24:0154(22)CA - Defense Mapping Agency, Washington, DC and Defense Mapping Agency Aerospace Center, St. Louis, MO and NFFE Local 1827 -- 1986 FLRAdec CA
[ v24 p154 ]
24:0154(22)CA
The decision of the Authority follows:
24 FLRA No. 22
DEFENSE MAPPING AGENCY,
WASHINGTON, D.C. AND DEFENSE
MAPPING AGENCY AEROSPACE
CENTER, ST. LOUIS, MISSOURI
Respondents
and
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1827
Charging Party
Case No. 7-CA-50623
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent, Defense Mapping
Agency Aerospace Center, St. Louis, Missouri (DMAAC) had engaged in
certain unfair labor practices alleged in the complaint, and
recommending that it be ordered to cease and desist therefrom and take
certain affirmative action. The Judge further found that the
Respondent, Defense Mapping Agency, Washington, D.C. (DMA) had not
engaged in the unfair labor practices alleged in the complaint and
recommended that the complaint, insofar as it alleged a violation by
Respondent DMA be dismissed. Thereafter, the Respondents filed
exceptions to the Judge's Decision concerning DMAAC. The General
Counsel also filed exceptions limited to the Judge's discussion of
"presumptive relevance."
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 adopts the Judge's
findings, conclusions and recommended Order.
In agreement with the Judge, the Authority concludes that the
Respondent (DMAAC) violated section 7116(a)(1), (5) and (8) of the
Statute by failing and refusing to furnish the Charging Party (Union)
with certain data from the Inspector General's 1985 Report it requested
pursuant to section 7114(b)(4) of the Statute.
In so concluding the Authority notes that the Judge specifically
found, after considering the nature of the request and the circumstances
in the case, that the information sought by the Union was necessary for
it to perform its representational duties within the meaning of section
7114(b)(4) of the Statute, and further did not constitute guidance,
advice, counsel or training for management representatives under section
7114(b)(4)(C). /*/ In particular the Judge considered, among other
things, the fact that: the report contained material obtained after
management spoke and conferred with unit employees; the report
contained information related to unit employees' conditions of
employment (for example, health, safety, security, etc.); and the Union
was willing to accept the report in a sanitized form.
Therefore, in the circumstances of this case, we conclude in
agreement with the Judge that the requested information was necessary in
order for the Union to perform its representational duties.
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 Defense Mapping Agency Aerospace Center, St.
Louis, Missouri shall:
1. Cease and desist from:
(a) Failing and refusing to furnish to the National Federation of
Federal Employees, Local 1827 those portions of the 1985 Defense Mapping
Agency Inspector General's Report containing factual findings of unit
employees' conditions of employment at Defense Mapping Agency Aerospace
Center, St. Louis, Missouri.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action:
(a) Upon request, provide to the National Federation of Federal
Employees, Local 1827 those portions of the 1985 Defense Mapping Agency
Inspector General's Report containing factual findings of unit
employees' conditions of employment at Defense Mapping Agency Aerospace
Center, St. Louis, Missouri. The report may be sanitized to exclude
management's opinion and evaluation of internal matters and DMAAC's
operations.
(b) Post at its facility at St. Louis, Missouri, 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
Director and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including bulletin boards and other
places where such notices 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 VII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that insofar as the complaint alleges a
violation of section 7116(a)(1), (5) and (8) of the Statute by
Respondent Defense Mapping Agency, Washington, D.C., it is hereby
dismissed.
Issued, Washington, D.C., November 21, 1986.
/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 or refuse to provide the National Federation of
Federal Employees, Local 1827 those portions of the 1985 Defense Mapping
Agency Inspector General's Report containing factual findings of unit
employees' conditions of employment at Defense Mapping Agency Aerospace
Center, St. Louis, Missouri.
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, upon request, provide to the National Federation of Federal
Employees, Local 1827 those portions of the 1985 Defense Mapping Agency
Inspector General's Report containing factual findings of unit
employees' conditions of employment at Defense Mapping Agency Aerospace
Center, St. Louis, Missouri. The report may be sanitized to exclude
management's opinion and evaluation of internal matters and DMAAC's
operations.
