[ v10 p468 ]
10:0468(79)CA
The decision of the Authority follows:
10 FLRA No. 79
VETERANS ADMINISTRATION
IRON MOUNTAIN, MICHIGAN
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2280, AFL-CIO
Charging Party
Case No. 5-CA-371
DECISION AND ORDER
THE ADMINISTRATIVE LAW JUDGE ISSUED HIS DECISION IN THE
ABOVE-ENTITLED PROCEEDING, FINDING THAT THE RESPONDENT HAD ENGAGED IN
THE UNFAIR LABOR PRACTICES ALLEGED IN THE COMPLAINT AND RECOMMENDING
THAT IT CEASE AND DESIST THEREFROM AND TAKE CERTAIN AFFIRMATIVE ACTION.
THEREAFTER, THE RESPONDENT FILED EXCEPTIONS TO THE JUDGE'S DECISION AND
A SUPPORTING BRIEF AND THE CHARGING PARTY FILED AN OPPOSITION THERETO
ENTITLED "CROSS-EXCEPTIONS."
PURSUANT TO SECTION 2423.29 OF THE AUTHORITY'S RULES AND REGULATIONS
AND SECTION 7118 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE), THE AUTHORITY HAS REVIEWED THE RULINGS OF THE
JUDGE MADE AT THE HEARING AND FINDS THAT NO PREJUDICIAL ERROR WAS
COMMITTED. THE RULINGS ARE HEREBY AFFIRMED. UPON CONSIDERATION OF THE
JUDGE'S DECISION AND THE ENTIRE RECORD, THE AUTHORITY HEREBY ADOPTS THE
JUDGE'S FINDINGS, CONCLUSIONS AND RECOMMENDATIONS AS MODIFIED BELOW.
THE JUDGE FOUND THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1), (5)
AND (8) OF THE STATUTE /1/ BY CHANGING AN ESTABLISHED PAST PRACTICE OF
PROVIDING, FREE OF CHARGE, COPIES OF NECESSARY AND RELEVANT INFORMATION
REQUESTED BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
2280, AFL-CIO (THE UNION), THE EXCLUSIVE REPRESENTATIVE OF THE
RESPONDENT'S EMPLOYEES, IN CONNECTION WITH THE UNION'S REPRESENTATIONAL
RESPONSIBILITIES IN A PENDING GRIEVANCE. IN THIS REGARD, THE JUDGE
FOUND THAT "THE UNION'S REQUEST WAS NOT FOR CLASSIFICATION STANDARDS,
BUT FOR INFORMATION DIRECTLY RELATED TO A GRIEVANCE IN PROGRESS;" /2/
THAT THE INFORMATION REQUESTED WAS NECESSARY AND RELEVANT IN ORDER FOR
THE UNION TO FULFILL ITS REPRESENTATIONAL RESPONSIBILITIES IN CONNECTION
WITH THE GRIEVANCE; THAT THE RESPONDENT HAD AN ESTABLISHED PRACTICE OF
PROVIDING SUCH INFORMATION FREE OF CHARGE WHEN REQUESTED BY THE UNION IN
MATTERS RELATING TO ARBITRATION, GRIEVANCES AND POTENTIAL GRIEVANCES;
AND THAT THE RESPONDENT'S DECISION TO CHARGE A FEE FOR SUCH INFORMATION
IN THE ABSENCE OF AGREEMENT OR IMPASSE VIOLATED SECTION 7116(A)(1) AND
(5) OF THE STATUTE AND ADDITIONALLY CONSTITUTED A FAILURE TO COMPLY WITH
THE REQUIREMENTS OF SECTION 7114(B)(4) /3/ IN VIOLATION OF SECTION
7116(A)(1) AND (8) OF THE STATUTE.
THE AUTHORITY CONCLUDES, IN AGREEMENT WITH THE JUDGE, THAT THE
RESPONDENT VIOLATED SECTION 7116(A)(1), (5) AND (8) OF THE STATUTE BY
CHARGING THE UNION A FEE FOR INFORMATION REQUESTED BY THE UNION WHICH
WAS SOLELY IN THE POSSESSION OF AND REASONABLY AVAILABLE TO THE
RESPONDENT, AND WHICH WAS NECESSARY AND RELEVANT FOR THE UNION TO
FULFILL ITS REPRESENTATIONAL RESPONSIBILITIES IN CONNECTION WITH A
PENDING GRIEVANCE. /4/ IN SO CONCLUDING, HOWEVER, THE AUTHORITY FINDS
IT UNNECESSARY TO RELY UPON THE EXISTENCE OF A PAST PRACTICE WHEREBY THE
RESPONDENT PROVIDED SUCH INFORMATION TO THE UNION WITHOUT COST. RATHER,
FOR THE REASONS STATED IN VETERANS ADMINISTRATION REGIONAL OFFICE,
DENVER, COLORADO, 10 FLRA NO. 78(1982), THE AUTHORITY FINDS THAT AN
AGENCY'S OBLIGATION TO "FURNISH" SUCH DATA TO AN EXCLUSIVE
REPRESENTATIVE WITHIN THE MEANING OF SECTION 7114(B)(4) OF THE STATUTE
REQUIRED THE RESPONDENT TO PROVIDE A COPY THEREOF WITHOUT COST TO THE
EXCLUSIVE REPRESENTATIVE. /5/ ACCORDINGLY, THE RESPONDENT'S REFUSAL TO
DO SO HEREIN CONSTITUTED A FAILURE TO MEET THE DUTY TO BARGAIN IN GOOD
FAITH AND NONCOMPLIANCE WITH SECTION 7114(B)(4) IN VIOLATION OF SECTION
7116(A)(1), (5) AND (8) OF THE STATUTE.
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 VETERANS ADMINISTRATION, IRON MOUNTAIN,
MICHIGAN, SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO PROVIDE, WITHOUT CHARGE TO THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2280, THE EMPLOYEES'
EXCLUSIVE REPRESENTATIVE, REQUESTED DATA WHICH IS NECESSARY AND RELEVANT
TO ENABLE SUCH EXCLUSIVE REPRESENTATIVE TO PERFORM ITS REPRESENTATIONAL
DUTIES IN CONNECTION WITH AN EMPLOYEE'S GRIEVANCE.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE:
(A) REPAY TO THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2280, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, THE $12.15
CHARGED FOR NECESSARY AND RELEVANT DATA REQUESTED BY THE EXCLUSIVE
REPRESENTATIVE IN ORDER TO PERFORM ITS REPRESENTATIONAL DUTIES IN
CONNECTION WITH AN EMPLOYEE'S GRIEVANCE.
