, but served in the General Counsel's opinion as the basis for initiating disciplinary action against Grainger. The safety regulations being enforced by Evans when he spoke to Grainger were: (1) smoking in the warehouse area; (2) smoking in and around hazardous cargo and (3) smoking in and around vehicles being loaded with hazardous cargo. C. The written information request to Evans. Allegedly later that same morning, Grainger told Chief Steward Larry Cooper the substance of what he felt his morning conversation with Evans was about, specifically, that there was a no smoking policy in effect outside Building 3304. Grainger told Cooper he had questioned Evans about the policy and that Evans would be giving Grainger the policy pertaining to the change. Cooper, based upon previous problems with Evans, instructed Grainger to follow-up his oral information request with a written one to Evans. Grainger told Cooper he would draft a written information request and deliver it to Evans. Pursuant to the conversation with Evans, Grainger drafted a written information request to Evans. According to Grainger between 12:10 and 12:15 that afternoon, he drove over to Building 322 where Evans is located and placed a large brown guard mail envelope addressed to John Evans with an enclosed white envelope that contained the information request in the middle of secretary Ramona Lentz' desk in plain view. Again, the correspondence not only reiterated the content of the parties' morning conversation, but Grainger allegedly sought the information in order that the Union could fulfill and perform its representational obligations in accordance with Article 6, Section 2, of the parties' negotiated agreement and the Statute: (1) Any new NSC instructions regarding the smoking/no smoking areas within the Naval Supply Center Annex. (2) Any change of policy regarding smoking/no smoking areas within the NSC Annex. (3) Any other information relied upon by you to change the smoking/non smoking practices outside of Bldg. 3304. /3/ Evans denied ever receiving the information request. Further, Lentz testified that the office receives approximately 100-200 guard mail envelopes daily and another secretary, Carballo testified that the office receives approximately 150-200 guard mail envelopes on a daily basis. Grainger, on the other hand, remembered hand delivering this particular guard mail envelope and placing it on Lentz' desk; Grainger had delivered mail to Evans' office for seven out of the last eight years. Guard mail envelopes are very similar in nature; there was no written log, date stamp or signed receipt kept by Respondent's secretaries. Both secretaries take a lunch break near the noontime hour and both secretaries admitted that if they were in one of the four offices, in the bathroom, near the copy machine or in the mail room their view of the reception area where their desks are located would be obstructed. Needless to say Evans never provided the aforementioned information nor did he ever respond to the Union's information request. On Monday, September 9, 1985, large white signs with red "no smoking" lettering were delivered to Building 3304 and on Tuesday, September 10, 1985, those "no smoking" signs were mounted on the wall during the day between the large semi-trailer doors. Evans stated that the signs were mounted on Saturday, September 7, 1985, however, he added that the employees sometimes work on Saturdays. In addition, Evans did not know the exact date when the "no smoking" signs were brought to Building 3304. On Thursday, September 12, 1985, Grainger's supervisor Joseph Lieras conducted his weekly stand-up meeting and informed the truck drivers including Grainger that: "there is now no smoking outside of Building 3304 and that signs had been posted." Evans stated that he possibly could have told Lieras to announce at the stand-up meeting that there was to be no smoking outside Building 3304. Moreover, Evans stated that he has input into Lieras' stand-up meeting regarding whatever comes along that needs to be disseminated to the department on a weekly basis. Lieras, could not state at the hearing whether or not he advised the employees at the stand-up meeting that: (1) there was to be no smoking in the area; (2) and that there were signs stating this. However, it was very possible that at the meeting he pointed out to the employees that the signs had been posted. D. The oral information request to Joseph Lieras on September 13, 1985. Sometime later Evans directed Lieras to conduct an investigation of the Grainger incident. On September 13, 1985, Lieras asked Grainger to meet with him and Lieras told Grainger to bring along a union representative. The purpose of the meeting was to investigate allegations regarding Grainger's alleged disorderly conduct towards Evans and his alleged violation of smoking policies. The parties discussed the incident which took place on September 6, 1985. Grainger's representative Cooper made an oral information request to Lieras; asking Lieras if he would get the information that had been requested earlier both verbally and in written form from Evans by Grainger; Lieras indicated that he would attempt to get the information from Evans. Lieras' notes indicate that: "I (Grainger) want to go on record that Mr. Evans has not yet provided me with this instruction that he said he would." During the course of the investigation Lieras asked three questions concerning the September 6th incident and received three responses from Grainger. The questions and answers along with the Union's statement regarding its previous information requests to Evans were submitted in note form by Lieras to Candice Nutwell in the Labor Relations Office. After Lieras turned over his notebook to Nutwell, he was unaware of what subsequently happened to his notes. Lieras never provided the smoking policy information nor did he respond to the Union's oral information request. Although Evans directed Lieras to take disciplinary action if warranted against Grainger he testified that he was not aware of