(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 VII, Federal Labor Relations Authority, whose address
is: 535 - 16th Street, Suite 310, Denver, CO 80202, and whose telephone
number is: (303) 837-5224.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No.: 7-CA-50623
DEFENSE MAPPING AGENCY, WASHINGTON, D.C., AND
DEFENSE MAPPING AGENCY AEROSPACE CENTER,
ST. LOUIS, MISSOURI
Respondent
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1827
Charging Party
Howard Bishop, Jr., Esq.
For Respondent
Cathy A. Auble, Esq.
For General Counsel
Before: WILLIAM NAIMARK
Administrative Law Judge
DECISION
Statement of the Case
Pursuant to a Complaint and Notice of Hearing issued on December 12,
1985, by the Regional Director for the Federal Labor Relations
Authority, Region VII, a hearing was held before the undersigned on
January 15, 1986 at St. Louis, Missouri.
This case arose under the Federal Service Labor-Management Relations
Statute, 5 U.S.C. Section 7101, et seq. (herein called the Statute). It
is based on a second amended charge filed on December 9, 1985 by
National Federation of Federal Employees, Local 1827 (herein called the
Union) against Defense Mapping Agency, Washington, D.C. (herein called
DMA or Respondent DMA) and Defense Mapping Agency Aerospace Center, St.
Louis, Missouri (herein called DMAAC or Respondent DMAAC).
The Complaint alleged, in substance, that on or about August 8 and
September 5, 1985 the Union requested Respondent DMAAC to furnish it
with the sanitized Inspector General Report regarding the 1985
inspection conducted at its facility in St. Louis, Missouri. The said
data, it is alleged, was necessary for full and proper discussion,
understanding and negotiation of subjects within the scope of
bargaining.
The Complaint also alleged that on or about August 15 and September
11, 1985, (a) Respondent DMA instructed Respondent DMAAC not to furnish
the information requested by the Union; (b) Respondents failed and
refused to furnish the information so requested -- all of which
constituted a failure to comply with Section 7114(b)(4) of the Statute
and is violative of Section 7116(a)(1), (5) and (8) thereof.
Respondent's Answer, while admitting that DMAAC refused to furnish
the data sought by the Union, denied that it was requested in sanitized
form. It also denied the commission of any unfair labor practices under
the Statute.
All parties were represented at the hearing. Each was afforded full
opportunity to be heard, to adduce evidence, and to examine as well as
cross-examine witnesses. Thereafter briefs were filed with the
undersigned, which have been duly considered. /1/
Upon the entire record herein, from my observation of the witnesses
and their demeanor and from all of the testimony and evidence adduced at
the hearing, I make the following findings and conclusions:
Findings of Fact
1. At all times material herein the Union has been, and still is,
the exclusive bargaining representative of all non-professional
employees of the Defense Mapping Agency Aerospace Center located in the
St. Louis, Missouri area, with specified exclusions from the aforesaid
unit.
2. At all times material herein the Union and Respondent DMAAC were
parties to a collective bargaining agreement covering the employees in
the aforesaid unit.
3. The DMA, whose headquarters are in Washington, D.C., supports the
Joint Chief of Staff and the Services with mapping, charting, and
geodetic information. It produces maps and charts of terrain which are
used by the Army, Navy, Air Force and Marines.
4. The DMAAC is a component of DMA. It produces aeronautical type
charts and associated products used in aviation, as well as digital
products used in command and control and weapon systems. The DMAAC has
about 4,000 employees.
5. Attached to DMA is an Inspector General (IG) who, together with
his staff, conducts an inspection annually of DMAAC. This is done in
order to evaluate to component's management and determine its
effectiveness, efficiency and readiness to perform its mission. The IG
reviews the regulations published by the agency, management reports, and
complaints registered by employees since the previous inspection. His
staff is on the lookout for fraud, abuse or waste.