(B) POST AT ITS FACILITIES IN IRON MOUNTAIN, MICHIGAN, 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 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
DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE 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 V, 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.
ISSUED, WASHINGTON, D.C., NOVEMBER 18, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, 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 WITHOUT CHARGE TO THE AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2280, THE EMPLOYEES'
EXCLUSIVE REPRESENTATIVE, REQUESTED DATA WHICH IS NECESSARY AND RELEVANT
TO ENABLE THE EXCLUSIVE REPRESENTATIVE TO PERFORM ITS REPRESENTATIONAL
DUTIES IN CONNECTION WITH AN EMPLOYEE'S GRIEVANCE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
WE WILL REPAY TO THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 2280, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, THE $12.15
CHARGED FOR NECESSARY AND RELEVANT DATA REQUESTED BY THE EXCLUSIVE
REPRESENTATIVE IN ORDER TO PERFORM ITS REPRESENTATIONAL DUTIES IN
CONNECTION WITH AN EMPLOYEE'S GRIEVANCE.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTION CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION V, WHOSE
ADDRESS IS: 175 WEST JACKSON BLVD., SUITE 1359-A, CHICAGO, ILLINOIS
60604 AND WHOSE TELEPHONE NUMBER IS: (312) 353-0139.
-------------------- ALJ$ DECISION FOLLOWS --------------------
JUDITH RAMEY, ESQ.
GREGORY MISKA, ESQ.
FOR THE GENERAL COUNSEL
FRANKLIN WINSLOW, ESQ.
FOR THE RESPONDENT
BEFORE: ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
CASE NO. 5-CA-371
DECISION
STATEMENT OF THE CASE
THIS IS A PROCEEDING UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS STATUTE, CHAPTER 71 OF TITLE 5 OF THE U.S. CODE, 5 U.S.C.
7101, ET SEQ., AND THE RULES AND REGULATIONS ISSUED THEREUNDER, FED.
REG., VOL. 45, NO. 12, JANUARY 17, 1980, 5 C.F.R. CHAPTER XIV, PART
2411, ET SEQ.
PURSUANT TO AN AMENDED CHARGE FIRST FILED ON JANUARY 25, 1980, BY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2280, AFL-CIO,
(HEREINAFTER CALLED THE UNION), A COMPLAINT AND NOTICE OF HEARING WAS
ISSUED ON MARCH 18, 1980. THE AMENDED COMPLAINT ALLEGES THAT VETERANS
ADMINISTRATION, IRON MOUNTAIN, MICHIGAN, (HEREINAFTER CALLED THE
RESPONDENT), VIOLATED SECTIONS 7116(A)(1), (5) AND (8) OF THE FEDERAL
SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, (HEREINAFTER CALLED THE
STATUTE), BY REFUSING TO FURNISH NECESSARY AND RELEVANT INFORMATION
REQUESTED BY THE UNION; AND, BY REFUSING TO PROVIDE THE UNION WITH
NECESSARY AND RELEVANT INFORMATION UNLESS IT AGREED TO PAY A FEE SET BY
RESPONDENT FOR SUCH INFORMATION.
A HEARING WAS HELD IN THIS MATTER ON JUNE 26, 1980, IN CHICAGO,
ILLINOIS. ALL PARTIES WERE AFFORDED FULL OPPORTUNITY TO BE HEARD, TO
EXAMINE AND CROSS-EXAMINE WITNESSES, AND TO INTRODUCE EVIDENCE BEARING
ON THE ISSUES INVOLVED HEREIN. ALL PARTIES SUBMITTED TIMELY BRIEFS
WHICH HAVE BEEN DULY CONSIDERED. /6/
UPON THE BASIS OF THE ENTIRE RECORD, INCLUDING MY OBSERVATION OF THE
WITNESSES AND THEIR DEMEANOR, I MAKE THE FOLLOWING FINDING OF FACT AND
CONCLUSIONS.
FINDINGS OF FACT
THE RESPONDENT AND THE UNION, WHICH IS THE EXCLUSIVE BARGAINING
REPRESENTATIVE OF ALL PROFESSIONAL AND NON-PROFESSIONAL REGULAR WORK
FORCE EMPLOYEES AT ITS IRON MOUNTAIN, MICHIGAN FACILITY ARE PARTIES' TO
A COLLECTIVE BARGAINING AGREEMENT COVERING ALL PERIODS MATERIAL HEREIN.
THE COLLECTIVE BARGAINING AGREEMENT INCLUDES IN ARTICLE XII A
GRIEVANCE PROCEDURE WHICH IS "THE SOLE PROCEDURE FOR PROCESSING
GRIEVANCES OVER THE INTERPRETATION OR APPLICATION OF THIS NEGOTIATED
AGREEMENT."
ARTICLE X, SECTION 5 OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT
DEALING WITH MERIT PROMOTIONS PROVIDES THAT THE EMPLOYEE OR HIS
DESIGNATED REPRESENTATIVE:
WILL BE PERMITTED TO REVIEW HIS/HER PROMOTION QUALIFICATIONS, AND
RATINGS AND RANKING
POSITION, WHEN SAID EMPLOYEE IS A CANDIDATE FOR SUCH PROMOTION AND IS
NOT SELECTED.
ARTICLE X, SECTION 7 OF THE COLLECTIVE BARGAINING ANTICIPATES THE
FILING OF GRIEVANCES OVER NON-SELECTIONS.
UNION PRESIDENT PATRICIA KUHL TESTIFIED THAT OVER THE PAST THREE AND
ONE HALF YEARS SHE HAD REQUESTED INFORMATION ON BEHALF OF THE UNION ON
20 TO 30 DIFFERENT OCCASIONS, AND THAT THE REQUESTS WERE RELATED TO
REPRESENTATIONAL FUNCTIONS SUCH AS GRIEVANCES, POTENTIAL GRIEVANCES, AND
OTHER FUNCTIONS. ACCORDING TO KUHL SOME RECORDS HAD TO BE SANITIZED BUT
THERE WERE MANY OCCASIONS ON WHICH MORE THAN 10 PIECES OF PAPER WERE
REQUESTED. SHE ALSO STATED THAT RESPONDENT HAD SUPPLIED THE UNION WITH
COPIES OF REQUESTED INFORMATION WITHOUT CHARGE OR WITHOUT LIMIT.
THE INCIDENT WHICH FIRST GAVE RISE TO THE COMPLAINT HEREIN OCCURRED
AROUND OCTOBER 12, 1979. AT THAT TIME, ACCORDING TO PRESIDENT KUHL, A
UNIT EMPLOYEE DALE MICHAUD, RECEIVED A BILL CHARGING FOR CLASSIFICATIONS
STANDARDS HE HAD REQUESTED BECAUSE HE WAS CONTEMPLATING APPEALING THE
CLASSIFICATION OF HIS POSITION.