any disciplinary action having been taken against Grainger after the September 6th incident. Clearly, Lieras never spoke to Evans concerning the Union's smoking policy information request; nor did he inform Evans regarding the Union's representations made at the meeting on September 13th as they related to the previous information requests made to Evans by Grainger on September 6th; Moreover, it appears that Lieras never spoke to Evans in regard to the findings of the investigation which Evans himself initiated. Lieras, who previously smoked in the yard area outside Building 3304, was not aware that smoking was prohibited there until Evans informed him in September 1985. On September 23, 1985, Lieras issued a Notification of Proposed (5 day) Suspension to Grainger based upon the following grounds: (1) disrespectful conduct; (2) failure to carry out a supervisor's instruction and (3) failure to observe safety precautions. E. The oral information request to Charles Bischofberger on October 2, 1985. On the morning of October 2, 1985, in Building 65, Cooper and Grainger met with the Director, Transportation Division, Material Department, Charles Bischofberger for the purpose of providing an oral rebuttal to the Notification of Proposed Suspension issued by Lieras. At that meeting, Bischofberger was made aware of the Union's previous information requests to Evans (verbal and written) and Lieras. Furthermore, Cooper asked Bischofberger if he could obtain the smoking policy information for the union and Bischofberger responded that he would attempt to get the information from Evans. Moreover, Bischofberger was informed that both Evans and Lieras had represented to the Union that they were each going to furnish the Union with the smoking policy information. However, Bischofberger failed to provide or respond to the Union's information request. On October 3, 1985, Bischofberger issued the Notification of Suspension (5 days) to Grainger. The 5-day suspension was served by Grainger from October 7, 1985 through October 11, 1985. The reasons for the suspension, as set forth in the Notification of Personnel Action were as follows: (1) disrespectful conduct; (2) failure to carry out a supervisor's instruction and (3) failure to observe safety precautions. Thereafter, on October 18, 1985, a Union grievance regarding the Grainger suspension was filed. F. The oral information request to Ken Nyenhuis on November 22, 1985. On November 22, 1985, a meeting pertaining to the Union grievance was conducted between Executive Officer Nyenhuis, Labor Relations Specialist Richard Donaldson, Larry Cooper and Roger Grainger. At that meeting, the Union through Cooper and Grainger made another oral information request, this time to Executive Officer Nyenhuis. Nyenhuis represented that he would take care of the Union's information request and obtain the information for the Union, however, Nyenhuis did not provide nor did he respond to the information request. At that point, the smoking policy information allegeldy was not only needed in regard to the alleged change outside Building 3304, but also with respect to the Grainger grievance, which was then pending arbitration. During the course of the parties' discussion, Nyenhuis was made aware that previous, yet unsuccessful information requests had been made to Evans by Grainger (verbal and written), Lieras (verbal) and Bischofberger (verbal); that all had promised to provide the information and all had failed to fulfill those promises. Grainger's theory is that he needed the smoking policy information, since the 5-day suspension was predicated on the alleged failure to observe safety precautions from which the alleged disrespectful conduct and failure to carry out a supervisor's instruction followed. A copy of the September 6th written information request by Grainger to Evans along with a statement of facts were presented to Nyenhuis at the meeting. On December 3, 1985, a Grievance Decision was issued by Executive Officer Nyenhuis affirming the 5-day suspension on December 3, 1985. Arbitration was invoked in January 1986, by the Union on the Grainger grievance and it is presently pending. Conclusions The General Counsel's theory of this case is there was information relating to a change in smoking policy at the facility which Respondent refused to supply to the Union on several occasions. In the alternative, the General Counsel asserts that the information pertaining to the change in smoking policy was necessary and relevant to allow the Union to fulfill its representational functions -- i.e. process the grievance of Grainger concerning a violation of the changed "no smoking" policy. Respondent submitted that there were no new instructions concerning a smoking/no smoking policy. Its position is that there was no change in smoking policy outside Building 3304. Respondent thus asserts that the information sought by the Union was "non-existent" information. Respondent further raises an issue of whether 7116(d) of the Statute acts as a bar to the present unfair labor practice proceeding. I agree with Respondent that the record evidence does not establish that there was a change in smoking policy outside Building 3304. I also find, based on credible evidence that the issue was not one of change in smoking policy, but concerned discipline for Grainger's conduct on September 6, 1985. Grainger's suspension was for disrespectful conduct, failure to carry out a supervisor's instruction, and failure to observe safety precautions. All, it must be assumed, valid reasons for discipline. Despite all assertions to the contrary, the record establishes beyond any doubt that Grainger left the dispatcher's office with a lighted cigarette, that he walked through the warehouse through no smoking areas with the cigarette and that when he approached Young and Evans just outside the warehouse semi-truck door entrance he had a lighted cigarette in hand. When called back by Evans concerning the lighted cigarette I see him with no options other than to put out the cigarette. Clearly Grainger