6. Upon conducting his inspection the IG holds "sensing" sessions
with the DMAAC employees. These are undertaken to ascertain what are
the problems from the viewpoint of employees. A briefing session is
held with the Command group, and the IG staff speaks to top managers,
supervisors and employees.
7. A report is written by the IG which provides the DMA Director
with an evaluation of DMAAC's operations. It is a narrative summary
with findings on problem areas or deficiencies. The report covers such
matters as: compliance with statutes and regulations; health and
safety; security clearances; and classification of positions. While
conditions of employment are discussed in the report, no attempt is made
to deal therein with the performance of DMAAC employees. It is deemed
to be a management report which discusses the cause and effect of
problems and deficiencies. Although recommendations may be made by the
IG, he has no authority to implement them or to order anything to be
done by DMAAC.
8. Record facts show that the Union received a copy of the IG report
from DMA in 1980 which it used in connection with negotiations for the
1982 contract. /2/ Further, that it utilized a copy of an IG report
from DMAAC when negotiating the 1977 contract.
9. In June, 1985 Colonel Maune, as IG for Respondent DMA, headed a
team which conducted an inspection of DMAAC. Maune met with Virgil
Hahn, then president of the Union, as well as Elmer Hacker, then
secretary-treasurer /3/ of the Union, and Francis Jett, its chief shop
steward. Several matters or subjects which were raised by the Union
included: EEO, security problems of employees, mandatory overtime, and
a classification appeal involving the photographers. /4/ IG Maune spoke
to at least 20 individuals re these problems.
10. In a letter dated August 8, 1985, Elmer Hacker, president of the
Union, wrote L. P. Eaves, Labor Relations Officer for DMAAC, and
requested a copy of the IG inspection report of 1985. The request was
made in accordance with Article 14-1 and 14-2 of the collective
bargaining agreement.
11. Under Article 14-1 and 14-2 of the parties' agreement Respondent
DMAAC is obliged to furnish all information, data or material which is
relevant and necessary for the discharge of the Union's obligation under
Public Law 95-45 and the agreement. This was stated to include, but not
limited to, such copies of such terms as: (a) OPM, MSPB, DMA
Regulations, AC instructions, or other regulations bearing on policies,
practices, procedures and working conditions; (b) DOD & EEOC
Regulations; (c) Mini-EEO plans of Affirmative Action; (c) Specific
information requested for investigating or processing
complaints/grievances/appeals. Statistical data supplied shall be from
documents normally maintained in the regular course of business and in
reasonably understandable form.
12. The record reflects that the request for the 1985 IG report was
made to learn the findings of the inspection that dealt with the
employees, and their working conditions. Further, the Union wanted to
see what, if any, violations of regulations occurred as well as any uses
of regulations which were contrary to the bargaining agreement. In such
instances, the Union insisted it may want to grieve over same.
13. Eaves replied to the Union's request in a letter dated August
15, 1985. He stated therein that the report is an itnernal,
confidential management document which does not have to be released
under Article 14 of the contract. He denied the request.
14. Following the written denial by Eaves discussions ensued between
Eaves and Union officials Hacker and Jett re the IG report of 1985. The
Union representatives attempted to obtain the report by persuading Eaves
to furnish same. They also indicated a willingness to accept it in a
sanitized form. Eaves refused, again repeating that the report
contained confidential information. The record reflects that the Eaves
made the decision to deny the Union's request, and that he had not been
instructed by DMA to do so. /5/
15. In a letter dated September 5, 1985 Hacker renewed the Union's
request for the IG report, reciting that it was needed because the Union
believed the report contained a survey and analysis of personnel
policies, practices or conditions of employment. Further, Hacker stated
it was essential that it be reviewed so that the Union could police its
contract and assess the impact upon actual or potential grievances.
16. The aforesaid request was again denied in a letter dated
September 11, 1985 from Eaves to Hacker.