WHEN MICHAUD CALLED PRESIDENT KUHL, SHE TOLD HIM NOT TO PAY THE BILL,
BECAUSE TO HER KNOWLEDGE "NOBODY HAD EVER PAID ONE BEFORE."
SHORTLY THEREAFTER, AT THE PARTIES REGULAR UNION-MANAGEMENT MEETING
IN OCTOBER 1979 PRESIDENT KUHL AND OTHER UNION MEMBERS DISCUSSED THE
UNION'S ACCESS TO INFORMATION WITH JOHN ST. ANGELO, RESPONDENT'S
PERSONNEL DIRECTOR. ACCORDING TO KUHL, THE PARTIES AGREED TO THE POLICY
OF A LENDING LIBRARY FOR CLASSIFICATION STANDARDS AND EACH INITIALED
THAT AGREEMENT. MR. ST. ANGELO ALSO SUGGESTED "THE PAYMENT OF FEES BY
THE UNION FOR OTHER INFORMATION THAT WE WANTED. HE INDICATED A TEN-COPY
CHARGE THAT WOULD BE FREE, ANYTHING OVER TEN COPIES WE WOULD PAY FOR."
THE UNION DISAGREED STATING THAT, "(IT) WOULD NOT PAY FOR ANYTHING,
WHETHER IT WAS TEN COPIES OR ANYTHING OVER THAT." THE ISSUE WAS
DISCUSSED BACK AND FORTH WITH ST. ANGELO STATING THAT RESPONDENT WOULD
PROVIDE REASONABLE COPIES AND THE UNION FINALLY TAKING THE POSITION ITS
REQUESTS WOULD BE REASONABLE BECAUSE THE INFORMATION WOULD BE NEEDED TO
CARRY OUT ITS RESPONSIBILITIES.
SOMETIME IN NOVEMBER 1979, TWO EMPLOYEES APPROACHED PRESIDENT KUHL
AND REQUESTED THAT SHE LOOK INTO A MERIT PROMOTION ACTION. AFTER A
EXAMINATION OF THE TOP SIDE UNION RANKING SHEET AND TOP SIDE ELEMENT
RATING SHEET PRESIDENT KUHL MADE AN INITIAL DETERMINATION THAT THE MERIT
PROMOTION PLAN HAD BEEN VIOLATED. SHE THEN RECEIVED CLEARANCE FROM THE
TWO EMPLOYEES TO REPRESENT THEM IN A GRIEVANCE ACTION. IN CONNECTION
WITH THE GRIEVANCE, PRESIDENT KUHL, REQUESTED TEN COPIES OF THE RATING
AND RANKING SHEETS OF THE TOP FIVE CANDIDATES AND THE ELEMENTAL RATING
SHEETS OF THE TOP FIVE CANDIDATES AND SUPERVISORY AND QUALIFICATION
STATEMENTS. BY REFERENCE SLIP AND BILL OF COLLECTION DATED DECEMBER 12,
1979 THE UNION WAS NOTIFIED THAT THE REQUEST FOR "SUPPLEMENTAL
QUALIFICATIONS STATEMENTS AND SUPERVISORY APPRAISALS CONCERNING THE
MAINTENANCE HELPER MERIT PROMOTION ACTION IS APPROPRIATE UNDER THE
FREEDOM OF INFORMATION ACT." THE UNION WAS CHARGED $1.60 FOR THE
REQUESTED INFORMATION.
THE UNION REFUSED TO PAY THE $1.60 AND THE MATTER WAS RAISED AGAIN AT
THE PARTIES REGULAR DECEMBER 1979 UNION-MANAGEMENT MEETING. AT THAT
TIME THE UNION TOOK THE POSITION THAT THE CHARGE FOR THE REQUESTED
INFORMATION WAS INAPPROPRIATE AND THAT IT HAD NEVER PAID IN THE PAST.
A FURTHER MEETING WAS HELD ON DECEMBER 17, 1979 BETWEEN KUHL AND
OTHER UNION REPRESENTATIVES, AND JAMES PICUCCI, THEN RESPONDENT'S ACTING
PERSONNEL DIRECTOR. THE PURPOSE OF THIS MEETING WAS TO DISCUSS THE
$1.60 BILL. ACCORDING TO KUHL, PICUCCI WAS DEFINITE THAT "IT WAS
APPROPRIATE THAT WE PAY UNDER THE FREEDOM OF INFORMATION ACT. THE UNION
REITERATED THAT WE WOULD NOT PAY, WE WENT OVER, THE REGULATIONS, THE VA
REGULATIONS FROM THE PERSONNEL MANUAL AND THERE WERE DIFFERENCES OF
INTERPRETATION." RESPONDENT THROUGH PICUCCI STILL CONTENDED THAT THE
CHARGE AND PAYMENT WAS APPROPRIATE. KUHL TESTIFIED THAT PICUCCI STATED,
AFTER SHE TOLD HIM THAT THE CASE WAS POSSIBLY ONE FOR ARBITRATION THAT,
THE "APPROPRIATE METHOD TO FOLLOW WAS TO TAKE THIS ISSUE TO THAT
ARBITRATION CASE AND LET THE ARBITRATION DECIDE." KUHL RESPONDED THAT
THE ISSUE OF WHETHER OR NOT THE UNION SHOULD PAY FOR EVIDENCE TO BE USED
AS SUPPORTING EVIDENCE WAS NOT FOR THE ARBITRATOR.
AT THE DECEMBER 17, 1979 MEETING, KUHL STATES THAT SHE TOLD PICUCCI
THAT THE UNION HAD TO HAVE THE INFORMATION, THAT IT WOULD PROCESS THE
MATTER UNDER THE FREEDOM OF INFORMATION ACT, BUT WHILE CONSIDERED THE
CHARGE A UNILATERAL CHANGE OF A PAST PRACTICE AND WOULD FILE AN UNFAIR
LABOR PRACTICE CHARGE. PICUCCI INDICATED TO KUHL THAT RESPONDENT'S
POSITION CONTINUED TO BE THAT A PAST PRACTICE OF THE UNION PAYING
EXISTED. KUHL RESPONDED THAT THE UNION HAD PAID ONLY ONCE, WHEN IT HAD
REQUESTED INFORMATION UNDER THE FREEDOM OF INFORMATION ACT. INDEED THE
UNION HAD PAID $4.40 FOR INFORMATION SUPPLIED TO IT ON OCTOBER 12, 1979,
BUT THIS INFORMATION, THE MINUTES OF THE MEDICAL CENTERS POSITION
MANAGEMENT COMMITTEE, INVOLVED A MATTER WHICH WAS NOT GRIEVABLE OR
POTENTIALLY GRIEVABLE AND THE UNION APPARENTLY FELT IT COULD OBTAIN THE
MINUTES ONLY THROUGH USE OF THE FREEDOM OF INFORMATION ACT.