had walked through a designated no smoking area with the cigarette in hand and had approached two supervisors who could not help but observe him with the lighted cigarette. To deny that a breach of the existing no smoking rules had occurred or to assert that a change in the no smoking policy had occurred is to misrepresent what was actually happened. This action is akin to one stepping off an elevator which contained a no smoking sign with a lighted cigarette in hand, into the arms of a fire marshal, then denying that the no smoking mandate aboard the elevator had been breached because one was now standing in the hallway. Grainger raised the change in smoking policy issue. However, it is clear to see, even from his testimony that he was in violation of the existing no smoking policy and the existing activity instructions concerning safety precautions and smoking areas. /4/ In 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) the Authority held that a Union's bare assertion that it needs data to process a grievance does not automatically oblige the agency to supply such data. The Authority found that the duty to supply information under section 7114(b)(4) turns upon the nature of the request and the circumstances of the particular case. In the instant matter, it is my opinion that no such duty exists. The facts clearly disclose that the dispute arose not over a change in the existing smoking policy, but over the enforcement of the already existing policy. Furthermore, there was no selective enforcement since the record clearly reveals that the policy was being strictly adhered to. An example of its enforcement was in action at the very time Grainger passed Evans and Young in the semi-truck doorway where Evans was supposedly questioning Young about employees smoking in the same no smoking area. /5/ Since there was no change in the "no smoking" policy the General Counsel's theory that the information was necessary to aid the Union in its representational function of processing a grievance also lacks merit. The issue in the grievance involved conduct between employee and supervisor and existing safety precautions concerning no smoking. Furthermore, the change in policy question was raised not by Respondent, but by Grainger as a defense for his smoking in a clearly designated no smoking area of the warehouse. Nowhere in discussions with Evans or other labor relations or management officials does one find Respondent asserting anything other than Grainger was being disciplined for disrespect to a supervisor. In such circumstances where the policy change question was raised only by the Union it is difficult to find that the information was at all necessary to establish that Respondent was relying on a change in the smoking policy. Respondent has never asserted that there was such a change, but depends on Evans' enforcement of already existing instructions and regulations. I find, therefore that there was no policy change in "no smoking" regulations. Absent such a change, I also reject the Union's argument that Respondent did not supply it with information concerning the change in policy, since there was no change. Moreover, I find that since there was no change, Respondent had no information to supply the Union which would have been reasonably available and necessary to its evaluation of whether to proceed with the Grainger grievance. /6/ In view of the above, it is found that Respondent did not violate section 7116(a)(1), (5) and (8) of the Statute by refusing to supply reasonably available and necessary information relating to an alleged change in smoking policy and to the processing of a grievance. Accordingly, it is recommended that the Authority adopt the following: ORDER IT IS HEREBY ORDERED, that the Complaint in Case No. 8-CA-60071 be, and it hereby is, dismissed in its entirety. /s/ ELI NASH, JR. Administrative Law Judge Dated: August 29, 1986 Washington, D.C. --------------- FOOTNOTES$ --------------- (1) Section 7114. Representation rights and duties . . . . . . . (b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation -- . . . . . . . (4) in the case of an agency to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data -- (A) which is normally maintained by the agency in the regular course of business; (B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining(.) (2) Respondent admits that the "no smoking" sign was not in existence on the outside of Building 3304 on September 6, 1985, and pictures, which were taken a week before the hearing did not necessarily represent the condition of the outside area at the time of the Grainger-Evans incident. Young further stated that there were no signs posted in the hazardous materials area located some 400 feet from the semi-trailer opening. (3) Article 6, Sections 1 and 2 of the collective-bargaining agreement states, in pertinent part, that: PERSONNEL POLICIES AND PROCEDURES Section 1: All NSC-SD instructions to personnel matters applicable to Unit employees are considered a part of this AGREMENT. Sections 2: The Employer agrees that all such proposed instructions will be referred to the Union and upon request will provide information concerning the regulatory provisions as well as the permissive provisions of the basic directive. The Employer further agrees to make available to the Union all references upon which the proposed instruction is based. (4) Since it is clear that Grainger was in violation of the existing smoking policy and since he knew what the policy was at the time, I find that Marine Corps Logistics Base, Barstow, California, 14 FLRA 772 (1984) has no application to this matter. (5) Respondent's posting no smoking signs on the following day September 7, 1985 does not establish a change in the areas in which smoking was permitted. I credit testimony that the signs had been ordered earlier and were being used to reaffirm that certain areas were "no smoking." (6) Based on the above, I find it unnecessary to pass on Respondent's claim that the instant matter is barred by section 7116(d) of the Statute.