17. Hacker testified that four named employees in the bargaining
unit have seen the 1985 IG report and were allowed to read it. Further,
that the Civilian Welfare Committee had access to it. Hacker also
testified that a named non-bargaining unit employee, a restaurant
officer, had read the report. The basis for the foregoing, rested on
the Union president's testimony that these named individuals told him
they had read the document. Eaves testified he was unaware of any
instances where prime IG reports were released to the Union. Colonel
Stockhausen the IG, testified the report is not to be disseminated and
it is the policy to keep the report within the management staff. The
testimony by Hacker regarding the fact that other employees have been
permitted to read the report is hearsay in nature. Moreover, there is
nothing else in the record supporting a finding that management provided
others with the 1985 IG report. While it may have occurred, I do not
find that Respondents either gave the report to non-management people or
afforded them an opportunity to read it. The IG report was considered
by Respondents to be confidential in nature and for distribution only to
management personnel.
18. DMA published an instruction dated August 29, 1984, currently in
effect, which is designated as DMA INSTRUCTION 5700.2. It deals with
the subject: "The Defense Mapping Agency Inspection Program." (Resp.
Exh. 1). The Inspection Program applies to DMA Headquarters and the DMA
Components. It is designed, according to the Instruction, to check the
readiness of the components to perform its mission and the efficiency of
its operation. The Inspector General of DMA is charged with
responsibility to conduct the inspection. He is mandated to schedule
personal conference periods so individuals may present complaints or
request advice; to schedule "sensing" sessions to sample non-managerial
employees for their opinions on different topics, including such items
as security, facilities, safety, logistics and operations (paragraph
10(h) and (i), Resp. Exh. 1) DMAAC is required to follow the procedures
established under DMA INSTRUCTION 5700.2. Paragraph 12(b) of the
INSTRUCTION, entitled "Inspection Reports", provides that the reports
are privileged documents and not releasable to anyone outside the DMA
without the approval of the Director, DMA.
Conclusions
It is contended by General Counsel that Respondent DMAAC was obliged,
under 7114(b)(4) of the Statute to furnish the Union with the IG Report
covering the St. Louis facility. The report, it is asserted, includes
information obtained from unit employees whose working conditions would
be impacted by any changes resulting from the investigation. General
Counsel insists that the Union needs the Report in order to police the
contract, as well as effectively represent employees in discussions with
management. Having refused to provide the said data, Respondent DMAAC
has allegedly run afoul of 7116(a)(1), (5) and (8) of the Statute.
A further contention is made that Respondent DMA, the headquarters in
Washington, D.C., violated 7116(a)(1) and (5) by instructing and
directing Respondent DMAAC -- its component -- not to furnish the IG
Report to the Union.
Respondents, in disputing any obligation to supply the Report, insist
that: (a) The Union's requests were not specific and definitive so as
to establish that the data was necessary and relevant to its
representational functions; (b) the requested information is not
necessary nor relevant for the Union to perform such duties; (c) under
7114(b)(4) of the Statute it is not encumbent on Respondent to furnish
the report since it is an internal management document which has no
direct relationship to conditions of employment; (d) Respondent DMA,
the headquarters, is in no event responsible for any refusal to furnish
the IG Report since the decision was made by Respondent DMAAC alone.
In conformity with its obligation to negotiate in good faith, an
agency is required to furnish data to the bargaining representative
under certain circumstances. This obligation is codified in Section
7114(b) of the Statute, the pertinent provisions of which are as
follows:
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; . . .
Under the foregoing statutory language it must be shown that the
information requested is necessary for the union to fulfill its
representational functions. In this respect consideration must be given
to the nature of the request for the data as well as the circumstances
in each case. See Army and Air Force Exchange Service (AAFES), Fort
Carson, Colorado, 17 FLRA No. 92, Respondents herein insist that the
requests by the Union were too broad and unspecific to permit DMAAC to
determine if the information was relevant and necessary to the Union's
representational function. It is contended that the requests failed to
identify the type of information sought by specific subject matter.