FOLLOWING THE ABOVE MEETING, THE UNION ON DECEMBER 21, 1979 REQUESTED
CERTAIN INFORMATION "FOR THE MAINTENANCE MECHANIC POSITION WHICH IS THE
SUBJECT OF A CURRENT GRIEVANCE." THE LETTER STATED IN PART:
THE REQUEST IS FOR INFORMATION TO BE USED AS EVIDENCE IN THE CURRENT
GRIEVANCE OF THIS
PROMOTION ACT. LOCAL 2280 DOES NOT WILLINGLY ACCEPT ANY CHARGES FOR
THIS INFORMATION, AS WE
HAVE NEVER BEEN CHARGED IN THE PAST FOR ANYTHING; EXCEPT ONE
SUBMISSION UNDER FOIA, WHICH WAS
NOT AVAILABLE OTHERWISE. ANY CHARGES WILL BE CONSIDERED EVIDENCE OF
A UNILATERAL CHANGE BY
THE EMPLOYER, AND ON OF INTERFERENCE AND RESTRAINT AGAINST THE UNION.
ON DECEMBER 26, 1979 THE UNION WAS SUPPLIED WITH THE REQUESTED
INFORMATION AND BILLED $12.15. ACCORDING TO KUHL THE INFORMATION WAS
USED TO HELP IN A DECEMBER 31, 1979 PRESENTATION OF THE MAINTENANCE
HELPER MERIT PROMOTION ACTION AT STEP FOUR OF THE GRIEVANCE PROCEDURE.
UNION CHIEF STEWARD, JEAN FARLEY TESTIFIED THAT OVER A TWO AND ONE
HALF YEAR PERIOD SHE HAD REQUESTED INFORMATION FROM RESPONDENT IN
PURSUING POSSIBLE GRIEVANCES AND ARBITRATIONS. ACCORDING TO FARLEY, THE
UNION HAD NEVER RECEIVED A BILL FOR ANY OF THE REQUESTED INFORMATION
UNTIL THE FALL OF 1979. FARLEY ALSO CORROBORATED KUHL'S STATEMENT
CONCERNING THE UNION'S REFUSAL TO PAY FOR ANYTHING OVER 10 COPIES
DISCUSSED AT THE OCTOBER 22, 1979 UNION-MANAGEMENT MEETING ADDING, THAT
"WE NEVER PAID FOR IT BEFORE AND WE WEREN'T GOING TO PAY FOR IT NOW."
FURTHER, FARLEY TESTIFIED THAT PERSONNEL DIRECTOR ST. ANGELO STATED THAT
RESPONDENT WOULD SUPPLY A "REASONABLE" NUMBER OF COPIES. FINALLY,
FARLEY STATED THAT SHE WOULD CHARACTERIZE THIS MEETING AS ENDING WITH
"GOING ALONG WITH GETTING A REASONABLE NUMBER OF COPIES."
RESPONDENT OFFERED TESTIMONY THAT PRESIDENT KUHL'S HUSBAND DANIEL
KUHL AND DALE MICHAUD SOMETIME DURING SEPTEMBER 1979 HAD ON EIGHT
DIFFERENT OCCASIONS REQUESTED CLASSIFICATION STANDARDS AND COPIES OF
MATERIALS FROM THE PERSONNEL OFFICE. ACCORDING TO RESPONDENT'S WITNESS
DONNA POUPORE THESE REQUESTS INVOLVED UNREASONABLE AMOUNTS OF COPING
AND
HAD A DISRUPTIVE EFFECT ON THE PERSONNEL OFFICE.
RESPONDENT ALSO OFFERED EVIDENCE OF SEVERAL REPORTS OF CONTACT
BETWEEN ITS PERSONNEL OFFICE AND THE UNION BEGINNING SEPTEMBER 27, 1979
INDICATING AN INTENTION TO CHARGE FOR COPIES. HOWEVER, NONE OF THE
REPORTS OF CONTACT SUGGEST THAT THE UNION HAD AGREED TO PAY A $.05 PER
COPY FEE.
ACCORDING TO POUPORE, THE PERSONNEL STAFF WAS TOLD AT ON OCTOBER 28,
1979 MEETING BY ST. ANGELO THAT "WE COULD PROVIDE UP TO TEN COPIES FREE
OF CHARGE, ANYTHING OVER TEN COPIES THEY WOULD BE CHARGED $.05 PER COPY
AND A BILL OF COLLECTION WOULD BE PREPARED. POUPORE ADDED THAT THE
CLASSIFICATION STANDARDS AND MANUALS, AS WELL AS LOANER COPIES WERE
AVAILABLE AND THAT AN EMPLOYEE COULD CHARGE THEM OUT, MAKE THEIR OWN
COPIES AND RETURN THEM TO PERSONNEL. POUPORE ALSO TESTIFIED THAT
SUPPLYING THE REQUESTS TO MR. KUHL AND MICHAUD DURING SEPTEMBER CREATED
A DISRUPTIVE ATMOSPHERE IN THE PERSONNEL OFFICE BECAUSE THE NATURE OF
SUPPLYING THE INFORMATION INTERRUPTED THE WORK OF PERSONNEL EMPLOYEES.
PERSONNEL DIRECTOR JOHN ST. ANGELO CORROBORATED POUPORE'S TESTIMONY
THAT SUPPLYING INFORMATION REQUESTED BY MR. KUHL IN SEPTEMBER 1979 HAD
CAUSED A SIGNIFICANT AMOUNT OF DISRUPTION IN THE PERSONNEL OFFICE.
ACCORDING TO ST. ANGELO, HE FIRST DISCUSSED THE VOLUME OF REQUESTS
FOR CLASSIFICATION STANDARDS WITH UNION PRESIDENT MRS. KUHL SOMETIME
AROUND SEPTEMBER 27, 1979. ST. ANGELO TESTIFIED THAT HE TOLD KUHL THAT
RESPONDENT WOULD ALLOW FULL ACCESS TO THE STANDARDS IT HAD IN THE OFFICE
AND THAT IT WOULD MEET WITH EMPLOYEES AND ATTEMPT TO TONE THEIR REQUESTS
AND CULL OUT IRRELEVANT MATERIAL. HE OFFERED TO ALLOW THE UNION TO
CHECK OUT MATERIALS AND RUN THEM OFF ON ITS DUPLICATING MACHINE. HE
MAINTAINED THAT ALL REQUESTS EXCEEDING TEN REPRODUCTION PAGES WOULD
CARRY A $.05 PER IMAGE CHARGE. KUHL DID NOT AGREE.