It is true that an obligation is imposed upon a union to request data
in a manner which will not compel an agency to speculate or conjecture
as to what is sought by the representative. The Authority has frowned
on requests which are broader than what is reasonably needed to
administer or police contractual provisions of an agreement. Thus, a
failure to mention time periods for certain conformation re contracts
"let out" was deemed indefinite. Director of Administration,
Headquarters, U.S. Air Force, 6 FLRA No. 24. Further, as stated therein
by Judge Dowd, the Union's right to information "for the purpose of
contract administration and policing a particular contract provision has
support in the case law only where the union is able to show relevance."
Thus, a mere assertion by a union that it needs data to process a
grievance does not automatically oblige an agency to furnish same. No
presumptive relevance necessarily attaches thereto. See Department of
the Treasury, United States Customs Service, Region IV, Miami, Florida,
18 FLRA No. 53.
In the case at bar I am not persuaded that, in light of the
circumstances, the request for the IG Report by the Union was too broad
or indefinite so as to vitiate any responsibility on management's past
to furnish same. In regard to the request made on August 8, 1985, I
would agree that it reflects no relevance nor necessity for the data
within the meaning of 7114(b)(4)(B). The mere assertion that the demand
was in accordance with Article 14-1, 14-2 of the collective bargaining
agreement discloses no relevance. Such a request is not tied to any
specific employment condition nor does it show, on its face, that it is
necessary to negotiating any subject with management. While the
particular article of the agreement, which was mentioned in the said
request, obliges the agency to furnish information to the Union, it
refers to various government rules and regulations. Further, it merely
requires that DMAAC supply data needed for the Union's investigating or
processing complaints or grievances. Such a provision does not dispense
with the statutory requirement that the relevance and necessity for
information be shown or declared in the request.
The record does reflect, however, that on September 5, 1985 the Union
renewed its request for the IG Report. More definitely, it stated the
Union believed the Report contained a survey and analysis of personnel
practices, policies and working conditions; that the Union wanted to
review the Report in order to police the contract and assess its impact
on possible grievances. Moreover, the Union indicated its willingness,
after Eaves refused the initial request on August 15, 1985, to accept
the Report in sanitized forms, at which time management advised the
Union official it was confidential and couldn't be released. While this
request may not be termed "presumptively relevant", the circumstances
surrounding it warrant the conclusion that the demand was necessary for
discussion, understanding and negotiation within the meaning of
7114(b)(4)(B). Support for this view is seen in light of the fact that:
(a) the Report contained material obtained after management spoke and
conferred with about 20 employees; (b) "sensing" sessions were held
with employees inquiring as to problems concerning safety and equal
opportunity; (c) the Report dealt with such subjects as health and
safety, security, and position classifications; (d) the Union's
willingness to accept a sanitized version of the said Report.
Since the Report contains information pertaining to the foregoing
conditions of employment obtained, in part, after discussions with
employees, it is certainly understandable that the Union would utilize
this data in some negotiations with DMAAC. Further, it appears that the
Union, based on its willingness to accept the Report after sanitization,
was interested only in those aspects of the Report bearing on working
conditions affecting the unit employees. While other aspects of the
Report may involve a review or analysis of management, its supervisory
hierachy, or internal operations, a request for information limited to
these conditions of employment affecting the unit involves a demand for
relevant and necessary data under the Statute. See American Federation
of Government Employees, AFL-CIO, Local 1708 and Military Ocean
Terminal, Sunny Point, Southport, S.C., 15 FLRA No. 1 (where the
Authority deemed negotiable a union proposal that information derived
from work studies be provided to the union).
A somewhat similar situation to the one at bar existed in Department
of Health and Human Services, Social Security Administration, Field
Assessment Office, 12 FLRA No. 84. Management dispatched its analysts
to conduct a study of travel practices of its Evaluation Staff in a
regional office. The analysts interviewed unit employees in regard
thereto and then turned in reports with their findings. It was held
that the agency must supply the reports to the extent they contain
factual findings as to travel practices existent in the region. Since
the reports contained facts elicited from employees re travel problems,
it was concluded that the Region could be expected to maintain such
information in its files for use in discussions with the union re travel
problems in the region. Thus, the findings of the analysts in that
regard were deemed "necessary" to collective bargaining. /6/
Respondents attempt to distinguish the foregoing case from the one at
hand. It is asserted that the purpose of the IG Report was not to
gather information for use in changing working conditions, which was the
aim in the cited case. Further, that no bargaining or ongoing
discussions with the Union herein were in progress, whereas the parties
in the Social Security case, supra, were conferring re travel practices.