ST. ANGELO FURTHER TESTIFIED THAT HIS INVESTIGATION, INCLUDING A
REVIEW OF THE COLLECTIVE BARGAINING AGREEMENT, PRIOR TO INSTITUTING A
CHARGE DID NOT REVEAL PREVIOUS REQUESTS FOR "LARGE NUMBERS OF REQUESTS
FOR LARGE VOLUMES" AND THAT, "IT HAD ALWAYS BEEN THE PRACTICE TO PROVIDE
SOME OR A REASONABLE AMOUNT OF COPIES FREE."
THE CONTRACTUAL PROVISION WHICH ST. ANGELO STATES THAT HE EXAMINED
PROVIDES:
ARTICLE XXII, SECTION 2 - EMPLOYEE PERSONNEL FILES
THE EMPLOYER WILL PROVIDE AN EMPLOYEE OR HIS DESIGNATED UNION
REPRESENTATIVE A PHOTOCOPY OF
ANY SUCH DOCUMENTS, PROVIDED, SUCH COPY IS REQUESTED FOR A GRIEVANCE
OR APPEAL OR OTHER
SIMILAR ACTION PENDING OR IN PROGRESS. THE EMPLOYER FURTHER AGREES
TO PROVIDE A COPY OF OTHER
DOCUMENTS RELATED TO GRIEVANCE AND/OR APPEAL ACTIONS WITHIN
REASONABLE LIMITS TO THE EMPLOYEE.
ST. ANGELO ALSO TESTIFIED THAT HE HAD CONCLUDED THAT TWO COPIES WERE
INTENDED BY THE ABOVE CONTRACTUAL LANGUAGE.
IN ADDITION ST. ANGELO STATED THAT HE RELIED ON CERTAIN PROVISIONS OF
THE FREEDOM OF INFORMATION ACT AND SECTION 555 OF THE VETERANS
ADMINISTRATION RECORDS IN MAKING HIS DECISION. THESE PROVISIONS CONCERN
THEMSELVES WITH REQUESTS FOR INFORMATION MADE BY INDIVIDUALS. HOWEVER,
ACCORDING TO ST. ANGELO, VETERANS ADMINISTRATION REGULATIONS STATE THAT
ALL REQUESTS FOR INFORMATION REGARDLESS OF HOW FORMAL SHALL BE
CONSIDERED REQUESTS FOR INFORMATION UNDER THE FREEDOM OF INFORMATION
ACT.
WITH REGARD TO THE OCTOBER 12, 1979 UNION-MANAGEMENT MEETING ST.
ANGELO TESTIFIED THAT THE PARTIES DID ENTER INTO AN AGREEMENT WITH
RESPECT TO COPIES WHICH HE UNDERSTOOD TO MEAN "THE UNION WOULD NOT
REQUEST OVER 10 COPIES UNLESS THEY WERE WILLING TO PAY."
JAMES PICUCCI, WHO WAS A PERSONNEL MANAGEMENT SPECIALIST AND LATER
ACTING PERSONNEL DIRECTOR TESTIFIED THAT THE POLICY PRIOR TO THE FALL OF
1979 CONCERNING FURNISHING COPIES TO THE UNION WAS TO FURNISH THE COPIES
TO THE UNION "WITHIN REASONABLE LIMITS AT NO COST." ORDINARILY HE FELT
THAT A LIMITED NUMBER OF COPIES HAD BEEN SUPPLIED, LESS THAN TEN (10).
HOWEVER, HE TESTIFIED THAT UNLIMITED COPIES OF MATERIALS WOULD BE
PROVIDED IN CONTRACT NEGOTIATIONS AND FORMAL PROCEEDINGS ORDINARILY
REQUIRING COPIES FOR BOTH SIDES.
MINUTES OF THE DECEMBER 17, 1979 UNION-MANAGEMENT MEETING INTRODUCED
THROUGH PICUCCI ARE CONSISTENT WITH PRESIDENT MRS. KUHL'S TESTIMONY AND
INDICATE THE FOLLOWING:
PICUCCI: WE HAD TO RERATE ALL OF THE APPLICANTS THAT APPLIED. THE
PROBLEM WAS NOT THAT
WIDESPREAD BUT PROBABLY TO 3 OR 4 PEOPLE. WHAT WOULD YOU DO WITH THE
LIST?
KUHL: IT PROBABLY WOULD BE USED AS EVIDENCE. THIS IS CLEAR CUT
PRE-SELECTION.
PICUCCI: THIS RELATES TO WHAT WE DISCUSSED LAST FRIDAY. JOHN WAS
DEFINITE-- HE LOOKED AT
ALL OF THE PROVISIONS IN OUR CONTRACT AND ALSO RULES AND UNDER FOIA.
THE POLICY OF CHARGING
FOR COPIES OVER 10 IS LEGITIMATE. HE ASKED MRS. KUHL TO GIVE HIM A
LIST OF EVERYTHING SHE
WANTS FROM THE MERIT PROMOTION FILE. WE WILL RESPOND TO THIS REQUEST
UNDER FOIA. UNION STILL
WANTS ALL THESE COPIES PLUS POSSIBLE MORE COPIES.
KUHL: I NEVER AGREED TO PAY FOR IT AT ANY TIME.
PICUCCI: LABOR ORGANIZATIONS AS WELL AS PRIVATE INDIVIDUALS COME
UNDER THE RULES AND
REGULATIONS OF FOIA. IN ADDITION, ALL INFORMATION MUST BE SANITIZED
SINCE SUPERVISORY
APPRAISALS, QUALIFICATION STATEMENTS AND RATING SHEETS OF EMPLOYEES
CANNOT BE RELEASED WITH
IDENTIFYING INFORMATION ON THEM. EMPLOYEES HAVE NOT SIGNED CONSENT
FORMS.
KUHL: I AM NOT GOING TO PAY FOR ANYTHING. WHAT WILL HAPPEN WHEN WE
(G)O TO ARBITRATION,
YOU WILL HAVE TO FURNISH ME A COPY OF THIS AND THEN YOU WILL HAVE TO
TELL THE ARBITRATOR WHY
THIS WAS NOT FURNISHED.
PICUCCI: RECOMMENDED A SPECIFIC REQUEST BE MADE, IN WRITING, AS TO
WHAT IS NEEDED AND A
TIMELY RESPONSE WILL BE GIVEN.
KUHL: ASKED FOR AND WAS SHOWN THE REGULATIONS CONCERNING FOIA
CONTAINED IN THE
FPM. BROUGHT UP THE ISSUE OF PAST PRACTICE-- NO PAST PRECEDENT.
JOHN ST. ANGELO EVEN TALKED
WITH VACO, PAST PERSONNEL OFFICERS AND OTHER EMPLOYEES IN PERSONNEL
SERVICE.
PICUCCI: RECOMMENDED AGAIN MAKING A LIST OF THINGS NEEDED. I AM
RESPONDING UNDER FOIA AND
GIVE YOU A SUMMARY OF CHARGES FOR THESE ITEMS. THEN IF A 3RD PARTY
HAS TO DECIDE WE WILL HAVE
TO RELY ON THAT. WITH A THIRD PARTY LOOKING AT THAT IT SEEMS THERE
WOULD HAVE TO BE A
REASONABLE CUT-OFF WHERE COPIES ARE FURNISHED FREE.
KUHL: YOU HAVE ALREADY ADMITTED THAT YOU DID THE DAMN THINK WRONG TO
BEGIN WITH.
PICUCCI: OUR OPINION IS NOT ONLY BASED ON OUR LOCAL POLICY, BUT WHAT
OUR EXPERTS IN CO ARE
TELLING US. THIS IS A VA POLICY TO CHARGE $.05 FOR FOIA REQUESTS. I
KNOW YOU DON'T AGREE ON
OUR OPINION BUT A THIRD PARTY WILL HAVE TO DECIDE THIS IF YOU WANT
THIS TO BE AN ISSUE.
KUHL: THE ONLY THING WE WILL HAVE TO DO IS TO FILE AN UNFAIR LABOR
PRACTICE CHARGE.
DEITER: COULDN'T WE MAKE OUR OWN COPIES?
PICUCCI ADDED THAT HE FELT SOME OF THE INFORMATION REQUESTED HAD
NOTHING TO DO WITH THE GRIEVANCE AT THAT POINT. HE FURTHER STATED THAT
HE FELT SOME OF THE INFORMATION WAS BEING REQUESTED AS A FISHING
EXPEDITION FOR PURPOSES OF OBTAINING ADDITIONAL INFORMATION TO POSSIBLY
DETERMINE IF THERE WERE OTHER ISSUES THAT COULD BE GRIEVED.
DISCUSSION AND CONCLUSIONS
IT IS WELL ESTABLISHED THAT A COLLECTIVE BARGAINING REPRESENTATIVE
HAS A RIGHT TO INFORMATION SOLELY WITHIN AN EMPLOYER'S POSSESSION WHICH
IS NECESSARY AND RELEVANT TO THE UNION'S REPRESENTATIONAL
RESPONSIBILITIES. SUCH RIGHT EXTENDS NOT ONLY TO INFORMATION NECESSARY
TO PROCESS A PENDING GRIEVANCE BUT ALSO TO INFORMATION NECESSARY TO
DETERMINE WHETHER OR NOT TO FILE A GRIEVANCE IN THE FIRST INSTANCE. SEE
DEPARTMENT OF THE NAVY PORTSMOUTH NAVAL SHIPYARD AND PORTSMOUTH FEDERAL
EMPLOYEES METAL TRADES COUNCIL, AFL-CIO, 4 FLRA NO. 82(1980);
DEPARTMENT OF TREASURY, INTERNAL REVENUE SERVICE AND IRS MILWAUKEE
DISTRICT, A/SLMR NO. 1133; UNITED STATES DEPARTMENT OF AGRICULTURE,
FOREST SERVICE, BERKELEY, CALIFORNIA, A/SLMR NO. 573.
IT IS EQUALLY WELL SETTLED THAT PARTIES MAY ESTABLISH TERMS AND
CONDITIONS OF EMPLOYMENT BY PRACTICE, OR OTHER FORM OF TACIT OR INFORMAL
AGREEMENT, AND THAT THIS, LIKE OTHER ESTABLISHED TERMS AND CONDITIONS OF
EMPLOYMENT MAY NOT BE ALTERED BY EITHER PARTY IN THE ABSENCE OF
AGREEMENT OR IMPASSE FOLLOWING GOOD FAITH BARGAINING. DEPARTMENT OF THE
NAVY, NAVAL UNDERWATER SYSTEMS CENTER, NEWPORT NAVAL BASE 3 FLRA NO.
64(1980); U.S. DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE,
NEW ORLEANS DISTRICT, 8 A/SLMR NO. 497, A/SLMR NO. 1043(1978).
RESPONDENT ARGUES THAT IT DECIDED TO IMPOSE A FEE FOR COPIES OF
MATERIALS REQUESTED BY EMPLOYEES AND THE UNION HAD DISRUPTED ITS
PERSONNEL OFFICE AND INTERFERED WITH THE MISSION OF THE AGENCY. INDEED
EXCESSIVE REQUESTS FOR INFORMATION WOULD APPEAR TO HAVE BEEN MADE BY
EMPLOYEES MICHAUD AND MR. KUHL, WHO WAS A UNION STEWARD. THE RECORD,
HOWEVER, DOES NOT SUPPORT A FINDING THAT THE REQUESTS BY THESE TWO
EMPLOYEES WERE FOR MATERIALS TO BE USED BY THE UNION, BUT FOR,
INDIVIDUAL EMPLOYEE CLASSIFICATION MATTERS. WHILE THE ACTIONS OF THESE
EMPLOYEES MIGHT CERTAINLY GIVE RESPONDENT REASON TO MODIFY OR CHANGE ITS
PRACTICE OF ALLOWING TOTAL USE OF ITS CLASSIFICATION MATERIALS THERE IS
NO INDICATION THAT THE UNION SHOULD BEAR THE BRUNT OF THIS CHARGE,
WITHOUT BARGAINING. FURTHERMORE, THE UNION'S REQUEST WAS NOT FOR
CLASSIFICATION STANDARDS, BUT FOR INFORMATION DIRECTLY RELATED TO A
GRIEVANCE IN PROCESS.
RESPONDENT ALSO CONTENDS THAT IT ENGAGED IN BARGAINING CONCERNING THE
IMPOSITION OF CHARGES. WHILE THE RECORD ESTABLISHES THAT THE PARTIES
DID MEET AND DISCUSS CHARGES FOR COPIES, IT DOES NOT SUPPORT
RESPONDENT'S ARGUMENT THAT THERE WAS AGREEMENT REGARDING CHARGES FOR
COPIES OR THAT THE PARTIES HAD BARGAINED TO IMPASSE CONCERNING THE FEES.
IN THIS REGARD, RESPONDENT POINTED OUT, TO THE UNION FOR THE FIRST
TIME, THAT IT INTENDED TO APPLY VA, FOIA AND FPM REGULATIONS, AND THESE
REGULATIONS HAD NEVER BEFORE BEEN APPLIED.