I am satisfied, based on the record herein, that the Union was
interested in the findings concerning working conditions as they
affected employees. In its request the Union so stated. There is no
indication that the bargaining representative wanted internal management
data, and this is buttressed by a willingness to accept the Report on
sanitized forms. It is not determinative that the parties herein were
not engaged in contract discussions or negotiations. A union may
utilize information in preparation for bargaining, or for proposals to
management in connection with working conditions. It is not a
prerequisite that actual bargaining be in progress before a union is
entitled to necessary and relevant information. See I. G. Case v. NLRB,
253 F.2d 149 (7th Cir. 1958).
Respondents insist that the Report discusses matters outside the
scope of bargaining. Further, that it contains opinions of management
as well as evaluations which are not necessary to the union's
representational functions. Nevertheless, Eaves testified that there
were terms in the Report that dealt with conditions of employment. To
the extent that the Report evaluated its operations at DMAAC and
contained material of a confidential nature, I would agree that the
Union would not be entitled to such data. See Detroit Ednmo v.
N.L.R.B., 440 U.S. 301. However, there is no issue of confidentiality
herein inasmuch as the Union expressed its willingness to accept the
Report in sanitized form. Under those circumstances Respondents need
furnish only those factual findings based on discussions with unit
employees concerning working conditions -- the latter to include such
matters as health and safety, security, and position description.
In sum, I conclude that the 1985 IG Report involving the component,
Defense Mapping Agency Aerospace Center, St. Louis, Missouri, insofar as
it pertains to data obtained from employees thereat concerning their
various working conditions and employment is necessary and relevant for
full and proper discussion, understanding and negotiation of collective
bargaining subjects within the meaning of Section 7114(b)(4)(B); and
that such portion thereof does not constitute guidance, advice, counsel
or training for management representatives under subdivision (C) of that
section. /7/ As such, the Union was entitled to receive same, and the
failure or refusal by Respondent DMAAC to furnish said particular part
of the Report was violative of Section 7116(a)(1), (5) and (8) of the
Statute.
In respect to the responsibility of Respondent DMA for the refusal to
furnish the data to the Union, I conclude that it played no part in such
conduct. The Authority has held, it is true, that where higher level
management prevents agency management at the level of exclusive
recognition from fulfilling its bargaining obligation, such conduct will
constitute an unfair labor practice. Department of Health and Human
Services, et al., 10 FLRA No. 9; Department of the Interior, Water and
Power Resources Service, Grand Coulee Project, Grand Coulee, Washington,
9 FLRA No. 46. In both of the cited cases the higher level directed
lower level management in respect to the action taken by the latter,
which is markedly different from the occurrence herein. Record facts
disclose that DMA headquarters in Washington, D.C. did not direct or
order the component to refuse to furnish the data to the Union; that
the decision to so refuse was made by Eaves, DMAAC's Labor Relation
Specialist, with no impact or direction from the headquarters; and that
the latter took no steps to prevent DMAAC from fulfilling its obligation
to supply data as required under the Statute. Accordingly, I conclude
Respondent DMA has not violated the Statute herein as alleged.
Having concluded that Respondent Defense Mapping Agency Aerospace
Center, St. Louis, Missouri violated Section 7116(a)(1), (5) and (8) of
the Statute, it is recommended that the Authority issue the following:
ORDER /8/
Pursuant to Section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and Section 7118 of the Statute, the
Authority hereby orders that the Defense Mapping Agency Aerospace
Center, St. Louis, Missouri shall:
1. Cease and desist from:
(a) Failing and refusing to provide to National Federation of Federal
Employees, Local 1827 those portions of the 1985 Defenses Mapping Agency
Inspector General's Report containing factual findings of unit
employees' conditions of employment at Defense Mapping Agency Aerospace
Center, St. Louis, Missouri.