RESPONDENT'S RELIANCE ON ARTICLE XXII WAS MISPLACED. /7/ ARTICLE
XXII STATES THAT COPIES WILL BE SUPPLIED WITHIN "REASONABLE LIMITS."
HOWEVER, THAT ARTICLE APPLIES ONLY TO THE INDIVIDUAL GRIEVING EMPLOYEES
PERSONNEL FILE AND NOT TO A CONSIDERATION OF THE ENTIRE PROMOTION
PROCESS WHICH WAS INVOLVED IN THIS MATTER.
THE REAL QUESTION IN THIS MATTER IS WHETHER OR NOT A PAST PRACTICE OF
ALLOWING UNLIMITED COPIES OF NECESSARY AND RELEVANT MATERIALS REQUESTED
BY THE UNION, IN ORDER TO FULFILL ITS REPRESENTATIONAL RESPONSIBILITIES
HAD BEEN ESTABLISHED. THE RECORD DISCLOSED THAT OVER A THREE AND ONE
HALF YEAR PERIOD RESPONDENT HAD SUPPLIED UNLIMITED COPIES OF MATERIALS
TO THE UNION IN MATTERS RELATING TO ARBITRATION, GRIEVANCES AND POSSIBLE
GRIEVANCE. /8/ BURDENSOME REQUESTS FOR INFORMATION BY THE HUSBAND OF
THE UNION PRESIDENT AND ANOTHER EMPLOYEE REQUIRED RESPONDENT TO MODIFY
ITS POSITION WITH REGARD TO ACCESS TO THE INFORMATION AND COPIES. WHILE
THE PARTIES DISCUSSED THE MATTER ON SEVERAL OCCASIONS THE UNION'S
POSITION WAS ALWAYS THAT A PRACTICE HAD BEEN ESTABLISHED OF NOT PAYING
AND THAT IT WOULD NOT PAY. NO AGREEMENT WAS EVER REACHED. HOWEVER,
RESPONDENT UNILATERALLY INSTITUTED ITS FEE PAYMENT SCHEDULE OF $.05 PER
COPY CLAIMING THAT SUCH INFORMATION WOULD BE SUPPLIED ONLY UNDER THE
FREEDOM OF INFORMATION ACT. RESPONDENT HAD NEVER IN THE PAST SOUGHT TO
CHARGE A FEE FOR SUCH INFORMATION OR COPIES OF THE REQUESTED
INFORMATION. FURTHERMORE, RESPONDENT HAD PROVIDED WITHOUT COST
INFORMATION SOUGHT IN CONNECTION WITH GRIEVANCES AND POSSIBLE GRIEVANCES
AND NO LIMIT WAS SET ON HOW MUCH INFORMATION IT WOULD PROVIDE FREE TO
THE UNION. IN MY OPINION A PRACTICE OF PROVIDING SUCH INFORMATION FREE
OF CHARGE IS ESTABLISHED ON THE RECORD. ACCORDINGLY, RESPONDENT'S
DECISION TO CHARGE A FEE FOR COPIES OF INFORMATION WHEN IT HAD NOT DONE
SO IN THE PAST IN THE ABSENCE OF AGREEMENT OR IMPASSE IS VIOLATIVE OF
SECTION 7116(A)(1) AND (5) THE STATUTE.
RESPONDENT CONTENDS THAT IT "FURNISHED" THE REQUESTED INFORMATION
WITHIN THE MEANING OF 5 U.S.C. 7114(B)(4). /9/ WHILE RESPONDENT DID
INDEED SUPPLY THE REQUESTED INFORMATION IT EXACTED A FEE FOR COPIES WHEN
IT HAD NEVER BEFORE CHARGED FOR SUCH INFORMATION. CONCERNING THE FACT
THAT THE UNION HAD ON ONE OCCASION PAID FOR INFORMATION, THE RECORD
CLEARLY REVEALED THAT THIS INFORMATION WAS BOTH REQUESTED AND SUPPLIED
UNDER THE FREEDOM OF INFORMATION ACT AND IN NO WAY CONSTITUTES A PAST
PRACTICE OF PAYING FOR INFORMATION SOUGHT BY THE UNION TO CARRY OUT ITS
REPRESENTATIONAL RESPONSIBILITIES REGARDING GRIEVANCES.
BASED ON THE FOREGOING, IT IS FOUND THAT THE REQUESTED INFORMATION
SOUGHT BY THE UNION WAS RELEVANT AND NECESSARY TO ITS REPRESENTATIONAL
DUTIES AND THAT RESPONDENT'S DECEMBER 17, 1979 CHARGE FOR SUPPLYING
COPIES OF INFORMATION WHEN THE UNION WAS PURSUING A GRIEVANCE CONCERNING
THE MAINTENANCE MECHANIC POSITION WAS A CHANGE IN AN ESTABLISHED PAST
PRACTICE WITHOUT BARGAINING TO AGREEMENT OR IMPASSE WITH THE UNION AND
IN VIOLATION OF SECTION 7116(A)(1), (5) OF THE STATUTE. FURTHERMORE, IT
IS FOUND THAT EXACTING A REQUIREMENT OF PAYMENT FOR COPIES OF
INFORMATION SOUGHT BY THE UNION IN ORDER TO MEET IN REPRESENTATIONAL
RESPONSIBILITIES WHEN SUCH PAYMENT HAD NOT PREVIOUSLY BEEN REQUIRED DOES
NOT COMPLY WITH SEC. 7114(B)(4)(A) AND (B) OF THE STATUTE AND IS IN
VIOLATION OF SECTION 7116(A)(1) AND (8) OF THE STATUTE.
HAVING FOUND AND CONCLUDED THAT RESPONDENT HAS VIOLATED 5 U.S.C.
SEC. 7116(A)(1), (5) AND (8), I RECOMMEND THAT THE FEDERAL LABOR
RELATIONS AUTHORITY HEREBY ORDER THAT VETERANS ADMINISTRATION HOSPITAL,
IRON MOUNTAIN, MICHIGAN SHALL:
1. CEASE AND DESIST FROM:
(A) UNILATERALLY ALTERING OR CHANGING THE ESTABLISHED PAST PRACTICE
OF SUPPLYING
INFORMATION WHICH IS NECESSARY AND RELEVANT TO PERFORM ITS
REPRESENTATIONAL DUTIES TO AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2280, AFL-CIO, WITHOUT
CHARGE, WITHOUT FIRST
BARGAINING TO AGREEMENT OR IMPASSE, WITH AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, LOCAL
2280, AFL-CIO, OR ANY OTHER EXCLUSIVE REPRESENTATIVE.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING
COERCING EMPLOYEES IN THE
EXERCISE OF RIGHTS ASSURED BY THE STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE.