(b) In any like or related manner interfering with, restraining or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action:
(a) Upon request, provide to National Federation of Federal
Employees, Local 1827 those portions of the 1985 Defense Mapping Agency
Inspector General's Report containing factual findings of unit
employees' condition of employment at Defense Mapping Agency Aerospace
Center, St. Louis, Missouri.
(b) Post at its facility at St. Louis, Missouri, 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
Director, or his designee, and shall be posted and maintained by him for
60 consecutive days thereafter in conspicuous places, including bulletin
boards and other places where notices are customarily posted. The
Director shall take reasonable steps to insure that such notices are not
altered, defaced or covered by any other material.
(c) Notify the Regional Director, Region VII, in writing, within 30
days from the date of this Order, as to what steps have been taken to
comply herewith.
IT IS HEREBY FURTHER ORDERED that the Complaint insofar as it alleges
a violation of Section 7116(a)(1), (5) and (8) of the Statute by
Respondent Defense Mapping Agency, Washington, D.C. be, and it hereby
is, dismissed.
/s/ William Naimark
Administrative Law Judge
Dated: June 6, 1986
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(*) Noting the Judge's finding in this regard, we conclude, contrary
to the General Counsel's exceptions, that the Judge did not apply a
"presumptive relevance" standard. Rather, he found, and we agree, that
the information was necessary in the circumstances of this case within
the meaning of section 7114(b)(4) of the Statute.
(1) Subsequent to the hearing, General Counsel filed a Motion to
Correct the Transcript. No objections having been filed thereto, and it
appearing that the proposed corrections are proper, the Motion is
granted as requested.
(2) Virgil Hahn, who was president of the Union from 1977 to August,
1985, testified he used the reports in negotiating merit promotions and
equal opportunity concerns. Further, the 1980 report was used in
respect to the number of employees to be placed on a promotion
certificate.
(3) Hacker became president of the Union in August, 1985.
(4) This was a statutory appeal through OPM. It was not based on a
Union grievance nor was the Union a party to the appeal.
(5) Hacker testified he did not remember whether Eaves said he had
been directed not to give the report to the Union, or whether "that was
what came across . . . ." He also stated he "got the impression" it came
from headquarters. Jett testified that Eaves told the Union
representatives he had been directed not to release the report but did
not identify who so directed him. The state of the record, together
with the lack of certitude in the testimonies of the Union officials,
persuades me that the decision not to release the report was made by
Eaves; that, further, there is no independent evidence that he was
directed by DMA not to furnish same to the Union.
(6) Cf. U.S. Customs Service, Region IV, Mimai, Florida, 3 FLRA No.
127, where a "Tennant Study" which included interviews with employees,
was made to verify the agency's records re overtime -- to ascertain
whether the agency was being properly reimbursed by the airlines or
shipping firms for overtime services. In the case at bar the sessions
with employees were held to find out from employees what they considered
to be problems as to certain working conditions.
(7) No issue was raised under subdivision (A) that the IG Report was
not normally maintained by the agency on the regular course of business.
(8) While the recommended order herein provides for specified data on
the IG Report to be furnished to the Union, the Report may be sanitized
to exclude management's opinion and evaluation of internal matters and
DMAAC's operation.
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 the National Federation of
Federal Employees, Local 1827 those portions of the 1985 Defenses
Mapping Agency Inspector General's Report containing factual findings of
unit employees' conditions of employment at Defense Mapping Agency
Aerospace Center, St. Louis, Missouri.
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, upon request, provide to National Federation of Federal
Employees, Local 1827 those portions of the 1985 Defense Mapping Agency
Inspector General's Report containing factual findings of unit
employees' conditions of employment at Defense Mapping Agency Aerospace
Center, St. Louis, Missouri.
(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 VII,
whose address is: 535 - 16th Street, Suite 310, Denver, CO 80202, and
whose telephone number is: (303) 837-5224.