(A) UPON REQUEST, FROM AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 2280, AFL-CIO
REPAY THE $12.15 CHARGED FOR RELEVANT AND NECESSARY INFORMATION IN
CONNECTION WITH THE
MAINTENANCE HELPER POSITION GRIEVANCE.
(B) POST AT ITS FACILITIES IN THE IRON MOUNTAIN, MICHIGAN COPIES OF
THE ATTACHED NOTICE
MARKED "APPENDIX" ON FORMS TO BE FURNISHED BY THE AUTHORITY. UPON
RECEIPT OF SUCH FORMS, THEY
SHALL BE SIGNED BY THE DIRECTOR 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. REASONABLE STEPS SHALL
BE TAKEN TO ENDURE THAT
PAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(C) NOTIFY THE REGIONAL DIRECTOR, REGION V, 175 WEST JACKSON
BOULEVARD, SUITE A-1359,
CHICAGO, IL 60604, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER AS TO WHAT STEPS
HAVE BEEN TAKEN TO COMPLY HEREWITH.
ELI NASH, JR.
ADMINISTRATIVE LAW JUDGE
DATED: JANUARY 12, 1981
WASHINGTON, D.C.
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 FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE LABOR-MANAGEMENT
RELATIONS IN THE FEDERAL SERVICE WE HEREBY NOTIFY OUR
EMPLOYEES THAT:
WE WILL NOT UNILATERALLY ALTER OR CHANGE THE PAST PRACTICE OF
SUPPLYING INFORMATION TO AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
LOCAL 2280, AFL-CIO, WHICH IS RELEVANT AND NECESSARY FOR IT TO PERFORM
ITS REPRESENTATIONAL RESPONSIBILITIES, WITHOUT CHARGE, WITHOUT FIRST
BARGAINING WITH AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2280,
AFL-CIO, OR ANY OTHER EXCLUSIVE REPRESENTATIVE.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED UNDER
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE.
WE WILL, UPON REQUEST REPAY THE $12.15 CHARGED FOR RELEVANT AND
NECESSARY INFORMATION IN CONNECTION WITH THE MAINTENANCE MECHANIC
POSITION GRIEVANCE.
(AGENCY OR ACTIVITY)
DATED: BY:
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ANY OF ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE
REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION V, 175 WEST
JACKSON, SUITE A-1359, CHICAGO, IL 60604.
--------------- FOOTNOTES$ ---------------
/1/ SECTION 7116(A)(1), (5) AND (8) PROVIDES:
SEC. 7116. UNFAIR LABOR PRACTICES
(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF
ANY RIGHT UNDER THIS CHAPTER;
* * * *
(5) TO REFUSE TO CONSULT OR NEGOTIATE IN GOOD FAITH WITH A LABOR
ORGANIZATION AS REQUIRED
BY THIS CHAPTER;
* * * *
(8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
CHAPTER.
/2/ SPECIFICALLY, HE FOUND THAT THE INFORMATION CONSISTED OF RATING
AND RANKING SHEETS AS WELL AS SUPERVISORY AND QUALIFICATIONS STATEMENTS
CONCERNING THE TOP FIVE CANDIDATES IN A MERIT PROMOTION ACTION WHICH WAS
THE SUBJECT OF AN EMPLOYEE GRIEVANCE.
/3/ SECTION 7114(B)(4) OF THE STATUTE PROVIDES:
(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(.)
/4/ THE RESPONDENT CONTENDED FOR THE FIRST TIME AT THE HEARING BEFORE
THE JUDGE THAT THE INFORMATION REQUESTED WAS NOT ESTABLISHED TO BE
NECESSARY AND RELEVANT. SUCH CONTENTION WAS PROPERLY REJECTED BY THE
JUDGE. SEE, E.G., DEPARTMENT OF THE NAVY, PORTSMOUTH NAVAL SHIPYARD, 4
FLRA NO. 82(1980); BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, NATIONAL
OFFICE AND WESTERN REGION, SAN FRANCISCO, CALIFORNIA, 8 FLRA NO.
108(1982).
/5/ CONTRARY TO THE RESPONDENT'S ASSERTION, THE UNION'S REQUESTS, AS
THE EXCLUSIVE REPRESENTATIVE, FOR INFORMATION HEREIN COULD NOT PROPERLY
BE CONSIDERED TO HAVE BEEN MADE PURSUANT TO THE FREEDOM OF INFORMATION
ACT UNDER WHICH A FEE MAY BE CHARGED. SEE VETERANS ADMINISTRATION
REGIONAL OFFICE, DENVER, COLORADO, 7 FLRA NO. 100(1982); BUREAU OF
ALCOHOL, TOBACCO AND FIREARMS, NATIONAL OFFICE AND WESTERN REGION, SAN
FRANCISCO, CALIFORNIA, 8 FLRA NO. 108(1982).
/6/ RESPONDENT'S MOTION TO CORRECT THE TRANSCRIPT IS GRANTED.
/7/ RESPONDENT'S ALSO CONTENDED, AT THE HEARING, THAT THE UNION DID
NOT ESTABLISH THE NECESSITY OR RELEVANCY OF THE INFORMATION. CLEARLY
THE REQUESTED INFORMATION INVOLVED AN ACTIVE GRIEVANCE AND RESPONDENT
NEVER BEFORE HEARING CONTESTED ITS RELEVANCY.
/8/ THE RECORD HEREIN SUPPORTS A FINDING THAT AN ACTUAL GRIEVANCE WAS
BEING PURSUED WHEN THE INFORMATION SOUGHT WAS REQUESTED. IT IS
THEREFORE UNNECESSARY TO COMMENT ON THE GENERAL COUNSEL'S CONTENTION
THAT "REASONABLE FISHING EXPEDITIONS" ARE ACCEPTABLE.
/9/ SECTION 7114(B)(4)(A) AND (B) READS IN PERTINENT PART:
(B) THE DUTY OF AN AGENCY AND AN EXCLUSIVE REPRESENTATIVE TO
NEGOTIATE IN GOOD FAITH
. . . SHALL INCLUDE THE OBLIGATION--
(4) IN THE CASE OF AN AGENCY, TO FURNISH TO THE EXCLUSIVE
REPRESENTATIVE INVOLVED
. . . DATA
(A) WHICH IS NORMALLY MAINTAINED BY THE AGENCY IN THE REGULAR COURSE
OF BUSINESS . . .
(B) WHICH IS REASONABLY AVAILABLE AND NECESSARY . . .